Harinder Singh v. United States Postal Service

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2022 MSPB 15

Docket Nos. SF-0752-15-0014-I-1

SF-0752-15-0155-I-1

Harinder Singh,

Appellant,

v.

United States Postal Service,

Agency.

May 31, 2022

Myrna Castanon, Esquire, Los Angeles, California, for the appellant.

Catherine V. Meek, Long Beach, California, for the agency.

BEFORE

Raymond A. Limon, Vice Chair

Tristan L. Leavitt, Member

OPINION AND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

affirmed his demotion. For the reasons discussed below, we DENY the

appellant’s petition for review and AFFIRM the initial decision AS MODIFIED

by this Opinion and Order.

BACKGROUND

¶2 The appellant was employed by the agency as the Manager

Transportation/Networks, EAS-23, at the Los Angeles Processing and

Distribution Center (P&DC). Singh v. U.S. Postal Service, MSPB Docket

2

No. SF-0752-15-0014-I-1, Initial Appeal File (0014 IAF), Tab 76 at 4. In

March 2013, one of the appellant’s subordinate employees reported to agency

authorities that the appellant physically threatened him during a meeting. Id.

The agency’s Office of Inspector General (OIG) investigated those allegations.

OIG later expanded its investigation to include other alleged misconduct by the

appellant. Id. at 4-5. The appellant was temporarily assigned to another position

and then put on administrative leave while he was under investigation. Id.

¶3 After OIG completed its investigations into the appellant’s conduct, the

agency interviewed the appellant and other employees. Id. at 5-6. On April 29,

2014, the agency issued the appellant a Notice of Proposed Removal. 0014 IAF,

Tab 4 at 138-50. The agency charged the appellant with misuse of position,

acceptance of gifts from subordinates, and improper conduct. Id. at 138-40. The

appellant provided both oral and written responses to the proposed removal; he

also submitted a number of documents to the deciding official. Id. at 17-136.

¶4 On September 9, 2014, the agency issued a Letter of Decision removing the

appellant. Id. at 12-16. The deciding official sustained the charges of misuse of

position and acceptance of gifts from subordinates in full and he sustained three

of the five specifications of improper conduct. Id. at 12-13. The deciding

official determined that the penalty of removal was appropriate for the sustained

misconduct. Id. at 13-15.

¶5 On October 3, 2014, the appellant timely filed a Board appeal challenging

his removal. 0014 IAF, Tab 1. On November 26, 2014, the agency issued a new

Letter of Decision rescinding the September 9, 2014 removal decision and

replacing it with a decision to demote the appellant, effective November 29,

2014, to the position of Network Operations Specialist, EAS-19. 0014 IAF, Tab 7

at 7-12. The deciding official wrote in part:

Although I believe your conduct warrants your removal from the

Postal Service, I believe it is in everyone’s best interest to attempt

rehabilitation through a lower level assignment with direct

3

supervision and no subordinates. Such a position was unavailable at

the time of my original decision, but is available now.

Id. at 10. The agency informed the appellant that he was entitled to back pay for

the period during which his removal was in effect. Id. at 7.

¶6 The appellant timely filed an appeal of his demotion with the Board on

December 2, 2014. Singh v. U.S. Postal Service, MSPB Docket No. SF-0752-

0155-I-1, Initial Appeal File (0155 IAF), Tab 1. The administrative judge joined

the removal and demotion appeals for adjudication. 0014 IAF, Tab 14; 0155 IAF,

Tab 8. The agency later moved to dismiss the removal appeal as moot, 0014 IAF,

Tab 27, but the appellant argued that the removal appeal was not moot because he

had not been returned to the status quo ante and because he had not received a

performance-based increase to his salary for 2013 and 2014, 0014 IAF, Tab 28.

After a hearing on the joined appeals, the agency supplemented its motion to

dismiss with additional evidence regarding the salary increase issue. 0014 IAF,

Tab 82. The appellant responded, arguing that the removal appeal was still not

moot. 0014 IAF, Tab 83.

¶7 The administrative judge issued an initial decision affirming the appellant’s

demotion. 0014 IAF, Tab 86, Initial Decision (ID). She found that the agency

proved the charge of misuse of position and the three specifications of improper

conduct that were sustained by the deciding official, but that the agency failed to

prove the charge of acceptance of gifts from subordinates. ID at 4-20. As to

penalty, the administrative judge limited her review to the demotion to avoid the

possibility of affirming a penalty more severe than the one the agency ultimately

chose to impose. ID at 22. Even though she did not sustain all of the charges, the

administrative judge found that the penalty of demotion was within the tolerable

limits of reasonableness. ID at 22-24. 1

1

The administrative judge also found that the agency fully rescinded the removal and

provided the appellant with all of the relief he could have received in his removal

4

¶8 The appellant has filed a timely petition for review of the initial decision.

Petition for Review (PFR) File, Tab 1. He argues that the administrative judge

erred in crediting the testimony of one of the agency’s key witnesses. Id.

at 23-24. Additionally, he argues that the administrative judge improperly denied

his motion to compel discovery related to the consistency of the penalty with

those imposed on employees for the same or similar offenses. Id. at 12-13. He

also challenges the administrative judge’s analysis of the Douglas factors. 2 Id.

at 13‑16. Finally, the appellant argues that he was denied due process and that

the deciding official was improperly influenced. Id. at 16-22. The agency has

responded in opposition to the petition for review, PFR File, Tab 3, and the

appellant has filed a reply, PFR File, Tab 4.

ANALYSIS

The appellant’s disparate penalty claim does not provide a basis for reversing the

initial decision.

¶9 The appellant argues that he was denied discovery regarding the agency’s

treatment of other employees who engaged in similar misconduct. PFR File,

Tab 1 at 12-13. He speculates that such discovery would have revealed that the

agency treated similarly situated employees more leniently. Id. at 13. Before we

address the appellant’s arguments relating to discovery, we take this opportunity

to reinstate our former law governing the analysis of disparate penalty claims and

thereby overrule Figueroa v. Department of Homeland Security, 119 M.S.P.R.

422 (2013); Villada v. U.S. Postal Service, 115 M.S.P.R. 268 (2010); Woebcke v.

appeal. ID at 24-25. She did not find that the removal appeal was moot, however. ID

at 24. On review, the appellant does not challenge the administrative judge’s

disposition of the removal appeal, and therefore we will address only the

demotion appeal.

2

In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-306 (1981), the Board

articulated a nonexhaustive list of factors to be considered when evaluating the penalty

to be imposed for an act of misconduct.

5

Department of Homeland Security, 114 M.S.P.R. 100 (2010), abrogated in part

on other grounds as recognized in Bowman v. Small Business Administration,

122 M.S.P.R. 217 (2015); Lewis v. Department of Veterans Affairs, 113 M.S.P.R.

657 (2010), and their progeny, except to the extent that the law may have been

modified by the U.S. Court of Appeals for the Federal Circuit’s (Federal

Circuit’s) decision in Williams v. Social Security Administration, 586 F.3d 1365

(Fed. Cir. 2009), discussed infra.

¶10 It is well settled that among the factors an agency should consider in setting

the penalty for misconduct is “consistency of the penalty with those imposed

upon other employees for the same or similar offenses.” Douglas v. Veterans

Administration, 5 M.S.P.R. 280, 305 (1981). For decades after Douglas was

decided, for a disparate penalty claim to succeed, the Board required close

similarity in offenses between the appellant and any comparator(s), and that the

appellant and the comparator(s) worked in the same unit and for the same

supervisors. E.g., Jackson v. Department of the Army, 99 M.S.P.R. 604, ¶ 7

(2005); Fearon v. Department of Labor, 99 M.S.P.R. 428, ¶ 11 (2005);

Rasmussen v. Department of Agriculture, 44 M.S.P.R. 185, 191-92 (1990);

Archuleta v. Department of the Air Force, 16 M.S.P.R. 404, 407 (1983).

¶11 In a series of cases issued in 2010, however, the Board changed its approach

to disparate penalty claims. Under the new precedent, broad similarity in

misconduct between the appellant and the comparator(s) was sufficient to shift

the burden to the agency to explain the difference in treatment, and the universe

for potential comparators was seemingly limitless. See Figueroa, 119 M.S.P.R.

422, ¶¶ 3‑4, 10-12; Villada, 115 M.S.P.R. 268, ¶¶ 10-12; Woebcke, 114 M.S.P.R.

100, ¶¶ 19‑22; Lewis, 113 M.S.P.R. 657, ¶¶ 5‑15.

¶12 In announcing its “more flexible approach” to disparate penalties claims,

the Board relied in large part on a 2009 decision from our reviewing court. In

Williams, 586 F.3d 1365, the Federal Circuit remanded an appeal to the Board for

6

further development of the record as to the agency’s treatment of an alleged

comparator. Id. at 1368-69. Previously in that case, the administrative judge had

found the comparator evidence irrelevant because the comparator was not in the

same chain of command as the appellant. Id. at 1368. The court found that

“[w]hile the fact that two employees are supervised under different chains of

command may sometimes justify different penalties,” the record before it did not

justify the alleged disparity in treatment, particularly because the appellant was a

mere participant in a tax fraud scheme orchestrated by the comparator. Id.

at 1368-69. Applying Williams, the Board in Lewis held that there must be

enough similarity between both the nature of the misconduct and the other factors

to lead a reasonable person to conclude that the agency treated similarly situated

employees differently, but that the Board would not have “hard and fast rules

regarding the ‘outcome determinative’ nature of these factors.” Lewis,

113 M.S.P.R. 657, ¶¶ 15, 21.

¶13 Under the binding precedent of Williams, a comparator need not always

have to be in the same work unit or under the same supervisor. 3 Williams,

586 F.3d at 1368-69. Thus, the Board’s pre-Williams statements to the contrary

are no longer valid. Nevertheless, while no single factor is outcome

determinative, the fact that two employees come from different work units and/or

3

A panel of the Federal Circuit recently held that “[a] comparator employee is an

employee that ‘was in the same work unit, with the same supervisor, and was subjected

to the same standards governing discipline.’” Miskill v. Social Security Administration,

863 F.3d 1379, 1384 (Fed. Cir. 2017) (quoting Lewis). To the extent this statement can

be read as an absolute requirement that comparator employees be in the same work unit

with the same supervisor, it conflicts with the prior panel decision in Williams, in which

the court held that “the fact that two employees are supervised under different chains of

command may sometimes justify different penalties.” Williams, 586 F.3d at 1368

(emphasis supplied). We remain bound by Williams, the earlier panel decision. See

Deckers Corporation v. United States, 752 F.3d 949, 959, 966 (Fed. Cir. 2014)

(explaining that only an en banc court opinion, intervening Supreme Court precedent, or

Congressional change of an underlying statute may overrule prior precedential

panel decisions).

7

supervisory chains remains an important factor in determining whether it is

appropriate to compare the penalties they are given. In most cases, employees

from another work unit or supervisory chain will not be proper comparators. In

Williams, the court emphasized the fact that the comparator had originated and

organized a tax fraud scheme in which Mr. Williams was one of several

participants. Id. at 1366-69. Given the unusually close connection between the

two employees’ misconduct in that case, the court found that the agency needed

to justify the alleged disparity in the discipline they received. 4 The unique

circumstances in Williams illustrate that there must be a close connection between

the misconduct or some other factor for an employee from another work unit or

supervisory chain to be a proper comparator for disparate penalty purposes. The

universe of potential comparators will vary from case to case, but it should be

limited to those employees whose misconduct and/or other circumstances closely

resemble those of the appellant.

¶14 Prior to Williams, a panel of the Federal Circuit held that when an employee

raises an allegation that he received more severe discipline than another

employee, the proper inquiry is whether the agency knowingly treated employees

differently “in a way not justified by the facts, and intentionally for reasons other

than the efficiency of the service.” Facer v. Department of the Air Force,

836 F.2d 535, 539 (Fed. Cir. 1988). To the extent the panel in Williams intended

to remove the knowledge portion of the disparate penalty analysis, as we

similarly noted, supra, in footnote 3, we are bound to follow the court’s previous

analysis, as set forth in the court’s earlier panel decision in Facer, which includes

the knowledge portion. See Deckers Corporation v. United States, 752 F.3d 949,

959, 966 (Fed. Cir. 2014) (holding that, “[i]n this Circuit, a later panel is bound

4

Mr. Williams alleged that the agency reemployed the comparator, an assertion the

agency disputed. Williams, 586 F.3d at 1368-69. The court remanded the appeal for

further development of the factual record. Id. at 1369.

8

by the determinations of a prior panel, unless relieved of that obligation by an

en banc order of the court or a decision of the Supreme Court[]”). Thus, we

overrule Lewis and subsequent cases to the extent they have deviated from the

standard set forth in Facer. In assessing an agency’s penalty determination, the

relevant inquiry is whether the agency knowingly and unjustifiably treated

employees differently.

¶15 Since 2010, the Board has used its “flexible” approach to disparate penalty

claims as a basis for mitigating agency-imposed penalties. For example, in

Portner v. Department of Justice, 119 M.S.P.R. 365, ¶¶ 2-6, 9, 16-22 (2013), the

Board mitigated the removal of a supervisor who operated his official

Government vehicle (OGV) and made multiple false statements to agency

employees and the police regarding his actions in an attempt to hide the fact that

he parked the OGV in a parking lot adjacent to a Hooters restaurant, where he

consumed alcohol and ate dinner. In reducing the penalty to a 45-day suspension,

the Board relied in part on evidence that other employees who had been charged

with misuse of an OGV and other misconduct had received lesser penalties, even

though none of the comparators had been charged with both misuse of an OGV

and making false statements, like the appellant. Id., ¶¶ 20-22. The Board found

that, although the misconduct of the comparators was not the same as the

appellant’s, it “appear[ed] at least as serious as the appellant’s wrongdoing” and

that the agency failed to offer a sufficient explanation for the significantly

harsher penalty imposed on the appellant. Id., ¶¶ 21‑22.

¶16 In Boucher v. U.S. Postal Service, 118 M.S.P.R. 640, ¶¶ 2-13, 20-29 (2012),

the Board affirmed an administrative judge’s decision mitigating the removal of a

mail handler who was arrested near agency property while on duty and later

convicted of a felony, unlawful possession of a controlled substance. In

mitigating the removal to a 90-day suspension, the administrative judge cited

another employee who worked at the same facility as the appellant and was not

removed after being charged with drug possession. Id., ¶¶ 3, 11, 13. The Board

9

recognized several differences between the appellant’s circumstances and those of

the comparator, including that the comparator was charged with possession of

marijuana only, whereas the appellant was charged with possession of both

cocaine and marijuana, and that the comparator was not arrested on or near

agency property. Id., ¶¶ 21-22. Nevertheless, the Board determined that the

comparison between the two penalties was appropriate because the comparator

had engaged in “a more serious act” by attempting to smuggle marijuana into a

prison facility. Id.

¶17 The Board’s disparate penalty analysis in cases like Portner and Boucher

represents a departure from the standard set forth in Douglas, which calls for

comparison with penalties “imposed upon other employees for the same or

similar offenses.” Douglas, 5 M.S.P.R. at 305 (emphasis added). The Board in

Portner and Boucher did not find that the comparators had engaged in the same or

similar offenses as the appellants. Instead, the Board found comparisons of the

penalties appropriate in those cases because the comparators’ misconduct was “as

serious as” or “more serious” than that of the appellants. Portner, 119 M.S.P.R.

365, ¶ 22; Boucher, 118 M.S.P.R. 640, ¶ 22. We overrule Portner and Boucher to

the extent they held that the disparate penalty analysis should extend beyond the

same or similar offenses. The Board should not attempt to weigh the relative

seriousness of various offenses in order to determine whether two employees who

committed different acts of misconduct were treated disparately.

¶18 Additionally, the consistency of the penalty with those imposed upon other

employees for the same or similar offenses is simply one of a nonexhaustive list

of 12 factors that are relevant for consideration in determining the

appropriateness of a penalty. Douglas, 5 M.S.P.R. at 305-06. The Board has

frequently stated that the nature and seriousness of the offense, and its relation to

the employee’s duties, position, and responsibility, is the most important factor in

assessing the reasonableness of a penalty. E.g., Batara v. Department of the

Navy, 123 M.S.P.R. 278, ¶ 8 (2016); Spencer v. U.S. Postal Service, 112 M.S.P.R.

10

132, ¶ 7 (2009). Under the Board’s post-Lewis standard, in some cases the

consistency of the penalty has become not only more important than any of the

other Douglas factors, it has become the sole outcome determinative factor. We

hereby reiterate that the consistency of the penalty is just one of many relevant

factors to be considered in determining an appropriate penalty. Therefore, while

the fact that one employee receives a more severe penalty than that imposed on a

comparator who has committed the same or similar misconduct should be

considered in favor of mitigating the penalty in a given case, mitigation is by no

means required in all such cases. There often will be a range of penalties that

would fall within the tolerable limits of reasonableness in a given case. That an

agency chooses to impose a penalty at the more lenient end of that range in one

case should not mean that it cannot impose a penalty at the more severe end of

that range in another case. 5

¶19 In light of our reinstatement of the former legal standard for analyzing

disparate penalty claims, we now turn to the appellant’s argument that he was

improperly denied discovery regarding potential comparators. PFR File, Tab 1

at 12-13. Specifically, the appellant sought information regarding the treatment

of employees agency-wide who had engaged in similar misconduct. 0014 IAF,

Tab 11 at 20. The agency objected to the appellant’s request as overbroad and

limited its response to employees at the Los Angeles P&DC. Id. at 32-33. The

appellant reiterated his request for agency-wide information. Id. at 60. The

agency reiterated its objections, but it did supplement its discovery response with

information regarding EAS employees within the Pacific Area (i.e., California

5

There is no guarantee that a prior agency penalty determination even fell within the

tolerable limits of reasonableness. Thus, the consistency called for under Villada,

Woebcke, and Lewis might be rooted in an earlier disciplinary decision that was unwise,

meaning that a manager could be forced to go easy on an employee who committed

serious misconduct because of the unwarranted leniency of some other manager in the

past.

11

and Hawaii) who were charged with arguably similar misconduct over the prior

2 years. 0014 IAF, Tab 18 at 225. The appellant asked the administrative judge

to compel the agency to produce information about potential comparators

agency-wide. 0014 IAF, Tab 11 at 4-12, Tab 19. The administrative judge

denied the appellant’s motion to compel, finding the requests to be “overbroad

and burdensome and not likely to lead to the discovery of relevant admissible

evidence.” 0014 IAF, Tab 74 at 1-2.

¶20 An administrative judge has broad discretion in ruling on discovery matters,

and absent an abuse of discretion the Board will not find reversible error in such

rulings. Kingsley v. U.S. Postal Service, 123 M.S.P.R. 365, ¶ 16 (2016). We find

no abuse of discretion in this matter, particularly in light of the above

reinstatement of our former legal standard for analyzing disparate penalty claims.

The agency provided information regarding potential comparators within

reasonable geographic and temporal limits. Information regarding the treatment

of employees across the country is simply not likely to lead to the discovery of

admissible evidence regarding whether the agency knowingly and unjustifiably

treated employees differently.

¶21 Beyond his arguments regarding discovery, the appellant offers nothing

more than speculation regarding the treatment of similarly situated employees.

“Had the record been developed,” he argues on review, “the evidence would have

likely shown that employees with over 30 years of service, and no discipline with

numerous high profile awards received a suspension or letter of warning for

engaging in the same or similar conduct.” PFR File, Tab 1 at 13. In fact, the

only evidence regarding the treatment of employees who engaged in conduct that

was at all similar to the appellant’s indicates that those employees were either

demoted or removed. Hearing Transcript (HT) at 666 (testimony of the deciding

official). Thus, we find that the appellant has not shown that the administrative

judge erred in her consideration of the consistency of the penalty.

12

The appellant has not shown that the agency violated his due process rights.

¶22 The appellant argues that the agency violated his due process rights because

the deciding official contacted an official at agency headquarters about one of the

specifications without notifying the appellant of that contact. PFR File, Tab 1

at 16-18. The deciding official testified that there was conflicting information as

to whether the appellant was authorized to make the contract changes that formed

the basis of the first specification of the improper conduct charge. The deciding

official therefore contacted an official at agency headquarters to find out whether

the appellant’s actions were in fact improper. HT at 697-700 (testimony of the

deciding official).

¶23 Pursuant to the Federal Circuit’s decisions in Ward v. U.S. Postal Service,

634 F.3d 1274, 1279-80 (Fed. Cir. 2011), and Stone v. Federal Deposit Insurance

Corporation, 179 F.3d 1368, 1376-77 (Fed. Cir. 1999), a deciding official

violates an employee’s due process rights when he relies upon new and material

ex parte information as a basis for his decisions on the merits of a proposed

charge or the penalty to be imposed. See Norris v. Securities & Exchange

Commission, 675 F.3d 1349, 1354 (Fed. Cir. 2012); see also Gray v. Department

of Defense, 116 M.S.P.R. 461, ¶ 6 (2011). An employee’s due process right to

notice extends to both ex parte information provided to a deciding official and

information personally known to the deciding official, if the information was

considered in reaching the decision and was not previously disclosed to the

appellant. Solis v. Department of Justice, 117 M.S.P.R. 458, ¶ 7 (2012). Ward,

Stone, and their progeny recognize, however, that not all ex parte communications

that introduce new and material information to the deciding official rise to the

level of a due process violation. Solis, 117 M.S.P.R. 458, ¶ 8.

¶24 In Stone, the Federal Circuit identified the following factors to be used to

determine if ex parte information is new and material: (1) whether the ex parte

information introduced cumulative, as opposed to new, information; (2) whether

the employee knew of the information and had an opportunity to respond; and

13

(3) whether the communication was “of the type likely to result in undue pressure

on the deciding official to rule in a particular manner.” Stone, 179 F.3d at 1377.

Ultimately, we must determine “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.” Id.

¶25 A deciding official does not violate an employee’s due process rights by

initiating an ex parte communication that only confirms or clarifies information

already contained in the record. Blank v. Department of the Army, 247 F.3d 1225,

1229 (Fed. Cir. 2001). On the other hand, information obtained from an ex parte

communication may be considered new and material if it constitutes a significant

departure from evidence already in the record and the deciding official considers

it in reaching a decision. See Young v. Department of Housing & Urban

Development, 706 F.3d 1372, 1376-78 (Fed. Cir. 2013).

¶26 We find that the ex parte communication in this case does not constitute a

due process violation. The agency charged the appellant with improper conduct

for his actions regarding the contract changes. 0014 IAF, Tab 4 at 139. The

deciding official reached out to the official at headquarters because there was

some indication in the record that the appellant’s actions may not have been

improper. HT at 697-700; 0155 IAF, Tab 6 at 64. The effect of the ex parte

communication appears to have been to confirm to the deciding official that the

appellant’s actions were in fact improper, just as the agency indicated in the

notice of proposed removal. Therefore, we find that the ex parte communication

in this case did not introduce new and material information to the deciding

official. Rather, it merely clarified or confirmed information that was already in

the record. See Mathis v. Department of State, 122 M.S.P.R. 507, ¶¶ 12, 16

(2015) (applying the Stone factors and finding no due process violation when the

deciding official contacted a human resources representative to determine

14

whether allegations made in response to the proposed removal were supported by

the facts).

The appellant failed to show that his demotion was ultra vires or otherwise

procedurally improper.

¶27 The appellant alleges that the decision to demote him was actually made by

another agency official and communicated to the deciding official; he argues that

the action is therefore ultra vires and should be reversed as not in accordance

with law. PFR File, Tab 1 at 19-22. Agency actions have been found to be not in

accordance with law when the individual taking the action lacked the legal

authority to do so. For example, in Hamilton v. U.S. Postal Service, 58 M.S.P.R.

486, 487-88 (1993), the Board found that a demotion was not in accordance with

law because the deciding official had retired from the agency prior to issuing the

decision. In McCollum v. National Credit Union Administration, 417 F.3d 1332,

1339 (Fed. Cir. 2005), the Federal Circuit held that a removal was not in

accordance with law because the only entity within the agency with the authority

to authorize the appellant’s removal never did so. Here, by contrast, there is no

claim that the deciding official lacked the authority to demote the appellant.

Therefore, that action was not ultra vires.

¶28 Nevertheless, the Board does require that the ultimate decision regarding an

adverse action be made by the deciding official, not by some other individual.

See Fontes v. Department of Transportation, 51 M.S.P.R. 655, 668 (1991). Here,

the deciding official testified that the decision to demote the appellant was his

alone. HT at 704-05 (testimony of the deciding official). The appellant points to

testimony from another agency official who stated that he told the deciding

official to place the appellant in the EAS-19 position. PFR File, Tab 1 at 19-22.

However, the official could not recall when that conversation took place, except

that it was sometime before December 1, 2014. HT at 793-94 (testimony of the

Manager, Network Operations for the Pacific Area). The decision demoting the

appellant was issued on November 26, 2014. 0014 IAF, Tab 7 at 7. Thus, even if

15

the conversation took place as the official claimed, it may have taken place after

the decision to demote the appellant already had been made. Accordingly, we

find that the appellant failed to show that the decision to demote him was made

by someone other than the deciding official. See Gores v. Department of

Veterans Affairs, 68 M.S.P.R. 100, 121 (1995) (finding no harmful procedural

error when the appellant failed to show that the deciding official did not make the

ultimate decision), rev’d on other grounds, 132 F.3d 50 (Fed. Cir. 1997) (Table).

The appellant has not shown that the administrative judge erred in her

credibility determinations.

¶29 The appellant argues that the administrative judge erred in crediting the

testimony of one of the agency’s key witnesses because that witness had been

charged with several types of misconduct. PFR File, Tab 1 at 11, 23-24. He also

argues that the witness was biased against the appellant. Id. The administrative

judge applied the Hillen factors 6 and found the testimony of the agency’s witness

to be more credible than that of the appellant. ID at 6-7.

¶30 The Board must defer to an administrative judge’s credibility

determinations when they are based, explicitly or implicitly, on observing the

demeanor of witnesses testifying at a hearing, and 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). Here, the

administrative judge found the witness’s testimony to be more consistent with the

6

To resolve credibility issues, an administrative judge must identify the factual

questions in dispute, summarize the evidence on each disputed question, state which

version she believes, and explain in detail why she 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 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).

16

other evidence than the appellant’s. She also found the appellant’s testimony to

be inherently improbable. In addition, the administrative judge explicitly cited

the respective demeanors of the witness and the appellant during their testimony.

ID at 6-7. We find the administrative judge’s credibility determinations to be

well reasoned and supported by the record, and we find that the appellant has not

presented sufficiently sound reasons for overturning those determinations. 7

The penalty of demotion was within the tolerable limits of reasonableness.

¶31 In addition to his arguments regarding disparate penalty, the appellant

challenges other aspects of the administrative judge’s penalty analysis. First, the

appellant argues that the administrative judge failed to properly consider the

adequacy and effectiveness of alternative sanctions. In support of his argument,

the appellant cites the deciding official’s testimony that he did not consider

giving the appellant a suspension or letter of warning. PFR File, Tab 1 at 13-14.

However, the deciding official testified that the appellant’s misconduct made him

“unsuitable to manage other people.” HT at 664 (testimony of the deciding

official). When pressed about why he did not give the appellant a letter of

warning, the deciding official testified that it was not a viable option because of

the nature of the misconduct and the appellant’s position. HT at 701-02

(testimony of the deciding official). We find no error in the deciding official’s

consideration of possible lesser sanctions.

¶32 The appellant also argues that the administrative judge, when assessing the

penalty, failed to properly consider his lack of training. PFR File, Tab 1 at 14-16.

The testimony he cites in support of that argument relates to one specification of

the improper conduct charge dealing with changes to transportation contracts. Id.

at 14-15. The appellant does not argue that there was a lack of training or notice

7

The appellant has not otherwise challenged the administrative judge’s findings

regarding the charges. We have reviewed those findings and see no basis for

overturning them.

17

regarding any of the other charges or specifications. Even if he is correct that he

was not properly trained on the rules governing contract changes, we find that it

is not a sufficient basis to mitigate the penalty.

¶33 The deciding official testified in detail regarding his consideration of each

of the Douglas factors. HT at 660-72 (testimony of the deciding official). We

agree with the administrative judge that the deciding official properly considered

the relevant Douglas factors and that the penalty of demotion is within the

tolerable limits of reasonableness for the sustained misconduct. Cf. Gonzalez v.

Department of the Air Force, 51 M.S.P.R. 646, 654 (1991) (affirming the removal

of an employee with 24 years of service and no prior disciplinary record for

misuse of position and unauthorized off-duty employment).

ORDER

¶34 This is the final decision of the Merit Systems Protection Board in this

appeal. Title 5 of the Code of Federal Regulations, section 1201.113 (5 C.F.R.

§ 1201.113).

NOTICE OF APPEAL RIGHTS 8

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of this final decision, you should

8

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

18

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable time

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

19

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court (not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. 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.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

20

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC 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, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 9 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

9

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

21

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD:

/s/

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.