Opinion

Aubrey Hightower v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Mar 7, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

AUBREY J. HIGHTOWER, DOCKET NUMBER

Appellant, DC-0752-17-0687-I-2

UNITED STATES POSTAL SERVICE, DATE: March 7, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Aubrey J. Hightower , Vernon Hill, Virginia, pro se.

Donna G. Marshall , Esquire, Philadelphia, Pennsylvania, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

affirmed his removal for improper conduct. On petition for review, the appellant

argues that the administrative judge abused her discretion concerning discovery

and denied him necessary witnesses and documents. He generally argues she did

not consider all of his evidence and argument. He also reasserts his claims of

disparate treatment disability discrimination, retaliation for equal employment

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

opportunity (EEO) activity, reprisal for whistleblowing, and disparate penalty.

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 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 to

supplement the administrative judge’s analysis of the appellant’s affirmative

defenses, we AFFIRM the initial decision.

In adjudicating the appellant’s disparate treatment disability discrimination

and EEO retaliation claims, the administrative judge applied a mixed-motive

analysis in accordance with the Board’s precedent in Southerland v. Department

of Defense, 119 M.S.P.R. 566, ¶¶ 18-21 (2013). Hightower v. U.S. Postal

Service, MSPB Docket No. DC-0752-17-0687-I-2, Appeal File (I-2 AF), Tab 34,

Initial Decision (ID) at 15. The Board recently clarified that claims of disparate

treatment disability discrimination and EEO retaliation based on activity

protected under Title VII and the Age Discrimination in Employment Act are

subject to a motivating factor standard. Pridgen v. Office of Management and

Budget, 2022 MSPB 31, ¶¶ 21, 30. Here, the administrative judge properly

evaluated the evidence as a whole and found that the appellant failed to provide

any evidence that his disability was a motivating factor in the agency’s decision

to remove him. ID at 17-18. The appellant does not challenge this finding on

review, and we therefore find that he failed to establish this defense. ID at 17-19;

Petition for Review File, Tab 1.

Similarly, we agree with the administrative judge’s finding that the

appellant failed to show that his prior EEO activity was a motivating factor in the

agency’s decision to remove him. ID at 17-19. To the extent the appellant’s

prior EEO activity may have been protected under the Rehabilitation Act, and

therefore subject to a “but-for” causation standard, see Desjardin v. U.S. Postal

Service, 2023 MSPB 6, ¶ 33, we find that the appellant’s failure to satisfy the

lower motivating factor standard necessarily means that he failed to meet the

higher “but-for” standard, 2 id.

As to the appellant’s whistleblower reprisal claim, the administrative judge

correctly found that the Whistleblower Protection Act does not apply to

employees of the U.S. Postal Service. ID at 23; see Parbs v. U.S. Postal Service,

107 M.S.P.R. 559, ¶ 21 (2007), aff’d per curiam, 301 F. App’x 923 (Fed. Cir.

2008). Instead, a Postal employee alleging illegal reprisal has the burden of

showing that: (1) he engaged in protected activity; (2) the accused official knew

of the activity; (3) the adverse action under review could have been retaliation

under the circumstances; and (4) there was a genuine nexus between the alleged

retaliation and the adverse action. Warren v. Department of the Army, 804 F.2d

645, 656-58 (Fed. Cir. 1986); see Parbs, 107 M.S.P.R. 559, ¶ 21 (stating that the

Warren test applies to whistleblower reprisal claims brought by Postal

employees). The Warren test is a higher standard of proof than that set forth in

the whistleblower protection statutes. Parbs 107 M.S.P.R. 559, ¶ 21.

The administrative judge, applying the less stringent standard, found no

evidence in support of the appellant’s allegation that the agency removed him in

reprisal for whistleblowing because he failed to identify what information he

Because we discern no error with the administrative judge’s motivating factor analysis

or conclusions regarding the appellant’s discrimination and EEO retaliation claims, it is

unnecessary for us to address whether discrimination or retaliation was a “but-for”

cause of the removal action. See Pridgen, 2022 MSPB 31, ¶¶ 20-25.

disclosed, to whom he disclosed it, and when he did so. ID at 23-24; I-2 AF,

Tab 13 at 2. Because the appellant offered no evidence in support of his

contention, she found that the appellant also failed to establish this defense. ID

at 24. The appellant has not disputed the administrative judge’s finding that he

did not identify his disclosures. Although the administrative judge did not apply

the correct standard, her finding that the appellant failed to meet the less stringent

standard necessarily means that he failed to meet the stricter standard set forth in

Warren.

In adjudicating the appellant’s disparate penalty claim, the administrative

judge relied on Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657, ¶ 15

(2010), which we recently overruled in Singh v. U.S. Postal Service,

2022 MSPB 15. ID at 29-30. Under Singh, the relevant inquiry is whether the

agency knowingly and unjustifiably treated employees differently. Singh,

2022 MSPB 15, ¶ 14. The administrative judge found that the appellant failed to

prove his disparate penalty claim because he failed to identify an appropriate

comparator. ID at 31. The appellant does not challenge this finding on review,

and we find that he did not show disparate penalty under Singh.

We have considered the appellant’s remaining arguments raised in his

petition for review, and we discern no basis to disturb the findings in the initial

decision. We therefore deny the petition for review and affirm the initial decision

as modified herein.

NOTICE OF APPEAL RIGHTS 3

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

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.

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).

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. 4 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

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

following address: