The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ARVIND I. PATEL, DOCKET NUMBER
Appellant, PH-0752-13-1325-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: February 11, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
W. Philip Jones, Esquire, Avon, Connecticut, for the appellant.
Anthony V. Merlino, Esquire, and Kenneth A. Levine, Esquire, New York,
New York, 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 agency’s action removing him for unacceptable 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
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
interpretation of statute or 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 was removed from his position as Postmaster of Flemington,
New Jersey, EAS-21, effective July 19, 2013. Initial Appeal File (IAF), Tab 4,
pt. 1 at 13-16. He had been serving an extended detail as Officer-in-Charge,
EAS-22, at the Edison, New Jersey Post Office at the time of his removal, and the
conduct for which he was removed occurred in Edison. Id. at 17-19; Hearing
Transcript (HT) at 304. The agency charged him with Unacceptable Conduct, a
single narrative charge that described the results of investigations of incidents of
harassment involving three women under his supervision, X.C., R.G., and K.S.
IAF, Tab 4, pt. 1 at 17-22. The women claimed that the appellant touched them
inappropriately at various times, misconduct that he categorically denied. Id. at
18-19. He appealed, and after a 2-day hearing, the administrative judge issued an
initial decision sustaining the charge and relying on the testimony of the three
complainants, whom she found to be credible. IAF, Tab 1, Tab 24, Tab 26, Initial
Decision (ID) at 3-15. She also rejected the appellant’s assertion that the notice
of proposed removal was so vague as to violate his right to due process. ID at
15-17.
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¶3 On review, the appellant argues that the agency’s decision letter relied upon
a superseded version of the notice of proposed removal. Petition for Review
(PFR) File, Tab 1 at 5-6. The agency initially issued the proposal notice on
March 4, 2013. IAF, Tab 25 at 4. The agency issued a second version of the
notice on March 25, 2013. IAF, Tab 4, pt. 1 at 17-23. The only substantive
difference between the two versions of the notice was the name of the deciding
official. HCD; compare IAF, Tab 25 at 4-9, with IAF, Tab 4, pt. 1 at 17-23.
Because the appellant had already submitted his response to the
initially-appointed deciding official, K.R., when the second notice was issued, the
agency transferred the response to the new deciding official, M.D. See IAF, Tab
12 at 20. The decision letter references the superseded March 4 notice. See IAF,
Tab 4, pt. 1 at 13. During the hearing, the agency representative explained that
the reference to the March 4 proposal notice was a typographical error, and that
M.D. was instead addressing the March 25 notice in the decision letter. 2 HT at
232-33. Accordingly, the administrative judge treated the reference to the
March 4 notice as a harmless error. ID at 2 & n.2, 18 & n.6.
¶4 The appellant contends that the administrative judge erred by sustaining a
charge that M.D. had failed to sustain because he had based the decision letter on
a superseded proposal notice. PFR File, Tab 1 at 5-7. The appellant argues that
M.D.’s direct testimony as to whether he was sustaining the charge set forth in
the March 4 notice, or the charge in the March 25 notice, was inconsistent with
his cross-examination and deposition testimony. Id. He argues that the
2
The appellant postulates that the agency issued the March 25 proposal notice naming a
new deciding official, M.D., because the original deciding official, K.R., was already
somewhat involved in the matter. PFR File, Tab 1 at 6-7 & n.3. K.R., the appellant
explains, had advised the appellant to exercise his rights under the Fifth Amendment
during an interview with police fo llowing a report made by one of the complainants in
this case. I d. at 6 n.3. That the appellant exercised his Fifth Amendment rights was
mentioned in the proposal and decision letters. I d.; see IAF, Tab 4, pt. 1 at 14, 18. By
issuing the March 25 proposal notice, the appellant asserts, the agency was engagin g in
“damage control” to hide K.R.’s actions. PFR File, Tab 1 at 6 n.3.
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administrative judge made no credibility findings when she accepted M.D.’s
testimony on direct examination and further, that the agency did not submit a
complete copy of the March 4 proposal notice for the administrative judge’s
examination. Id. at 6-7 & n.2. He further argues that the act of sustaining a
superseded notice of proposed removal effectively denied him notice of the
agency’s charge. Id. at 6-7.
¶5 To the extent that the appellant asserts that the agency denied his due
process rights, see PFR File, Tab 1 at 7, we disagree. The Due Process Clause
requires the agency to give an eligible employee notice of the charges against him
and the evidence underlying those charges, and an opportunity to respond, before
removing the employee from federal service. See Ward v. U.S. Postal
Service, 634 F.3d 1274, 1279-80 (Fed. Cir. 2011); Stone v. Federal Deposit
Insurance Corporation, 179 F.3d 1368, 1375 (Fed. Cir. 1999). Any ex parte
communication relevant to the removal proceeding that takes place with the
deciding official during the proceeding may constitute a due process violation
because it potentially deprives the employee of notice of the evidence being used
against him and the opportunity to respond to it. See Ward, 634 F.3d at 1279-80;
Stone, 179 F.3d at 1376. Here, the appellant has not alleged any such
communication. Moreover, he admitted under oath that he understood the notice
of proposed removal. IAF, Tab 13 at 32. He also admitted he was aware of the
investigations of his conduct before the first proposal notice was issued. HT
at 318-19. Additionally, because the administrative judge was able to verify that
the two notices were alike in all material respects, see IAF, Tab 25 at 4-9, he
received notice of the charge against him not once, but twice.
¶6 The appellant also claims that the agency violated Employee and Labor
Relations Manual § 651.73-.74. 3 See PFR File, Tab 1 at 5-6. Even if that were
3
Section 651.73-.74 of the Employee and Labor Relations Manual pertain to the
agency’s issuing a notice of proposed removal and the employee’s opportunity to
respond to the proposed discipline.
5
the case, M.D.’s citation of the March 4 proposal notice is a minor procedural
error. Whether a procedural error is harmful cannot be presumed; an agency’s
procedural error is harmful only where the record shows that the error likely
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). The appellant has not shown that the
agency would have reached a different conclusion regarding his removal if the
decision letter had cited the March 25 proposal notice rather than the superseded
March 4 notice. He has not offered any evidence to show that the March 25
notice differs materially from the March 4 notice. As for the administrative
judge’s omission of a credibility assessment for M.D., his testimony regarding his
intention to sustain the charge set forth in the revised notice of proposed removal
was uncontroverted. See HT at 235, 237-38.
¶7 Citing Mason v. Department of the Navy, 70 M.S.P.R. 584 (1996), the
appellant argues that the notice of proposed removal was vague and thus gave
insufficient notice of the charge against him, violating his right to due process.
PFR File, Tab 1 at 8-9. He argues that the single charge of Unacceptable Conduct
supported by a lengthy narrative was unclear because it lacked enumerated
specifications. Id. at 8; see IAF, Tab 1 at 6. He further argues that when he met
with the proposing official, J.M., and denied the womens’ allegations, “the
agency improperly shifted the burden of proof” by issuing the charge anyway.
PFR File, Tab 1 at 9. By denying the allegations, he argues, he was unable “to
satisfy the improper burden, i.e. his denial, [and he] was charged with a new
charge that was not identified.” Id. He additionally asserts that J.M. did not
understand the charge he was making because the agency’s labor relations
representative prepared the proposal notice. PFR File, Tab 1 at 9.
¶8 If the notice is sufficiently specific to allow the employee to respond and
defend against the charge, the agency has given adequate notice. See, e.g.,
Gilmore v. U.S. Postal Service, 103 M.S.P.R. 290, ¶¶ 7-14 (2006), aff’d, 232 F.
6
App’x 276 (Fed. Cir. 2008). Here, the agency’s notice of proposed removal gave
the appellant adequate notice. Unlike Mason, where the Board declined to sustain
a charge for lack of specificity, see Mason, 70 M.S.P.R. at 586-88, the appellant
received precise identifying information regarding the individual incidents upon
which the charge was based, including the name of each complainant, the dates
and locations of the incidents they reported, and a description of the offending
conduct. He was also informed about the agency’s investigations of the incidents.
See IAF, Tab 4, pt. 1 at 18-19. He admitted under oath that he understood the
charge as set forth in both proposal notices and the reasons for the investigations
leading to the charge. IAF, Tab 13 at 32. When the agency offered him the
opportunity to examine the evidence upon which the charge was based, see IAF,
Tab 4 at 21; cf. Gilmore, 103 M.S.P.R. 290, ¶ 15, he did not do so, ID at 17. The
record also does not show that he was denied discovery on appeal. Cf. Mason,
70 M.S.P.R. at 587.
¶9 Moreover, the form of the charge—a general label of “Unacceptable
Conduct” with a lengthy narrative describing specific instances of misconduct—is
acceptable in Board proceedings. Hypertechnical common law pleading is not
obligatory in Board practice, and an agency is not required to narrowly label its
charge with magic words for it to be sustained by the Board. Otero v. U.S. Postal
Service, 73 M.S.P.R. 198, 203 (1997). An agency may simply describe actions
that constitute misbehavior in narrative form in its charge letter. Id. at 202.
¶10 The appellant’s contention that the proposing official, J.M., shifted the
burden of proof is similarly unavailing. Instead, J.M. confronted the appellant
with allegations that he believed were credible, based on three separate
investigations. See IAF, Tab 4, pt. 1 at 18-19. As the proposal notice states, J.M
explained that he could not believe the appellant’s blanket denial, based on a
large body of evidence supporting the allegations. Id. He thus made a credibility
determination regarding the evidence before him in deciding to charge the
appellant. The agency still bore the burden of proof in the Board appeal
7
proceeding. The appellant’s blanket denial of the accusations only serves to
weaken his claim that he lacked notice of the charge. Where an appellant comes
forward and refutes a charge made against him, the Board cannot find that he was
not given notice of the charge. Bias v. Equal Employment Opportunity
Commission, 20 M.S.P.R. 216, 219 (1984).
¶11 Citing Lanza v. Department of the Army, 67 M.S.P.R. 516, 520-21,
remanded, 70 F.3d 1289 (Fed. Cir. 1995) (Table), the appellant asserts that the
administrative judge improperly sustained the charge because the deciding
official did not sustain it first. 4 PFR File, Tab 1 at 10-11. He asserts that the
decision letter did not specifically name R.G., one of the three women whose
complaints were included in the proposal notice. See IAF, Tab 4, pt. 1 at 18-19.
For this reason, he argues, the deciding official did not sustain the
“specifications” regarding R.G. PFR File, Tab 1 at 10-11.
¶12 The appellant’s argument lacks any basis in fact or law. The decision letter
references the allegations made by all three complainants in the aggregate, and all
of the women are mentioned by name. See IAF, Tab 4, pt. 1 at 13-14. Although
it is true that the letter recounts in more detail allegations made by X.C. and K.S.,
the appellant cited no authority supporting the proposition that the decision letter
must reiterate every detail of the charge as set forth in the proposal notice.
¶13 The appellant refers to “specifications,” moreover, which may reflect his
confusion about the structure of the charge and the agency’s burden of proof.
The form of the agency’s charge, a narrative describing several instances of
misconduct without any enumerated specifications, is an allowable one. See
4
In Lanza, the decision letter d id not address one of the two acts of misconduct
described in a single charge, but the administrative judge sustained the entire charge.
See Lanza, 67 M.S.P.R. at 520-21. The Board split the charge, finding that the two
separate acts of m isconduct described therein were not dependent upon each other and
did not comprise a single, inseparable event. I d. at 520. The Board found that the
administrative judge erred by sustaining the new charge that pertained to misconduct
not addressed in the decision letter. I d. at 521.
8
Otero, 73 M.S.P.R. at 202. The agency’s obligation was to prove the essence of
the charge, not every allegation therein. Otero, 73 M.S.P.R. at 204; see Hicks v.
Department of the Treasury, 62 M.S.P.R. 71, 74 (1994), aff’d, 48 F.3d 1235 (Fed.
Cir. 1995) (Table). Even if the agency had structured the charge with enumerated
specifications, proof of one or more, but not all, of the supporting specifications
would have been sufficient to sustain the charge. See Burroughs v. Department of
the Army, 918 F.2d 170, 172 (Fed. Cir. 1990).
¶14 Finally, the appellant takes issue with the administrative judge’s findings of
fact and demeanor-based credibility determinations regarding two of the three
complainants, as well as her finding that his testimony was not credible. PFR
File, Tab 1 at 11-31. The administrative judge found that the complainants
testified truthfully, based on their demeanor when testifying, the internal
consistency of their testimony, and the consistency of their testimony with that of
other witnesses and record evidence. See ID at 7-9, 11. In assailing the
administrative judge’s findings, the appellant cites several specific examples of
testimony with which he takes issue, and he uses deposition testimony, the
testimony of other witnesses, and documents from the record to argue that the
complainants gave untrue or otherwise unreliable testimony. PFR File, Tab 1 at
12-30.
¶15 The administrative judge is the trier of fact in Board appeals, and credibility
determinations fall within her province. See Southerland v. Department of
Defense, 117 M.S.P.R. 56, ¶ 23 (2011), aff’d as modified, 119 M.S.P.R. 566
(2013). 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
9
its consistency with other evidence; (6) the inherent improbability of the
witness’s version of events; and (7) the witness’s demeanor. Hillen v.
Department of the Army, 35 M.S.P.R. 453, 458 (1987). 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 the hearing. Haebe v. Department of Justice, 288 F.3d 1288, 1301
(Fed. Cir. 2002). The Board may overturn such determinations only when it has
“sufficiently sound” reasons for doing so. Id. Sufficiently sound reasons include
findings that are incomplete, inconsistent with the weight of the evidence, and do
not reflect the record as a whole. See Faucher v. Department of the Air
Force, 96 M.S.P.R. 203, ¶ 8 (2004).
¶16 The appellant reasserts some of the issues he raised during his
cross-examination of the complainants, such as X.C.’s use of varying terms
describing his actions in different investigatory reports, and minor discrepancies
between the reports regarding the timing of some incidents. See PFR File, Tab 1
at 12-20, 23-30. The initial decision shows that the administrative judge
considered the Hillen factors and gave significant weight to witness demeanor,
particularly that of the complainants. See, e.g., ID at 6-8, 11. She also relied on
documents in the record that were consistent with the complainants’ accounts; the
testimony of other witnesses, including those called by the appellant; and the
complainants’ other conduct. See, e.g., ID at 13-15; IAF, Tab 4, pt. 3. As for the
appellant’s criticism of the administrative judge’s finding that his own testimony
was less than credible, see PFR File, Tab 1 at 30-31, her findings are based in
part upon her observation of his demeanor during the hearing, see ID at 12. She
also considered other relevant factors, such as the reports, the testimony and
statements of other witnesses (including employees other than the three
complainants), the disciplinary history of the complainants, and any prior
complaints they had filed with the agency. See ID at 7-15; see, e.g., IAF, Tab 4,
pt. 2 at 4. In conclusion, the appellant seeks to discredit a large body of evidence
10
supporting the agency’s action by identifying a few inconsequential discrepancies
in the record. We find that he has not established that the administrative judge’s
findings are “incomplete, inconsistent with the weight of the evidence, and do not
reflect the record as a whole.” See Faucher, 96 M.S.P.R. 203, ¶ 8. Accordingly,
we conclude that the administrative judge considered the entire body of evidence,
drew appropriate inferences, and made reasoned conclusions on issues of
credibility, and we affirm the initial decision. See Broughton v. Department of
Health & Human Services, 33 M.S.P.R. 357, 359 (1987).
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
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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.