Natty v. United States Postal Service

NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
ANTHONY D. NATTY,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
__________________________
2011-3138
__________________________
Petition for review of the Merit Systems Protection
Board in case no. SF0752100847-I-1.
__________________________
Decided: October 11, 2011
__________________________
ANTHONY D. NATTY, of City of Industry, California,
pro se.
JEFFREY D. KLINGMAN, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and BRIAN M.
SIMKIN, Assistant Director.
__________________________
2 NATTY v. USPS
Before RADER, Chief Judge, LINN and DYK, Circuit
Judges.
PER CURIUM
Anthony D. Natty (“Natty”) appeals a final decision of
the Merit Systems Protection Board (“Board”) affirming
his demotion based on a charge of unacceptable conduct.
Because the Board’s decision is supported by substantial
evidence, is in accordance with the law, and does not
otherwise constitute reversible error, this court affirms.
BACKGROUND
Natty joined the Postal Service in 1990. By June
2010, he served as an EAS-24 Manager of Distribution
Operations (MDO), supervising a total workforce of 130
employees, including six subordinate supervisors. On
June 19, 2010, the agency demoted Natty to a PS-04 Part-
Time Flex Mail Handler based on a finding of unaccept-
able conduct. Natty appealed his demotion and the
Administrative Judge (“AJ”) found that Natty’s comments
about race and sex, and the intentional dropping of his
pants, supported the unacceptable conduct charge. Natty
v. U.S. Postal Serv., No. SF-0752-10-0847-I-1 (M.S.P.B.
Oct. 29, 2010). The AJ also found the agency’s action
timely and Natty’s demotion to a non-managerial position
within the agency’s discretion. Id. The AJ’s decision
became the final decision of the Board after the Board
denied Natty’s petition for review. Natty v. U. S. Postal
Serv., No. SF-0752-10-0847-I-1 (M.S.P.B. May 6, 2011).
Natty timely appealed. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9).
DISCUSSION
This court affirms a Board decision unless that deci-
sion is “(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained with-
NATTY v. USPS 3
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c). A petitioner bears the burden
of establishing reversible error in the Board’s decision.
Harris v. Dep’t of Veterans Affairs, 142 F.3d 1463, 1467
(Fed. Cir. 1998). To take adverse action against a federal
employee, an agency must establish that: (1) the charged
conduct occurred; (2) there is a nexus between the conduct
and the efficiency of the service; and (3) the penalty
imposed by the agency is reasonable. Malloy v. U.S.
Postal Serv., 578 F.3d 1351, 1356 (Fed. Cir. 2009). Here,
the AJ found that the Postal Service met all three ele-
ments. Natty contends, however, that the sex- and race-
based comments were acceptable because he was simply
explaining his dating preferences and a former Plant
Manager had approved of such comments. He also chal-
lenges the AJ’s fact finding and credibility determina-
tions. Finally, he argues that if his conduct was
unacceptable, the penalty of demotion is unreasonable.
To survive review, an administrative determination
must be supported by substantial evidence—relevant
evidence adequate to support a conclusion—based on the
record as a whole. Simpson v. Office of Pers. Mgmt., 347
F.3d 1361, 1364 (Fed. Cir. 2003). Here, the parties stipu-
lated that Natty made ongoing comments about race and
sex since 2009. The agency’s deciding official, Daryl West,
testified at the administrative hearing that Natty’s prior
managerial Equal Employment Opportunity (“EEO”)
training provided him with notice that such conduct was
inappropriate at work. In his defense, Natty cites a letter
from a former Plant Manager, Virginia Tovar, as evidence
that the agency previously approved of similar comments.
While this letter referenced a comment Natty made about
dating members of a specific race, it did not condone sex-
or race-based comments at work. The letter simply
explained the appropriate response when a subordinate
employee asked Natty on a date. Nor was Tovar’s letter
4 NATTY v. USPS
an adjudication of the issues presented in this case; the
cases Natty relies on to this effect are inapposite. Finally,
Carol Miller testified that Natty made inappropriate sex-
based comments to her, other than merely stating his
dating preference, over a six month period. Thus, there is
substantial evidence in the record to support the AJ’s
finding on the unacceptable conduct charge.
Natty also challenges the AJ’s findings of fact and ar-
gues that the AJ failed to consider specific statements
when making witness credibility determinations. This
court does not engage in de novo fact finding, but merely
determines “whether the Board’s factual findings are
supported by substantial evidence.” Bevins v. Office of
Pers. Mgmt., 900 F.2d 1558, 1565 (Fed. Cir. 1990). More-
over, evaluations of witness credibility are “virtually
unreviewable on appeal.” Kahn v. Dep’t of Justice, 618
F.3d 1306, 1313 (Fed. Cir. 2010).
Natty claims the AJ erred by finding that he inten-
tionally dropped his pants. Regarding this incident, the
AJ specifically credited the testimony of Carol Miller,
Shirley Rogers, Angela Johnson, and Hershel Morrow,
and disbelieved Natty’s testimony that his pants acciden-
tally slipped. Natty stresses an inconsistency in Morrow’s
testimony regarding the date of the pants- dropping
incident, but the AJ nonetheless credited Morrow’s testi-
mony as a whole. We cannot say that this single inconsis-
tency undermines the AJ’s credibility determination. At
bottom, we have ample reason to conclude that the AJ’s
findings of fact and credibility determinations are ade-
quately supported by the record.
To determine a reasonable penalty for employee mis-
conduct, an agency must consider the relevant factors
from Douglas v. Veterans Administration, 5 M.S.P.B. 313,
331-32 (Apr. 10, 1981). Malloy, 578 F.3d at 1356. The
reviewing Board need not discuss every Douglas factor; it
need only determine that the agency considered the
NATTY v. USPS 5
factors relevant to the case at hand. Kumferman v. Dep’t
of Navy, 785 F.2d 286, 291 (Fed. Cir. 1986).
Here, West’s testimony indicates that he considered
the relevant Douglas factors. West determined that the
nature of Natty’s employment (a supervisor tasked with
implementing EEO laws) aggravated the nature and
seriousness of the offense (sex- and race-based remarks
and conduct). West balanced this determination against
Natty’s prior disciplinary record, his lengthy service, and
mitigating factors in Natty’s personal life, and decided
that Natty’s conduct precluded his continued employment
as a supervisor.
Natty argues that a lesser penalty is warranted be-
cause he lacked notice that the conduct was inappropri-
ate, the conduct was an isolated incident, and the penalty
is more severe than penalties imposed on similarly situ-
ated employees. As detailed above, Natty’s prior EEO
training put him on notice that such conduct was inap-
propriate. And while the pants dropping incident may
have been an isolated event, the sex- and race-based
comments were ongoing since 2009.
Natty cites several cases to demonstrate that his pen-
alty is more severe than penalties imposed on other
similarly situated employees. The AJ distinguished Natty
from the lower level supervisors in these cases because
Natty’s role as a manager carries a higher level of ac-
countability. On appeal Natty cites additional cases in
which the Board suspended but did not demote lower
level supervisors. Like the cases considered by the AJ,
these cases do not show that demotion of a higher level
manager to a non-supervisory role is inappropriate.
For the foregoing reasons, the decision of the Board is
affirmed.
AFFIRMED
6 NATTY v. USPS
COSTS
Each party shall bear its own costs.