The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHELE GILCHRIST, DOCKET NUMBER
Appellant, DC-0752-13-0386-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: August 4, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Michele Gilchrist, Carson, Virginia, pro se.
Stephen W. Furgeson, Landover, Maryland, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed her removal for improper conduct. Generally, we grant petitions such as
this one only when: the initial decision contains erroneous findings of material
fact; the initial decision is based on an erroneous interpretation of statute or
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
regulation or the erroneous application of the law to the facts of the case; the
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. See 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, and based on the following points and authorities, 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 and AFFIRM
the initial decision issued by the administrative judge, which is now the Board’s
final decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant has not shown that the administrative judge made erroneous
findings of material fact.
¶2 The “improper conduct” with which the appellant was charged involved an
altercation between the appellant and an acting supervisor in which the acting
supervisor was attempting to retrieve papers from the appellant. The agency
alleged that, as the acting supervisor “made a further attempt to retrieve the paper
from you, you pivoted to face him, drew your arm back, cocked your right hand,
and punched [the acting supervisor] in the face.” Initial Appeal File, Tab 5,
Subtab 4c. Following a hearing in which the appellant, the acting supervisor, and
several witnesses testified, the administrative judge found that the proposal notice
accurately described what happened. The judge concluded that the appellant’s
punch was deliberate and rejected her contentions that she acted in self defense or
reflexively: “The evidence demonstrates that [the acting supervisor] was behind
the appellant. She turned around, clenched her fist and aimed her fist at [the
supervisor’s] left cheek at least a foot over her head. This was not a reflexive
action.” Initial Decision (ID) at 15.
3
¶3 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; the Board 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). We find that the
appellant has advanced no “sufficiently sound” reasons for overturning the
administrative judge’s credibility determinations and findings of fact in this
regard. To the contrary, we find the judge’s findings of fact and credibility
determinations to be eminently reasonable as to this crucial matter.
The appellant’s affirmative defenses and the reasonableness of the penalty
¶4 The appellant reiterates arguments she made below that she was denied due
process of law, that the agency delayed unduly in taking its adverse action, that
the agency discriminated against her because of her race or gender by creating a
hostile working environment or for protected EEO activity, and that it was guilty
of disability discrimination for failing to accommodate her disability by providing
her with a light duty assignment. Petition for Review (PFR) File, Tabs 1-2. For
the reasons stated in the initial decision, we find these arguments to be without
merit. With regard to the discrimination and retaliation claims, we agree with the
judge’s determination that, even if a prima facie case had been made, the agency
had a legitimate nondiscriminatory reason for its action, i.e., that the appellant
punched an acting supervisor in the face. ID at 18-23. We further agree with the
administrative judge’s assessment that this act constituted an egregious form of
violence at the workplace which the agency simply could not tolerate. ID at 19,
23-24.
¶5 The appellant similarly reiterates arguments of harmful procedural error
that she raised below, particularly with respect to the agency’s use of its
PreDisciplinary Interview process. See PFR File, Tab 1 at 5-13. As the
administrative judge properly found, harmful error under 5 U.S.C.
4
§ 7701(c)(2)(A) cannot be assumed; the appellant must show that an agency’s
failure to follow its procedures caused the agency to reach a conclusion different
from the one it would have reached in the absence or cure of the error. ID at 25;
see 5 C.F.R. § 1201.56(c)(3). Given our determination that the administrative
judge correctly found that the appellant intentionally struck an acting supervisor
in the face, the appellant has made no showing that any procedural error caused
the agency to reach a different conclusion with respect to her improper conduct.
The appellant’s arguments with respect to the length of time it took the agency to
initiate its removal action and the length of time it took for the administrative
judge to issue her initial decision fail for the same reason. 2
¶6 Finally, we agree with the initial decision as to the reasonableness of the
removal penalty. ID at 29-32.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
2
The appellant’s contention that the administrative judge erred in refusing to approve
the Human Resources Manager as a witness, PFR File, Tab 1 at 4, fails both because the
appellant did not object to this ruling during the regional office proceeding, see Tarpley
v. U.S. Postal Service, 37 M.S.P.R. 579, 581 (1988), and because she has failed to
establish how this witness’s testimony likely would have changed the result.
5
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request 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, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. 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
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prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e5(f) and
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.