Andrew Faris v. United States Postal Service ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW D. FARIS, DOCKET NUMBER
Appellant, CH-0353-20-0494-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: April 30, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Andrew D. Faris , Indianapolis, Indiana, pro se.
Alison D. Alvarez , Esquire, Chicago, Illinois, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
dismissed his constructive suspension appeal for lack of jurisdiction . On petition
for review, the appellant makes the following arguments: the administrative
judge was not impartial and was biased against him; the agency discriminated
against him on the basis of his race in connection with his alleged constructive
suspension; the agency retaliated against him due to his union activity; and the
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
administrative judge made erroneous factual determinations and credibility
findings. The appellant also provides additional evidence in the form of
employee assignment work sheets that he alleges reflect safety violations by the
agency. Generally, we grant petitions such as this one only in the following
circumstances: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the administrative
judge’s rulings during either the course of the appeal or the initial decision
were not consistent with required procedures or involved an abuse of discretion,
and the resulting error affected the outcome of the case; or new and material
evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petitioner has not
established any basis under section 1201.115 for granting the petition for review.
Regarding the appellant’s specific challenges to the administrative judge’s
factual findings and credibility determinations, the appellant restates his claims
that he provided a copy of his light duty request form to his supervisors by U.S.
postal mail, and that one of his supervisors verbally informed him that he was
removed as of January 3, 2020, both of which the administrative judge considered
and rejected below. Petition for Review (PFR) File, Tab 1 at 4-5; see Initial
Appeal File (IAF), Tab 44, Initial Decision (ID) at 9-11. The administrative
judge based her decision to credit the supervisors’ testimony that they did not
receive a copy of the light duty request form over the appellant’s claim that he
sent it by postal mail, and one supervisor’s testimony denying that she ever
informed the appellant that he was removed as of January 3, 2020, on her
demeanor-based credibility determination of each witness’s testimony. See ID
at 8-11 (citing Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987)).
The appellant’s arguments on review are not sufficient to disturb the
3
administrative judge’s finding. See Haebe v. Department of Justice, 288 F.3d
1288, 1301 (Fed. Cir. 2002) (observing that the Board generally must give
deference to an administrative judge’s credibility determinations when they are
based, explicitly or implicitly, on the observation of the demeanor of witnesses
testifying at a hearing); Mithen v. Department of Veterans Affairs, 122 M.S.P.R.
489, ¶ 13 (2015) (noting that an administrative judge’s credibility determinations
are “virtually unreviewable”), aff’d, 652 F. App’x 971 (Fed. Cir. 2016); Crosby v.
U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb
the administrative judge’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions on issues of
credibility).
With respect to the appellant’s allegation that the administrative judge was
not impartial and was biased against him, it is well established that conclusory
claims of bias which do not involve extrajudicial conduct do not overcome the
presumption of honesty and integrity that accompanies administrative
adjudicators. Simpkins v. Office of Personnel Management, 113 M.S.P.R. 411,
¶ 5 (2010). An administrative judge’s conduct during the course of a Board
proceeding will warrant a new adjudication only if her comments or actions
evidence “a deep-seated favoritism or antagonism that would make fair judgment
impossible.” Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed.
Cir. 2002). The appellant’s conclusory assertion of bias and allegation that
administrative judges “always side[] with” the government, unsupported by any
objective evidence, does not meet this standard. PFR File, Tab 1 at 4.
Regarding the appellant’s argument that the agency discriminated against
him and treated him differently on the basis of his race, in the prehearing
conference summary, the administrative judge identified the relevant issues to be
decided in the appeal, including the appellant’s affirmative defenses, and
specifically noted that during the prehearing conference the appellant confirmed
that he was not asserting race discrimination or age discrimination as an
4
affirmative defense. IAF, Tab 41 at 6 n.3. The administrative judge provided the
appellant with the opportunity to object to the summary in writing, which the
appellant failed to do, and he did not raise a race discrimination claim at any
point thereafter until his petition for review filing. Id. at 13. Accordingly, to
whatever extent the appellant is now attempting to raise a race discrimination
claim, he effectively waived his right to raise such a claim. See Thurman v. U.S.
Postal Service, 2022 MSPB 21, ¶¶ 17-18 (setting forth a nonexhaustive list of
relevant factors to be considered in determining whether an appellant has waived
or abandoned an affirmative defense, such as whether he failed to object to a
summary of issues that did not include it). Similarly, regarding the appellant’s
claim that agency officials retaliated against him due to his union activity, the
appellant did not raise this argument below, so we need not consider it. See Clay
v. Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (noting that the Board
generally will not consider an argument raised for the first time in a petition for
review absent a showing that it is based on new and material evidence not
previously available despite the party’s due diligence); Banks v. Department of
the Air Force, 4 M.S.P.R. 268, 271 (1980) (same); 5 C.F.R. § 1201.115(d).
Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 2 5 C.F.R. § 1201.113(b).
2
Regarding the employee assignment worksheets the appellant provides for the first
time with his petition for review, the appellant has not shown that any of this
information is both new and material. PFR File, Tab 1 at 5, 7-10; see Okello v. Office
of Personnel Management, 112 M.S.P.R. 563, ¶ 10 (2009) (noting that under 5 C.F.R.
§ 1201.115(d), the Board will not consider evidence submitted for the first time with a
petition for review absent a showing that it is both new and material). All of the
records are dated to the period from December 13 through December 21, 2018, which is
well before the February 23, 2021 initial decision was issued in this case, and the
appellant has not explained why they were not provided before the record closed.
See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (explaining that, under
5 C.F.R. § 1201.115, the Board generally will not consider evidence submitted for the
first time on review absent a showing that it was unavailable before the record was
closed despite the party’s due diligence). Further, the appellant has not explained how
these documents, which appear to identify a number of job duties the appellant
completed on the identified workdays, are relevant to the dispositive jurisdictional
matter at issue in this appeal, which is whether he was constructively suspended during
5
NOTICE OF APPEAL RIGHTS 3
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
the period from January 3, 2020 through February 14, 2020. Accordingly, we have not
considered them.
3
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
7
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
8
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
9
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.