Amelia Canda v. United States Postal Service ( 2024 )


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  •                       UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    AMELIA S. CANDA,                                DOCKET NUMBER
    Appellant,                        DC-0752-16-0060-I-1
    v.
    UNITED STATES POSTAL SERVICE,                   DATE: May 16, 2024
    Agency.
    THIS FINAL ORDER IS NONPRECEDENTIAL 1
    Steven Newman , Esquire, New York, New York, for the appellant.
    LaDonna L. Griffith-Lesesne , Esquire, Landover, Maryland, 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
    affirmed her removal based on a charge of improper conduct. 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
    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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
    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.      Therefore, we DENY the petition for review and
    AFFIRM the initial decision, which is now the Board’s final decision. 
    5 C.F.R. § 1201.113
    (b).
    BACKGROUND
    The appellant was employed as a supervisor at one of the agency’s
    processing and distribution centers. Initial Appeal File (IAF), Tab 5 at 18, 25. In
    September 2014, the agency’s Office of Inspector General (OIG) began an
    investigation of an allegation that the appellant and another supervisor were
    inflating, falsifying, and manipulating numbers and data using employee login
    information. IAF, Tab 9 at 9. The OIG produced a report of investigation (ROI)
    as a result of that investigation.     IAF, Tabs 9-10.      The agency proposed the
    appellant’s removal based upon one charge of improper conduct, which contained
    five specifications (specifications A-E).      IAF, Tab 5 at 25-30.       The deciding
    official sustained the charge and removed the appellant. 2 
    Id. at 20-23
    .
    The appellant thereafter filed this appeal with the Board, but she did not
    raise any affirmative defenses. IAF, Tabs 1, 41. The administrative judge held
    the requested hearing. IAF, Tabs 49-50, 52-54, Hearing Compact Disc; Hearing
    2
    The decision letter does not clearly indicate whether the deciding official sustained
    specification C, involving allegations that the appellant threatened an employee with
    disciplinary action unless he changed his password to the common password. IAF,
    Tab 5 at 20-23, 26. At the hearing, however, the deciding official testified that she did
    not sustain “charge C,” apparently referring to this specification. IAF, Tab 52, Hearing
    Compact Disc 3 (testimony of the deciding official).
    3
    Transcript (HT).   During the hearing, the agency presented excerpts from the
    agency’s 24-hour video surveillance footage to support specifications A, B, and
    D. These specifications alleged that the appellant instructed her subordinates to
    change the color-code tags on mail, gave her subordinates a common password so
    that the mail processing machine would record mail as being processed, and
    handed to a subordinate a list of employee login information to enable the
    subordinate to inflate the mail count, respectively. 3 IAF, Tab 5 at 25-26. During
    the hearing, the appellant’s attorney challenged the admissibility of the excerpted
    video surveillance footage after it was revealed that the OIG investigator who
    conducted the surveillance downloaded and excerpted only those portions of the
    footage that were relevant to the investigation. HT-1 at 67-68 (testimony of the
    OIG investigator); HT-2 at 93-102 (same). The administrative judge admitted the
    excerpted video surveillance footage into the record, based on the OIG
    investigator’s testimony regarding its accuracy.          HT-2 at 102-03.        The
    administrative judge issued an initial decision in which he made several
    credibility determinations in the agency’s favor, sustained all of the specifications
    except for specification C, sustained the improper conduct charge, and affirmed
    the removal penalty. IAF, Tab 55, Initial Decision (ID) at 1-35.
    The appellant has filed a petition for review, the agency has filed a
    response, and the appellant has filed a reply. Petition for Review (PFR) File,
    Tabs 1, 5, 8.
    DISCUSSION OF ARGUMENTS ON REVIEW
    The appellant argues on review that the administrative judge erred by
    admitting into evidence excerpted portions of the agency’s 24-hour video
    surveillance footage. PFR File, Tab 1 at 4, 22-23, Tab 8 at 4-5. She also asserts
    that her due process rights were violated because the agency was provided with
    3
    In specification E, the agency alleged that for each day of the week beginning on
    April 13, 2015, the appellant’s work hours were erroneously recorded and inflated in
    the time and attendance system. IAF, Tab 5 at 26.
    4
    the unexcerpted video surveillance footage and such footage “might have led” to
    exculpatory evidence and other witnesses. PFR File, Tab 1 at 8, Tab 8 at 5.
    We discern no error with the administrative judge’s decision to admit the
    excerpted video surveillance footage. See 
    5 C.F.R. § 1201.41
    (b)(3) (stating that
    administrative judges have the authority to receive relevant evidence). The OIG
    investigator testified that she downloaded portions of the agency’s 24-hour video
    surveillance footage that she was watching live as the footage was being captured
    and recorded. HT-1 at 58, 60-61, 66 (testimony of the OIG investigator). The
    OIG investigator further testified that she downloaded only the portions that were
    relevant to the ROI, and she did not alter, change, or manipulate any video
    surveillance footage. 
    Id. at 68
     (testimony of the OIG investigator). We find that
    the OIG investigator’s testimony adequately authenticated the excerpted video
    surveillance footage.   Thus, the administrative judge properly exercised his
    discretion by admitting this evidence into the record.    See Curtin v. Office of
    Personnel Management, 
    846 F.2d 1373
    , 1378-79 (Fed Cir. 1988) (citing
    Spezzaferro v. Federal Aviation Administration, 
    807 F.2d 169
    , 173 (Fed. Cir.
    1986)).
    We also are not persuaded that a due process violation has occurred.
    Procedural due process guarantees are not met if the employee has notice of only
    certain charges or portions of the evidence and the deciding official considers
    new and material information; therefore, it is constitutionally impermissible to
    allow a deciding official to receive additional material information that may
    undermine the objectivity required to protect the fairness of the process. Stone v.
    Federal Deposit Insurance Corporation, 
    179 F.3d 1368
    , 1376 (Fed. Cir. 1999).
    Ultimately, the Board’s inquiry is whether the ex parte communication “is so
    substantial and so likely to cause prejudice that no employee can fairly be
    5
    required to be subjected to a deprivation of property under such circumstances.” 4
    
    Id. at 1377
    .
    In support of her contention that the agency violated her due process rights,
    the appellant asserts that the OIG investigator testified that she “offered the
    videos” to her managers, but not to her. PFR File, Tab 8 at 6 (citing HT-2 at 97
    (testimony of the OIG investigator)). It is not clear whether the proposing or
    deciding officials were given or reviewed the unexcerpted portions of the video
    surveillance footage. The appellant had the opportunity to clarify whether the
    OIG investigator actually provided additional, unexcerpted video surveillance
    footage to the agency, but she failed to do so.       See Sofio v. Internal Revenue
    Service, 
    7 M.S.P.R. 667
    , 670 (1981) (holding that the appellant is responsible for
    the errors of her chosen representative). Moreover, the appellant points to no
    evidence on review that the proposing or deciding officials considered any
    unexcerpted video surveillance footage. Because the appellant had the burden of
    proving her affirmative defense by preponderant evidence, we conclude that she
    submitted insufficient evidence to establish her due process claim.           
    5 C.F.R. § 1201.56
    (b)(2)(i)(C); see Hulett v. Department of the Navy, 
    120 M.S.P.R. 54
    ,
    ¶¶ 10-11 (2013) (instructing an administrative judge to apprise an appellant of his
    burden regarding his affirmative defense of a due process violation).
    The initial decision reflects that the administrative judge considered the
    relevant evidence and made factual findings and credibility determinations to
    support his decision to sustain specifications A, B, D, and E, and to sustain the
    improper conduct charge. ID at 1-31. Although not explicitly raised by either
    party on review, we discern no error with his findings in this regard.              See
    4
    The U.S. Court of Appeals for the Federal Circuit’s reasoning rests on the decision of
    the U.S. Supreme Court in Cleveland Board of Education v. Loudermill, 
    470 U.S. 532
    ,
    538-39, 546-49 (1985), which held that a tenured public employee has a constitutionally
    protected property interest in ongoing public employment and that an agency may not
    deprive such an employee of his property interest without providing him with due
    process of law, including the right to advance notice of the charges against him, an
    explanation of the agency’s evidence, and an opportunity to respond.
    6
    Haebe v. Department of Justice, 
    288 F.3d 1288
    , 1301 (Fed. Cir. 2002) (explaining
    that t he Board must defer to an administrative judge’s credibility determinations
    when they are based, explicitly or implicitly, on observing the demeanor of
    witnesses testifying at a hearing; the Board may overturn such determinations
    only when it has “sufficiently sound” reasons for doing so). We further find that
    the administrative judge applied the proper legal standard for evaluating the
    penalty, and we discern no error with his conclusion that the removal penalty is
    within the bounds of reasonableness for the sustained misconduct. ID at 31-35.
    NOTICE OF APPEAL RIGHTS 5
    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.
    5
    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.
    7
    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:
    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,
    8
    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
    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
    9
    (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
    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. 6   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.
    6
    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.
    10
    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.
    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.
    

Document Info

Docket Number: DC-0752-16-0060-I-1

Filed Date: 5/16/2024

Precedential Status: Non-Precedential

Modified Date: 5/17/2024