Sylvester Williams, Jr. v. United States Postal Service

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SYLVESTER WILLIAMS, JR., DOCKET NUMBER

Appellant, DE-0752-13-0322-I-1

v.

UNITED STATES POSTAL SERVICE, DATE: April 8, 2015

Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL 1

Thomas F. Muther, Jr., Esquire, Denver, Colorado, for the appellant.

Brian J. Odom, Denver, Colorado, for the agency.

BEFORE

Susan Tsui Grundmann, 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 demoting him for unacceptable performance.

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 erroneous application of

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. Except as expressly MODIFIED by

this Final Order to include a harmful error analysis, we AFFIRM the initial

decision.

¶2 The appellant appealed from the agency’s decision demoting him from

Supervisor, Distribution Operations, EAS-17, at the Denver General Mail Facility

in Denver, Colorado, to Bulk Mail Dock Clerk, PS-07. Initial Appeal File (IAF),

Tab 1, Tab 5 at 18, 20-23. The agency initially proposed the appellant’s removal,

charging him with Unacceptable Performance. 2 IAF, Tab 5 at 36-43. The parties

engaged in mediation pursuant to chapter 650 of the agency’s Employee and

Labor Relations Manual, but they were unable to resolve the matter. Id. at 35.

On May 15, 2013, the Senior Manager of Distribution Operations, J.M., issued a

decision letter sustaining the charge, but mitigating the removal to a downgrade

in craft. Id. at 20-23. On appeal, the administrative judge found that the agency

proved three of ten specifications of the charge. IAF, Tab 19, Initial Decision

(ID) at 5-10. The appellant alleged as an affirmative defense that the agency

denied him procedural due process because J.M. relied upon ex parte information

developed during the mediation, at which J.M. was not present, when he decided

2

Although the agency labeled the charge as Unacceptable Performance, the

administrative judge found that it was more properly construed as Unacceptable

Conduct. IAF, Tab 16 at 2 n.1. We agree.

3

to mitigate the penalty. See IAF, Tab 15 at 5-6, Tab 16 at 5-6. Although the

administrative judge could not determine the source of the information that J.M.

received, the agency did not dispute that it failed to advise the appellant that

statements he made during the mediation would be considered in the penalty

determination. ID at 13-14. The administrative judge concluded that an ex parte

communication had taken place. Because J.M. considered the communicated

information as a mitigating factor, however, and not as an aggravating factor that

enhanced the penalty, no due process violation occurred, “and thus the appellant

was not prejudiced by its consideration.” 3 ID at 14.

¶3 On review, the appellant challenges only the findings regarding due

process. 4 The appellant argues that the information from the mediation session

that J.M. received was new and material information received by ex parte

communications as defined in Stone v. Federal Deposit Insurance

Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999). He argues that the analytical

requirements set forth in Ward v. U.S. Postal Service, 634 F.3d 1274, 1279-80

(Fed. Cir. 2011) (applying the Stone factors 5 to information introduced during

penalty determinations), are not limited to the review of information supporting

enhancement of the penalty and may include mitigating information. Petition for

3

The appellant also alleged that management was acting in reprisal for a failed removal

action against an employee that he supervised. See IAF, Tab 16 at 3. The

administrative judge found no evidence to support the proposition that J.M. considered

the appellant’s role in the failed removal other than the temporal connection between

the attempted removal and the onset of discip linary action against the appellant. See ID

at 14.

4

The appellant does not take issue with the administrative judge’s findings regarding

the charge.

5

Stone set forth factors for determ ining whether ex parte communications have

introduced new and material information: (1) whether the information was merely

cumulative; (2) whether the employee knew of and had an opportunity to respond to the

information; and (3) whether the ex parte communications would likely have resulted in

undue pressure upon the deciding official to rule in a particu lar manner. Stone,

179 F.3d at 1377.

4

Review (PFR) File, Tab 1 at 7-11. Ward, he argues, requires the agency to

provide “a meaningful opportunity to address ‘whether the level of penalty to be

imposed is appropriate.’” Id. at 10. There is no indication in Ward, he asserts,

that ex parte communications are somehow permissible even if they are used as

mitigating factors in penalty determinations. Id. The appellant further argues

that the agency’s failure to notify him regarding its use of the information was

prejudicial “because [he] was deprived of any meaningful opportunity to address

whether the ultimate demotion, in light of the ex parte evidence considered, was

appropriate.” Id. at 11 (emphasis in original). He argues that had he been able to

respond, the agency might have imposed a less severe penalty or even allowed

him to retain his supervisory position. Id.

¶4 The appellant does not cite any authority supporting the specific proposition

he advances, nor have we found any such authority. Ward explicitly states that an

employee must receive “notice of any aggravating factors supporting an

enhanced penalty” given to the deciding official. Ward, 634 F.3d at 1280

(emphasis added). The court referenced information “contributing to the

enhancement of the penalty” more than once when explaining that there exists

“no constitutionally relevant distinction between ex parte communications

relating to the underlying charge and those relating to the penalty.” Id. The

Board has repeatedly cited Ward for the specific proposition that an employee

must receive notice of aggravating or penalty-enhancing factors. See, e.g.,

Buelna v. Department of Homeland Security, 121 M.S.P.R. 262, ¶ 31 (2014);

Hulett v. Department of the Navy, 120 M.S.P.R. 54, ¶ 11 (2013); Lopes v.

Department of the Navy, 116 M.S.P.R. 470, ¶¶ 5-7 (2011). Ultimately, the

Board’s inquiry must be “whether the ex parte communication is so substantial

and so likely to cause prejudice that no employee can fairly be required to be

subjected to a deprivation of property under such circumstances.” Stone,

179 F.3d at 1377. Although the agency failed to inform him of the

communication, its omission was not by its very nature likely to cause prejudice

5

against the appellant. Accordingly, we AFFIRM the administrative judge’s

finding that the communication did not violate the appellant’s right to due

process.

¶5 If the ex parte communications are insufficiently substantial to rise to the

level of a due process violation, then “the Board [is] required to run a harm[ful]

error analysis to determine whether the procedural error require[s] reversal.”

Ward, 634 F.3d at 1281; see 5 U.S.C. § 7701(c)(2)(A). Here, the initial decision

states that J.M.’s consideration of the information attained through ex parte

communications did not prejudice the appellant, but it does not clearly state that

the administrative judge considered whether the agency’s procedural error

required reversal. We thus consider the issue here. 6

¶6 Harmful error is an “‘[e]rror by the agency in the application of its

procedures that is 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.’” Ward,

634 F.3d at 1281; 5 C.F.R. § 1201.56(c)(3). 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). The appellant here has not shown that the agency would have

reached a different decision in the absence of the error. His assertions that he

might have provided additional supporting evidence or made arguments that

might have resulted in a less severe penalty are speculative. It is not clear how he

could have augmented the arguments that were already sufficiently persuasive to

convince J.M. to mitigate the penalty of removal. He argues that “there is no

evidence that [the information gleaned from the mediation] was in any way

6

An administrative judge’s adjudicatory error that does not prejudice a party’s

substantive rights provides no basis for reversal of an initial decision. Panter v.

Department of the Air Force, 22 M.S.P.R. 281, 282 (1984).

6

duplicative” of the information that he raised in his reply to the notice of

proposed removal. PFR File, Tab 4 at 5. However, he bore the burden of proof

for his affirmative defenses, see 5 C.F.R. § 1201.56(a)(2)(iii), (b)(i), and he is the

party in the best position to know and explain how the information would have

been different. He also cannot establish that the agency would have considered a

lesser penalty to be appropriate for the specific misconduct he committed. Duties

related to timekeeping go to the heart of supervisory responsibilities, and

supervisors are held to a higher standard of conduct than the employees they

supervise. Cf., e.g., Bowman v. Small Business Administration, 122 M.S.P.R.

217, ¶ 12 (2015); Little v. Department of Transportation, 112 M.S.P.R. 224, ¶ 32

(2009); Whelan v. U.S. Postal Service, 103 M.S.P.R. 474, ¶¶ 13-14 (2006), aff’d,

231 F. App’x 965 (Fed. Cir. 2007). Accordingly, we AFFIRM the administrative

judge’s decision as MODIFIED.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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

7

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.