Steven Michael Noppenberger v. United States Postal Service

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

STEVEN MICHAEL DOCKET NUMBER

NOPPENBERGER, PH-0752-13-0454-I-1

Appellant,

v.

DATE: September 15, 2014

UNITED STATES POSTAL SERVICE,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Steven Michael Noppenberger, Westminster, Maryland, pro se.

Norma B. Hutcheson, Esquire, 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 his removal. 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 regulation or the

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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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, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b).

¶2 Effective June 18, 2013, the agency removed the appellant from his position

of Rural Letter Carrier based on one charge of unsatisfactory work performance

and one charge of improper conduct and failure to follow instructions. Initial

Appeal File (IAF), Tab 1 at 16. The appellant filed the instant appeal with the

Board on June 19, 2013, to contest his removal. IAF, Tab 1.

¶3 After conducting a hearing and allowing the appellant an opportunity to

provide additional testimony, the administrative judge issued an initial decision

affirming the appellant’s removal. IAF, Tab 27, Initial Decision (ID) at 1. Upon

consideration of record and testimonial evidence and making credibility

determinations, the administrative judge found that the agency proved, by

preponderant evidence, the six specifications listed for the charge of

unsatisfactory work performance and the five specifications listed for the charge

of improper conduct and failure to follow instructions. ID at 2-4. The

administrative judge also found that the appellant failed to challenge or deny the

specifics of the charges. ID at 3-4. In addition, the administrative judge found

that, while reprisal for exercising a grievance is a prohibited personnel practice

under 5 U.S.C. § 2302(b)(9), here, the appellant failed to establish a nexus

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between his removal and his grievance activities; the administrative judge also

found ample support in the record for the conclusion that the agency’s action was

based on the stated charges. ID at 5-6. As a result, the administrative judge

found that the appellant failed to prove his affirmative defense. Finally, the

administrative judge found that the penalty of removal was reasonable and

promoted the efficiency of the service. ID at 7-9.

¶4 The appellant timely filed a petition for review. Petition for Review (PFR)

File, Tab 1. The agency filed a response, PFR File, Tab 3, and the appellant filed

a reply to the agency’s response, PFR File, Tab 4. 2

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 On review, for the most part, the appellant denigrates the agency, his union,

and the Board but does not contest the administrative judge’s findings that the

agency proved both charges by preponderant evidence and that the penalty was

reasonable. See PFR File, Tabs 1, 4. Because those findings are supported by the

weight of the record evidence and applicable law, and the appellant has provided

no reason to disturb them, we defer to the administrative judge’s well-explained

findings regarding those issues. See Crosby v. U.S. Postal Service, 74 M.S.P.R.

98, 106 (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); Broughton v. Department of Health & Human

Services, 33 M.S.P.R. 357, 359 (1987) (same).

¶6 The appellant does challenge the administrative judge’s finding regarding

his retaliation claim. PFR File, Tab 1 at 4-5. Nonetheless, as discussed below,

we agree with the administrative judge that the appellant failed to establish that

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The appellant filed a pleading titled “Submission of Settlement Agreement.” PFR

File, Tab 5. However, the pleading is a settlement offer, to which the agency has not

filed a response. Id. The Board need not consider the appellant’s settlement offer when

reviewing the appropriateness of his removal, as the offer is entitled to no weight. See

Nettles v. Department of the Army, 52 M.S.P.R. 181, 185 (1991).

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his removal was in retaliation for filing grievances with the National Labor

Relations Board (NLRB). Furthermore, the appellant’s claims of judicial bias,

see PFR File, Tab 1 at 4-5, Tab 4 at 4-5, Tab 4 at 4-5, are without merit and,

similarly, do not provide any reason for disturbing the initial decision.

We discern no basis for disturbing the administrative judge’s finding that the

appellant failed to establish his retaliation claim.

¶7 A claim of retaliation for exercising “any appeal, complaint, or grievance

right granted by any law, rule, or regulation” is covered under 5 U.S.C.

§ 2302(b)(9), and can be raised as an affirmative defense to an otherwise

appealable action. Rhee v. Department of Treasury, 117 M.S.P.R. 640, ¶ 20

(2012). For an appellant to prevail on an affirmative defense of illegal retaliation

for activity protected under 5 U.S.C. § 2302(b)(9), he has the burden of showing

that: (1) he engaged in an activity protected under the section; (2) the accused

official knew of the protective activity; (3) the adverse action under review could

have been retaliation under the circumstances; and (4) there was a genuine nexus

between the alleged retaliation and the adverse action. Id., ¶ 21. The

administrative judge correctly found that, while the appellant met the first three

prongs of the test, he failed to establish a nexus between his filing of grievances

with the NLRB and his removal.

¶8 To establish a genuine nexus between the protected activity and the adverse

employment action, the appellant must prove that the employment action was

taken because of the protected activity. Murray v. General Services

Administration, 93 M.S.P.R. 560, ¶ 6 (2003). As is required, the administrative

judge’s finding was based on a careful weighing of the intensity of the officials’

motive to retaliate against the gravity of the charged misconduct or the

inadequacy of the performance of duties. See Warren v. Department of the Army,

804 F.2d 654, 658 (Fed. Cir. 1986) (a careful scrutiny of the intensity of the

motive to retaliate is necessary under test (4) to be weighed with the gravity of

the misconduct charged, or inadequacy of the performance of duties, so that the

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trier of fact can make an informed and reasoned determination whether the

“nexus” exists); Pyun v. Social Security Administration, 111 M.S.P.R. 249, ¶ 12

(2009) (same).

¶9 The administrative judge found that the appellant’s grievances primarily

concerned questions about his mail route. ID at 5. However, as the

administrative judge further found, the allotted time for the appellant’s route was

determined by contract between the union and the agency, and the policy affected

all rural letter carriers. ID at 5. Thus, the administrative judge correctly found

that, even though the officials were aware of the appellant’s grievance activity,

the officials had “little reason or motive to retaliate” against the appellant. ID

at 6. Contrary to the appellant’s insufficiency of evidence or argument, see PFR

File, Tab 1 at 4-5, the record and testimonial evidence fully supports the

administrative judge’s determination that “[t]he appellant’s deliberate refusals to

finish his mail route or other activities as directed by his supervisors clearly have

a serious, negative impact on the agency’s ability to complete its mission,” ID

at 6. Thus, the gravity of the misconduct charged weighs against a finding that

the agency removed the appellant in retaliation for his grievance activity. The

appellant’s bare statements that he was retaliated against, see PFR File, Tab 1

at 4-5, do not rebut this finding. Therefore, because the appellant failed to

establish that a nexus existed between his grievance activity and his removal, he

failed to prove his affirmative defense of retaliation.

The appellant has not established that the administrative judge was biased.

¶10 On review, as below, the appellant argues, among other similar claims, that

the administrative judge “blatantly favored” the agency. Id. at 4. While the

Board takes seriously the concerns of the parties who come before it, to establish

bias or prejudice against an administrative judge, a party must overcome the

presumption of honesty and integrity that accompanies administrative judges.

Tyler v. U.S. Postal Service, 90 M.S.P.R. 545, ¶ 6 (2002). An administrative

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judge’s conduct during the course of a Board proceeding warrants a new

adjudication only if the administrative judge’s comments or actions evidence “a

deep-seated favoritism or antagonism that would make fair judgment impossible.”

Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002)

(quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). Furthermore, the

administrative judge has wide discretion in determining what should be received

into evidence and has the authority to exclude irrelevant or overly repetitious

testimony. See Taylor v. Department of Treasury, 34 M.S.P.R. 495, 499 (1987).

¶11 Here, the appellant’s claim of bias is based on the administrative judge’s

refusal to allow the appellant to admit irrelevant evidence and the administrative

judge’s well-reasoned finding that the appellant simply failed to meet his burden

to establish his affirmative defense of retaliation. Thus, the appellant fails to

show that the administrative judge went beyond the bounds of her discretion or

exhibited bias or prejudice.

¶12 In sum, the appellant’s claims that his removal was in retaliation for filing

grievances with the NLRB are unsupported by the evidence or argument that he

presents. Therefore, because the appellant’s assertions fail to show that the

administrative judge erred in affirming the appellant’s removal, we find no reason

to disturb the initial decision.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United

States Court of Appeals for the Federal Circuit. You must submit your request to

the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

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The court must receive your request for review no later than 60 calendar

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.

27, 2012). If you choose to file, be very careful to file on time. The court has

held that normally it does not have the authority to waive this statutory deadline

and that filings that do not comply with the deadline must be dismissed. See

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to

court, you should refer to the federal law that gives you this right. It is found in

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.

Dec. 27, 2012). You may read this law as well as other sections of the United

States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.

Additional information 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, and 11.

If you are interested in securing pro bono representation for your court

appeal, you may visit our website at http://www.mspb.gov/probono for a list of

attorneys who have expressed interest in providing pro bono representation for

Merit Systems Protection Board appellants before the court. The Merit Systems

Protection Board neither endorses the services provided by any attorney nor

warrants that any attorney will accept representation in a given case.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.