Opinion

Daniel Davis v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Apr 13, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.1%

applying Maryland state law on collateral estoppel in determining the preclusive effect of the appellant’s conviction in Maryland state court

How later courts described this case

applying Maryland state law on collateral estoppel in determining the preclusive effect of the appellant’s conviction in Maryland state court

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The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DANIEL P. DAVIS, DOCKET NUMBER

Appellant, PH-0752-17-0388-I-1

UNITED STATES POSTAL SERVICE, DATE: April 13, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Joseph J. Chester, Esquire, Pittsburgh, Pennsylvania, for the appellant.

Thao T. Pham, St. Louis, Missouri, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member 2

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 in the

following circumstances: the initial decision contains erroneous findings of

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

Member Leavitt’s name is included in decisions on which the three -member Board

completed the voting process prior to his March 1, 2023 departure.

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 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. Except as expressly MODIFIED by

this Final Order regarding the collateral estoppel analysis, we AFFIRM the initial

decision.

BACKGROUND

¶2 The appellant was the Postmaster of Pittsburgh, Pennsylvania. Initial

Appeal File (IAF), Tab 11 at 74. On September 15, 2015, he was arrested and

charged with the following crimes under Pennsylvania law: (1) intimidation of

witnesses or victims (four counts); (2) criminal coercion (four counts);

(3) official oppression (four counts); and (4) obstructing the administration of law

or other government function (one count). IAF, Tab 5 at 142-51. The charges

alleged that the appellant threatened and/or intimidated subordinate employees

who had observed him opening Express Mail packages in violati on of Federal law

and agency regulations, and/or directed them not to report his actions and not to

cooperate with law enforcement investigations of his actions. Id. at 137-38.

¶3 Effective November 27, 2015, the agency indefinitely suspended the

appellant pending disposition of the charges. 3 IAF, Tab 5 at 122-26. Following a

jury trial, on January 13, 2017, the appellant was convicted of three counts of

witness intimidation, and one count of each of the other charges. Id. at 108-09.

The appellant appealed his conviction. Id. at 64.

¶4 On March 23, 2017, the agency issued a notice proposing to remove the

appellant for improper conduct. IAF, Tab 5 at 62-72. The charge was supported

by five specifications, which alleged, respectively, as follows: (1) the appellant

was found guilty of several criminal offenses; (2) the appellant opened multiple

Express Mail packages without authorization at post offices in the Pittsburgh

area; (3) the appellant consumed alcohol and gambled at a local ca sino on

multiple occasions during duty hours; (4) the appellant borrowed thousands of

dollars from a subordinate; and (5) the appellant recorded a meeting without the

consent of the other participants. Id. at 62-66.

¶5 After the appellant responded to the proposal, IAF, Tab 5 at 53-60, the

deciding official sustained the first four specifications and the charge, and found

that removal was appropriate. Id. at 32-38. The agency removed the appellant

effective June 23, 2017. Id. at 36.

¶6 The appellant filed a Board appeal challenging his removal. IAF, Tab 1.

He raised affirmative defenses of harmful procedural error, laches, violations of

law, and disparate treatment discrimination based on his ethnicity. Id. at 5;

Tab 32 at 3, 6. After holding a hearing, the administrative judge issued an initial

decision that affirmed the appellant’s removal. IAF, Tab 37, Initial Decision

(ID). The administrative judge found that the agency proved the charge by

preponderant evidence, ID at 2-10, that there is a nexus between the charge and

the efficiency of the service, ID at 16-17, and that the penalty of removal is

The appellant filed a separate appeal challenging his indefinite su spension. See Davis

v. U.S. Postal Service, MSPB Docket No. PH-0752-16-0127-I-1, Initial Appeal File,

Tab 5 at 50.

reasonable. ID at 15-17. The administrative judge also found that the appellant

failed to prove any of his affirmative defenses. 4 ID at 10-15.

¶7 The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. The agency has filed a response in opposition to the petition.

PFR File, Tab 3.

ANALYSIS

The administrative judge correctly found that the agency proved the charge by

preponderant evidence.

Specification 1: Criminal Conduct

¶8 In sustaining this specification, the administrative judge applied the Board’s

standards for collateral estoppel 5 to find that the appellant was precluded from

arguing that he did not engage in the criminal conduct described in this

specification, i.e., the conduct underlying his state court conviction . ID at 3. The

appellant challenges this finding on review, arguing that the administrative judge

could not rely on his conviction to sustain this specification because the

conviction was not final, as he had appealed it to the Superior Court of

Pennsylvania. PFR File, Tab 1 at 7.

¶9 For the reasons discussed below, we agree with the administrative judge

that the appellant’s conviction is sufficient proof of this specification. We find,

however, that the administrative judge mistakenly relied on the Board’s standards

for collateral estoppel in sustaining this specification. IAF, Tab 32 at 2; ID at 3.

The appellant does not offer any specific argument on review challenging the

administrative judge’s findings regarding his claims of violations of law, laches, and

harmful procedural error. Therefore, we do not address these findings further.

Under these standards, a party is barred from re-litigating an issue that was previously

litigated if: (1) the issue is identical to that involved in the prior action; (2) the issue

was actually litigated in the prior action; (3) the determination on the issue in the prior

action was necessary to the resulting judgment; and (4) the party against whom issue

preclusion is sought had a full and fair opportunity to litigate the issue in the prior

action, either as a party to the earlier action or one whose interests were otherwise fully

represented in that action. McNeil v. Department of Defense, 100 M.S.P.R. 146, ¶ 15

(2005).

When, as here, an appellant is found guilty of a crime under state law, the Board

will apply that state’s collateral estoppel standards to determine the preclusive

effect of the conviction. See Graybill v. U.S. Postal Service, 782 F.2d 1567,

1571-73 (Fed. Cir. 1986) (applying Maryland state law on collateral estoppel in

determining the preclusive effect of the appellant’s conviction in Maryland state

court); Mosby v. Department of Housing and Urban Development, 114 M.S.P.R.

674, ¶¶ 5-6 (2010) (applying District of Columbia collateral estoppel standards).

Accordingly, the administrative judge should have applied Pennsylvania law to

determine whether collateral estoppel applies.

¶10 Under Pennsylvania law, the application of collateral estoppel to issues

raised in a prior criminal proceeding is appropriate if: (1) the issue decided in the

prior adjudication was identical to the one presented in the later action ; (2) there

was a final judgment on the merits; (3) the party against whom collateral estoppel

is asserted was a party or in privity with a party to the prior adjudicatio n; and

(4) the party against whom it is asserted has had a full and fair opportunity to

litigate the issue in question in a prior action. Shaffer v. Smith, 673 A.2d 872,

874 (Pa. 1996).

¶11 The first, third, and fourth criteria for applying collateral estoppel under

Pennsylvania law are essentially the same as the Board’s collateral estoppel

standards, and we agree with the administrative judge that these standards are

satisfied here. ID at 3. The issue in the criminal proceeding, i.e., whether the

appellant committed the misconduct described in specification one, is identical to

the issue presented in this appeal; the appellant was a party to the criminal

proceeding; and the appellant was represented by counsel in that proceeding and

thus had a full and fair opportunity to present his case.

¶12 We further find that the remaining criterion for applying collateral estoppel

in this appeal—a final judgment on the merits in the prior criminal proceeding—

also has been satisfied. Under Pennsylvania law, a judgment is deemed final for

purposes of collateral estoppel unless or until it is reversed on appeal. Shaffer,

673 A.2d. at 874-75. Thus, contrary to the appellant’s contention, the fact that he

appealed his conviction does not preclude the application of collateral estoppel.

Because Pennsylvania’s collateral estoppel standards have been met in this case,

we agree with the administrative judge’s finding that the appellant is precluded

from re-litigating the issue of whether he committed the misconduct described in

this specification and that, therefore, the agency proved this specification. ID

at 3.

Specification 2: Opening Express Mail Packages

¶13 As previously noted, the second specification of the charge alleged that the

appellant opened Express Mail packages in various post offices throughout the

Pittsburgh area without authorization. IAF, Tab 5 at 64. In addressing this

specification, the administrative judge noted that the appellant admitted that he

opened Express Mail packages but contended that, as Postmaster of Pittsburgh, he

was authorized to do so to interdict contraband in the mail system. ID at 7. The

administrative judge further noted that, in support of this claim, the appellant

testified that, in 2012, a postal inspector (PI) opened a drug package in front of

the appellant, who was then the Postmaster of Toledo, Ohio, and directly

authorized and trained the appellant to open packages containing drugs. Id.

¶14 During his testimony, as summarized in the initial decision, the PI refuted

the appellant’s claims that he had opened a drug package in front of the appellant

and had trained and authorized him to open packages. Id. The PI further testified

that he never trained or authorized anyone else to open packages, as no one has

authority to open packages absent a warrant or exigent circumstances. I D at 7-8.

¶15 The administrative judge recognized that there was conflicting testimony

between the appellant and the PI regarding the central issue of whether the

appellant was authorized to open Express Mail packages. ID at 8. Applying the

factors for resolving credibility issues set forth in Hillen v. Department of the

Army, 35 M.S.P.R. 453, 458 (1987), the administrative judge credited the PI’s

testimony over the appellant’s conflicting testimony. Id. The administrative

judge found that the PI testified in a straightforward and forthright manner, that

his testimony on the issue of the circumstances in which mail can be opened was

consistent with that of an agent from the agency’s Office of Inspector General,

and that the PI had no motive to fabricate his testimony as it appears that he has

nothing to gain from the appellant’s removal and there is no evidence that he

harbors any animus for the appellant. Id.

¶16 By contrast, the administrative judge found the appellant’s version of events

inherently implausible. ID at 9. In particular, the administrative judge found

that, even if the appellant had been involved in drug interdiction operations

during his tenure as Toledo Postmaster, he did not adequately explain why he

contended he could continue in that capacity as Pittsburgh Postmaster, given that

he was not working in drug interdiction in that position. Id. The administrative

judge found it unfathomable that the appellant would take it upon himself to open

mail without express permission from the Pittsburgh branch of the age ncy’s

Postal Inspection Service or his supervisors in Pittsburgh. Id.

¶17 The appellant argues on review that, in sustaining this specification, the

administrative judge did not give proper weight to the PI’s testimony that the

appellant was trained to open packages, or to his testimony that corroborated the

appellant’s testimony regarding training, authorization, and “myriad instances of

past practice.” PFR File, Tab 1 at 8.

¶18 We do not agree with the appellant’s characterization of the PI’s testimony.

As explained above, the PI testified that he did not train or authorize the appellant

to open Express Mail packages, and the administrative judge credited the PI’s

testimony. ID at 7-8. To the extent that the appellant claims on review that the

PI trained and authorized him to open Express Mail packages, this argument is

essentially mere disagreement with the administrative judge’s explained findings

and credibility determinations and, as such, provides no basis to disturb the initial

decision. See Broughton v. Department of Health and Human Services,

33 M.S.P.R. 357, 359 (1987) (finding no reason to disturb the administrative

judge’s findings when she considered the evidence as a whole, drew appropriate

inferences, and made reasoned conclusions on issues of credibility).

Accordingly, we find no reason to disturb the administrative judge’s findings that

the agency proved specification 2 of the charge.

Specification 3: Gambling and Drinking on Duty

Specification 4: Borrowing Money from a Subordinate

¶19 It is undisputed that the appellant engaged in the misconduct described in

specifications 3 and 4. Therefore, we find that the administrative judge properly

sustained these specifications and the charge. ID at 9-10.

The appellant failed to prove his affirmative defense of disparate treatment

discrimination based on his ethnicity.

¶20 The appellant also reiterates his affirmative defense of discrim ination based

on ethnicity. PFR File, Tab 1 at 7. For the reasons explained in the initial

decision, we agree with the administrative judge that the appellant failed to prove

this defense. Because we affirm the administrative judge’s finding that the

appellant failed to show that any prohibited consideration was a motivating factor

in the agency’s action, we need not resolve the issue of whether the appellant

proved that discrimination or retaliation was a “but-for” cause of the agency’s

decisions. See Pridgen v. Office of Management and Budget, 2022 MSPB 31,

¶¶ 20-22, 29-33.

The administrative judge correctly found that the agency proved nexus.

¶21 On review, the appellant reasserts his argument below that the agency could

not establish a nexus between the sustained misconduct and the efficiency of t he

service because his administrative duties were “non-public” and there was no

“competently proven media disclosure.” PFR File, Tab 1 at 8; IAF, Tab 35 at 6.

The administrative judge properly rejected this argument in the initial decision ,

finding that it strains credulity to argue that the appellant could reasonably

perform the duties of his Postmaster position and advance the agency mission

after having been found guilty of criminal coercion, intimidating witnesses, and

official oppression against postal employees. ID at 16. The administrative judge

also correctly found that the sustained charge of opening mail without proper

authorization goes squarely to the agency’s mission, as does borrowing money

from a subordinate employee. Id. We discern no reason to disturb this finding.

The administrative judge correctly found that removal is a reasonable penalty.

¶22 The appellant also challenges the penalty in his petition for review. PFR

File, Tab 1 at 8-9. He argues that the agency erred by failing to apply progressive

discipline and that the deciding official disregarded several Douglas factors in

deciding to remove him. 6 Id. at 8. He further contends that the administrative

judge failed to properly apply the Douglas factors in finding that removal was a

reasonable penalty. Id. at 8-9.

¶23 When, as here, the agency’s charge is sustained, the Board will review the

agency-imposed penalty only to determine if the agency considered all the

relevant factors and exercised management discretion within tolerable limits of

reasonableness. Wiley v. U.S. Postal Service, 102 M.S.P.R. 535, ¶ 14 (2006),

aff’d per curiam, 218 F. App’x 1001 (Fed. Cir. 2007). In making this

determination, the Board must give due weight to the agency’s primary discretion

in maintaining employee discipline and efficiency, recognizing that the Board’s

function is not to displace management’s responsibility, but to ensure that

managerial judgment has been properly exercised. Miles v. Department of the

Navy, 102 M.S.P.R. 316, ¶ 12 (2006). The Board will modify a penalty only

when it finds that the agency failed to weigh the relevant factors or that it clearly

exceeded the bounds of reasonableness in determining the penalty. Adam v. U.S.

In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board

articulated a nonexhaustive list of 12 factors that are relevant in assessing the

appropriate penalty for an act of misconduct. These so -called Douglas factors include

the nature and seriousness of the offense and its relation to the employee’s duties; the

employee’s past disciplinary record; the employee’s past work record, including length

of service and performance on the job; and the effect of the offense upon supervisors’

confidence in the employee’s ability to perform his assigned duties. Id.

Postal Service, 96 M.S.P.R. 492, ¶ 5 (2004), aff’d, 137 F. App’x 352 (Fed. Cir.

2005).

¶24 The decision letter and the deciding official’s hearing testimony, as

summarized in the initial decision, demonstrate that he considered the relevant

Douglas factors in making his penalty determination, including the nature and

seriousness of the offense and the appellant’s job level. IAF, Tab 5 at 34-36; ID

at 15-17. The deciding official found that the appellant’s misconduct was serious

and that, as an executive, the appellant was held to a higher standard. IAF, Tab 5

at 34. The deciding official also considered the notoriety of the appellant’s

misconduct, noting that his conviction was publicized on multiple news outlets

throughout the region. Id. at 35. The deciding official considered the appellant’s

lengthy service, the absence of prior discipline, his military record, and his past

acceptable performance as mitigating factors, but found that they were

insufficient to outweigh the seriousness of his misconduct. IAF, Tab 5 at 34-36.

¶25 In assessing the reasonableness of the penalty, the administrative judge

found that the deciding official considered all relevant factors in determining that

removal was an appropriate penalty. ID at 17. Recognizing that the Board must

accord proper deference to the agency’s primary discretion in managing its

workforce, we see no reason to disturb this finding. See Douglas, 5 M.S.P.R.

at 306. We also agree with the administrative judge that the agency’s decision to

forego the use of progressive discipline in this case is appropriate due to the

egregiousness of the appellant’s misconduct. ID at 17. Thus, we find that the

administrative judge properly sustained the appellant’s removal.

NOTICE OF APPEAL RIGHTS 7

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

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

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 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).

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.

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.

(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:

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. 8 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).

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