Robert E. Young v. United States Postal Service

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ROBERT E. YOUNG, DOCKET NUMBER

Appellant, CH-0752-13-2103-B-1

v.

UNITED STATES POSTAL SERVICE, DATE: October 29, 2015

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Donna Drake, Markham, Illinois, for the appellant.

Deborah L. Lisy, Esquire, Chicago, Illinois, 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 remand initial decision,

which sustained his reduction in grade and pay. 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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

administrative 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 remand initial

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

¶2 Effective November 6, 2010, the agency reduced the appellant in grade and

pay from his position as EAS-17 Supervisor, Distribution Operations, to the

position of Part-time Flexible City Carrier, Level CC-1. The agency charged that,

on seven occasions between January 23, and April 8, 2010, the appellant

improperly recorded and adjusted an employee’s time in the Time and Attendance

Collection System (TACS), resulting in his being paid for hours he was not

present at the work site. Young v. U.S. Postal Service, MSPB Docket No.

CH-0752-13-2103-I-1, Initial Appeal File (IAF), Tab 7 at 8-15, 16-20, 21. The

appellant filed an equal employment opportunity (EEO) complaint in which he

alleged that the agency’s action was due to discrimination based on age and sex.

Id. at 22-25. After the agency issued a final agency decision finding no

discrimination, id. at 26-38, the appellant filed an appeal with the Equal

Employment Opportunity Commission’s Office of Federal Operations, which

dismissed it as improperly filed, id. at 39-42. The appellant then filed an appeal

with the Board, 2 which the administrative judge dismissed as untimely filed.

IAF, Tab 12, Initial Decision at 2, 9. On review, however, the full Board

reversed that finding and remanded the case for adjudication on the merits.

2

The appellant requested a hearing before the Board. IAF, Tab 1 at 2.

3

Young v. U.S. Postal Service, MSPB Docket No. CH-0752-13-2103-I-1, Remand

Order at 2, 4 (June 6, 2014).

¶3 During the remand proceeding, the appellant challenged the merits of the

agency’s action and alleged that the penalty was too severe. Remand File (RF),

Tab 17. He also added a claim of race discrimination. RF, Tab 18.

¶4 Following a hearing, the administrative judge issued a remand initial

decision in which she sustained the agency’s action. RF, Tab 22, Remand Initial

Decision (RID) at 2, 20. After considering the hearing testimony and

documentary evidence, RF, Tab 6 at 94-102, 116-37; RID at 3-11, she found that,

on all seven occasions, the appellant manually input end tour (ET) clock rings for

D.L., the Mail Handler employee in question, while he was absent from his

assignment and outside of the building without his authorization, resulting in his

being paid for time he did not work, 3 RID at 12. As such, the administrative

judge sustained all specifications and the charge of improper recording and

adjusting of an employee’s time in TACS. RID at 12-14. The administrative

judge also found a nexus between the sustained misconduct and the efficiency of

the service. RID at 14-15. She considered the appellant’s affirmative defenses of

age, race, and sex discrimination, but found that, other than asserting his own

beliefs and bare allegations, he had presented no credible supporting evidence,

and therefore failed to prove his claim of discrimination. RID at 15-17. Finally,

the administrative judge found that the reduction in grade and pay is a reasonable

penalty for the sustained charge. RID at 17-30.

¶5 The appellant has filed a petition for review, Petition for Review (PFR)

File, Tab 1, to which the agency has responded in opposition, PFR File, Tab 5,

and the appellant has filed a reply thereto, PFR File, Tab 6.

3

The agency subsequently removed D.L. based on a charge of “Unacceptable

Conduct/Unauthorized Absences from Assignment Without Authorization on

27 Occasions.” RAF, Tab 17 at 16-21. Seven of those 27 occasions formed the basis

for this action against the appellant.

4

¶6 On review, the appellant argues that the administrative judge erred in

sustaining the charge. The appellant acknowledges that he “input” D.L.’s time on

the occasions in question, but alleges that he did not “adjust” the time because he

did not make any changes to it. 4 PFR File, Tab 1 at 4. The nature of an adverse

action charge should be construed in light of the accompanying specifications and

circumstances. George v. Department of the Army, 104 M.S.P.R. 596, ¶ 7 (2007),

aff’d, 263 F. App’x 889 (Fed. Cir. 2008). When a single stated charge contains

two separate acts of misconduct that are not dependent upon each other and that

do not comprise a single, inseparable event, each act constitutes a separate

charge. Chauvin v. Department of the Navy, 38 F.3d 563, 565 (Fed. Cir. 1994).

That is not the case here. The narrative in the proposal notice makes clear the

agency’s claim that, when the appellant input incorrect entries, he thereby

adjusted or changed the TACS report to reflect that D.L. worked hours that he did

not, resulting in his receiving pay to which he was not entitled. IAF, Tab 7

at 8-13. The administrative judge found that, when the appellant input the

incorrect entries, he did “adjust” D.L.’s time, changing it from what otherwise

would have resulted in an error in the TACS report and no pay for an employee

who was not working, to an entry that resulted in what looked like an errorless

TACS report and pay for an undeserving employee. RID at 12, 14. In ascribing

no weight to the appellant’s contention that he only input D.L’s time, but did not

adjust it on the dates identified in the proposal notice, the administrative judge

considered the appellant’s admissions and what the administrative judge found

were implausible and materially inconsistent explanations for the appellant’s

4

In the same vein, the appellant challenges the administrative judge’s statement that he

initially stipulated to all seven specifications, although he later rescinded the part of the

stipulation related to the last specification, January 23, 2010. RID at 3; Hearing

Transcript at 93-95, 176-77; PFR File, Tab 1 at 6 n.2. The appellant argues that he only

stipulated to having input incorrect information regarding D.L. into the TACS, not to

having adjusted D.L.’s time. PFR File, Tab 1 at 6.

5

actions. 5 RID at 12; Hillen v. Department of the Army, 35 M.S.P.R. 453, 458

(1987). To the extent the appellant challenges the administrative judge’s

credibility findings in this regard, the appellant’s mere disagreement does not

warrant full review of the record by the Board. See Gager v. Department of

Commerce, 99 M.S.P.R. 216, ¶ 5 (2005).

¶7 The appellant further challenges the administrative judge’s reliance on

several agency witnesses’ testimony that the appellant improperly entered ET

clock rings for D.L. when he had neither personal knowledge that D.L. had

actually worked the hours nor a Postal Service (PS) Form 1260, Non-Transactor

Card, generated from a supervisor to substantiate D.L.’s ET time. PFR File,

Tab 1 at 9; RID at 5 (testimony of proposing official, Hearing Transcript (HT)

at 72), 6 (testimony of deciding official, HT at 154). The administrative judge

credited these witnesses, finding their testimony consistent with one another and

with the record evidence, and she particularly found that the proposing official’s

demeanor while testifying to be forthright and direct and not impeached on

cross-examination. RID at 13. The administrative judge also noted that the

appellant’s own witness testified similarly to the consistent practice of using the

PS-1260 when making changes in the TACS, RID at 13-14 (testimony of

supervisor J.M, HT at 201, 208, 214), and the administrative judge found that

witness credible as well, RID at 13. Based on the appellant’s arguments on

review, 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); see also Haebe v. Department of

Justice, 288 F.3d 1288, 1302 (Fed. Cir. 2002) (discussing that the Board may

overturn credibility determinations only when it has “sufficiently sound” reasons

for doing so). We conclude therefore that the appellant has not shown error in the

5

The administrative judge considered the appellant’s inconsistent responses during the

three pre-disciplinary interviews that the agency conducted, and in his written reply to

the charge, the summary of his oral reply, and his hearing testimony. RID at 10-14.

6

administrative judge’s finding that the agency proved that he improperly recorded

and adjusted an employee’s time in TACS.

¶8 The appellant also disputes on review the administrative judge’s finding

that he did not establish his claims of discrimination based on age, race, and sex.

In particular, the appellant argues that former supervisor J.M., identified only as

an Asian female, RF, Tab 21 at 9, also adjusted D.L.’s time without following

proper procedures but was not disciplined, and that other supervisors input clock

rings for D.L., but also were not disciplined, PFR File, Tab 1 at 24-25. In

considering this claim, the administrative judge found that, on a single occasion,

J.M. did adjust D.L.’s time, but only to disallow unauthorized overtime he did not

earn, and that therefore she and the appellant were not similarly situated. And, in

response to the appellant’s claim regarding other supervisors, the administrative

judge found that the appellant failed to specifically identify any supervisor or

manager who, like the appellant, repeatedly entered ET for undeserving craft

employees. RID at 15. Although the appellant asserts on review that both the

proposing and deciding officials testified that they were aware of other

supervisors who committed similar acts as the appellant, PFR File, Tab 1 at 24, a

review of their testimony does not support his claim, HT at 113 (testimony of

proposing official that “it’s possible” that another supervisor provided an ET for

D.L.); 160 (testimony of deciding official that it is “a problem” if a supervisor

“just fixed what was wrong” with employees’ entries for out lunch or in lunch).

Neither the proposing nor the deciding official testified that J.M. or any other

supervisor input and adjusted an employee’s time, resulting in his being paid for

time he did not work. We therefore find that the appellant has not shown that the

administrative judge erred in finding that the appellant failed to present any direct

evidence of age, race, or sex discrimination. RID at 15-16.

¶9 In finding that the appellant failed to establish discrimination by

circumstantial evidence, the administrative judge found that he did not

demonstrate that the agency’s stated reason for its action was a pretext for

7

discrimination, or, as to the appellant’s claim of age discrimination, that age was

a factor in the agency’s action. RID at 16. Other than his argument on review

that J.M. was a proper comparator employee who was treated less harshly, an

argument we have considered but, like the administrative judge, have rejected, the

appellant has failed to show error in the administrative judge’s findings regarding

his discrimination claim. 6

¶10 Finally, the appellant argues on review that the administrative judge erred

in upholding the reduction in grade and pay penalty. PFR File, Tab 1 at 21-24.

¶11 Where, as here, the agency’s charge is sustained, the Board will modify an

agency-imposed penalty only when it finds that the agency failed to weigh the

relevant factors under Douglas v. Veterans Administration, 5 M.S.P.R. 280,

305-06 (1981), or the penalty imposed clearly exceeded the bounds of

6

The administrative judge referenced the burden-shifting analysis of McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), in analyzing the appellant’s

discrimination claim. RID at 16. After this initial decision was issued, the Board

issued Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 46 (2015), in which it

determined that that framework has no application to our proceedings. Rather, the

Board in Savage reaffirmed that it will adhere to the test set forth in Mt. Healthy City

School District Board of Education v. Doyle, 429 U.S. 274, 287 (1977), in cases

involving discrimination or retaliation allegations under 42 U.S.C. § 2000e-16. Savage,

122 M.S.P.R. 612, ¶ 50. Specifically, where an appellant asserts such an affirmative

defense, the Board first will inquire whether the appellant has shown by preponderant

evidence that the prohibited consideration was a motivating factor in the contested

personnel action. In making his initial showing, an appellant may rely on direct

evidence or any of the three types of circumstantial evidence described in Troupe v.

May Department Stores Company, 20 F.3d 734, 736-37 (7th Cir. 1994) (holding that

evidence of suspicious timing, ambiguous oral or written statements, behavior toward or

comments directed at other employees in the protected group, and other bits and pieces

from which an inference of discriminatory intent might be drawn, comparator evidence,

and evidence that the agency’s stated reason for its action is a pretext for

discrimination). If the appellant meets that burden, the Board then will inquire whether

the agency has shown by preponderant evidence that the action was not based on the

prohibited personnel practice, i.e, that it still would have taken the contested action in

the absence of the discriminatory motive, and, if the Board finds that the agency has

made that showing, its violation of 42 U.S.C. § 2000e-16 will not require reversal of the

action. Savage, 122 M.S.P.R. 612, ¶ 51. Application of Savage to the facts of this case

similarly results in a finding that the appellant failed to establish his claims

of discrimination.

8

reasonableness, Jacoby v. U.S. Postal Service, 85 M.S.P.R. 554, ¶ 15 (2000). In

determining whether the selected penalty is reasonable, the Board gives due

deference to the agency’s discretion in exercising its managerial function of

maintaining employee discipline and efficiency. The Board recognizes that its

function is not to displace management’s responsibility or to decide what penalty

it would impose, but to assure that management judgment has been exercised

properly and that the penalty selected by the agency does not exceed the

maximum limits of reasonableness. Douglas, 5 M.S.P.R. at 306. Thus, the Board

will modify a penalty only when it finds that the agency failed to weigh the

relevant factors or that the penalty the agency imposed clearly exceeded the

bounds of reasonableness. Woebcke v. Department of Homeland Security,

114 M.S.P.R. 100, ¶ 7 (2010). The Board will defer to the agency’s penalty

determination unless the deciding official failed to appropriately consider the

relevant factors. Id.

¶12 The Board has articulated factors to be considered in determining the

propriety of a penalty, such as, first and foremost, the nature and seriousness of

the misconduct and its relationship to the employee’s duties, position, and

responsibilities, including whether the offense was intentional or was repeated

frequently. Singletary v. Department of the Air Force, 94 M.S.P.R. 553, ¶ 12

(2003), aff’d, 104 F. App’x 155 (Fed. Cir. 2004). Other relevant factors may

include the employee’s past discipline, his past work record, the effect of the

offenses on his ability to perform his duties, consistency with the agency’s Table

of Penalties, the employee’s potential of rehabilitation, and any mitigating

circumstances. Douglas, 5 M.S.P.R. at 305-06.

¶13 The deciding official indicated that he considered, first and foremost, the

seriousness of the offense and its relation to the appellant’s position as a

supervisor, his ability to properly administer employees’ time and attendance, his

responsibility to fairly compensate agency employees, and his repeated failure to

do so. The deciding official also considered the impact of the offense upon the

9

agency and its employees, the fact that the appellant was on clear notice of the

rules of time and attendance based on training records that reflect an extensive

history of TACS training for supervisors and managers, and the deciding

official’s lack of trust and confidence in the appellant’s ability to properly

administer time for agency employees. IAF, Tab 7 at 18. The deciding official

also considered mitigating factors, including the appellant’s 22 years of service to

the agency, 11 as a supervisor, and his potential for rehabilitation as evidenced by

his having ultimately admitted to the misconduct and expressed remorse. The

deciding official concluded that a reduction to craft was a reasonable penalty. Id.

His testimony was in accord. HT at 155-58. In upholding the penalty, the

administrative judge found that the deciding official gave adequate consideration

to all of the relevant penalty factors. RID at 19.

¶14 The appellant argues on review that the administrative judge failed to

consider as a mitigating factor the fact that the appellant was not properly trained

“for clock ring errors.” PFR File, Tab 1 at 22. The agency submitted a copy of

the appellant’s training records that include an entry, at around the time of the

charged misconduct, for “Function 1 Clock Ring Procedures,” RF, Tab 6 at 148,

and the deciding official testified that TACS also was included as a part of other

training the appellant received, HT at 168-69. The appellant also argues on

review that he did not act intentionally or for gain, PFR File, Tab 1 at 22,

although the deciding official did not consider that he had, IAF, Tab 7 at 18.

Finally, the appellant notes that the agency allowed him to continue to supervise

for a period of time after the charged misconduct. PFR File, Tab 1 at 23.

Notwithstanding, it is well established that the Board’s review of an

agency-imposed penalty is essentially to assure that the agency did

conscientiously consider the relevant factors and did strike a responsible balance

within tolerable limits of reasonableness. Douglas, 5 M.S.P.R. at 306. Under

these circumstances, we agree with the administrative judge that the agency’s

10

selection of the reduction in grade and pay penalty was a proper exercise of

managerial judgment and did not exceed the limits of reasonableness. 7

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request further review of this final decision. 8

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:

7

With his petition for review, the appellant has submitted new evidence that he asks the

Board to consider. PFR File, Tab 1 at 9-10. The first document is Time is Money:

Time and Attendance for Supervisors, Facilitator’s Guide TD-11A (June 1999), id.

at 29-48, and the second document is Participant’s Workbook, TACS: Time and

Attendance Collection System, Supervisor Training (Feb. 23, 2001), id. at 52-60. The

appellant asserts that the Board should consider these documents rather than the exhibit

the agency submitted below, Time is Money: Time and Attendance for Supervisors,

Facilitator’s Guide TD-11A (Apr. 2014). RF, Tab 16 at 66-74. The appellant failed to

challenge this document below, and therefore cannot be heard to do so now. See Banks

v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). Moreover, the proffered

documents themselves are not new. See Avansino v. U.S. Postal Service, 3 M.S.P.R.

211, 214 (1980) (discussing that the Board will not consider evidence submitted for the

first time with the petition for review absent a showing that it was unavailable before

the record was closed despite the party’s due diligence). Therefore, we have not

considered them.

8

The administrative judge did not, in her remand initial decision, afford the appellant

the mixed-case appeal rights to which he was entitled by virtue of his claims of

discrimination that the administrative judge adjudicated. RID at 24-25. We provide

those rights now.

11

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,

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.