The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DESMOND A. WALSH, DOCKET NUMBER
Appellant, NY-0752-13-0134-I-2
v.
UNITED STATES POSTAL SERVICE, DATE: October 20, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Desmond A. Walsh, Mount Vernon, New York, pro se.
Anthony V. Merlino, Esquire, New York, New York, 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
sustained 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
erroneous application of the law to the facts of the case; the administrative
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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, 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 The appellant was employed as a Manager, Customer Services. Walsh v.
U.S. Postal Service, MSPB Docket No. NY-0752-13-0134-I-1, Initial Appeal File
(I-1 IAF), Tab 7 at 104. The agency proposed his removal on the basis of one
charge of conduct unbecoming a Postal official; the proposal included a narrative
containing several specifications. Id. at 28-37. Specifically, the proposal stated
that: (1) the appellant instructed a subordinate, who was not authorized to do so,
to drive a Postal vehicle; (2) after this subordinate was involved in an accident,
the appellant failed to complete an accident report and instructed another
employee not to do so/interfered with her completion of such a report; (3) the
appellant attempted to work out a private agreement with the owner of the private
vehicle that the subordinate hit during the accident; (4) the appellant falsely
denied knowledge of the accident to a superior; and (5) the appellant falsely told
the Office of Inspector General (OIG) that he was not working the day of the
accident and that he did not know that his subordinate was not authorized to
drive. Id. at 28-32. The appellant did not respond to the proposal. See id. at 23.
The agency subsequently imposed the removal. Id. at 23-24.
3
¶3 The appellant challenged his removal before the Board and requested a
hearing. I-1 IAF, Tab 1. After holding the requested hearing, the administrative
judge sustained the appellant’s removal. Walsh v. U.S. Postal Service, MSPB
Docket No. NY-0752-13-0134-I-2, Initial Appeal File (I-2 IAF), Tab 20, Initial
Decision (ID). In particular, she found that: (1) the agency established that the
appellant engaged in conduct unbecoming a Postal official; (2) the appellant
did not prove his affirmative defenses of harmful procedural error and equal
employment opportunity (EEO) retaliation; (3) the agency established that the
disciplinary action promoted the efficiency of the service; and (4) the agency
established that the penalty of removal was within the tolerable limits of
reasonableness. 2 ID at 4-13.
¶4 The appellant has filed a timely petition for review. Petition for Review
(PFR) File, Tab 3. On review, he asserts that: (1) several witnesses committed
perjury; (2) the agency (a) failed to submit the deposition transcripts of several
witnesses, which would have demonstrated the witnesses’ perjury, and (b) denied
information he requested through a Freedom of Information Act (FOIA) request;
(3) the administrative judge did not allow the admission of certain material
information and witness testimony; (4) the administrative judge mischaracterized
his claim of procedural error; (5) he was not initially involved in the investigation
with the OIG; and (6) he was not involved in the news broadcast about the
accident that was the subject of his removal. Id. at 2-3. The appellant also
generally challenges the administrative judge’s findings of fact. Id. The agency
has responded in opposition to the petition for review. 3 PFR File, Tab 5.
2
On review, the appellant does not challenge the administrative judge’s findings
regarding his affirmative defense of EEO retaliation, nexus, or the penalty
determination. Petition for Review (PFR) File, Tab 3. We see no reason to disturb
these findings.
3
After the agency filed its response, the appellant submitted an additional pleading with
attached evidence. PFR File, Tab 6. We do not consider this pleading because,
although the appellant was informed that the deadline to submit his reply was 10 days
4
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly sustained the charge.
¶5 To prove a charge of conduct unbecoming, an agency is required to
demonstrate that the employee engaged in the underlying conduct alleged in
support of the broad label. Scheffler v. Department of Army, 117 M.S.P.R. 499,
¶ 4 (2012), aff’d, 522 F. App’x 913 (Fed. Cir. 2013). Here, the agency asserted
that the appellant engaged in conduct unbecoming a Postal official based upon
five specifications of misconduct. I-1 IAF, Tab 7 at 23-24, 28-32. The
administrative judge found that the agency proved these specifications and
therefore sustained the charge. ID at 4-9. For the reasons discussed below, the
appellant’s assertions do not provide a basis for disturbing the administrative
judge’s decision sustaining the charge.
¶6 As noted above, the appellant argues that witnesses committed perjury at
the hearing. The Board has held that, where the appellant presents bare assertions
of perjury or falsification of documents with no evidence or argument to support
those assertions, they do not provide a basis for disturbing the initial decision.
Vaughn v. Department of the Treasury, 119 M.S.P.R. 605, ¶ 9 (2013). Here, the
appellant asserts that the private vehicle owner committed perjury because he
testified to conversations that did not occur and that his coworker, S.S., perjured
herself because she was not present to have overheard conversations about which
she testified. PFR File, Tab 3. The appellant specifically asserts that S.S.’s
testimony is undermined by the testimony of another supervisor, J.G. Id. J.G.
testified that she did not remember S.S. being present when the appellant told her
not to complete an accident report, but that S.S. told her that she witnessed this
conversation. I-2 IAF, Tab 16, Hearing Compact Disc (HCD). J.G. also testified
after the agency submitted its response, PFR File, Tab 4, he did not submit the pleading
within the imposed deadline, PFR File, Tab 6; see 5 C.F.R. § 1201.114(e). However,
even if we did consider this pleading and additional evidence, it would not affect our
disposition of the appeal.
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that she told S.S. to remember the conversation so that she could write a report.
Id. J.G.’s testimony does not support the claim that S.S. committed perjury. The
appellant has otherwise failed to provide support for his claims of perjury. We
therefore find that those claims provide no basis for disturbing the initial
decision. See Jovanovich v. Veterans Administration, 8 M.S.P.R. 268, 270
(1981).
¶7 The appellant further challenges the administrative judge’s findings
sustaining the specifications underlying the charge, asserting that he was not
initially involved in the OIG investigation because he was on leave due to an
injury and that he had nothing to do with the news broadcast. PFR File, Tab 3.
However, the appellant does not dispute that he was later involved in an OIG
investigation, which was the subject of one of the specifications. See id. Thus,
his challenge provides no basis for disturbing the administrative judge’s finding
that the agency proved the specification regarding his false statements during the
OIG investigation. Further, we fail to see how the appellant’s assertion regarding
the news broadcast affects the administrative judge’s findings regarding the
charge because the agency’s specifications were not based upon the news
broadcast. 4 I-1 IAF, Tab 7 at 23-24, 28-32. Finally, the appellant’s remaining
arguments concerning the charge, including his challenges to the administrative
judge’s findings of fact and credibility determinations, constitute mere
4
To the extent that the appellant denies involvement with the news broadcast in an
attempt to challenge the penalty determination, such a challenge provides no basis for
disturbing it. The deciding official testified that the notoriety of the appellant’s
offense, in that the accident had been the subject of a news broadcast, served as an
aggravating factor. I-2 IAF, Tab 19, HCD; see I-1 IAF, Tab 7 at 36. We find that the
appellant’s lack of involvement with the news broadcast is immaterial to the penalty
determination because the deciding official considered the news broadcast as it related
to publicity surrounding the accident, regardless of any involvement by the appellant.
See Richardson v. Resolution Trust Corporation, 66 M.S.P.R. 302, 312 n.4, 314 (1995)
(sustaining a removal where the deciding official properly considered the notoriety of
the offense, including that there were several news releases and articles regarding
the offense).
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disagreement with the initial decision and thus do not provide a basis for
disturbing it. See Broughton v. Department of Health & Human Services,
33 M.S.P.R. 357, 359 (1987).
The appellant’s arguments as to discovery, witnesses, and evidentiary matters
do not provide a basis for reversing the initial decision.
¶8 Next, the appellant asserts that the administrative judge erred in excluding
certain evidence and witness testimony from the record and that the agency failed
to submit relevant deposition transcripts. PFR File, Tab 3. The Board has held
that, to obtain reversal of an initial decision on the ground that the administrative
judge abused her discretion in excluding evidence, the petitioning party must
show on review that relevant evidence, which could have affected the outcome,
was disallowed. Sanders v. Social Security Administration, 114 M.S.P.R. 487,
¶ 10 (2010). Here, we agree with the agency that the appellant fails to
identify the evidence and testimony that was improperly excluded and fails to
assert any reversible error by the administrative judge. PFR File, Tab 5 at 5-6.
Additionally, although the appellant asserts that the agency failed to submit
certain deposition transcripts, PFR File, Tab 3, he did not attempt to submit the
transcripts below and has not stated why the agency should have been required to
do so on his behalf. Although he generally asserts that the transcripts would have
demonstrated that witnesses perjured themselves, he does not explain the specific
grounds for that assertion. Therefore, we find that the appellant has not
demonstrated reversible error based upon the administrative judge’s exclusion of
evidence and testimony from the record or the agency’s failure to submit the
deposition transcripts.
¶9 Regarding the appellant’s assertion that the agency denied him evidence
that was the subject of a FOIA request, id., the Board has held that the discovery
process, and not FOIA, is the proper means for obtaining evidence in a Board
appeal, Ellis v. U.S. Postal Service, 121 M.S.P.R. 570, ¶ 6 (2014). Thus, the
appellant could have, but did not, request the information at issue from the
7
agency during the discovery process. If the agency failed to provide the
requested information, he could have filed a motion to compel discovery.
Furthermore, the appellant does not explain how this information would have
altered the disposition of his appeal. See PFR File, Tab 3. Thus, none of the
appellant’s assertions regarding evidence that was not included in the record
below provide a basis for disturbing the initial decision. See Reeves v. U.S.
Postal Service, 117 M.S.P.R. 201, ¶ 12 (2011), overruled on other grounds by
Boucher v. U.S. Postal Service, 118 M.S.P.R. 640, ¶ 20 n.4 (2012).
The administrative judge correctly found that the appellant failed to establish his
affirmative defense of harmful procedural error.
¶10 The administrative judge found that the appellant failed to prove his
affirmative defense of harmful procedural error. ID at 9. On review, the
appellant asserts that the administrative judge mischaracterized his affirmative
defense and instead asserts other errors regarding the signature on, and service of,
the proposal and decision letters. PFR File, Tab 3. Under 5 C.F.R.
§ 1201.56(c)(1), the Board is required to reverse the agency’s action if the
appellant shows harmful error in the application of the agency’s procedures in
arriving at its decision. A procedural error is harmful where the record shows
that the 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. Doe v.
Department of Justice, 118 M.S.P.R. 434, ¶ 31 (2012). Here, the appellant
has not asserted, and we do not find, that the errors he alleged regarding the
proposal and decision letters were likely to have caused the agency to reach a
different conclusion and we thus do not find reversible harmful procedural error.
See Miller v. U.S. Postal Service, 110 M.S.P.R. 550, ¶ 12 (2009).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
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Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method
requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
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religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.