Opinion

Eva Duffey v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Jun 20, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 23.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

EVA L. DUFFEY, DOCKET NUMBER

Appellant, DA-0752-16-0105-I-1

UNITED STATES POSTAL SERVICE, DATE: June 20, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

John M. Vallie, Fort Worth, Texas, for the appellant.

Susan L. LaSalle, Esquire, Dallas, Texas, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

affirmed her demotion. Generally, we grant petitions such as this one only in the

following circumstances: the initial decision contains erroneous findings of

material fact; the initial decision is based on an erroneous interpretation of statute

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 appellant 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 to find that the appellant failed to establish that the agency

violated her due process rights by identifying only some of her alleged

misconduct in the proposal notice, we AFFIRM the initial decision.

¶2 The appellant was demoted from her position as a Customer Services

Manager for changing four subordinates’ clock rings and causing them to not be

paid for time that they spent working. Initial Appeal File (IAF), Tab 4 at 48-50,

54-58. In its proposal notice, the agency asserted that , between September 29,

2014, and April 17, 2015, the appellant reduced those four employees’ work

hours “by 103 hours in total.” Id. at 54, 56. The proposal notice listed “some” of

the specific incidents in which the appellant disallowed time, which add ed up to

approximately 33 hours over 45 instances. Id. at 54-56.

¶3 The appellant argues that, although she was “theoretically charged” with

103 hours of improper clock ring deletions, the proposal notice only ide ntified

approximately 33 hours of such deletions. Petition for Review (PFR) File, Tab 1

at 5, 8. 2 Although the appellant raised this issue below, IAF, Tab 1 at 6, Tab 9

The appellant’s submissions were not paginated. Thus, for ease of reference, page

number citations to the record reference the electronic record and the MSPB e -Appeal

pagination system.

at 8, it is not addressed in the initial decision, IAF, Tab 23, Initial Decision (ID).

We interpret the appellant’s argument as one that the agency violated her due

process rights. The appellant has the burden of proving her affirmative defense

by preponderant evidence. 3 5 C.F.R. § 1201.56(b)(2)(i)(C).

¶4 Due process mandates that notice of charges be sufficiently detailed to

provide a meaningful reply. 4 Ryan v. Department of Homeland Security,

123 M.S.P.R. 202, ¶ 8 (2016). The proposal notice here identified the four

employees whose clock rings the appellant allegedly had altered, the manner in

which she altered them, the time period in which she altered them, the total

number of hours she discounted, and 45 examples of her alterations. IAF, Tab 4

at 54-56. Moreover, approximately 3 weeks prior to the issuance of the proposal

notice, the proposing official interviewed the appellant and made her aware that

the agency knew of approximately 54 instances in which she had improperly

altered the clock rings of one named employee, 80 instances of a second

employee, 58 instances of a third employee, and 70 instances of a fourth

employee. Id. at 61-63. Under these circumstances, we find that the agency

provided the appellant with sufficiently detailed notice of the charges against her

such that she could provide a meaningful reply. See, e.g., Gilmore v. U.S. Postal

Service, 103 M.S.P.R. 290, ¶¶ 6, 10-14 (2006) (finding that, when the proposal

notice provided fairly specific information regarding the nature of the appellant’s

alleged unsatisfactory performance and the time period in which her performance

Preponderant evidence is the degree of relevant evidence that a reasonable person,

considering the record as a whole, would accept as sufficient to find that a contested

fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

The Board's reasoning rests on the decision of the U.S. Supreme Court in Cleveland

Board of Education v. Loudermill, 470 U.S. 532, 538-39, 546-48 (1985), which held

that a tenured public employee has a constitutionally protected property interest in

ongoing public employment and that an agency may not deprive such an employee of

his property interest without providing him with due process of law, including the right

to advance notice of the charges against him, an explanation of the agency’s evidence,

and an opportunity to respond.

was allegedly unsatisfactory, the notice was adequate under 5 U.S.C. § 7513,

despite its failure to identify the number of occasions on which the appellant’s

performance was allegedly deficient), 5 aff’d, 262 F. App’x 276 (Fed. Cir. 2008);

O’Hearn v. General Services Administration, 41 M.S.P.R. 280, 284-85 (1989)

(finding that the appellant was not denied due process when the proposal notice

only cited some examples of his alleged deficiencies under a particular

performance element, the agency kept him apprised during his performance

improvement period as to his alleged deficiencies, and the record did not indicate

that he was confused and unable to respond to the charge), aff’d, 902 F.2d 44

(Fed. Cir. 1990) (Table).

¶5 Additionally, the proposal notice informed the appellant of her right to

review the material relied upon to support the reasons for the proposal notice.

IAF, Tab 4 at 57. There is no requirement that a proposal notice be a

self-contained document, and the notice requirement can be satisfied when

attachments to the proposal, together with the proposal itself, provide the

employee with specific notice of the charges against her so that she can make an

informed and meaningful reply. Alvarado v. Department of the Air Force,

97 M.S.P.R. 389, ¶ 15 (2004). In its submissions to the Board on appeal below,

the agency provided time and attendance reports, which appear to show each

instance of the appellant’s unacceptable conduct. IAF, Tab 4 at 76-338, Tab 5

at 4-49. The appellant has not indicated whether she requested the materials

relied upon to support the reasons for the proposal notice, and , if she did, whether

the agency then failed to identify each instance of her misconduct leading to the

improper reduction of 103 work hours performed by her subordinates. Nor has

she claimed that she was not responsible for any particular clock ring alterations

The procedural protections under 5 U.S.C. § 7513 include, inter alia, the due process

rights independently guaranteed under the U.S. Constitution. Buelna v. Department of

Homeland Security, 121 M.S.P.R. 262, ¶ 15 n.6 (2014).

shown in the agency’s evidence. Accordingly, we find that the appellant has

failed to establish that the agency violated her due process right to pre decisional

notice of the charges against her.

¶6 The appellant also argues that the deciding official violated her due process

rights by considering an aggravating factor that was not discussed in the proposal

notice, and that the administrative judge erroneously concluded that the appellant

was not similarly situated to certain other employees. PFR File, Tab 1 at 3-25.

Regarding the appellant’s other due process argument, the administrative judge

found that the evidence indicated that the appellant was awar e of, and had the

opportunity to respond to, the aggravating factor in question. ID at 13. For this

and other reasons, the administrative judge found that the agency had not violated

the appellant’s due process rights. ID at 13-14. Additionally, based on, among

other things, this same aggravating factor, the administrative judge distinguished

the appellant’s case from that of her purported comparators. ID at 18 -19. We see

no reason to disturb these findings. 6

¶7 We also have considered whether the appellant has established that the

agency committed harmful error. See Ward v. U.S. Postal Service, 634 F.3d

1274, 1281 (Fed. Cir. 2011). Harmful error is defined as “[e]rror b y the agency

in the application of its procedures that is likely to have caused the agency to

reach a conclusion different from the one it would have reached in the absence or

cure of the error.” 5 C.F.R. § 1201.4(r). For the reasons stated above, we find

that the proposal notice adequately stated the specific reasons for the proposed

In analyzing the appellant’s disparate penalty claim, the administrative judge cited

Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657 (2010). ID at 21-22. We

have since overruled Lewis to find that, when analyzing disparate penalty claims, broad

similarity between employees is insufficient to establish that they are appropriate

comparators, and hold that the relevant inquiry is whether the agency knowingly and

unjustifiably treated employees differently. Singh v. U.S. Postal Service, 2022 MSPB

15, ¶ 14. The reference to the standard set forth in Lewis was not prejudicial in this

case because, as the administrative judge found, the appellant failed to satisfy even that

less onerous standard. ID at 21-22.

action in accordance with 5 C.F.R. § 752.404(b)(1), and we find that the deciding

official, in arriving at her decision, acted in accordance with

subsection 752.404(g)(1) by considering only the reasons specified in the

proposal notice along with the appellant’s reply. Accordingly, we find that the

appellant has not shown that the agency committed a procedural error. Moreover,

even assuming that the proposal notice inadequately stated the specific reasons

for the proposed action by failing to specify each and every instance of allegedly

improperly disallowed time, we find no evidence that the deciding official was

likely to have reached a different conclusion absent such error, and we would thus

still find that the agency did not commit harmful error.

¶8 The appellant also submits on review her equal employment opportunity

complaint and the agency’s summary of its investigative interview of her. PFR

File, Tab 1 at 28-34, 36-38. These documents were already a part of the record

below. IAF, Tab 4 at 61-64, Tab 13 at 91-99. Accordingly, they are not new

evidence and do not provide a basis for review. See Meier v. Department of the

Interior, 3 M.S.P.R. 247, 256 (1980); 5 C.F.R. § 1201.115.

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 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 an d

the rights described below do not represent a statement of how courts will rule

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.

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 yo ur 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.

(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. 420 (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

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.

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