Tommy Ruff v. United States Postal Service ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TOMMY L. RUFF, DOCKET NUMBER
Appellant, DC-0752-16-0840-I-2
v.
UNITED STATES POSTAL SERVICE, DATE: February 5, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Tommy L. Ruff , Conover, North Carolina, pro se.
Brandon Truman , Esquire, St. Louis, Missouri, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s removal action. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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
Effective August 12, 2016, the agency removed the appellant from his
Supervisor of Maintenance Operations position based on a charge of improper
conduct. Ruff v. U.S. Postal Service, MSPB Docket No. DC-0752-16-0840-I-1,
Initial Appeal File (IAF), Tab 4 at 21, 25. The agency’s charge alleged, among
other things, that the appellant made comments and gestures of a sexual nature to
a female subordinate employee. Id. at 29-30. For example, the appellant
allegedly asked her if he could rub her back and if he could come to her house.
Id. at 29. He also allegedly sent her a text message that stated, “I want u [sic].”
Id.The appellant appealed his removal to the Board and requested a hearing.
IAF, Tab 1 at 1-5. The administrative judge dismissed the appeal without
prejudice and refiled it. Ruff v. U.S. Postal Service, MSPB Docket No. DC-0752-
16-0840-I-2, Appeal File (I-2 AF), Tabs 1-2. The appellant disputed the agency’s
charge but conceded during a prehearing conference that, if the agency proved the
charged misconduct, there is a nexus between the misconduct and the efficiency
of the service and that the penalty imposed does not exceed the bounds of
reasonableness. I-2 AF, Tab 3 at 4-5, Tab 5 at 2.
3
After holding a hearing, the administrative judge issued an initial decision
affirming the removal action. I-2 AF, Tab 9, Initial Decision (ID) at 2, 16-17.
Specifically, he sustained the improper conduct charge, ID at 3-16, and noted the
appellant’s concession of the existence of a nexus and the reasonableness of the
penalty, ID at 3 n.4.
The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response opposing his petition. PFR File,
Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency proved its charge of improper conduct by preponderant evidence.
On review, the appellant challenges the administrative judge’s finding that
the agency proved its charge of improper conduct, raising the following
arguments: (1) the administrative judge erred in relying on the testimony of the
complaining witness (complainant); (2) the administrative judge did not allow
him to present employee statements during the hearing purportedly relating to the
complainant’s credibility; (3) one of his approved witnesses was not available to
testify at the hearing; and (4) he was not properly represented by his attorney
below. 2 PFR File, Tab 1 at 5. As discussed below, we affirm the administrative
judge’s finding that the agency proved the charge by preponderant evidence. ID
at 16; see Lachance v. Merit Systems Protection Board, 147 F.3d 1367, 1371
(Fed. Cir. 1998) (finding that, when an agency has employed a generic label for
the charge, the Board must look to the specification to determine what conduct
the agency is relying on as the basis for its proposed action).
The administrative judge found that the complainant’s testimony was more
credible than the appellant’s. ID at 15. Specifically, the administrative judge
observed the complainant’s demeanor and found that she testified in a
straightforward, consistent, and unrehearsed manner. Id. He also found that her
2
The appellant’s attorney withdrew from representation after the hearing and before the
issuance of the initial decision. I-2 AF, Tab 7.
4
testimony was consistent with her previous statements. Id. The administrative
judge further found unconvincing the appellant’s claim that the complainant
falsified her testimony because she wanted his position or disliked the fact that he
was her supervisor. Id. In addition, the administrative judge observed that the
appellant appeared willing to alter his version of events on the spot. ID at 16.
Moreover, the administrative judge found that the appellant’s proffered reasons
for sending the text messages at issue were inherently implausible. Id.The 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. Haebe v. Department of Justice,
288 F.3d 1288, 1301 (Fed. Cir. 2002). Here, the administrative judge heard live
testimony and based his credibility determinations on the demeanor of the
witnesses. ID at 15-16. Thus, the Board may overturn such determinations only
if it has “sufficiently sound” reasons for doing so. Haebe, 288 F.3d at 1301. For
the following reasons, we find that the appellant’s allegations do not provide a
sufficiently sound reason to overturn the administrative judge’s credibility
determinations. See Rapp v. Office of Personnel Management, 108 M.S.P.R. 674,
¶ 13 (2008) (finding that a sufficiently sound reason to overturn a credibility
determination is when the administrative judge’s findings are incomplete,
inconsistent with the weight of the evidence, and do not reflect the record as a
whole).
The appellant alleges that the administrative judge did not allow him to
present employee statements during the hearing purportedly discrediting the
complainant’s testimony. 3 PFR File, Tab 1 at 5. He argues that such statements
3
During the hearing, the appellant’s attorney asked the appellant why he believed the
complainant had a motivation to give false testimony. I-2 AF, Tab 6, Hearing Compact
Disc (direct examination of the appellant). He testified that, during the agency’s
investigation, several employees made statements asserting harassment by the
complainant. Id. The agency representative objected to this testimony, and the
administrative judge overruled the objection. Id. The administrative judge then
instructed the appellant to answer his attorney’s question. Id.5
prove that she was motivated to give false testimony and that she has been
accused of harassment by other male employees. Id. The Board has held that an
administrative judge must consider, among other things, the character and bias of
a witness when making a credibility determination. Hillen v. Department of the
Army, 35 M.S.P.R. 453, 458-60 (1987).
Based on our review of the record, we find that the appellant has failed to
prove that the administrative judge excluded evidence relevant to the
complainant’s credibility. See Thomas v. U.S. Postal Service, 116 M.S.P.R. 453,
¶ 4 (2011) (finding that, to prove that an administrative judge abused his
discretion in excluding evidence, an appellant must show that the disallowed
evidence would have affected the outcome of the appeal). The record below
contains investigatory notes of employee interviews. IAF, Tab 4 at 75-88,
98-100, 104-05, 107-09. The administrative judge properly considered this
evidence in determining the credibility of the complainant’s testimony. ID
at 16 n.22. Moreover, to the extent the appellant is referring to employee
statements not contained in the record below, he has failed to describe or provide
such evidence on review. PFR File, Tab 1. Thus, we find that the appellant has
failed to prove that the administrative judge erred in relying on the complainant’s
testimony in sustaining the agency’s charge. See Crosby v. U.S. Postal Service,
74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the administrative
judge’s credibility findings when she considered the evidence as a whole, drew
appropriate references, and made reasoned conclusions on issues of credibility).
Regarding the appellant’s arguments—that his approved witness was
unable to testify at the hearing and that he was not properly represented by his
attorney below—we find that they provide no basis to disturb the initial decision.
PFR File, Tab 1 at 5. The appellant has neither alleged any potential testimony
that the approved witness could have made that would have led to a different
outcome, nor provided a statement from the approved witness on review. PFR
File, Tab 1; see 5 C.F.R. § 1201.115(d) (providing that the Board may grant a
6
petition for review based on new and material evidence or legal argument).
Moreover, except when an appellant’s diligent efforts to prosecute an appeal have
been thwarted, without his knowledge, by his attorney’s deceptions, negligence,
or malfeasance, an appellant generally is responsible for the errors of his chosen
representative. Pacilli v. Department of Veterans Affairs, 113 M.S.P.R. 526,
¶ 13, aff’d, 404 F. App’x 466 (Fed. Cir. 2010). Here, we find that the appellant
has not presented circumstances to warrant finding an exception to that general
principle.
Finally, the appellant has not challenged the issues of nexus or penalty on
review after conceding them below. PFR File, Tab 1; ID at 3 n.4; I-2 AF, Tab 5
at 2; see Hall v. Department of Defense, 117 M.S.P.R. 687, ¶ 6 (2012) (explaining
that, in an adverse action appeal, the agency generally must prove its charge by
preponderant evidence and establish a nexus between the sustained misconduct
and the efficiency of the service, and that the penalty is within the tolerable
bounds of reasonableness). Accordingly, we find that the administrative judge
properly affirmed the agency’s removal action.
NOTICE OF APPEAL RIGHTS 4
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
4
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
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:
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.
8
(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
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:
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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
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. 5 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).
5
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.
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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.
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.