David Wyatt v. United States Postal Service ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID L. WYATT, DOCKET NUMBER
Appellant, CH-0752-19-0271-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: May 31, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
David L. Wyatt , Portage, Michigan, pro se.
Maryl Rosen , St. Louis, Missouri, 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
sustained the agency’s removal action pursuant to 5 U.S.C. chapter 75.
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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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.
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).
The appellant asserts that he was unaware that a particular material witness
would not be testifying “until the day of the hearing,” and he contends that the
agency’s decision not to call this witness “was a direct underhanded move . . . to
deny due process.” Petition for Review (PFR) File, Tab 4 at 9, Tab 9 at 4-5. The
record reflects that both parties sought, and the administrative judge approved,
the testimony of this particular witness. Initial Appeal File (IAF), Tab 17 at 7,
Tab 18 at 15, Tab 19 at 5. During the hearing, agency counsel explained that she
had contacted the subject witness and requested that she appear; however, the
witness, who had retired from Federal service, ultimately declined to participate.
IAF, Tab 22, Hearing Recording (HR) at 20:35 to 21:05, 21:29 to 22:12
(statements of agency counsel, file 5). The appellant’s prehearing statement
indicates that the appellant knew the witness had retired. IAF, Tab 17 at 7.
When asked whether he had contacted or otherwise attempted to ensure the
presence of this witness, the appellant’s counsel indicated only that he had asked
a colleague to contact the witness, but the colleague had not received a response.
HR at 22:13 to 22:32 (statement of the appellant’s counsel, file 5). The
administrative judge explained that, because neither party had subpoenaed this
particular witness and the deadline to do so had passed, the witness could not be
called. HR at 22:35 to 22:58 (statement of the administrative judge, file 5).
3
Thus, the appellant was not deprived of his right to question this witness insofar
as he could have subpoenaed her, but he failed to do so. See Lohr v. Department
of the Air Force, 24 M.S.P.R. 383, 386 (1984). Moreover, if the appellant was
surprised by the agency’s failure to call this witness at the hearing, he could have
requested a continuance in order to obtain her testimony; however, he did not. Id.To the extent the appellant faults his attorney for failing to either subpoena the
witness or request a continuance, PFR File, Tab 4 at 9, his contention is
unavailing as the Board has routinely held that appellants are responsible for the
actions and inactions of their chosen representatives, see, e.g., Sparks v. U.S.
Postal Service, 32 M.S.P.R. 422, 425 (1987). 2
The appellant contends that the administrative judge erred by “limiting
[his] witnesses.” PFR File, Tab 4 at 5. The appellant initially suggests that he
requested the testimony of two witnesses, but the administrative judge denied his
request. Id. However, he later concedes that, through his attorney, he agreed to
withdraw these two witnesses. Id. at 10. Further, following a prehearing
conference in which both the appellant and his representative participated, the
administrative judge issued an order wherein she summarized, among other
things, the appellant’s withdrawal of these two proffered witnesses. IAF, Tab 19
at 1, 6. The administrative judge advised the parties to “carefully review [the]
summary and order,” explaining that, if either party believed that her summary
was incorrect, they must notify her by a specific date. Id. at 1, 8. She explained
that, in the absence of such notice and good cause, the order would not be
modified. Id. at 8. The appellant never filed such notice or otherwise indicated
that the administrative judge’s summary was incorrect. See Parker v. Department
of Veterans Affairs, 122 M.S.P.R. 353, ¶ 20 (2015) (finding the appellant’s
2
The appellant provides written statements from this witness dated after the issuance of
the initial decision. PFR File, Tab 9 at 6-9. Insofar as these statements do not
constitute new evidence, a different outcome is not warranted. See 5 C.F.R.
§ 1201.115(d) (“To constitute new evidence, the information contained in the
documents, not just the documents themselves, must have been unavailable despite due
diligence when the record closed.”).
4
contention that the administrative judge had improperly denied two of her witness
requests unavailing when the appellant did not object to the administrative
judge’s summary of the parties’ prehearing conference, which indicated that the
appellant had not requested any witnesses). To the extent the appellant faults his
attorney for either withdrawing these witnesses or failing to object to the
administrative judge’s order, his contention is unavailing. See Sparks,
32 M.S.P.R. at 425.
The appellant alleges that the agency failed to timely provide certain
documents. PFR File, Tab 4 at 5, 10-11. The appellant appears to be reasserting
an argument that he first raised at the hearing, i.e., that his due process rights
were violated because the deciding official relied on information that the agency
failed to timely provide him. IAF, Tab 20 at 1-3. We believe he contends that,
although the agency timely provided him with the Report of Investigation (ROI)
issued by the agency’s Office of the Inspector General (OIG), it did not timely
provide him with five handwritten sworn witness statements that were exhibits to
the ROI. PFR File, Tab 4 at 11; IAF, Tab 10 at 52-53, 75-78, 131-38, 148-59,
236-38, 241-44. 3 The Board has found that a deciding official violates an
employee’s constitutional due process rights when he relies on new and material
ex parte information as a basis for his decision on either the merits of a proposed
charge or the penalty to be imposed. See Mathis v. Department of State,
122 M.S.P.R. 507, ¶ 6 (2015). Here, we discern no basis to disturb the
administrative judge’s conclusion that the appellant failed to show that the agency
violated his due process rights. ID at 29-33. The administrative judge found,
based on a credibility determination, that the deciding official considered only
information that the agency had timely provided to the appellant, i.e., the
deciding official did not consider any ex parte information. ID at 17, 32. The
deciding official specifically testified that he could not recall reviewing any
3
The appellant references sworn statements from five witnesses, PFR File, Tab 4 at 11;
however, one of the five witnesses that he enumerates declined to provide a sworn
written statement, IAF, Tab 10 at 140.
5
handwritten witness statements. IAF, Tab 26, Hearing Recording at 5:12 to 5:35
(testimony of the deciding official, file 1). The Board must defer to an
administrative judge’s credibility determinations when they are based, explicitly
or implicitly, on the observation of the demeanor of witnesses at a hearing; the
Board may overturn such determinations only when it has “sufficiently sound”
reasons for doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed.
Cir. 2002). We find no reason to overturn the administrative judge’s findings on
this issue.
The appellant avers that the agency committed harmful procedural error by
improperly using information from events that transpired between 2006 and 2008.
PFR File, Tab 4 at 12. Here, we believe the appellant is alleging that, in 2006, he
cooperated with an agency OIG investigation, after which he became a
“management scapegoat” and a retaliatory sexual harassment claim was levied
against him. PFR File, Tab 4 at 12, Tab 9 at 16-18; IAF, Tab 10 at 181-222. The
appellant alleges that he was ultimately “exonerated on all charges” related to this
claim, and that, in 2008, the agency agreed to destroy the “case records files”
related to this claim; however, the agency provided these documents as part of its
response file, thereby evincing that it had failed to destroy the documents. PFR
File, Tab 4 at 12, Tab 9 at 10-14; IAF, Tab 10 at 181-222, Tab 16 at 4. Pursuant
to 5 U.S.C. § 7701(c)(2)(A), the Board will not sustain an agency’s decision if the
appellant “shows harmful error in the application of the agency’s procedures in
arriving at such decision.” A procedural error is harmful when the record shows
that an error by the agency was likely to have caused the agency to reach a
conclusion different from the one it would have reached in the absence or cure of
the error. Pumphrey v. Department of Defense, 122 M.S.P.R. 186, ¶ 10 (2015);
5 C.F.R. § 1201.4(r). Here, to the extent the appellant alleges that the agency’s
failure to destroy these documents constituted harmful procedural error, we find
his contention unavailing. Indeed, the appellant provides the parties’ 2008
agreement and associated documents; however, nothing therein supports his
6
assertion that the agency relied on information that should have been purged from
its records. PFR File, Tab 9 at 10-14. The settlement agreement indicates only
that the agency would “remove all discipline from [the appellant’s] current and
past records.” Id. at 13. In imposing his removal, the agency did not rely on any
“discipline” or incidents from 2006-2008. IAF, Tab 8 at 52-56, Tab 9 at 7-19.
The record reflects that the OIG interviewed a witness in November 2017 who
referred to her 2007 complaint alleging inappropriate behavior by the appellant.
IAF, Tab 10 at 39-40, 179-80. The ROI summarized this interview and identified
the memorandum of that interview and a 2007 fact-finding investigation as
exhibits. Id. at 39-40, 51-52, 179-222. The appellant has failed to show that the
agency committed any error in this regard. In particular, we find that the
appellant has shown no error under the 2008 settlement agreement. Moreover,
even assuming that the agency erred by failing to purge the subject documents,
the appellant has failed to explain how this alleged failure caused the agency to
reach a different conclusion. There is no indication that the deciding official
received the underlying investigatory documents or considered the 2007 claim to
constitute prior discipline. 4 IAF, Tab 8 at 55-56. Thus, we discern no basis to
disturb the initial decision.
The appellant states in his petition that he “has now requested 3 times for a
Whistle-blowers investigation to be done.” PFR File, Tab 4 at 12 (punctuation as
in original). With his reply, he indicates that he “had initially requested a
Whistle-Blowers investigation on the Proposed Letter of Removal,” and he
explains that, following the issuance of the initial decision, he appealed for
intervention from Attorney General William Barr because he feels that he has
4
The decision letter references the appellant’s “lack of active discipline.” IAF, Tab 8
at 56 (emphasis added). Based on the record, we do not believe that the deciding
official considered any prior discipline, much less anything related to the events
transpiring between 2006 and 2008; rather, we believe that the deciding official made
this statement in response to the appellant’s written reply to the notice of proposed
removal wherein the appellant proffered that he “ha[d] no active discipline on record.”
Id. at 64 (emphasis added).
7
“been retaliated due to [his] previous Whistle -Blowers cooperation with the
[agency] OIG.” PFR File, Tab 9 at 15-19 (grammar and punctuation as in
original). To the extent the appellant is alleging that the agency’s removal action
was in reprisal for his cooperation with the 2006 OIG investigation, a different
outcome is not warranted as he fails to explain why he did not raise this argument
before the administrative judge. 5 See Banks v. Department of the Air Force,
4 M.S.P.R. 268, 271 (1980) (explaining that the Board 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).
The appellant disagrees with many of the administrative judge’s factual
findings and he contends that the agency failed to prove its charges; indeed, a
substantial portion of his petition for review is devoted to his alternative version
of events and his independent assessment of the credibility of the testifying
witnesses. PFR File, Tab 4 at 5-11. We have considered his assertions in their
entirety; however, his arguments do not warrant a different outcome. 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 findings when she considered the evidence as a
whole, drew appropriate inferences, and made reasoned conclusions); Broughton
v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987).
The appellant also provides, for the first time, medical records tending to
show that he was experiencing physical ailments, to include high blood pressure,
on November 7, 2016. PFR File, Tab 4 at 14-17. The appellant seemingly
provides these documents to show that he was not at work during some of the
5
At the bottom of the agency’s notice of proposed removal, the appellant wrote that he
was “Requesting Whistle blowers Protection” because an OIG Special Agent harbored
retaliatory animus against him. IAF, Tab 9 at 19 (punctuation as in original). However,
a different outcome is not warranted as the appellant, who was represented by counsel
before the administrative judge, did not raise this issue on his initial appeal form, IAF,
Tab 1, in his affirmative defenses pleading, IAF, Tab 16 at 4, or in his prehearing
submission, IAF, Tab 17 at 4-7. Accordingly, the administrative judge did not address
this allegation in her initial decision.
8
events underlying the agency’s charges against him. Id. at 5. However, the
records predate the initial decision, and the appellant provides no explanation as
to why he did not file this evidence with the administrative judge. See Avansino
v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980) (finding that the Board
generally will not consider evidence submitted for the first time with the petition
for review absent a showing that it was unavailable before the record was closed
despite the party’s due diligence). Moreover, the medical records are immaterial
insofar as the agency did not allege, and the administrative judge did not find,
that the appellant was at work on the date in question; rather, the appellant
contacted subordinate management officials remotely via telephone and text
message. IAF, Tab 8 at 38-39; see Russo v. Veterans Administration, 3 M.S.P.R.
345, 349 (1980) (stating that the Board will not grant a petition for review based
on new evidence absent a showing that it is of sufficient weight to warrant an
outcome different from that of the initial decision).
The appellant also provides documents suggesting that, after the issuance
of the initial decision, the agency took personnel actions involving two other
agency employees. PFR File, Tab 4 at 18-19. The appellant seemingly provides
one of these documents to suggest that an agency management official involved
in the investigation “took a downgrade” after the issuance of the initial decision;
however, the appellant does not clearly allege the basis for the downgrade and he
provides no discernable explanation as to the relevance of this personnel action.
Id. at 11, 18. Thus, we find that these documents are not of sufficient weight to
warrant a different outcome. 6 See Russo, 3 M.S.P.R. at 349.
6
The appellant also provides a page of math homework, which was presumptively
included in error. PFR File, Tab 4 at 13.
9
NOTICE OF APPEAL RIGHTS 7
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:
7
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.
10
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
11
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
12
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. 8 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.
8
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.
13
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.