Eva Duffey v. United States Postal Service

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
EVA L. DUFFEY, DOCKET NUMBER
Appellant, DA-0752-16-0105-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: June 20, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
John M. Vallie, Fort Worth, Texas, for the appellant.
Susan L. LaSalle, Esquire, Dallas, Texas, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed her demotion. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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 appellant has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED by
this Final Order to find that the appellant failed to establish that the agency
violated her due process rights by identifying only some of her alleged
misconduct in the proposal notice, we AFFIRM the initial decision.
¶2 The appellant was demoted from her position as a Customer Services
Manager for changing four subordinates’ clock rings and causing them to not be
paid for time that they spent working. Initial Appeal File (IAF), Tab 4 at 48-50,
54-58. In its proposal notice, the agency asserted that , between September 29,
2014, and April 17, 2015, the appellant reduced those four employees’ work
hours “by 103 hours in total.” Id. at 54, 56. The proposal notice listed “some” of
the specific incidents in which the appellant disallowed time, which add ed up to
approximately 33 hours over 45 instances. Id. at 54-56.
¶3 The appellant argues that, although she was “theoretically charged” with
103 hours of improper clock ring deletions, the proposal notice only ide ntified
approximately 33 hours of such deletions. Petition for Review (PFR) File, Tab 1
at 5, 8. 2 Although the appellant raised this issue below, IAF, Tab 1 at 6, Tab 9
2
The appellant’s submissions were not paginated. Thus, for ease of reference, page
number citations to the record reference the electronic record and the MSPB e -Appeal
pagination system.
3
at 8, it is not addressed in the initial decision, IAF, Tab 23, Initial Decision (ID).
We interpret the appellant’s argument as one that the agency violated her due
process rights. The appellant has the burden of proving her affirmative defense
by preponderant evidence. 3 5 C.F.R. § 1201.56(b)(2)(i)(C).
¶4 Due process mandates that notice of charges be sufficiently detailed to
provide a meaningful reply. 4 Ryan v. Department of Homeland Security,
123 M.S.P.R. 202, ¶ 8 (2016). The proposal notice here identified the four
employees whose clock rings the appellant allegedly had altered, the manner in
which she altered them, the time period in which she altered them, the total
number of hours she discounted, and 45 examples of her alterations. IAF, Tab 4
at 54-56. Moreover, approximately 3 weeks prior to the issuance of the proposal
notice, the proposing official interviewed the appellant and made her aware that
the agency knew of approximately 54 instances in which she had improperly
altered the clock rings of one named employee, 80 instances of a second
employee, 58 instances of a third employee, and 70 instances of a fourth
employee. Id. at 61-63. Under these circumstances, we find that the agency
provided the appellant with sufficiently detailed notice of the charges against her
such that she could provide a meaningful reply. See, e.g., Gilmore v. U.S. Postal
Service, 103 M.S.P.R. 290, ¶¶ 6, 10-14 (2006) (finding that, when the proposal
notice provided fairly specific information regarding the nature of the appellant’s
alleged unsatisfactory performance and the time period in which her performance
3
Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
4
The Board's reasoning rests on the decision of the U.S. Supreme Court in Cleveland
Board of Education v. Loudermill, 470 U.S. 532, 538-39, 546-48 (1985), which held
that a tenured public employee has a constitutionally protected property interest in
ongoing public employment and that an agency may not deprive such an employee of
his property interest without providing him with due process of law, including the right
to advance notice of the charges against him, an explanation of the agency’s evidence,
and an opportunity to respond.
4
was allegedly unsatisfactory, the notice was adequate under 5 U.S.C. § 7513,
despite its failure to identify the number of occasions on which the appellant’s
performance was allegedly deficient), 5 aff’d, 262 F. App’x 276 (Fed. Cir. 2008);
O’Hearn v. General Services Administration, 41 M.S.P.R. 280, 284-85 (1989)
(finding that the appellant was not denied due process when the proposal notice
only cited some examples of his alleged deficiencies under a particular
performance element, the agency kept him apprised during his performance
improvement period as to his alleged deficiencies, and the record did not indicate
that he was confused and unable to respond to the charge), aff’d, 902 F.2d 44(Fed. Cir. 1990) (Table).
¶5 Additionally, the proposal notice informed the appellant of her right to
review the material relied upon to support the reasons for the proposal notice.
IAF, Tab 4 at 57. There is no requirement that a proposal notice be a
self-contained document, and the notice requirement can be satisfied when
attachments to the proposal, together with the proposal itself, provide the
employee with specific notice of the charges against her so that she can make an
informed and meaningful reply. Alvarado v. Department of the Air Force,
97 M.S.P.R. 389, ¶ 15 (2004). In its submissions to the Board on appeal below,
the agency provided time and attendance reports, which appear to show each
instance of the appellant’s unacceptable conduct. IAF, Tab 4 at 76-338, Tab 5
at 4-49. The appellant has not indicated whether she requested the materials
relied upon to support the reasons for the proposal notice, and , if she did, whether
the agency then failed to identify each instance of her misconduct leading to the
improper reduction of 103 work hours performed by her subordinates. Nor has
she claimed that she was not responsible for any particular clock ring alterations
5
The procedural protections under 5 U.S.C. § 7513 include, inter alia, the due process
rights independently guaranteed under the U.S. Constitution. Buelna v. Department of
Homeland Security, 121 M.S.P.R. 262, ¶ 15 n.6 (2014).
5
shown in the agency’s evidence. Accordingly, we find that the appellant has
failed to establish that the agency violated her due process right to pre decisional
notice of the charges against her.
¶6 The appellant also argues that the deciding official violated her due process
rights by considering an aggravating factor that was not discussed in the proposal
notice, and that the administrative judge erroneously concluded that the appellant
was not similarly situated to certain other employees. PFR File, Tab 1 at 3-25.
Regarding the appellant’s other due process argument, the administrative judge
found that the evidence indicated that the appellant was awar e of, and had the
opportunity to respond to, the aggravating factor in question. ID at 13. For this
and other reasons, the administrative judge found that the agency had not violated
the appellant’s due process rights. ID at 13-14. Additionally, based on, among
other things, this same aggravating factor, the administrative judge distinguished
the appellant’s case from that of her purported comparators. ID at 18 -19. We see
no reason to disturb these findings. 6
¶7 We also have considered whether the appellant has established that the
agency committed harmful error. See Ward v. U.S. Postal Service, 634 F.3d
1274, 1281 (Fed. Cir. 2011). Harmful error is defined as “[e]rror b y the agency
in the application of its procedures that is 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.” 5 C.F.R. § 1201.4(r). For the reasons stated above, we find
that the proposal notice adequately stated the specific reasons for the proposed
6
In analyzing the appellant’s disparate penalty claim, the administrative judge cited
Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657 (2010). ID at 21-22. We
have since overruled Lewis to find that, when analyzing disparate penalty claims, broad
similarity between employees is insufficient to establish that they are appropriate
comparators, and hold that the relevant inquiry is whether the agency knowingly and
unjustifiably treated employees differently. Singh v. U.S. Postal Service, 2022 MSPB
15, ¶ 14. The reference to the standard set forth in Lewis was not prejudicial in this
case because, as the administrative judge found, the appellant failed to satisfy even that
less onerous standard. ID at 21-22.
6
action in accordance with 5 C.F.R. § 752.404(b)(1), and we find that the deciding
official, in arriving at her decision, acted in accordance with
subsection 752.404(g)(1) by considering only the reasons specified in the
proposal notice along with the appellant’s reply. Accordingly, we find that the
appellant has not shown that the agency committed a procedural error. Moreover,
even assuming that the proposal notice inadequately stated the specific reasons
for the proposed action by failing to specify each and every instance of allegedly
improperly disallowed time, we find no evidence that the deciding official was
likely to have reached a different conclusion absent such error, and we would thus
still find that the agency did not commit harmful error.
¶8 The appellant also submits on review her equal employment opportunity
complaint and the agency’s summary of its investigative interview of her. PFR
File, Tab 1 at 28-34, 36-38. These documents were already a part of the record
below. IAF, Tab 4 at 61-64, Tab 13 at 91-99. Accordingly, they are not new
evidence and do not provide a basis for review. See Meier v. Department of the
Interior, 3 M.S.P.R. 247, 256 (1980); 5 C.F.R. § 1201.115.
NOTICE OF APPEAL RIGHTS 7
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 an d
the rights described below do not represent a statement of how courts will rule
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.
7
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 yo ur 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
8
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
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
9
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
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
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.
10
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.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
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/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.