Opinion

Larry Lovejoy v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Feb 5, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 33.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LARRY LOVEJOY, II, DOCKET NUMBER

Appellant, AT-0752-20-0633-I-1

UNITED STATES POSTAL SERVICE, DATE: February 5, 2025

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jennifer D. Isaacs , Esquire, Atlanta, Georgia, for the appellant.

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

Ronald E. Jones , Plano, Texas, for the agency.

BEFORE

Cathy A. Harris, Chairman*

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

*The Board members voted on this decision before January 20, 2025.

FINAL ORDER

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

sustained the agency’s chapter 75 removal action based on the charge of

unacceptable conduct. On petition for review, the appellant argues the following:

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

(1) the administrative judge abused his discretion by disallowing certain witness

testimony; (2) the administrative judge made erroneous findings of material fact;

(3) the penalty of removal was unreasonable under the circumstances; and (4) the

administrative judge failed to consider his affirmative defenses. Petition for

Review (PFR) File, Tab 2 at 13-17. 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 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 vacate the administrative judge’s discussion of affirmative

defenses, we AFFIRM the initial decision.

The appellant’s contention regarding his witnesses is unavailing.

The appellant argues that the administrative judge abused his discretion by

“denying [him] the opportunity to present his witnesses.” PFR File, Tab 2 at 13.

To this end, he asserts that the administrative judge approved the testimony of

only 10 of his 14 requested witnesses and “did not list reasons for the denial of

[the 4 disallowed] witnesses, but approved all of the [a]gency’s requested

witnesses.” Id. at 13-14. He also asserts that he unsuccessfully sought

reconsideration of the administrative judge’s ruling regarding one of his four

disallowed witnesses. Id. at 13.

An administrative judge has broad discretion to regulate the course of the

hearing and to exclude evidence and witnesses that have not been shown to be

relevant, material, and nonrepetitious. Thomas v. U.S. Postal Service,

116 M.S.P.R. 453, ¶ 4 (2011); 5 C.F.R. § 1201.41(b)(8), (10). To obtain reversal

of an initial decision on the basis of the exclusion of a witness, the appellant must

show that a relevant witness or evidence, which could have affected the outcome,

was disallowed. See Thomas, 116 M.S.P.R. 453, ¶ 4.

Here, although the appellant apparently disagreed with the administrative

judge’s admissibility rulings regarding all four of his disallowed witnesses, he

admittedly only timely objected to the administrative judge’s ruling regarding one

of these witnesses; thus, we need only consider his arguments regarding this

particular witness. Initial Appeal File (IAF), Tab 13 at 4-5; PFR File, Tab 2

at 13; see Tarpley v. U.S. Postal Service, 37 M.S.P.R. 579, 581 (1988) (stating

that an appellant’s failure to timely object to rulings on witnesses precludes the

appellant from doing so on petition for review). 2 Regarding the anticipated

testimony of this particular witness, the appellant proffers only that the individual

had previously represented him and was present during his meeting with the

deciding official and, therefore, would have testified “regarding these processes

as well as to whether there had been any notification regarding some of the

complaints against [the a]ppellant.” PFR File, Tab 2 at 13. Given the vagueness

of this proffer, we find that the appellant has failed to show that the

administrative judge’s disallowance of this witness could have affected the

outcome of his appeal. See Thomas, 116 M.S.P.R. 453, ¶ 4; see also Umshler v.

Department of the Interior, 44 M.S.P.R. 628, 632-33 (1990) (concluding that the

We find, however, that even if the appellant had timely objected to the administrative

judge’s rulings regarding the three other disallowed witnesses, a different outcome

would not be warranted. Indeed, the appellant’s vague proffers regarding these three

witnesses fail to identify any anticipated testimony that could be material to the

outcome of his appeal. IAF, Tab 10 at 12, Tab 11 at 3; PFR File, Tab 2 at 13; see

Thomas, 116 M.S.P.R. 453, ¶ 4.

administrative judge did not err in denying the appellant’s requests for witnesses

when the appellant’s proffer regarding the witnesses was “not sufficiently

specific” to allow the Board to conclude whether the administrative judge had

abused her wide discretion). Thus, the appellant’s assertions regarding his

witnesses do not warrant a different outcome.

The appellant’s contentions regarding the administrative judge’s findings of fact

are unavailing.

The appellant contends that the administrative judge made erroneous

findings of material fact. PFR File, Tab 2 at 14-16. However, the only such

factual finding that he discernably identifies is the administrative judge’s

conclusion that he lacked rehabilitative potential. 3 Id. at 15-16. He argues that

this finding was the result of erroneous credibility determinations, i.e., the

administrative judge “choosing to believe the [a]gency’s narrative and ignore [the

a]ppellant’s testimony.” Id. at 15. We find this assertion unavailing. Indeed,

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

determinations when they are based, explicitly or implicitly, on the observation of

the demeanor of witnesses testifying at a hearing. Haebe v. Department of

Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Accordingly, the appellant’s

general disagreement with unspecified credibility determinations made by the

administrative judge does not provide a basis to disturb the initial decision.

The appellant asserts that he was not allowed to have a representative present during

an investigative interview with his supervisor and that he was only provided with

2 hours of notice for the interview; however, he does not identify what bearing, if any,

these alleged improprieties had on the administrative judge’s factual findings. PFR

File, Tab 2 at 16. In any event, the appellant did not discernably raise these claims

before the administrative judge. See Banks v. Department of the Air Force, 4 M.S.P.R.

268, 271 (1980) (finding that the Board generally will not consider an argument raised

for the first time in a petition for review absent a showing that it is based on new and

material evidence not previously available despite the party’s due diligence).

We discern no basis to disturb the administrative judge’s conclusion that removal

was reasonable under the circumstances.

The appellant contends that his removal was unwarranted under the

circumstances. PFR File, Tab 2 at 14-16. To this end, he asserts that, in

assessing the reasonableness of the agency’s penalty, the administrative judge

improperly deferred to the deciding official’s determination and neglected to

consider all of the mitigating factors/circumstances, including tension that existed

in the office. Id. at 15-16. We disagree.

When the agency’s charge is sustained, the Board will review an

agency-imposed penalty only to determine if the agency considered all of the

relevant factors and exercised discretion within tolerable limits of reasonableness.

Ellis v. Department of Defense, 114 M.S.P.R. 407, ¶ 11 (2010); Douglas v.

Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981). In making this

determination, the Board must give due weight to the agency’s primary discretion

in maintaining employee discipline and efficiency, recognizing that the Board’s

function is not to displace management’s responsibility, but to ensure that

managerial judgment has been properly exercised. Ellis, 114 M.S.P.R. 407, ¶ 11;

Douglas, 5 M.S.P.R. at 306. The Board will modify an agency-imposed penalty

only when it finds that the agency failed to weigh the relevant factors or the

penalty clearly exceeds the bounds of reasonableness. Ellis, 114 M.S.P.R. 407,

¶ 11.

Here, we find that the administrative judge applied the proper legal

standard and reasonably concluded that the agency’s selected penalty of removal

was not unwarranted under the circumstances and was within the tolerable bounds

of reasonableness. IAF, Tab 17, Initial Decision (ID) at 12-15; see Ellis,

114 M.S.P.R. 407, ¶ 11. To this end, the administrative judge recounted the

deciding official’s testimony that he had taken into consideration the appellant’s

past performance and good performance ratings. ID at 13; see Douglas,

5 M.S.P.R. at 305-06. However, as set forth in the initial decision, the deciding

official reasonably concluded that removal was appropriate in light of, among

other things, the appellant’s supervisory status and the nature of his misconduct; 4

indeed, the deciding official explained that, given the nature of the appellant’s

conduct, which included “suggestions of unwelcomed physical contact,” he had

found “no comparative situations where a lesser penalty was warranted or

provided.” ID at 13-14. Thus, we discern no basis to disturb the administrative

judge’s conclusion that the penalty of removal was reasonable under the

circumstances. See Luongo v. Department of Justice, 95 M.S.P.R. 643, ¶¶ 2-3, 16

(2004) (finding the appellant’s removal appropriate when he placed his body

against a coworker and made improper sexual remarks and innuendo), aff’d,

123 F. App’x 405 (Fed. Cir. 2005); see also Alexander v. U.S. Postal Service,

67 M.S.P.R. 183, 186-87, 191 (1995) (finding the appellant’s removal appropriate

when he exhibited a pattern of behavior involving both sexual harassment and

exhibitionism).

The appellant’s contention regarding his affirmative defenses does not warrant a

different outcome.

The appellant argues that, although “inartfully pled,” he nonetheless

“clearly identified issues concerning retaliation and violations of due process,”

which the administrative judge failed to address. PFR File, Tab 2 at 16. He

asserts that, although his attorney representative before the administrative judge

never “clearly stated that [he] was raising an affirmative defense,” his pleadings

and testimony nonetheless indicated that he was claiming “retaliation and

violations of due process.” Id. The appellant does not cite to any specific

The administrative judge here concluded that the agency proved by preponderant

evidence 6 of its 7 specifications of unacceptable conduct, including a specification

alleging that the appellant had repeatedly asked a female employee to touch him on an

intimate area of his body as he was in a visible state of arousal. ID at 3-10; IAF, Tab 4

at 30-31.

pleadings wherein he raised such claims; rather, he refers generally to his

“Pre-Hearing Submissions.” 5 Id. at 17.

Contrary to the appellant’s assertion, we find that his prehearing

submissions did not raise claims regarding either retaliation or violation(s) of his

due process rights. To this end, prior to the hearing, the appellant submitted four

filings. IAF, Tabs 1, 10-11, 13. On his initial appeal form, the appellant checked

a box indicating that he was challenging the agency’s removal action; he did not

provide any narrative argument or otherwise indicate that he was raising any

affirmative defenses. IAF, Tab 1 at 7. Thereafter, the appellant filed his

prehearing submission. 6 IAF, Tab 10 at 6-11. Although the appellant generally

referenced a prior equal employment opportunity (EEO) matter that was resolved

via a settlement agreement in this filing, id. at 7, the reference was not

discernably tethered to a claim of reprisal for prior protected EEO activity.

Similarly, apart from vague references to the appellant being unable to review the

agency’s documentation prior to its issuance of the notice of proposed removal,

id. at 9, and an ambiguous statement regarding the agency’s notice of proposed

removal failing to provide “information about who was the alleged victim, when

and where did alleged misconduct happened,” id. (grammar as in original), 7 the

In a section of his petition for review entitled “STATEMENT OF MATERIAL

FACTS,” the appellant cites to various documents, including documentation seemingly

pertaining to two prior equal employment opportunity claims. E.g., PFR File, Tab 2

at 6. Although unclear, we speculate that the appellant is citing to documents that the

parties exchanged during discovery; however, these documents are not part of the

record. This section of the appellant’s petition also alludes to discrimination on the

basis of race, color, and sex, as well as workplace harassment. Id. at 5-6. To the extent

the appellant is either raising these additional claims for the first time or arguing that he

raised these claims before the administrative judge, a different outcome is not warranted

because he has not shown that he could not have raised these matters earlier or

identified where in the record he timely raised these matters. See, e.g., 5 C.F.R.

§ 1201.115(a)(2), (d).

The appellant attached numerous documents to his prehearing submission, to include

various witness statements. IAF, Tab 10 at 16-109.

The basis of this statement was unclear; indeed, the record reflected, and the appellant

conceded at the hearing, that the agency’s notice of proposed removal, which the

appellant provided no argument conceivably tethered to anything resembling a

due process argument. Indeed, the majority of the appellant’s prehearing

argument was devoted to (1) his contention that an October 2019 altercation that

he had with a customer had impelled the agency’s removal action and (2) the

deciding official’s alleged failure to independently verify and/or investigate the

allegations made against him. Id. at 10-11. The appellant’s remaining two filings

before the administrative judge pertained to his proffered witnesses and did not

discuss anything regarding affirmative defenses. IAF, Tabs 11, 13.

Following the appellant’s submission of all four of these filings, the

administrative judge issued a summary of the parties’ prehearing conference

wherein he summarized the material issues in the matter. IAF, Tab 14 at 2. The

appellant did not object to or otherwise challenge the administrative judge’s

summary, which was devoid of any mention of affirmative defenses. Id. Thus,

we find that the appellant, who was represented by counsel before the

administrative judge, did not timely raise his claims of retaliation or due process

violations. See Nugent v. U.S. Postal Service, 59 M.S.P.R. 444, 447-48 (1993)

(stating that an appellant may raise a claim or defense at any time before the end

of the conference held to define the issues in the case), review dismissed, 36 F.3d

1107 (Fed. Cir. 1994) (Table); see also 5 C.F.R. § 1201.24(b) (stating that an

appellant may raise a claim or defense not included in the appeal at any time

before the end of the conference(s) held to define the issues in the case and that

thereafter may only raise a new claim or defense for good cause shown); cf. Miles

v. Department of Veterans Affairs, 84 M.S.P.R. 418, ¶ 6 (1999) (explaining that

the Board construes pro se pleadings liberally). Moreover, the appellant did not

discernably identify or address his affirmative defenses during the hearing. IAF,

appellant stipulated to receiving, had provided all of this information. IAF, Tab 4

at 31-34, Tab 14 at 2, Tab 15, Hearing Recording at 01:28:22 to 01:30:01 (testimony of

the appellant, file 4).

Tab 15, Hearing Recording. 8 Thus, we find unavailing the appellant’s assertion

that the administrative judge failed to address his affirmative defenses. 9

Accordingly, we affirm the initial decision.

NOTICE OF APPEAL RIGHTS 10

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

To the extent the appellant argues that the administrative judge precluded him from

presenting his claims of retaliation and due process violations, PFR File, Tab 2 at 17,

we find his assertion unavailing. Indeed, apart from his assertions regarding his

disallowed witnesses discussed above, the appellant does not identify any documentary

evidence or testimony that the administrative judge disallowed. See Sanders v. Social

Security Administration, 114 M.S.P.R. 487, ¶ 10 (2010) (explaining that, to obtain

reversal of an initial decision on the ground that the administrative judge abused his

discretion in excluding evidence, the appellant must show on review that relevant

evidence, which could have affected the outcome, was disallowed).

Despite the appellant’s failure to discernably raise any such claims, the administrative

judge nonetheless briefly discussed a series of affirmative defenses in his initial

decision; however, in so doing, he did not clearly explain the applicable legal standards.

ID at 10-12. Because we find that the appellant did not timely raise any affirmative

defenses, we vacate this portion of the initial decision.

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.

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.

(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. 11 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).

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.

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