Opinion

Webster Hester v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Jul 18, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.3%

explaining that “charged offenses are to be gleaned from the Notice of Proposed Removal as a whole”

How later courts described this case

explaining that “charged offenses are to be gleaned from the Notice of Proposed Removal as a whole”

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

WEBSTER S. HESTER, DOCKET NUMBER

Appellant, AT-0752-20-0137-I-1

UNITED STATES POSTAL SERVICE, DATE: July 18, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Tamika Sykes , Esquire, Atlanta, Georgia, for the appellant

Roderick Eves , Saint Louis, Missouri, for the agency

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

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

affirmed his reduction in grade and pay under 5 U.S.C. chapter 75. Generally, we

grant petitions such as this one only in the following circumstances: the initial

decision contains erroneous findings of material fact; the initial decision is based

on an erroneous interpretation of statute or regulation or the erroneous application

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 below to address an affirmative defense of harmful error or

violation of due process, we AFFIRM the initial decision.

BACKGROUND

In 2018, the appellant became Postmaster at the agency’s Jefferson Post

Office in Gainesville, Georgia. Initial Appeal File (IAF), Tab 6 at 84. On

January 8, 2019, the appellant and his immediate supervisor were attending a

meeting at the Atlanta District Office when the District Human Resources

Manager requested to see the appellant. IAF, Tab 26 at 19. The appellant and his

supervisor met with the Human Resources Manager, who questioned the appellant

about an incident that occurred earlier that day, in which the appellant showed up

unannounced to the nearby Dacula Post Office to confront a Rural Carrier

Associate (RCA) about rumors she had supposedly been spreading about the

appellant’s relationship with a subordinate. IAF, Tab 6 at 46, Tab 26 at 19,

32-33, Tab 27 at 5-6.

In light of this incident and another complaint that management had

recently received about the appellant’s behavior, his supervisor decided to

conduct an investigation. IAF, Tab 26 at 19. On or about January 11, 2019, the

appellant’s supervisor paid a site visit to the Jefferson Post Office, interviewed

“nearly all the employees” there, and received numerous complaints about the

appellant’s conduct. IAF, Tab 6 at 68-78, Tab 26 at 20. Several of these

employees followed up with written statements. IAF, Tab 6 at 48-67. The

agency interviewed the appellant about these allegations on February 6, 2019. Id.

at 44-45.

Around the time of the initial interviews, the appellant’s supervisor

instructed him not to have any contact with Jefferson Post Office employees.

IAF, Tab 26 at 7. Nevertheless, on April 3, 2019, the appellant texted a meme

about loyalty to the Officer in Charge at the Jefferson Post Office, along with the

statement “[y]ou need to remember this because loyalty is everything.” IAF,

Tab 6 at 81-82. On April 5, 2019, the appellant’s supervisor interviewed him

about this incident as well. Id. at 42-43.

On May 23, 2019, the agency proposed the appellant’s removal based on

three charges: (1) improper conduct (five specifications), (2) lack of candor (one

specification), and (3) failure to follow instructions (one specification). Id.

at 27-31. Charge 1 pertained to the January 8, 2019 incident at the Dacula Post

Office as well as four other incidents in which the appellant allegedly made

inappropriate statements to his subordinates. Id. at 27-28. Charge 2 pertained to

the appellant’s alleged admission that he gave untruthful answers during his

February 6, 2019 interview. Id. at 28. Charge 3 pertained to the appellant’s

alleged violation of the no-contact order by texting the Officer in Charge. Id.

at 28-29. After the appellant responded, the deciding official issued a decision

sustaining all of the charges and specifications, but mitigating the proposed

penalty to a reduction in grade and pay to the position of EAS-17 Supervisor of

Customer Service. Id. at 15-19.

The appellant filed a Board appeal, contesting the charges and the penalty

and raising affirmative defenses of violation of due process and harmful

procedural error. IAF, Tab 1 at 4-6, Tab 14 at 6-8, Tab 17 at 1-6. He originally

requested a hearing in his appeal, but he later withdrew that request, and the

appeal was decided on the written record. IAF, Tab 1 at 2, Tabs 24-25.

After the record closed, the administrative judge issued an initial decision

affirming the agency’s action. IAF, Tab 31, Initial Decision (ID). She sustained

all three charges and their underlying specifications, found that the agency

established a nexus between the appellant’s misconduct and the efficiency of the

service, and upheld the agency’s penalty determination. ID at 3-15. The

administrative judge further found that the appellant failed to prove his

affirmative defenses. ID at 15-18.

The appellant has filed a petition for review, contesting charges 1 and 2

and arguing that the administrative judge failed to consider all of the relevant

evidence in arriving at her decision. Petition for Review (PFR) File, Tab 3. The

agency has filed a response. PFR File, Tab 5.

ANALYSIS

In an appeal of an adverse action under 5 U.S.C. chapter 75, the agency

bears the burden of proving by preponderant evidence that its action was taken

for such cause as would promote the efficiency of the service. MacDonald v.

Department of the Navy, 4 M.S.P.R. 403, 404 (1980); 5 C.F.R. § 1201.56(b)(1)

(ii). To meet this burden, the agency must prove its charge, establish a nexus

between the charge and the efficiency of the service, and demonstrate that the

penalty imposed was reasonable. Pope v. U.S. Postal Service, 114 F.3d 1144,

1147 (Fed. Cir. 1997). However, even if the agency carries this burden, the

action may not be sustained if the appellant shows that it was the product of a due

process violation or harmful procedural error. 5 U.S.C. § 7701(c)(2)(A); Stephen

v. Department of the Air Force, 47 M.S.P.R. 672, 681 (1991); see 5 C.F.R.

§ 1201.56(b)(2)(i)(C).

In this case, the appellant’s petition for review is directed toward the

administrative judge’s findings on charges 1 and 2. He does not directly contest

her findings on penalty, but the implication of his petition is that the penalty

should be mitigated if fewer than all charges are sustained. See Douglas v.

Veterans Administration, 5 M.S.P.R. 280, 308 (1981) (stating that, when not all

of the charges are sustained, the Board will consider carefully whether the

sustained charges merited the penalty imposed by the agency). The appellant

does not challenge the findings that the administrative judge made on his

affirmative defenses. These findings appear to be correct on their face, and we

will not revisit them on review. ID at 12, 15-18; see 5 C.F.R. § 1201.115 (stating

that the Board normally will consider only issues raised in a timely filed petition

or cross petition for review). Nevertheless, the appellant raises a due process

argument or harmful error defense in connection with charge 2 that the

administrative judge did not address in her initial decision, and which we must

therefore address on review.

Charge 1: Improper Conduct

A charge of “improper conduct” has no specific elements of proof; it is

established by proving that the appellant committed the acts alleged in support of

the “improper conduct” label. Alvarado v. Department of the Air Force,

103 M.S.P.R. 1, ¶ 22 (2006), aff’d, 626 F. Supp. 2d 1140 (D.N.M. 2009), aff’d,

490 F. App’x 932 (10th Cir. 2012). In this case, the agency charged the appellant

with five specifications of improper conduct related to his interactions with craft

employees.

Under specification 1, the agency alleged as follows: “On January 8, 2019,

you went to the Dacula Post Office to confront an employee [an RCA] about

statements you alleged she made about you and one of your female employees.”

IAF, Tab 6 at 27. The administrative judge sustained this specification, finding

that the appellant admitted that he went to this other facility, which was not under

his authority, to confront the RCA about rumors that she was supposedly

spreading concerning the appellant’s relationship with a female subordinate. ID

at 3-5. On petition for review, the appellant argues that the agency failed to

identify any law, rule, or regulation prohibiting his actions. PFR File, Tab 3 at 6.

He points out that he left the premises once the Dacula Postmaster informed him

that the RCA declined to speak with him. Id. The appellant also disputes the

allegation in the notice of proposed removal that he was angry and the RCA was

afraid of him. Id. at 6-7.

Not all misconduct for which disciplinary action may be taken is

specifically prohibited by statute or regulation. Hatch v. Department of the Air

Force, 40 M.S.P.R. 260, 266 (1989). We agree with the administrative judge that

it was inappropriate for the appellant to travel unannounced to another Post

Office in order to confront a craft employee about a matter that should have been

addressed in an orderly fashion through the proper chain of command. This

behavior was unprofessional and inherently disruptive to the agency’s operations.

Regardless of whether the appellant was visibly angry, whether he left after the

RCA declined to speak with him, or whether the RCA was afraid of him, we find

that his actions were still improper.

Under specification 2, the agency alleged that, on February 5, 2019, the

appellant told a subordinate Sales Services and Distribution Associate that he

would “mentally and physically kick [her] ass.” IAF, Tab 6 at 27. Specifications

3 through 5 five pertained to similar hostile and profane statements that the

appellant allegedly made to three other female subordinates. Id. The

administrative judge sustained all of these specifications, finding that the

evidence that the agency proffered in support was more credible than the

appellant’s denials. ID at 5-9. On petition for review, the appellant argues that

the administrative judge should not have sustained specification 2 because the

agency was unable to prove that the conduct at issue occurred on February 5,

2019, as alleged. PFR File, Tab 3 at 7. He argues more generally that the

administrative judge sustained specifications 2 through 5 based on faulty

credibility determinations that she made without considering all of the relevant

evidence. Id. at 9-11.

Regarding the specific date of the misconduct at issue in specification 2,

the date given in the proposal notice is obviously incorrect. February 5, 2019 was

the date of the email in which the appellant’s subordinate set forth her

allegations, not the date that she alleged the underlying misconduct took place.

IAF, Tab 6 at 27, 52. Nevertheless, it is well settled that an agency is required to

prove only the essence of its charge and need not prove each factual specification

supporting the charge. Hicks v. Department of the Treasury, 62 M.S.P.R. 71, 74

(1994), aff’d, 48 F.3d 1235 (Fed. Cir. 1995) (Table). The Board has held that a

mistake in stating the date of an incident of misconduct, absent a showing by the

appellant that the misstatement constituted harmful procedural error, does not

invalidate the charge. Walcott v. U.S. Postal Service, 52 M.S.P.R. 277, 282

(1992); see Hartigan v. Veterans Administration, 39 M.S.P.R. 613, 617-18

(1989). We therefore agree with the administrative judge that the agency was not

required to prove the specific date of the alleged misconduct underlying

specification 2. ID at 9 n.3.

Regarding the administrative judge’s credibility determinations, when, as

here, an administrative judge’s findings are not based on the observation of

witnesses’ demeanor, the Board is free to reweigh the evidence and substitute its

own judgment on credibility issues. 2 Haebe v. Department of Justice, 288 F.3d

1288, 1302 (Fed. Cir. 2002). In this case, the agency supported the specific

allegations set forth in specifications 2 through 5 with declarations, emails, and

unsworn written statements by various employees. IAF, Tab 6 at 49, 52, 55, 62,

Tab 26 at 35-43. The agency also submitted a large number of written statements

and notes from interviews with various Jefferson Post Office employees,

generally characterizing the appellant’s managerial style as harsh, intimidating,

and profane. IAF, Tab 6 at 48-78. In rebuttal, the appellant filed a declaration

and a copy of his responses to the investigation in which he specifically denied

the agency’s allegations, as well as multiple declarations and unsworn written

Although we reconsider the relevant evidence here, we note that the administrative

judge’s failure to mention all of the evidence of record does not mean that she did not

consider it in reaching her decision. See Marques v. Department of Health & Human

Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table).

statements from various individuals expressing approval of the appellant’s

managerial style and stating that his detractors conspired to have him removed

through false allegations. 3 IAF, Tab 14 at 24, 37-49, Tab 27 at 26-28, Tab 29

at 22-49.

We find that there is nothing internally contradictory or inherently

implausible about either the agency’s direct evidence in support of specifications

2-5 or the appellant’s denials. IAF, Tab 6 at 49, 52, 55, 64, 72, 78, Tab 26

at 36-37, 40, 43, Tab 29 at 28-30. We note, however, that the agency failed to

support specification 4 with a sworn statement. We find that the interview notes

and unsworn written statement that the agency submitted in support of

specification 4 are of reduced evidentiary value compared to the appellant’s

sworn denial of the same, but that the direct evidence, on the whole, is

inconclusive. IAF, Tab 6 at 54-55, 78, Tab 29 at 29; see Social Security

Administration v. Whittlesey, 59 M.S.P.R. 684, 692 (1993) (stating that a sworn

statement has greater weight than one that is unsworn), aff’d, 39 F.3d 1197 (Fed.

Cir. 1994) (Table). We agree with the administrative judge that there is scant

evidence that any of these four employees had motive to fabricate their

allegations. 4 ID at 8; see Hillen v. Department of the Army, 35 M.S.P.R. 453, 458

(1987) (stating that, to resolve credibility issues, the Board will consider, among

other things, a witness’s bias or lack of bias).

The appellant also submitted evidence related to the Dacula Postmaster’s version of

events regarding charge 1, specification 1. IAF, Tab 27 at 20, Tab 29 at 17-21. We

find that this evidence is immaterial because, as explained above, the undisputed facts

are sufficient to support that specification.

As explained below, two of the appellant’s witnesses opined that the Jefferson Post

Office turned against the appellant because the employees there were not used to being

held accountable and simply did not like being told what to do. However, holding

subordinates accountable and directing their performance is a common task among all

supervisors in the Civil Service. We find it unlikely that four of the appellant’s

subordinates would feel sufficiently motivated by this normal working relationship to

make false allegations against the appellant, and that three of the four would be willing

to do so under penalty of perjury.

Regarding the circumstantial evidence, out of the 21 Jefferson Post Office

employees whom the appellant’s supervisor interviewed in January 2019, 17

expressed a negative opinion of the appellant’s managerial practices, 3 expressed

a positive opinion, and 1 declined to answer. IAF, Tab 6 at 68-78. The

complaints about the appellant were remarkably consistent among these

employees, with several recurring themes, including that the appellant managed

the Post Office with intimidation and bullying tactics, that he was disrespectful,

unprofessional, used inappropriate language, and denigrated his subordinates in

front of each other, that he fostered a climate of fear which made employees

reluctant to speak out due to the possibility of retaliation, and that he played

favorites among his subordinates, with RCA 1, a subordinate with whom the

appellant was alleged to have an inappropriate personal relationship, being

especially favored. Id. at 48-78. Although these statements are unsworn, we

agree with the administrative judge that the complaints therein are characteristic

of the misconduct alleged in charge 1, specifications 2 through 5. ID at 8. These

unsworn statements are also consistent with the sworn statements that the agency

submitted in support of its charge. IAF, Tab 26 at 35-43.

We have also considered the circumstantial evidence weighing in the

appellant’s favor. This includes statements from five other agency employees

with whom the appellant has worked at other facilities, as well as the three

positive opinions of the appellant’s managerial practices gathered by the

appellant’s supervisor during his site visit. We acknowledge that the five

statements that the appellant submitted for the record express a favorable view of

his managerial style, and that four of these statements were made under the

penalty of perjury. IAF, Tab 29 at 40-49. However, we do not find these

statements particularly persuasive because none of these individuals worked

under the appellant at the Jefferson Post Office during the time period in

question. See Hillen, 35 M.S.P.R. at 458 (stating that, to resolve credibility

issues, the Board will consider, among other things, the witness’s opportunity and

capacity to observe the event or act in question). As to the three favorable

statements that the appellant’s supervisor collected during his site visit, one was

somewhat equivocal and not necessarily inconsistent with the negative

statements; this employee acknowledged that the appellant was “rough around the

edges,” but offered that he believed that the appellant was basically doing a good

job and that his colleagues were being “too sensitive.” IAF, Tab 6 at 74.

Therefore, although this statement is generally positive, we do not find that it

weighs heavily in the appellant’s favor. Another one of the positive statements

was offered by RCA 1, who stated that the appellant treated his subordinates

fairly and that they just did not like being held to account. Id. at 57-58, 71.

However, based on the large number of consistent statements that the appellant

favored RCA 1 over the rest of his subordinates, id. at 48-50, 54-56, 59, 61-63,

65-66, 68, 70-77, we find that the appellant more probably than not showed

favoritism to RCA 1, and that her unsworn statements to the contrary are

therefore entitled to little weight, see Hillen, 35 M.S.P.R. at 458 (reflecting that

to resolve credibility issues, the Board will consider, among other things, a

witness’s bias or lack of bias).

The most persuasive circumstantial evidence in the appellant’s favor was

from a Mail Processing Clerk, who, like RCA 1, stated that the appellant did not

show favoritism and his subordinates merely resented being told what to do. IAF,

Tab 6 at 74, Tab 27 at 23-25. However, unlike RCA 1, there is no evidence that

this Mail Processing Clerk was biased in the appellant’s favor, and she supported

her unsworn statements with a declaration under the penalty of perjury. IAF,

Tab 29 at 22-25. The Mail Processing Clerk also stated that she overheard three

or four employees discuss the need to “keep their stories straight” in order to get

the appellant out of the office. IAF, Tab 27 at 22, 24. Although we find little

reason to doubt the facts that this Mail Processing Clerk reported or the

earnestness of her opinions, we find that her statements are insufficient to

outweigh the statements of the other employees. First, we note that her opinion

of the appellant’s managerial style is inconsistent with the opinions of practically

all the other employees at the Jefferson Post Office. See Hillen, 35 M.S.P.R.

at 458 (stating that, to resolve credibility issues, the Board will consider, among

other things, the contradiction of the witness’s version of events by other

evidence or its consistency with other evidence). Second, even if 3 or 4 of the

appellant’s subordinates attempted to coordinate their accounts of the appellant’s

misconduct, this does not explain the similar opinions expressed by 14 other

Jefferson Post Office employees. Nor would it appear that there would have been

much opportunity for these individuals to collude in advance of the January 2019

interviews. Therefore, although the Mail Processing Clerk’s statements have

some persuasive value, we find that the weight of the evidence supports the

agency’s allegation that the misconduct alleged in charge 1, specifications 2

through 5 was characteristic of the appellant’s profane, intimidating, and

unprofessional style of management.

Further supporting our findings are the appellant’s actions with respect to

charge 1, specification 1, which, as explained above, are not in material dispute.

This incident provides additional confirmation of the appellant’s pattern of

overbearing and unprofessional behavior, as well as his tendency to turn his

dissatisfaction with craft employees into a personal matter. For these reasons,

having weighed the evidence as a whole, both for and against the agency’s

version of events, we agree with the administrative judge that the agency proved

charge 1, specifications 2 through 5.

Charge 2: Lack of Candor

Lack of candor requires proof that: (1) the employee gave incorrect or

incomplete information; and (2) he did so knowingly. Fargnoli v. Department of

Commerce, 123 M.S.P.R. 330, ¶ 17 (2016). Although lack of candor is

distinguishable from falsification because it does not require a showing of an

“intent to deceive,” it nonetheless requires that the employee conveyed

information knowing that it was incorrect or incomplete. Parkinson v.

Department of Justice, 815 F.3d 757, 765-66 (Fed. Cir. 2016), aff’d in part and

rev’d in part, 874 F.3d 710 (Fed. Cir. 2017) (en banc).

In support of its lack of candor charge, the agency stated that, the week

following his February 6, 2019 interview, the appellant stated to his supervisor “I

want to be straight up with you. I just want you to know I lied to most of the

questions you asked me.” When his supervisor asked for an explanation, the

appellant “became noticeably upset and began to say, ‘I did not tell you I lied. It

was your question . . . ,’” but he failed to complete his thought. IAF, Tab 6 at 28.

The administrative judge sustained this charge based on the appellant’s interview

answers in which he denied committing the misconduct under charge 1,

specifications 2 through 5. ID at 10-11; IAF, Tab 6 at 44-45.

On petition for review, the appellant argues that he could not have admitted

lack of candor to his supervisor the week after the February 6, 2019 interview

because he was out of state on vacation at that time. PFR File, Tab 3 at 7-8. We

find that even if we discount the appellant’s alleged admission, the agency proved

its lack of candor charge. We agree with the administrative judge that it was

sufficient for the agency to show that the appellant denied committing misconduct

that was proven to have occurred. ID at 10-11; see Little v. Department of

Transportation, 112 M.S.P.R. 224, ¶ 20 (2009) (citing Boyd v. Department of

Justice, 14 M.S.P.R. 427, 428-30 (1983), for the principle that when an agency

proves an appellant’s underlying misconduct it also proves that he lacked candor

when he failed to provide truthful or complete information when questioned about

that misconduct).

Charge 3: Failure to Follow Instructions

To prove a charge of failure to follow instructions, an agency must

establish that the appellant: (1) was given proper instructions, and (2) failed to

follow the instructions, without regard to whether the failure was intentional or

unintentional. Powell v. U.S. Postal Service, 122 M.S.P.R. 60, ¶ 5 (2014). In this

case, the agency alleged that, on January 11, 2019, the appellant was given

explicit instructions not to contact anyone at the Jefferson Post Office, and that

the appellant violated these instructions on April 3, 2019, when he sent a text

message to the Officer in Charge, exhorting him to remain loyal. IAF, Tab 6

at 29-30. The administrative judge sustained this charge, and the appellant does

not challenge the administrative judge’s finding on review. ID at 31. For the

reasons explained in the initial decision, we agree with the administrative judge

that the agency proved charge 3.

We modify the initial decision to find that the appellant did not prove the agency

denied him due process or committed harmful procedural error.

As to the lack of candor charge, the appellant also argues that the agency

failed to identify with specificity the interview answers that it was alleging were

inaccurate. PFR File, Tab 3 at 8. We construe this as an affirmative defense of

violation of due process. See Howarth v. U.S. Postal Service, 77 M.S.P.R. 1, 3-4

(1997) (stating that due process entails advance notice of an adverse action, with

sufficient detail to allow the employee to make an informed reply). The appellant

raised this issue below, but the administrative judge did not specifically address

it. IAF, Tab 27 at 13. We will therefore address it here.

We agree with the appellant that charge 2, itself, does not specifically list

the allegedly inaccurate interview answers. However, we find that the essence of

charge 2 is readily ascertainable by reading the proposal notice and supporting

documents as a whole. See Allen v. U.S. Postal Service, 466 F.3d 1065, 1070

(Fed. Cir. 2006) (explaining that “charged offenses are to be gleaned from the

Notice of Proposed Removal as a whole”); Coppola v. U.S. Postal Service,

47 M.S.P.R. 307, 312 (1991) (finding that the notice of proposed removal,

together with the evidence available for the appellant’s examination, was

sufficient to notify the appellant of the nature of the charges against him).

Specifically, charge 2 refers to untruthful statements that the appellant made

during his February 6, 2019 interview. IAF, Tab 6 at 28. The notes from that

interview, which were only two pages long and available for the appellant’s

review, show that the appellant denied committing the misconduct alleged under

charge 1, specifications 2 through 5. Id. at 31, 44-45. These are obviously the

interview answers to which the agency was referring in charge 2, and the

appellant posits no alternative interpretation of the charge. Id. at 44-45.

Furthermore, the notice of proposed removal specifically informed the appellant

that, if he did not understand the reasons for the proposal, he should contact his

supervisor, the proposing official. Id. at 31. There is no evidence that the

appellant did so. 5 For these reasons, we find insufficient evidence to show that

the appellant reasonably failed to understand the nature of charge 2 so that he was

unable to make a meaningful reply. 6

Penalty

Because all the agency’s charges are sustained, the Board’s authority to

review the penalty is limited. Cantu v. Department of the Treasury, 88 M.S.P.R.

253, ¶ 4 (2001). Specifically, the Board reviews an agency-imposed penalty only

to determine if the agency considered all of the relevant factors and exercised

management discretion within tolerable limits of reasonableness. Douglas,

5 M.S.P.R. at 306. In determining whether the selected penalty is reasonable, the

To determine whether an employee actually failed to understand the charges against

him, the Board will consider, among other things, his reply to the notice of proposed

removal. See Hunger v. Department of the Interior , 2 M.S.P.R. 107, 108 (1980), aff’d

sub nom. Colhoff v. Department of the Interior , 641 F.2d 608 (8th Cir. 1981). In this

case, it appears that the appellant only replied orally, and there is no relevant evidence

of what he said during his reply. IAF, Tab 6 at 15. Because the appellant bears the

burden of proving his affirmative defenses, the absence of relevant evidence on this

point, if anything, tends to cut slightly against the appellant’s case. See Miller v.

Department of Justice, 842 F.3d 1252, 1262 (Fed. Cir. 2016); 5 C.F.R. § 1201.56(b)(2)

(i)(C).

We have also considered the appellant’s argument as an affirmative defense of

harmful procedural error. However, as explained above, this charge is established

based on the discrepancies between the appellant’s interview statements and the proven

misconduct in charge 1, specifications 2 through 5. Therefore, we do not find that the

appellant has shown that any defect in the notice of proposed removal likely had an

effect on the outcome regarding this charge. See Williams v. U.S. Postal Service,

68 M.S.P.R. 150, 153-54 (1995).

Board gives due deference to the agency’s discretion in exercising its managerial

function of maintaining employee discipline and efficiency, recognizing that the

Board’s function is not to displace management’s responsibility but to assure that

managerial judgment has been properly exercised. Id. at 302. Thus, the Board

will disturb an agency’s chosen penalty only if it finds that the agency failed to

weigh relevant factors or that the agency’s judgment clearly exceeded the limits

of reasonableness. Id. at 306.

In this case, the administrative judge considered the deciding official’s

declaration and Douglas factors worksheet and concluded that she appropriately

considered the relevant factors in arriving at her decision. ID at 13-15; IAF,

Tab 3 at 23-26, Tab 26 at 28-30. The administrative judge further found that the

deciding official’s ultimate determination to reduce the appellant in grade and pay

was reasonable. ID at 14-15. The appellant does not directly challenge the

administrative judge’s findings in this regard, and we see no reason to disturb

them. See Holliman v. U.S. Postal Service, 75 M.S.P.R. 372 (1997) (finding a

four-grade demotion and reassignment to be an appropriate penalty for a

Postmaster who engaged in continuing inappropriate behavior involving

confrontations with outside contractors and agency employees); Kirkpatrick v.

U.S. Postal Service, 74 M.S.P.R. 583, 590 (1997) (stating that supervisors are

held to a higher standard of conduct than other employees).

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 and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

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.

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

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

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

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

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

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

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

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

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or 2302(b)

(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial review either

with the U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 8 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the