Harinder Singh v. United States Postal Service

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2022 MSPB 15Docket Nos. SF-0752-15-0014-I-1
SF-0752-15-0155-I-1
Harinder Singh,
Appellant,
v.
United States Postal Service,
Agency.
May 31, 2022
Myrna Castanon, Esquire, Los Angeles, California, for the appellant.
Catherine V. Meek, Long Beach, California, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his demotion. For the reasons discussed below, we DENY the
appellant’s petition for review and AFFIRM the initial decision AS MODIFIED
by this Opinion and Order.
BACKGROUND
¶2 The appellant was employed by the agency as the Manager
Transportation/Networks, EAS-23, at the Los Angeles Processing and
Distribution Center (P&DC). Singh v. U.S. Postal Service, MSPB Docket
2
No. SF-0752-15-0014-I-1, Initial Appeal File (0014 IAF), Tab 76 at 4. In
March 2013, one of the appellant’s subordinate employees reported to agency
authorities that the appellant physically threatened him during a meeting. Id.The agency’s Office of Inspector General (OIG) investigated those allegations.
OIG later expanded its investigation to include other alleged misconduct by the
appellant. Id. at 4-5. The appellant was temporarily assigned to another position
and then put on administrative leave while he was under investigation. Id.
¶3 After OIG completed its investigations into the appellant’s conduct, the
agency interviewed the appellant and other employees. Id. at 5-6. On April 29,
2014, the agency issued the appellant a Notice of Proposed Removal. 0014 IAF,
Tab 4 at 138-50. The agency charged the appellant with misuse of position,
acceptance of gifts from subordinates, and improper conduct. Id. at 138-40. The
appellant provided both oral and written responses to the proposed removal; he
also submitted a number of documents to the deciding official. Id. at 17-136.
¶4 On September 9, 2014, the agency issued a Letter of Decision removing the
appellant. Id. at 12-16. The deciding official sustained the charges of misuse of
position and acceptance of gifts from subordinates in full and he sustained three
of the five specifications of improper conduct. Id. at 12-13. The deciding
official determined that the penalty of removal was appropriate for the sustained
misconduct. Id. at 13-15.
¶5 On October 3, 2014, the appellant timely filed a Board appeal challenging
his removal. 0014 IAF, Tab 1. On November 26, 2014, the agency issued a new
Letter of Decision rescinding the September 9, 2014 removal decision and
replacing it with a decision to demote the appellant, effective November 29,
2014, to the position of Network Operations Specialist, EAS-19. 0014 IAF, Tab 7
at 7-12. The deciding official wrote in part:
Although I believe your conduct warrants your removal from the
Postal Service, I believe it is in everyone’s best interest to attempt
rehabilitation through a lower level assignment with direct
3
supervision and no subordinates. Such a position was unavailable at
the time of my original decision, but is available now.
Id. at 10. The agency informed the appellant that he was entitled to back pay for
the period during which his removal was in effect. Id. at 7.
¶6 The appellant timely filed an appeal of his demotion with the Board on
December 2, 2014. Singh v. U.S. Postal Service, MSPB Docket No. SF-0752-
0155-I-1, Initial Appeal File (0155 IAF), Tab 1. The administrative judge joined
the removal and demotion appeals for adjudication. 0014 IAF, Tab 14; 0155 IAF,
Tab 8. The agency later moved to dismiss the removal appeal as moot, 0014 IAF,
Tab 27, but the appellant argued that the removal appeal was not moot because he
had not been returned to the status quo ante and because he had not received a
performance-based increase to his salary for 2013 and 2014, 0014 IAF, Tab 28.
After a hearing on the joined appeals, the agency supplemented its motion to
dismiss with additional evidence regarding the salary increase issue. 0014 IAF,
Tab 82. The appellant responded, arguing that the removal appeal was still not
moot. 0014 IAF, Tab 83.
¶7 The administrative judge issued an initial decision affirming the appellant’s
demotion. 0014 IAF, Tab 86, Initial Decision (ID). She found that the agency
proved the charge of misuse of position and the three specifications of improper
conduct that were sustained by the deciding official, but that the agency failed to
prove the charge of acceptance of gifts from subordinates. ID at 4-20. As to
penalty, the administrative judge limited her review to the demotion to avoid the
possibility of affirming a penalty more severe than the one the agency ultimately
chose to impose. ID at 22. Even though she did not sustain all of the charges, the
administrative judge found that the penalty of demotion was within the tolerable
limits of reasonableness. ID at 22-24. 1
1
The administrative judge also found that the agency fully rescinded the removal and
provided the appellant with all of the relief he could have received in his removal
4
¶8 The appellant has filed a timely petition for review of the initial decision.
Petition for Review (PFR) File, Tab 1. He argues that the administrative judge
erred in crediting the testimony of one of the agency’s key witnesses. Id.
at 23-24. Additionally, he argues that the administrative judge improperly denied
his motion to compel discovery related to the consistency of the penalty with
those imposed on employees for the same or similar offenses. Id. at 12-13. He
also challenges the administrative judge’s analysis of the Douglas factors. 2 Id.
at 13‑16. Finally, the appellant argues that he was denied due process and that
the deciding official was improperly influenced. Id. at 16-22. The agency has
responded in opposition to the petition for review, PFR File, Tab 3, and the
appellant has filed a reply, PFR File, Tab 4.
ANALYSIS
The appellant’s disparate penalty claim does not provide a basis for reversing the
initial decision.
¶9 The appellant argues that he was denied discovery regarding the agency’s
treatment of other employees who engaged in similar misconduct. PFR File,
Tab 1 at 12-13. He speculates that such discovery would have revealed that the
agency treated similarly situated employees more leniently. Id. at 13. Before we
address the appellant’s arguments relating to discovery, we take this opportunity
to reinstate our former law governing the analysis of disparate penalty claims and
thereby overrule Figueroa v. Department of Homeland Security, 119 M.S.P.R.
422 (2013); Villada v. U.S. Postal Service, 115 M.S.P.R. 268 (2010); Woebcke v.
appeal. ID at 24-25. She did not find that the removal appeal was moot, however. ID
at 24. On review, the appellant does not challenge the administrative judge’s
disposition of the removal appeal, and therefore we will address only the
demotion appeal.
2
In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-306 (1981), the Board
articulated a nonexhaustive list of factors to be considered when evaluating the penalty
to be imposed for an act of misconduct.
5
Department of Homeland Security, 114 M.S.P.R. 100 (2010), abrogated in part
on other grounds as recognized in Bowman v. Small Business Administration,
122 M.S.P.R. 217 (2015); Lewis v. Department of Veterans Affairs, 113 M.S.P.R.
657 (2010), and their progeny, except to the extent that the law may have been
modified by the U.S. Court of Appeals for the Federal Circuit’s (Federal
Circuit’s) decision in Williams v. Social Security Administration, 586 F.3d 1365(Fed. Cir. 2009), discussed infra.
¶10 It is well settled that among the factors an agency should consider in setting
the penalty for misconduct is “consistency of the penalty with those imposed
upon other employees for the same or similar offenses.” Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305 (1981). For decades after Douglas was
decided, for a disparate penalty claim to succeed, the Board required close
similarity in offenses between the appellant and any comparator(s), and that the
appellant and the comparator(s) worked in the same unit and for the same
supervisors. E.g., Jackson v. Department of the Army, 99 M.S.P.R. 604, ¶ 7
(2005); Fearon v. Department of Labor, 99 M.S.P.R. 428, ¶ 11 (2005);
Rasmussen v. Department of Agriculture, 44 M.S.P.R. 185, 191-92 (1990);
Archuleta v. Department of the Air Force, 16 M.S.P.R. 404, 407 (1983).
¶11 In a series of cases issued in 2010, however, the Board changed its approach
to disparate penalty claims. Under the new precedent, broad similarity in
misconduct between the appellant and the comparator(s) was sufficient to shift
the burden to the agency to explain the difference in treatment, and the universe
for potential comparators was seemingly limitless. See Figueroa, 119 M.S.P.R.
422, ¶¶ 3‑4, 10-12; Villada, 115 M.S.P.R. 268, ¶¶ 10-12; Woebcke, 114 M.S.P.R.
100, ¶¶ 19‑22; Lewis, 113 M.S.P.R. 657, ¶¶ 5‑15.
¶12 In announcing its “more flexible approach” to disparate penalties claims,
the Board relied in large part on a 2009 decision from our reviewing court. In
Williams, 586 F.3d 1365, the Federal Circuit remanded an appeal to the Board for
6
further development of the record as to the agency’s treatment of an alleged
comparator. Id. at 1368-69. Previously in that case, the administrative judge had
found the comparator evidence irrelevant because the comparator was not in the
same chain of command as the appellant. Id. at 1368. The court found that
“[w]hile the fact that two employees are supervised under different chains of
command may sometimes justify different penalties,” the record before it did not
justify the alleged disparity in treatment, particularly because the appellant was a
mere participant in a tax fraud scheme orchestrated by the comparator. Id.
at 1368-69. Applying Williams, the Board in Lewis held that there must be
enough similarity between both the nature of the misconduct and the other factors
to lead a reasonable person to conclude that the agency treated similarly situated
employees differently, but that the Board would not have “hard and fast rules
regarding the ‘outcome determinative’ nature of these factors.” Lewis,
113 M.S.P.R. 657, ¶¶ 15, 21.
¶13 Under the binding precedent of Williams, a comparator need not always
have to be in the same work unit or under the same supervisor. 3 Williams,
586 F.3d at 1368-69. Thus, the Board’s pre-Williams statements to the contrary
are no longer valid. Nevertheless, while no single factor is outcome
determinative, the fact that two employees come from different work units and/or
3
A panel of the Federal Circuit recently held that “[a] comparator employee is an
employee that ‘was in the same work unit, with the same supervisor, and was subjected
to the same standards governing discipline.’” Miskill v. Social Security Administration,
863 F.3d 1379, 1384 (Fed. Cir. 2017) (quoting Lewis). To the extent this statement can
be read as an absolute requirement that comparator employees be in the same work unit
with the same supervisor, it conflicts with the prior panel decision in Williams, in which
the court held that “the fact that two employees are supervised under different chains of
command may sometimes justify different penalties.” Williams, 586 F.3d at 1368(emphasis supplied). We remain bound by Williams, the earlier panel decision. See
Deckers Corporation v. United States, 752 F.3d 949, 959, 966 (Fed. Cir. 2014)
(explaining that only an en banc court opinion, intervening Supreme Court precedent, or
Congressional change of an underlying statute may overrule prior precedential
panel decisions).
7
supervisory chains remains an important factor in determining whether it is
appropriate to compare the penalties they are given. In most cases, employees
from another work unit or supervisory chain will not be proper comparators. In
Williams, the court emphasized the fact that the comparator had originated and
organized a tax fraud scheme in which Mr. Williams was one of several
participants. Id. at 1366-69. Given the unusually close connection between the
two employees’ misconduct in that case, the court found that the agency needed
to justify the alleged disparity in the discipline they received. 4 The unique
circumstances in Williams illustrate that there must be a close connection between
the misconduct or some other factor for an employee from another work unit or
supervisory chain to be a proper comparator for disparate penalty purposes. The
universe of potential comparators will vary from case to case, but it should be
limited to those employees whose misconduct and/or other circumstances closely
resemble those of the appellant.
¶14 Prior to Williams, a panel of the Federal Circuit held that when an employee
raises an allegation that he received more severe discipline than another
employee, the proper inquiry is whether the agency knowingly treated employees
differently “in a way not justified by the facts, and intentionally for reasons other
than the efficiency of the service.” Facer v. Department of the Air Force,
836 F.2d 535, 539 (Fed. Cir. 1988). To the extent the panel in Williams intended
to remove the knowledge portion of the disparate penalty analysis, as we
similarly noted, supra, in footnote 3, we are bound to follow the court’s previous
analysis, as set forth in the court’s earlier panel decision in Facer, which includes
the knowledge portion. See Deckers Corporation v. United States, 752 F.3d 949,
959, 966 (Fed. Cir. 2014) (holding that, “[i]n this Circuit, a later panel is bound
4
Mr. Williams alleged that the agency reemployed the comparator, an assertion the
agency disputed. Williams, 586 F.3d at 1368-69. The court remanded the appeal for
further development of the factual record. Id. at 1369.
8
by the determinations of a prior panel, unless relieved of that obligation by an
en banc order of the court or a decision of the Supreme Court[]”). Thus, we
overrule Lewis and subsequent cases to the extent they have deviated from the
standard set forth in Facer. In assessing an agency’s penalty determination, the
relevant inquiry is whether the agency knowingly and unjustifiably treated
employees differently.
¶15 Since 2010, the Board has used its “flexible” approach to disparate penalty
claims as a basis for mitigating agency-imposed penalties. For example, in
Portner v. Department of Justice, 119 M.S.P.R. 365, ¶¶ 2-6, 9, 16-22 (2013), the
Board mitigated the removal of a supervisor who operated his official
Government vehicle (OGV) and made multiple false statements to agency
employees and the police regarding his actions in an attempt to hide the fact that
he parked the OGV in a parking lot adjacent to a Hooters restaurant, where he
consumed alcohol and ate dinner. In reducing the penalty to a 45-day suspension,
the Board relied in part on evidence that other employees who had been charged
with misuse of an OGV and other misconduct had received lesser penalties, even
though none of the comparators had been charged with both misuse of an OGV
and making false statements, like the appellant. Id., ¶¶ 20-22. The Board found
that, although the misconduct of the comparators was not the same as the
appellant’s, it “appear[ed] at least as serious as the appellant’s wrongdoing” and
that the agency failed to offer a sufficient explanation for the significantly
harsher penalty imposed on the appellant. Id., ¶¶ 21‑22.
¶16 In Boucher v. U.S. Postal Service, 118 M.S.P.R. 640, ¶¶ 2-13, 20-29 (2012),
the Board affirmed an administrative judge’s decision mitigating the removal of a
mail handler who was arrested near agency property while on duty and later
convicted of a felony, unlawful possession of a controlled substance. In
mitigating the removal to a 90-day suspension, the administrative judge cited
another employee who worked at the same facility as the appellant and was not
removed after being charged with drug possession. Id., ¶¶ 3, 11, 13. The Board
9
recognized several differences between the appellant’s circumstances and those of
the comparator, including that the comparator was charged with possession of
marijuana only, whereas the appellant was charged with possession of both
cocaine and marijuana, and that the comparator was not arrested on or near
agency property. Id., ¶¶ 21-22. Nevertheless, the Board determined that the
comparison between the two penalties was appropriate because the comparator
had engaged in “a more serious act” by attempting to smuggle marijuana into a
prison facility. Id.
¶17 The Board’s disparate penalty analysis in cases like Portner and Boucher
represents a departure from the standard set forth in Douglas, which calls for
comparison with penalties “imposed upon other employees for the same or
similar offenses.” Douglas, 5 M.S.P.R. at 305 (emphasis added). The Board in
Portner and Boucher did not find that the comparators had engaged in the same or
similar offenses as the appellants. Instead, the Board found comparisons of the
penalties appropriate in those cases because the comparators’ misconduct was “as
serious as” or “more serious” than that of the appellants. Portner, 119 M.S.P.R.
365, ¶ 22; Boucher, 118 M.S.P.R. 640, ¶ 22. We overrule Portner and Boucher to
the extent they held that the disparate penalty analysis should extend beyond the
same or similar offenses. The Board should not attempt to weigh the relative
seriousness of various offenses in order to determine whether two employees who
committed different acts of misconduct were treated disparately.
¶18 Additionally, the consistency of the penalty with those imposed upon other
employees for the same or similar offenses is simply one of a nonexhaustive list
of 12 factors that are relevant for consideration in determining the
appropriateness of a penalty. Douglas, 5 M.S.P.R. at 305-06. The Board has
frequently stated that the nature and seriousness of the offense, and its relation to
the employee’s duties, position, and responsibility, is the most important factor in
assessing the reasonableness of a penalty. E.g., Batara v. Department of the
Navy, 123 M.S.P.R. 278, ¶ 8 (2016); Spencer v. U.S. Postal Service, 112 M.S.P.R.
10132, ¶ 7 (2009). Under the Board’s post-Lewis standard, in some cases the
consistency of the penalty has become not only more important than any of the
other Douglas factors, it has become the sole outcome determinative factor. We
hereby reiterate that the consistency of the penalty is just one of many relevant
factors to be considered in determining an appropriate penalty. Therefore, while
the fact that one employee receives a more severe penalty than that imposed on a
comparator who has committed the same or similar misconduct should be
considered in favor of mitigating the penalty in a given case, mitigation is by no
means required in all such cases. There often will be a range of penalties that
would fall within the tolerable limits of reasonableness in a given case. That an
agency chooses to impose a penalty at the more lenient end of that range in one
case should not mean that it cannot impose a penalty at the more severe end of
that range in another case. 5
¶19 In light of our reinstatement of the former legal standard for analyzing
disparate penalty claims, we now turn to the appellant’s argument that he was
improperly denied discovery regarding potential comparators. PFR File, Tab 1
at 12-13. Specifically, the appellant sought information regarding the treatment
of employees agency-wide who had engaged in similar misconduct. 0014 IAF,
Tab 11 at 20. The agency objected to the appellant’s request as overbroad and
limited its response to employees at the Los Angeles P&DC. Id. at 32-33. The
appellant reiterated his request for agency-wide information. Id. at 60. The
agency reiterated its objections, but it did supplement its discovery response with
information regarding EAS employees within the Pacific Area (i.e., California
5
There is no guarantee that a prior agency penalty determination even fell within the
tolerable limits of reasonableness. Thus, the consistency called for under Villada,
Woebcke, and Lewis might be rooted in an earlier disciplinary decision that was unwise,
meaning that a manager could be forced to go easy on an employee who committed
serious misconduct because of the unwarranted leniency of some other manager in the
past.
11
and Hawaii) who were charged with arguably similar misconduct over the prior
2 years. 0014 IAF, Tab 18 at 225. The appellant asked the administrative judge
to compel the agency to produce information about potential comparators
agency-wide. 0014 IAF, Tab 11 at 4-12, Tab 19. The administrative judge
denied the appellant’s motion to compel, finding the requests to be “overbroad
and burdensome and not likely to lead to the discovery of relevant admissible
evidence.” 0014 IAF, Tab 74 at 1-2.
¶20 An administrative judge has broad discretion in ruling on discovery matters,
and absent an abuse of discretion the Board will not find reversible error in such
rulings. Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 16 (2016). We find
no abuse of discretion in this matter, particularly in light of the above
reinstatement of our former legal standard for analyzing disparate penalty claims.
The agency provided information regarding potential comparators within
reasonable geographic and temporal limits. Information regarding the treatment
of employees across the country is simply not likely to lead to the discovery of
admissible evidence regarding whether the agency knowingly and unjustifiably
treated employees differently.
¶21 Beyond his arguments regarding discovery, the appellant offers nothing
more than speculation regarding the treatment of similarly situated employees.
“Had the record been developed,” he argues on review, “the evidence would have
likely shown that employees with over 30 years of service, and no discipline with
numerous high profile awards received a suspension or letter of warning for
engaging in the same or similar conduct.” PFR File, Tab 1 at 13. In fact, the
only evidence regarding the treatment of employees who engaged in conduct that
was at all similar to the appellant’s indicates that those employees were either
demoted or removed. Hearing Transcript (HT) at 666 (testimony of the deciding
official). Thus, we find that the appellant has not shown that the administrative
judge erred in her consideration of the consistency of the penalty.
12
The appellant has not shown that the agency violated his due process rights.
¶22 The appellant argues that the agency violated his due process rights because
the deciding official contacted an official at agency headquarters about one of the
specifications without notifying the appellant of that contact. PFR File, Tab 1
at 16-18. The deciding official testified that there was conflicting information as
to whether the appellant was authorized to make the contract changes that formed
the basis of the first specification of the improper conduct charge. The deciding
official therefore contacted an official at agency headquarters to find out whether
the appellant’s actions were in fact improper. HT at 697-700 (testimony of the
deciding official).
¶23 Pursuant to the Federal Circuit’s decisions in Ward v. U.S. Postal Service,
634 F.3d 1274, 1279-80 (Fed. Cir. 2011), and Stone v. Federal Deposit Insurance
Corporation, 179 F.3d 1368, 1376-77 (Fed. Cir. 1999), a deciding official
violates an employee’s due process rights when he relies upon new and material
ex parte information as a basis for his decisions on the merits of a proposed
charge or the penalty to be imposed. See Norris v. Securities & Exchange
Commission, 675 F.3d 1349, 1354 (Fed. Cir. 2012); see also Gray v. Department
of Defense, 116 M.S.P.R. 461, ¶ 6 (2011). An employee’s due process right to
notice extends to both ex parte information provided to a deciding official and
information personally known to the deciding official, if the information was
considered in reaching the decision and was not previously disclosed to the
appellant. Solis v. Department of Justice, 117 M.S.P.R. 458, ¶ 7 (2012). Ward,
Stone, and their progeny recognize, however, that not all ex parte communications
that introduce new and material information to the deciding official rise to the
level of a due process violation. Solis, 117 M.S.P.R. 458, ¶ 8.
¶24 In Stone, the Federal Circuit identified the following factors to be used to
determine if ex parte information is new and material: (1) whether the ex parte
information introduced cumulative, as opposed to new, information; (2) whether
the employee knew of the information and had an opportunity to respond; and
13
(3) whether the communication was “of the type likely to result in undue pressure
on the deciding official to rule in a particular manner.” Stone, 179 F.3d at 1377.
Ultimately, we must determine “whether the ex parte communication is so
substantial and so likely to cause prejudice that no employee can fairly be
required to be subjected to a deprivation of property under such
circumstances.” Id.¶25 A deciding official does not violate an employee’s due process rights by
initiating an ex parte communication that only confirms or clarifies information
already contained in the record. Blank v. Department of the Army, 247 F.3d 1225,
1229 (Fed. Cir. 2001). On the other hand, information obtained from an ex parte
communication may be considered new and material if it constitutes a significant
departure from evidence already in the record and the deciding official considers
it in reaching a decision. See Young v. Department of Housing & Urban
Development, 706 F.3d 1372, 1376-78 (Fed. Cir. 2013).
¶26 We find that the ex parte communication in this case does not constitute a
due process violation. The agency charged the appellant with improper conduct
for his actions regarding the contract changes. 0014 IAF, Tab 4 at 139. The
deciding official reached out to the official at headquarters because there was
some indication in the record that the appellant’s actions may not have been
improper. HT at 697-700; 0155 IAF, Tab 6 at 64. The effect of the ex parte
communication appears to have been to confirm to the deciding official that the
appellant’s actions were in fact improper, just as the agency indicated in the
notice of proposed removal. Therefore, we find that the ex parte communication
in this case did not introduce new and material information to the deciding
official. Rather, it merely clarified or confirmed information that was already in
the record. See Mathis v. Department of State, 122 M.S.P.R. 507, ¶¶ 12, 16
(2015) (applying the Stone factors and finding no due process violation when the
deciding official contacted a human resources representative to determine
14
whether allegations made in response to the proposed removal were supported by
the facts).
The appellant failed to show that his demotion was ultra vires or otherwise
procedurally improper.
¶27 The appellant alleges that the decision to demote him was actually made by
another agency official and communicated to the deciding official; he argues that
the action is therefore ultra vires and should be reversed as not in accordance
with law. PFR File, Tab 1 at 19-22. Agency actions have been found to be not in
accordance with law when the individual taking the action lacked the legal
authority to do so. For example, in Hamilton v. U.S. Postal Service, 58 M.S.P.R.
486, 487-88 (1993), the Board found that a demotion was not in accordance with
law because the deciding official had retired from the agency prior to issuing the
decision. In McCollum v. National Credit Union Administration, 417 F.3d 1332,
1339 (Fed. Cir. 2005), the Federal Circuit held that a removal was not in
accordance with law because the only entity within the agency with the authority
to authorize the appellant’s removal never did so. Here, by contrast, there is no
claim that the deciding official lacked the authority to demote the appellant.
Therefore, that action was not ultra vires.
¶28 Nevertheless, the Board does require that the ultimate decision regarding an
adverse action be made by the deciding official, not by some other individual.
See Fontes v. Department of Transportation, 51 M.S.P.R. 655, 668 (1991). Here,
the deciding official testified that the decision to demote the appellant was his
alone. HT at 704-05 (testimony of the deciding official). The appellant points to
testimony from another agency official who stated that he told the deciding
official to place the appellant in the EAS-19 position. PFR File, Tab 1 at 19-22.
However, the official could not recall when that conversation took place, except
that it was sometime before December 1, 2014. HT at 793-94 (testimony of the
Manager, Network Operations for the Pacific Area). The decision demoting the
appellant was issued on November 26, 2014. 0014 IAF, Tab 7 at 7. Thus, even if
15
the conversation took place as the official claimed, it may have taken place after
the decision to demote the appellant already had been made. Accordingly, we
find that the appellant failed to show that the decision to demote him was made
by someone other than the deciding official. See Gores v. Department of
Veterans Affairs, 68 M.S.P.R. 100, 121 (1995) (finding no harmful procedural
error when the appellant failed to show that the deciding official did not make the
ultimate decision), rev’d on other grounds, 132 F.3d 50 (Fed. Cir. 1997) (Table).
The appellant has not shown that the administrative judge erred in her
credibility determinations.
¶29 The appellant argues that the administrative judge erred in crediting the
testimony of one of the agency’s key witnesses because that witness had been
charged with several types of misconduct. PFR File, Tab 1 at 11, 23-24. He also
argues that the witness was biased against the appellant. Id. The administrative
judge applied the Hillen factors 6 and found the testimony of the agency’s witness
to be more credible than that of the appellant. ID at 6-7.
¶30 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, and 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). Here, the
administrative judge found the witness’s testimony to be more consistent with the
6
To resolve credibility issues, an administrative judge must identify the factual
questions in dispute, summarize the evidence on each disputed question, state which
version she believes, and explain in detail why she found the chosen version more
credible, considering such factors as: (1) the witness’s opportunity and capacity to
observe the event or act in question; (2) the witness’s character; (3) any prior
inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the
contradiction of the witness’s version of events by other evidence or its consistency
with other evidence; (6) the inherent improbability of the witness’s version of events;
and (7) the witness’s demeanor. Hillen v. Department of the Army, 35 M.S.P.R. 453,
458 (1987).
16
other evidence than the appellant’s. She also found the appellant’s testimony to
be inherently improbable. In addition, the administrative judge explicitly cited
the respective demeanors of the witness and the appellant during their testimony.
ID at 6-7. We find the administrative judge’s credibility determinations to be
well reasoned and supported by the record, and we find that the appellant has not
presented sufficiently sound reasons for overturning those determinations. 7
The penalty of demotion was within the tolerable limits of reasonableness.
¶31 In addition to his arguments regarding disparate penalty, the appellant
challenges other aspects of the administrative judge’s penalty analysis. First, the
appellant argues that the administrative judge failed to properly consider the
adequacy and effectiveness of alternative sanctions. In support of his argument,
the appellant cites the deciding official’s testimony that he did not consider
giving the appellant a suspension or letter of warning. PFR File, Tab 1 at 13-14.
However, the deciding official testified that the appellant’s misconduct made him
“unsuitable to manage other people.” HT at 664 (testimony of the deciding
official). When pressed about why he did not give the appellant a letter of
warning, the deciding official testified that it was not a viable option because of
the nature of the misconduct and the appellant’s position. HT at 701-02
(testimony of the deciding official). We find no error in the deciding official’s
consideration of possible lesser sanctions.
¶32 The appellant also argues that the administrative judge, when assessing the
penalty, failed to properly consider his lack of training. PFR File, Tab 1 at 14-16.
The testimony he cites in support of that argument relates to one specification of
the improper conduct charge dealing with changes to transportation contracts. Id.
at 14-15. The appellant does not argue that there was a lack of training or notice
7
The appellant has not otherwise challenged the administrative judge’s findings
regarding the charges. We have reviewed those findings and see no basis for
overturning them.
17
regarding any of the other charges or specifications. Even if he is correct that he
was not properly trained on the rules governing contract changes, we find that it
is not a sufficient basis to mitigate the penalty.
¶33 The deciding official testified in detail regarding his consideration of each
of the Douglas factors. HT at 660-72 (testimony of the deciding official). We
agree with the administrative judge that the deciding official properly considered
the relevant Douglas factors and that the penalty of demotion is within the
tolerable limits of reasonableness for the sustained misconduct. Cf. Gonzalez v.
Department of the Air Force, 51 M.S.P.R. 646, 654 (1991) (affirming the removal
of an employee with 24 years of service and no prior disciplinary record for
misuse of position and unauthorized off-duty employment).
ORDER
¶34 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.
§ 1201.113).
NOTICE OF APPEAL RIGHTS 8
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
8
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.
18
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:
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.
19
(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. ____ , 137 S. Ct. 1975 (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:
20
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. 9 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).
9
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.
21
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:
/s/
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.