The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WADIE BUTLER, DOCKET NUMBER
Appellant, DA-0752-14-0196-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: September 23, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Kenneth Brady and Samuel C. Beale, Esquire, Houston, Texas, for the
appellant.
Nadalynn F. Hamilton, Dallas, Texas, 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 the appellant’s 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
¶2 On November 12, 2013, the agency proposed the appellant’s removal from
his position as Full-time Regular City Carrier, for unacceptable conduct. Initial
Appeal File (IAF), Tab 6 at 15. According to the specification, on August 13,
2013, while assigned to official duties on Route 7227 at Beechnut Station in
Houston, Texas, “witness statements and a joint Labor-NALC 2 investigation
revealed [that the appellant was] involved in a physical and verbal altercation
with . . . [the] Manager at Beechnut Station.” IAF, Tab 5 at 15. The appellant
responded. IAF, Tab 6 at 22-29. The deciding official sustained the charge and
removed the appellant effective January 17, 2014. IAF, Tab 6 at 10-13.
¶3 The appellant, a preference-eligible veteran, timely filed a Board appeal, in
addition to filing a grievance with the agency. IAF, Tab 1. On appeal, the
appellant partially denied the charge, argued that the penalty was too severe, and
claimed disparate treatment. IAF, Tab 1 at 12, Tab 11, Hearing Compact Disc
(HCD). The agency responded in opposition. IAF, Tab 6 at 3-7. After holding a
2
NALC is an abbreviation for the National Association of Letter Carriers.
3
hearing, the administrative judge: (1) sustained the charge of unacceptable
conduct; (2) found that the appellant’s removal was reasonable and promoted the
efficiency of the service; and (3) further found that “the seriousness of the
appellant’s conduct militate[d] against mitigating the penalty.” IAF, Tab 12,
Initial Decision (ID). Thus, the administrative judge affirmed the appellant’s
removal. ID.
DISCUSSION OF ARGUMENTS ON REVIEW
¶4 The appellant has timely filed a petition for review. Petition for Review
(PFR) File, Tab 1. On review, the appellant argues that: (1) the administrative
judge improperly excluded a “key witness”; (2) the agency committed procedural
error by selecting a biased deciding official; and (3) the administrative judge
failed to properly consider the Douglas factors. Id. The agency has responded in
opposition. PFR File, Tab 3.
¶5 The appellant does not challenge the administrative judge’s findings that
the agency proved the charge of unacceptable conduct by preponderant evidence
and that the appellant failed to prove disparate treatment for failing to “identify
any similarly-situated employee who received a lesser penalty.” Id.; ID at 9-10.
Based on our review of the record, we discern no error in the administrative
judge’s findings. 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 the
administrative judge 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).
The appellant failed to preserve his objection to and establish error in the
administrative judge’s decision to exclude the proposing official as a witness.
¶6 The appellant alleges that the administrative judge erred in excluding the
proposing official as a witness. PFR File, Tab 1 at 5. However, an appellant’s
failure to timely raise objections to witnesses before the administrative judge
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precludes him from raising them for the first time on petition for review. Tarpley
v. U.S. Postal Service, 37 M.S.P.R. 579, 581 (1988). The appellant failed to raise
his objection to the administrative judge’s summary of the telephonic prehearing
conference that notified the parties of the approved witnesses, IAF, Tab 9, or at
the hearing, see HCD, despite being provided the opportunity to do so. Thus, the
appellant has waived his objection to the administrative judge’s exclusion of the
proposing official as a witness.
¶7 Moreover, the administrative judge has wide discretion to exclude witnesses
where it has not been shown that their testimony would be relevant, material, and
nonrepetitious. 5 C.F.R. § 1201.41(b)(8), (10); see Franco v. U.S. Postal Service,
27 M.S.P.R. 322, 325 (1985). According to the appellant, the proposing official’s
testimony was “key” because the proposing official was his “immediate
supervisor” and allegedly admitted to a union representative that he would have
proposed a lesser penalty. Id. at 5-6. Yet, the appellant has failed to show the
relevance of this testimony. The deciding official, not the proposing official, has
the authority to make the penalty determination. Furthermore, as evidenced by
the agency’s notice, the proposing official in fact recommended removal, see IAF,
Tab 6 at 15-18; therefore, any subsequent statement by the proposing official that
contradicts his proposal would affect his, not the deciding official’s, credibility.
See McCauley v. Department of the Interior, 116 M.S.P.R. 484, ¶ 9 (2011).
Consequently, the appellant has failed to show that the administrative judge erred
in excluding the proposing official as a witness.
The appellant has failed to show that the agency’s deciding official prejudged the
merits of the removal action or was otherwise biased against him.
¶8 The appellant argues that the agency committed procedural error because
the agency denied his “right to have his case heard by a neutral third party Area
Manager.” PFR File, Tab 1 at 5-6. An appellant’s due process rights are violated
when his basic rights are determined by a biased decision maker. Martinez v.
5
Department of Veterans Affairs, 119 M.S.P.R. 37, ¶ 10 (2012). The burden is on
the appellant to establish that the decision maker was actually biased. Id.
¶9 In support, the appellant argues that the deciding official was biased
because she was the “immediate supervisor and possible mentor” of the Manager
of Beechnut Station, who was the other person involved in the charged
altercation. PFR File, Tab 1 at 5-6. However, those facts alone are insufficient
to establish bias, even if that connection somehow led the deciding official to be
predisposed against the appellant. See Svejda v. Department of Justice,
7 M.S.P.R. 108, 111 (1981) (finding no general proscription of the appointment
of a person as deciding official who may be familiar with the facts of the case or
may have a predisposition against the appellant). The appellant’s generalized
allegations fail to establish that the deciding official’s independent judgment was
compromised or that she did not meaningfully consider all of the evidence.
Rather, based on the record evidence and the deciding official’s testimony, the
administrative judge properly found that the deciding official “properly exercised
her discretion.” ID at 12. Because the appellant has not shown any bias, much
less bias constituting harmful error, he has failed to establish that the agency
committed procedural error by selecting this particular deciding official.
The administrative judge properly considered the Douglas factors.
¶10 The appellant alleges that the administrative judge erred in finding that the
penalty was reasonable because he considered only 3 of the 12 Douglas 3 factors.
PFR File, Tab 1 at 6-10. As the administrative judge correctly stated, where, as
here, all of the agency’s charges are sustained, the Board will review the
agency-imposed penalty only to determine if the agency considered all the
relevant factors and exercised management discretion within the tolerable limits
of reasonableness. Ellis v. Department of Defense, 114 M.S.P.R. 407, ¶ 11
3
See Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981) (setting forth
the factors appropriate for consideration in determining the reasonableness of an
agency-imposed penalty).
6
(2010); Douglas, 5 M.S.P.R. at 305-06. The agency need not address all 12
factors, merely those that are relevant. Douglas, 5 M.S.P.R. at 306 (clarifying
that not all 12 factors will necessarily be pertinent in every case). The Board will
modify or mitigate an agency-imposed penalty only where it finds that the agency
failed to weigh the relevant factors or the penalty clearly exceeds the bounds of
reasonableness. Singletary v. Department of the Air Force, 94 M.S.P.R. 553, ¶ 9
(2003), aff’d, 104 F. App’x 155 (Fed. Cir. 2004).
¶11 We disagree with the appellant’s contention. The decision letter and the
deciding official’s testimony clearly indicate that she considered the relevant
Douglas factors. 4 In her decision letter, the deciding official stated that she
assessed the penalty in accordance with the Douglas factors. IAF, Tab 6 at
10-11. Also, she accounted for mitigating and aggravating factors, specifically,
the appellant’s “length of service, position, past record,” and “potential for
rehabilitation” and “the nature and seriousness of the offense.” Id. The deciding
official’s testimony also was consistent with her decision letter, and it elaborated
on the rationale behind her decision. See ID at 10-12. In particular, the
administrative judge noted that the deciding official found that the appellant acted
intentionally, he complained of the Beechnut Station Manager rather than offer an
apology after the incident, he created an unsafe environment for employees, and
his actions inhibited managers’ ability to correct employees without fear. ID at
2-3, 10-11.
¶12 Next, the appellant argues that the agency failed to adhere to its own
progressive discipline policy. PFR File, Tab 1 at 7. Progressive discipline is
intended to ensure that an employee is on notice that his misconduct will not be
4
To the extent the appellant suggests that a deciding official must state, with
particularity, which of the Douglas factors relate to the specification supporting a
charge, he provides no authority for his position, and we are aware of none. We further
find that the administrative judge did not abuse his discretion in allowing the deciding
official to testify as to her rationale for imposing the penalty. See 5 C.F.R.
§ 1201.41(b)(10) (authority of the administrative judge to receive relevant evidence).
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tolerated. See Cascio v. General Services Administration, 21 M.S.P.R. 7, 10
(1984). Progressive discipline may be appropriate when there is a chance that it
will successfully modify the appellant’s conduct and lesser sanctions are expected
to deter such conduct in the future. See Merchant v. U.S. Postal Service,
52 M.S.P.R. 330, 334, aff’d, 980 F.2d 745 (Fed. Cir. 1992) (Table). Here, the
deciding official emphasized that the agency has a zero tolerance policy regarding
violence, of which the appellant was on notice. HCD. Also, she determined that
a lesser penalty would not deter future misconduct, but instead would condone
such behavior. HCD. Thus, to the extent that it has a progressive discipline
policy, the agency properly declined to implement it here, where the appellant
intentionally violated the agency’s zero tolerance policy.
¶13 Regarding possible mitigating factors, although the deciding official did not
address the issue of provocation, as she was “unaware” of any provocation, the
administrative judge did address the issue. ID at 11. Here, the appellant alleged
that the Beechnut Station Manager had “purposely and maliciously” shorted the
appellant’s pay 1 month prior to the incident, and also that he was punishing the
appellant for not finishing his route the prior day. HCD. To whatever extent that
Manager’s actions could be construed as provocation, the Manager did not take
physical action against the appellant. See ID 2-9. Thus, we find that provocation
does not justify mitigation of the appellant’s penalty.
¶14 Therefore, we agree with the administrative judge that the agency
considered the appropriate Douglas factors and we defer to the agency’s imposed
penalty of removal. See Davis v. U.S. Postal Service, 120 M.S.P.R. 457, ¶ 16 n.4
(2013) (removal under an agency’s zero tolerance policy is entitled to deference
when the deciding official properly considers the relevant Douglas factors). In
sum, we find no reason to mitigate the appellant’s removal or to disturb the initial
decision.
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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
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
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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.