Herbert L. Buchanan v. United States Postal Service

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

HERBERT L. BUCHANAN, DOCKET NUMBER

Appellant, DA-0752-12-0008-B-2

v.

UNITED STATES POSTAL SERVICE, DATE: November 10, 2014

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Sammi Wilmoth, Esquire, Fayetteville, Arkansas, for the appellant.

Susan L. LaSalle, 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 remand initial decision,

which affirmed the agency’s removal action. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b).

¶2 The appellant filed an appeal from the agency’s action removing him from the

position of City Letter Carrier with the U.S. Postal Service based on misconduct.

MSPB Docket No. DA-0752-12-0008-I-1 (I-1), Initial Appeal File (IAF), Tab 1,

Tab 5 at 72. The record reflects that the appellant was investigated after the Data

Mining Group of the Office of Inspector General (OIG) notified the agency that

the appellant may have been involved with theft of mail. The agency alleged that

an investigation determined that in November 2010, Wal-Mart mailed

promotional gift cards valued at $5.00 each to residents of Springdale, Arkansas.

Id. Recipients of the cards were required to call a Wal-Mart telephone number to

activate them prior to use. The agency alleged that records disclosed that the

appellant activated 22 of the gift cards from his cellular telephone. Wal-Mart

receipts reflect that the appellant redeemed and converted 12 of those gift cards

for his personal use. Id. The proposal notice also stated that, during the

investigatory interview the appellant admitted that he took the Wal-Mart gift

cards from mailings sent through the Springdale post office that were in a mail

tub in his mail truck. The appellant acknowledged that he should have returned

the cards to the office for disposal as undeliverable bulk business mail (UBBM).

3

The proposal notice alleged further that the appellant admitted activating some of

the cards from his personal cell phone and that he made personal purchases at the

Wal-Mart stores in Fayetteville and Springdale. Id. The appellant’s employment

was terminated effective October 3, 2011. See IAF, Tab 4 at 65-68, Tab 5 at 72.

¶3 On appeal, the administrative judge sustained the charged misconduct and

affirmed the appellant’s removal, finding that the agency proved that the

appellant retrieved Wal-Mart cards from the mail and activated them for his

personal use, and that the appellant failed to prove his affirmative defenses. IAF,

Tab 28, Initial Decision (ID) at 6. The appellant filed a petition for review in

which he argued that the agency violated his right to due process and, in the

alternative, that the agency committed harmful procedural error. IAF, Tab 27 at

11; I-1, Petition for Review (PFR) File, Tab 1 at 12. Specifically, the appellant

argued that the agency erred because it did not provide him the opportunity to

review the evidence it relied on in reaching its removal decision. Id. at 12. In

particular, the appellant asserted that the agency did not provide him the OIG

report or the ex parte comparator information that the deciding official considered

when making the determination to remove him. Id.

¶4 The Board remanded the case for the administrative judge to determine

whether the agency provided the appellant all of the information relied on in the

determination to remove him, including the OIG report and the comparator

information, prior to the appellant’s response to the notice of removal. On

remand, the administrative judge found that the agency provided the appellant

with all of the information relied on in the determination to remove him

including: (a) the OIG report considered by the deciding official; (b) the

comparator information received from Labor Relations and considered by the

deciding official; and (c) the information received from the proposing official by

the deciding official regarding the appellant’s work history and potential for

rehabilitation, prior to the appellant’s response to the removal notice. MSPB

4

Docket No. DA-0752-12-0008-B-2 (B-2), Remand Initial Decision (RID) at 2-8.

The appellant has filed a petition for review of the remand initial decision.

¶5 On review, the appellant challenges the administrative judge’s findings and he

argues that the removal action should be reversed or, in the alternative, that the

penalty should be mitigated to a suspension. B-2, Remand Petition for Review

(RPFR) File, Tab 3. We have considered the appellant’s arguments on review

concerning the administrative judge’s weighing of the evidence; however, the

applicable law and the record evidence support the administrative judge’s

findings that the agency provided the appellant with all of the information relied

on in the determination to remove him. Thus, we discern no reason to reweigh

the evidence or substitute our assessment of the record evidence for that of the

administrative judge. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06

(1997) (finding no reason to disturb the administrative judge’s findings when 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).

¶6 Specifically, the appellant contends that the administrative judge did not

sufficiently consider and address all of the credibility factors when making his

credibility determinations. RPFR File, Tab 3 at 9-12. The appellant asserts that

his version of what transpired on August 8, 2011, the date the agency claims that

his union representative was provided a copy of the OIG report, is more credible

than the agency’s testimony. RPFR File, Tab 3 at 9-12. The appellant contends

that his union representative consistently testified through two hearings that he

did not see the OIG report prior to filing the grievance on August 25, 2011. Id.

Similarly, the appellant argues that the comparator information was not provided

prior to his response to the agency’s action and that the earliest possible time that

potential comparators may have been mentioned was at the August 10 th meeting,

and then it was only a general reference to another employee who was not

identified. RPFR File, Tab 3 at 12-13.

5

¶7 However, while the administrative judge may not have addressed every

statement made during the hearing, the administrative judge did make explicit

credibility determinations based on the deciding official’s demeanor, and he

relied on documentary evidence supporting that testimony in finding that the

agency’s version of what transpired is more credible than the appellant’s version.

RID at 3-8. 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. See Haebe v. Department of Justice, 288 F.3d 1288, 1302 (Fed. Cir.

2002) (the Board may overturn credibility determinations that are implicitly or

explicitly based on demeanor only when it has “sufficiently sound” reasons for

doing so).

¶8 Here, the administrative judge thoroughly reviewed the evidence and the

hearing testimony and cited to Hillen v. Department of the Army, 35 M.S.P.R.

453, 458 (1987), 2 in setting forth his credibility determinations. See RID at 4.

Specifically, the administrative judge credited the deciding official’s testimony

over the appellant’s version of events, finding that the deciding official’s

testimony was straightforward and consistent. RID at 3-4.

¶9 Further, the administrative judge considered all of the evidence and found it

more plausible that the appellant received the OIG investigation report on

August 8, 2010, as the proposing official testified. The administrative judge

2

To resolve credibility issues, an administrative judge must identify the factual

questions in dispute, summarize the evidence on each disputed question, state which

version he believes, and explain in detail why he found the chosen version more

credible, considering such factors as: (1) the witness's opportunity and capacity to

observe the event or act in question; (2) the witness's character; (3) any prior

inconsistent statement by the witness; (4) a witness's bias, or lack of bias; (5) the

contradiction of the witness's version of events by other evidence or its consistency

with other evidence; (6) the inherent improbability of the witness's version of events;

and (7) the witness's demeanor. Hillen, 35 M.S.P.R. at 458.

6

found further that the appellant provided no evidence that the deciding official

considered any comparator that the appellant was unaware of, and, while the

appellant may not have known of the comparator at the beginning of the

August 10, 2010 meeting, the appellant was aware of the comparator before the

meeting ended. RID at 5. In addition, the administrative judge found that the

appellant failed to show that the agency considered any comparator who was not

disclosed to him. RID at 5. Thus, the administrative judge thoroughly addressed

his credibility determinations in the remand initial decision and we discern no

reason to disturb those well-reasoned findings. See Crosby, 74 M.S.P.R. at

105-06.

¶10 The appellant also challenges the administrative judge’s findings regarding the

ex parte conversation that occurred between the proposing and deciding officials.

Specifically, the appellant argues that a conversation between the proposing and

deciding officials contained new information, i.e., information from the OIG

report and comparator information, which he was not aware of at the time he

responded to the charged misconduct. RPFR File, Tab 3 at 14/24. The appellant

reasserts that this conversation constituted a due process violation and that the

removal should be reversed in its entirety. RPFR File, Tab 3 at 16-20. However,

the administrative judge found that the only topic discussed during this

conversation was that the appellant was a good employee with no prior discipline.

RID at 6. While the appellant may not have been aware of this discussion prior to

the August 10, 2011 meeting, the administrative judge found that it did not

constitute an improper ex parte conversation. RID at 6. Specifically, the

administrative judge found that, because the proposal notice indicated that the

appellant’s lack of prior discipline was considered, the appellant failed to

establish that an ex parte conversation, the contents of which he was unaware

before the August 10, 2011 meeting, had occurred. RID at 6.

¶11 The administrative judge found further that, even assuming arguendo that the

agency did not provide the appellant with information relied on by the deciding

7

official in making his determination to remove the appellant, the deciding

official’s reliance on this information did not rise to the level of a due process

violation. RID at 7. Here, the OIG report revealed that the appellant took

Wal-Mart cards from a mail tub in his truck, activated 22 cards and converted 12

cards for his personal use, conduct which the appellant admitted and

acknowledged was wrong. Because the appellant had already admitted to the

misconduct, the administrative judge found nothing in the record to indicate that

the OIG report provided new information to the deciding official, information to

which the appellant was not provided the opportunity to respond. RID at 7. The

administrative judge also found no indication that the ex parte communication

placed undue pressure on the deciding official to rule in a particular manner. RID

at 7-8. Nor did the administrative judge find any evidence that would support a

finding that the deciding official was improperly influenced by information

obtained from the OIG report, consideration of the appellant’s prior work history,

or that there was a postmaster who engaged in similar misconduct and resigned.

Thus, the administrative judge found that the appellant failed to show that the

agency violated his due process rights. While the appellant challenges the

administrative judge’s findings and reasserts the arguments he raised below, the

appellant has shown no basis upon which to disturb the administrative judge’s

well-reasoned findings and determinations.

¶12 The appellant also argues that, although the agency claimed below that there

was only one comparator, testimony during the hearing indicated that other

potential comparators existed. RPFR, File, Tab 3 at 15. However, as to whether

other comparators existed, the deciding official credibly testified that the only

comparator he was aware of and that he considered when making his decision is

the one comparator identified to the appellant during the August 10, 2011

meeting. Even though the appellant argues on review that there were other

potential comparators, the appellant has provided no evidence that the agency

considered any comparators not identified to him. Thus, the administrative judge

8

correctly found that the appellant has failed to show a violation of his due process

rights.

¶13 The appellant also argues that, in the alternative, even if there is no due

process violation, the agency committed harmful procedural error and the removal

penalty should be mitigated to a suspension. RPFR File, Tab 3 at 20-22.

However, harmful error under 5 U.S.C. § 7701(c)(2)(A) cannot be presumed; an

agency error is harmful only where the record shows that the procedural error was

likely to have caused the agency to reach a conclusion different from the one it

would have reached in the absence or cure of the error. Stephen v. Department of

the Air Force, 47 M.S.P.R. 672, 681, 685 (1991).

¶14 Here, the appellant admitted the misconduct cited in the OIG report, he was

advised of the one comparator the agency considered in deciding to remove him,

and the deciding official considered his lack of a disciplinary record. Further, the

deciding official considered the entire evidentiary record and concluded that the

appellant’s misconduct was very serious and that removal was warranted. While

the appellant continues to argue that the agency committed harmful error, he has

made no showing that, even in the absence of the agency’s failure to disclose the

OIG investigative report, the outcome would have been different. Accordingly,

the appellant has shown no basis upon which 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

9

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.