Michael Howard King v. United States Postal Service

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MICHAEL HOWARD KING, DOCKET NUMBER

Appellant, AT-0752-15-0820-I-1

v.

UNITED STATES POSTAL SERVICE, DATE: May 27, 2016

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL *

Harvey G. Orr, Riverdale, Georgia, for the appellant.

Tammie Philbrick, Esquire, Atlanta, Georgia, 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 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 regulation

or the erroneous application of the law to the facts of the case; the administrative

*

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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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. 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).

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant was removed from the position of Sales, Services, and

Distribution Associate at the Webb Bridge Station of the Alpharetta Post Office

based on misconduct. Initial Appeal File (IAF), Tab 4 at 14-17. Specifically, the

appellant was charged with taking three pieces of mail out of the post office that

did not belong to him, opening and going through the contents of the mail, and

leaving the mail in his truck and returning to work. Id. at 21. The appellant

appealed his removal to the Board, and, after holding a hearing, the

administrative judge issued an initial decision affirming the agency’s action.

IAF, Tab 15, Initial Decision (ID).

¶3 The appellant has filed a petition for review of the initial decision that

primarily disputes the administrative judge’s factual findings. Petition for

Review (PFR) File, Tab 1. The agency has opposed the petition. PFR File,

Tab 3.

¶4 The appellant argues that the agency does not have sufficient evidence to

prove the charged misconduct. PFR File, Tab 1 at 5-6. The agency relies

primarily on the statement of an investigator who was surveilling the appellant on

the date that the misconduct took place. IAF, Tab 14. The appellant argues that,

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because this investigator did not produce photographs or videotape of him

committing the misconduct, his testimony has no probative value. PFR File,

Tab 1 at 6. The appellant’s argument is unavailing. The Board has held that

circumstantial evidence of charges allows for a strong inference of culpability if

it is not reasonably and satisfactorily explained by the appellant. Davis v.

Department of the Air Force, 27 M.S.P.R. 521, 524 (1985), aff’d, 790 F.2d 92

(Fed. Cir. 1986) (Table); see Smith v. U.S. Postal Service, 69 M.S.P.R. 420, 425

(1996) (explaining that, when there is no significant contrary proof,

circumstantial evidence can constitute proof by preponderant evidence). Here, it

is undisputed that mail not addressed to the appellant was found in his truck.

IAF, Tab 4 at 37-38. The person who sent the mail and the intended recipient

confirmed that they did not know the appellant. Id. at 45-46. The administrative

judge found that the appellant failed to provide a reasonable explanation for how

the mail got into his truck. ID at 4. In addition to this circumstantial evidence,

the agency also relied on the testimony of the investigator who observed the

appellant when the misconduct took place.

¶5 The investigator testified that he witnessed the appellant leaving the post

office with mail in his hand, entering his truck, staying in his truck for

approximately 10-15 minutes, and exiting his truck without any mail. IAF, Tab 4

at 27-35. He also observed mail that was not addressed to the appellant in the

appellant’s truck. Id. The administrative judge conducted a credibility analysis

pursuant to Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987), and

credited the investigator’s version of events over the appellant’s, ID at 4-5. The

Board must give deference to an administrative judge’s factual findings and

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. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002).

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¶6 The appellant argues that the investigator’s testimony has no probative

value. PFR File, Tab 1 at 5. We do not agree. The investigator witnessed the

appellant enter his truck with mail and subsequently witnessed mail that did not

belong to the appellant in the appellant’s truck. IAF, Tab 4 at 28-41. The

appellant also argues that the administrative judge committed harmful error by

considering an anonymous report accusing him of taking mail on May 1, 2015,

opening several greeting cards and removing the contents, and then discarding the

cards and envelopes in a dumpster. PFR File, Tab 1 at 2. The record reflects that

information concerning the anonymous report of misconduct on May 1, 2015, was

in the investigator’s report and was included in the background section of the

notice of proposed removal. IAF, Tab 4 at 21, 29-31. The agency did not charge

the appellant with committing misconduct on May 1, 2015. Id. at 21-24.

Similarly, the initial decision does not make a finding concerning the misconduct

that allegedly occurred on May 1, 2015. ID at 5 (finding that the agency

established that the appellant engaged in the conduct described in the

specifications). We find no error in the administrative judge’s noting the events

of May 1, 2015, merely as background in the initial decision because this event

resulted in the appellant being placed under surveillance on May 8, 2015, when

the charged misconduct took place. ID at 2. Likewise, the administrative judge’s

treatment of this event as background was not improper, because she did not

consider it as a prior disciplinary record in assessing which penalty to impose.

See, e.g., Bolling v. Department of the Air Force, 9 M.S.P.R. 335, 339-40 (1981)

(finding that the Board’s review of a proper disciplinary action is limited to

determining whether that action is clearly erroneous, if the employee was

informed of the action in writing, the action is a matter of record, and the

employee was permitted to dispute the charges before a higher level of authority

than the one that imposed the discipline).

¶7 The appellant alleges that the agency had him arrested on a charge of theft,

but charged him administratively with improper conduct to lower the burden of

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proof. PFR File, Tab 1 at 4. To the extent that, by this argument, the appellant is

claiming that the agency could not bring both a criminal charge against him and

remove him from service based on the same set of facts, we disagree. In addition,

the appellant was given the option of staying the Board proceeding pending a

decision in the criminal proceeding, but he declined to do so. IAF, Tab 6. Even

if the appellant were correct, and the agency influenced the criminal charge in the

parallel proceeding, the agency was not required to bring an identical charge

against him administratively. See Owens v. U.S. Postal Service, 57 M.S.P.R. 63,

(1993) (finding that collateral estoppel did not apply when the appellant was

convicted of a criminal charge that was substantially similar but not identical to

the misconduct charged by the agency and arose from the same conduct).

¶8 The initial decision notes that the appellant’s vehicle was locked and only

the appellant had access to the keys to unlock the vehicle (and therefore only he

could have been the person who placed the mail and ripped checks in the truck) as

facts that made his version of events less credible. ID at 4. The appellant argues

that these facts were not included in the notice of proposed removal and therefore

the administrative judge should not rely upon them. PFR File, Tab 1 at 4. We

find no error in the administrative judge’s relying on these facts as part of her

credibility analysis under Hillen to support her finding that the appellant’s

version of events was less credible than the investigator’s version. To the extent

that the appellant may be arguing that the administrative judge’s consideration of

this fact amounted to a due process violation, under the circumstances presented,

we cannot agree. Stone v. Federal Deposit Insurance Corporation, 179 F.3d,

1368, 1377 (Fed. Cir. 1999) (holding that merely cumulative evidence that is not

new and material and does not undermine objectivity does not implicate due

process guarantee of notice).

¶9 We have thoroughly reviewed the hearing testimony and documentary

evidence from below, and we find that the appellant has not presented sound

reasons for us to revisit the administrative judge’s credibility determinations or

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the resultant findings and no basis upon which to disturb her determination that

the agency met its burden and proved that the appellant committed the charged

misconduct. See Yang v. U.S. Postal Service, 115 M.S.P.R. 112, ¶ 12 (2010)

(finding that mere disagreement with the administrative judge’s findings is

insufficient to disturb the initial decision); see also Broughton v. Department of

Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (stating that there is no

reason to disturb the administrative judge’s conclusions when the initial decision

reflects that she considered the evidence as a whole, drew appropriate inferences,

and made reasoned conclusions). The appellant’s mere disagreement with the

administrative judge’s findings and credibility determinations does not warrant

reversal by the Board. Weaver v. Department of the Navy, 2 M.S.P.R. 129,

133-34 (1980), review denied, 669 F.2d 613 (9th Cir. 1982) (per curiam).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S.

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

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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 an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. 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.