Valonda Durant v. United States Postal Service

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

VALONDA DURANT, DOCKET NUMBER

Appellant, AT-0752-18-0622-I-1

v.

UNITED STATES POSTAL SERVICE, DATE: June 13, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Ronica Scales , Esquire, and Shaun Southworth , Esquire, Atlanta, Georgia,

for the appellant.

Jason L. Hardy , Esquire, Clearwater, Florida, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

sustained her removal. 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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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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 petitioner 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 to

supplement and clarify the administrative judge’s analysis of the appellant’s

Title VII discrimination claims, we AFFIRM the initial decision.

BACKGROUND

The appellant was the Supervisor of Distribution Operations at the Ybor

City Processing and Distribution Center in Ybor City, Florida. Initial Appeal File

(IAF), Tab 5 at 45. On May 10, 2018, the agency proposed her removal based on

the following charges: (1) unacceptable conduct when, on March 12, 2018, she

wore headphones on the workroom floor and verbally attacked her manager

(Manager 1) and, on March 20, 2018, she screamed and swore at another manager

(Manager 2) and referred to the Plant Manager as a “fat ass” (4 specifications);

(2) absence without leave for 2 days in March 2018 (1 specification); and

(3) failure to follow instructions when, after Manager 1 instructed her to remove

her headphones on March 12, 2018, she refused to do so, she refused Manager 2’s

instruction to review and sign two leave request forms on March 20, 2018, and

she refused to attend an investigative interview on March 22, 2018, regarding the

behavior at issue here (3 specifications). Id. at 28-33. On July 17, 2018, the

agency issued a decision letter on its proposed removal, sustaining the

unacceptable conduct and failure to follow instructions charges and finding that

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removal was an appropriate penalty. Id. at 16-22. The deciding official did not

sustain the absence without leave charge. Id. at 16.

The appellant filed this appeal of her removal. IAF, Tab 1. Following a

hearing, the administrative judge issued an initial decision affirming the removal.

IAF, Tab 34, Initial Decision (ID) at 1, 15. He found that the agency proved both

charges. ID at 3-9. He further found that the agency’s action promoted the

efficiency of the service, and that removal was a reasonable penalty for the

sustained charges. ID at 9-12. The administrative judge also concluded that the

appellant did not prove her affirmative defenses of discrimination on the basis of

gender, sexual orientation, and race, and reprisal for prior equal employment

opportunity (EEO) activity. ID at 13-14.

The appellant has timely filed a petition for review, challenging the

administrative judge’s finding that the agency proved its charge of unacceptable

conduct. Petition for Review (PFR) File, Tab 1. The agency has responded to the

petition. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge made proper credibility findings based on the hearing

testimony and record evidence.

In sustaining the charges, the administrative judge credited the testimony of

the agency witnesses, who testified as to the conduct underlying the appellant’s

removal, over the appellant’s denials. ID at 3-9. On review, the appellant

disputes the credibility-based findings of the administrative judge regarding the

unacceptable conduct charge. PFR File, Tab 1 at 5. For the following reasons,

we do not agree with the appellant’s arguments. 2

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The appellant does not challenge the administrative judge’s finding that the agency

proved the failure to follow instructions charge on review. PFR File, Tab 1 at 5.

Although she generally disagrees that she failed to remove her headphones as instructed

on March 12, 2018, she provides no evidence or argument related to her assertion. Id.

We find that the appellant’s contention constitutes mere disagreement with the

administrative judge’s reasoned and explained findings. See Stoglin v. Department of

the Air Force, 123 M.S.P.R. 163, ¶ 6 (2015) (explaining that a petition for review must

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The Board must give deference to an administrative judge’s credibility

determinations when they are based explicitly or implicitly on the observations 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 correctly

resolved the credibility determinations in accordance with the factors set forth in

Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). 3 He identified

the factual questions in dispute, summarized the agency’s charges, and then

analyzed the evidence and testimony that the parties offered with respect to the

charges. ID at 3-7. For each specification of the unacceptable conduct charge, as

discussed below, the administrative judge stated that he believed the testimony of

the agency’s witnesses over that of the appellant, and explained why he found the

appellant’s testimony less credible. 4 Id.

state a party’s objections to the initial decision, including all of the party’s legal and

factual arguments, and must be supported by specific references to the record and any

applicable laws or regulations), aff’d per curiam, 640 F. App’x 864 (Fed. Cir. 2016).

Accordingly, we discern no basis to disturb the administrative judge’s finding that the

agency proved this charge. We also discern no reason to disturb the administrative

judge’s findings that the agency proved nexus between the sustained charges and the

efficiency of the service, and that removal was a reasonable penalty. ID at 9-12. The

appellant does not contest these findings. PFR File, Tab 1 at 5.

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To resolve credibility issues, an administrative judge must identify the factual

questions in dispute, summarize the evidence on each disputed question, state which

version he believes, and explain in detail why he 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) her character; (3) any prior inconsistent

statement by the witness; (4) her bias, or lack of bias; (5) the contradiction of her

version of events by other evidence or its consistency with other evidence; (6) the

inherent improbability of her version of events; and (7) her demeanor. Hillen,

35 M.S.P.R. at 458.

4

The hearing was held via video teleconference on October 23, 2018. ID at 1; IAF,

Tabs 28-29. A supplemental hearing was conducted via telephone on November 2,

2018, and the only testimony provided was supplemental testimony from the deciding

official. ID at 1; IAF, Tab 31. The administrative judge only relied on this

supplemental testimony in his penalty analysis, which the parties do not challenge on

review. ID at 10-11. Thus, for purposes of determining whether the agency proved its

charges, the administrative judge’s demeanor-based findings are entitled to deference.

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Regarding the first specification, the agency alleged that, on

March 12, 2018, the appellant wore headphones on the workroom floor in

violation of agency policy. IAF, Tab 5 at 28. As to the second specification, the

agency alleged that, after Manager 1 instructed the appellant to remove her

headphones, she verbally attacked him by stating, “[y]ou look like a b----, you

smell like a b---- and you act like a b----,” or words to that effect. Id. at 28-29.

In sustaining these two specifications of the unacceptable conduct charge, the

administrative judge made explicit demeanor-based credibility determinations and

credited Manager 1’s testimony over the appellant’s testimony. ID at 3-6.

On review, the appellant alleges that the administrative judge erred in

finding that she wore headphones on the workroom floor and that, contrary to the

administrative judge’s findings, her demeanor-based testimony at the hearing

“showed she was telling the truth.” PFR File, Tab 1 at 5. She further alleges that

the second specification is inherently unbelievable “because it is made up and

people do not talk like that.” Id. We have considered the appellant’s arguments,

but we find that they do not constitute a sufficiently sound reason to overturn the

administrative judge’s demeanor-based credibility determinations. See Haebe,

288 F.3d at 1301.

The appellant also alleges that the administrative judge failed to consider

that Manager 1 had previously harassed her, was biased, and had fabricated the

charge. PFR File, Tab 1 at 5. However, contrary to the appellant’s assertions on

review, the administrative judge did make findings on these issues. ID at 6 n.3.

Specifically, he found that Manager 1 did not call the appellant a racial epithet

and that the appellant fabricated this allegation to deflect from her own

wrongdoing. Id. In making this finding, the administrative judge made

credibility determinations based on the appellant’s testimony, compared her

testimony to her own prior inconsistent statements, and considered that her

See Thompson v. Department of the Army, 122 M.S.P.R. 372, ¶ 21 n.9 (2015) (finding

that the Board must defer to an administrative judge’s demeanor-based credibility

findings related to testimony given during a videoconference hearing).

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testimony was contradicted by the record evidence and other witnesses. ID

at 13-14, n.7; see Purifoy v. Department of Veterans Affairs, 838 F.3d 1367,

1372-73 (Fed. Cir. 2016) (explaining that the Board generally must defer to an

administrative judge’s credibility findings made after holding a hearing, even if

demeanor was not explicitly discussed). Thus, the administrative judge

considered the appellant’s argument regarding Manager 1’s alleged bias below

and we find that the appellant has not provided a sufficiently sound reason to

disturb the administrative judge’s credibility determinations on review. See

Haebe, 288 F.3d at 1301.

For the third and fourth specifications, the agency alleged that, on

March 20, 2018, the appellant screamed and swore at Manager 2 and referred to

the Plant Manager as a “fat ass.” IAF, Tab 5 at 28. In sustaining these two

specifications, the administrative judge credited the testimony of the agency’s

witness, an Administrative Clerk, who testified that she observed the conduct as

charged. ID at 6-7. The administrative judge found the Administrative Clerk’s

testimony “forthright and unambiguous.” ID at 7. However, he did not credit the

appellant’s testimony due to the inconsistency between her oral reply, during

which she flatly denied the alleged conduct, and her testimony at the hearing,

during which she stated she did not remember. Id.

On review, the appellant appears to dispute the administrative judge’s

findings as to specification 4. In particular, she asserts that she testified that she

did not make the alleged statements and argues that the agency’s documentation

in support of this claim is insufficient. PFR File, Tab 1 at 5. However, her

argument is not supported by her hearing testimony, in which she testified that,

on March 20, 2018, she was upset and did not remember making the statements as

charged by the agency. IAF, Tab 28, Hearing Compact Disc (testimony of the

appellant). Further, in addition to the testimony of the Administrative Clerk, the

record also includes her statement, completed just 7 days after the incident,

corroborating that the appellant made the alleged comment. IAF, Tab 5 at 37.

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Notes from an agency interview with the Administrative Clerk contain the same

information. Id. at 38. Thus, the appellant’s arguments on review amount to

mere disagreement with the administrative judge’s well -reasoned findings, and

they do not provide a basis for reversal. 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 where she considered the evidence as a whole, drew appropriate

inferences, and made reasoned conclusions on the issues of credibility);

Broughton v. Department of Health and Human Services , 33 M.S.P.R. 357, 359

(1987) (same).

We modify the administrative judge’s analysis of the appellant’s Title VII claims.

The appellant asserted as affirmative defenses that her removal was the

result of gender, sexual orientation, and race discrimination, and retaliation for

filing EEO complaints. IAF, Tab 1 at 3, Tab 17 at 4-5. To prove an affirmative

defense of discrimination or retaliation under 42 U.S.C. § 2000e-16, the appellant

must prove by preponderant evidence that the prohibited consideration was at

least a motivating factor in the contested personnel action. See Pridgen v. Office

of Management and Budget, 2022 MSPB 31, ¶¶ 20-22, 30.

The administrative judge found that the appellant did not meet her burden

of proving her gender, sexual orientation, and race discrimination affirmative

defenses. ID at 13-14. He also found that, while it was uncontested she had filed

two prior EEO complaints, she did not meet her burden of proving that her

removal was in reprisal for filing those complaints. ID at 13. In considering

these claims, the administrative judge properly cited the Board’s decision in

Savage v. Department of the Army, 122 M.S.P.R 612 (2015), overruled in part by

Pridgen, 2022 MSPB 31, ¶¶ 23-25. ID at 13; IAF, Tab 22 at 3-5. However, in

analyzing the appellant’s claims, the administrative judge did not identify the

applicable standard of causation. Nevertheless, despite not identifying the

standard of causation, the administrative judge made pertinent findings of fact

and concluded that the appellant provided insufficient evidence to raise an

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inference of discrimination or retaliation. ID at 13-14. The administrative

judge’s conclusion, supported by the record and unchallenged on review, is

tantamount to a finding that the appellant did not prove that discrimination or

retaliation was a motivating factor in her removal. We modify the initial decision

accordingly.

NOTICE OF APPEAL RIGHTS 5

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 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

5

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.

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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.

(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

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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:

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

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(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. 6 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.

6

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

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If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.