Petition for Writ of Certiorari — Luis J. Soto, Petitioner v. United States Postal Service
Supreme Court briefMar 13, 2026
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(i). Appendix: Annex I
Federal Circuit determination, December 29, 2025
SOTOv.USPS
NOTE: This disposition is nonprecedential.
1
United States Court of Appeals
for the Federal Circuit
LUIS J. SOTO,
Petitioner
v.
UNITED STATES POSTAL SERVICE,
Respondent
2025-1275
Petition for review of the Merit Systems Protection Board in No. NY-0752-230059-1-1.
Decided: December 2, 2025
LUIS J. SOTO, Rio Grande, PR, pro se.
ELINOR JOUNG KIM, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, DC, for respondent. Also
represented by MICHAEL GRANSTON, TARA K. HOGAN, PATRICIA M.
MCCARTHY, YAAKOV ROTH.
SOTO v. USPS
Before TARANTO, BRYSON, and CUNNINGHAM, Circuit Judges.
2
PER CURIAM.
In 2023, the United States Postal Service (agency) terminated the employment
of Louis J. Soto-Soto (petitioner). Petitioner then filed a grievance through his
union, as per-mitted under the relevant collective bargaining agreement
(CBA). While his union grievance was pending, petitioner also filed an appeal
to the Merit Systems Protection Board (Board). The assigned Board
administrative judge (AJ) is-sued an initial decision affirming petitioner’s
removal, and the Board affirmed. See Soto v. United States Postal Ser-vice,
No. NY-0752-23-0059-1-1, 2023 WL 4051636 (M.S.P.B. June 13, 2023) (2023
22
Decision); Soto v. United States Postal Service, No. NY-0752-23-0059-1-1, 2024
WL 4457970 (M.S.P.B. Oct. 9, 2024) (2024 Decision).
Petitioner’s primary argument to us is that the Board lacked jurisdiction to
hear his case because he had filed the union grievance. He also argues that the
agency violated his due process rights because the agency allegedly failed to
provide him with notice of his union grievance rights and the agency employee
who removed him had an alleged con-flict of interest. We affirm the Board’s
determination.
I
Before the removal at issue, Petitioner worked as a lead sales-and-services
associate in the Canovanas Post Office in Puerto Rico and as a shop steward
for the American Postal Workers Union (Union), AFL-CIO Local 1070. 2023
Decision, at 2.1 On July 29, 2022, a supervisor from a different post office came
to the Canovanas Post Office to
1 For the 2023 Decision, we use the AJ’s own pagination (1-44), shown on the
version in the Supplemental Appendix (S. Appx.) at 11—54.
SOTO v. USPS 3
discuss union grievances with petitioner. S. Appx. 64. Petitioner physically
attacked this supervisor, striking him with his shoulder and a binder. Id. The
agency then placed petitioner on paid administrative leave and forbade him to
enter the agency’s facilities except as a customer—an order he defied
repeatedly in 2022. 2023 Decision, at 4—5.
Petitioner’s supervisor issued a Notice of Proposed Removal on January 3,
2023, charging him with “improper conduct and failure to follow instructions.”
S. Appx. 64. On February 9, 2023, the designated deciding official for the
proposed removal, upon considering petitioner’s written re-ply to the Notice,
the seriousness of the conduct and relevant mitigating factors, concluded that
petitioner had pre-conduct notice that his conduct violated agency policy. 2023
Decision, at 7, 26—28. The deciding official also deter-mined that removal was
a reasonable penalty. Id. at 7. Petitioner’s removal took effect eight days later.
Id. at 1.
Because petitioner was a preference-eligible employee, see 2024 Decision, at
*2; 5 U.S.C. §§ 2108, 3330a (establishing certain employment rights for
veterans), he was entitled to invoke two procedural mechanisms to challenge
his removal: (1) arbitration, by filing a grievance through his Union pursuant
23
to the CBA, and (2) an appeal to the Board. See Mays v. United States Postal
Services, 995 F.2d 1056, 1060 (Fed. Cir. 1993). Petitioner invoked both
mechanisms. 2024 Decision, at *2. He filed a grievance on January 7, 2023,
and he appealed to the Board on February 14, 2023. 2023 Decision, at 1; ECF
No. 2 at 262 (Petitioner’s uncorrected opening brief).
On June 13, 2023, the Board AJ affirmed the removal. 2023 Decision, at 1—44.
The AJ determined that the agency had established by a preponderance of the
evidence that petitioner engaged in misconduct. Id. at 7-18. Specifically, the
AJ found that the testimony of the agency’s witnesses showed that the 2022
physical altercation occurred, id. at 13-15, and that petitioner admitted his
defiance of the
SOTO v. USPS 4
agency order not to enter its property except as a customer, id. at 20. The AJ
also determined that the agency established a nexus between the sustained
charges and the efficiency of the service and that removal was reasonable
because petitioner knew of the agency’s strict policy against conduct of this
type yet violated it without remorse. Id. at 24-29.
The AJ rejected petitioner’s contentions that he had not been advised of his
right to file a grievance under the CBA, finding that such advice was given to
him in the January 2023 Notice of Proposed Removal and the Union had in
fact filed a grievance on his behalf. Id. at 29, 34-36. The AJ also discussed the
CBA, both giving an on-line source for the CBA itself and quoting the Union’s
manual interpreting the CBA. Id. at 36. According to the manual, CBA Article
16.9, addressing the situation when a preference-eligible employee files both a
union grievance and an appeal to the Board, states that the Board appeal
proceedings take precedence over the union grievance process: “‘Grievances of
preference eligible employees who also have a live [Board] appeal on the same
action will not be scheduled for arbitration until a final determination is
reached on the [Board] appeal.’” Id. at 36 (quoting Union’s manual). (We note
that the on-line source bears this out.) Finally, the AJ rejected petitioner’s
contention that the deciding official for his removal lacked impartiality, finding
that the evidence in the record did not support that contention. Id. at 36—37.
On July 12, 2023, petitioner sought full Board review, arguing for the first time
that the Board lacked jurisdiction over his appeal. 2024 Decision, at *1; S.
Appx. 60. The Board denied his petition for review and affirmed its initial
decision on October 9, 2024. 2024 Decision, at *1. In particular, regarding the
lack-of-jurisdiction argument, which rested on the assertions that (1) the
24
agency forced him to appeal to the Board and (2) he was not provided notice of
his union arbitration rights, the Board rejected the
SOTO v. USPS 5
premises, because petitioner conceded that he had been notified of his union
grievance rights and actually had filed a union grievance. Id. at *1-2.
Petitioner seeks this court’s review. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
II
We may set aside the Board’s decision if it is “(1) arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law; (2) obtained without
procedures re-quired by law, rule, or regulation having been followed; or (3)
unsupported by substantial evidence.” 5 U.S.C. § 7703(c). Whether the Board
possessed jurisdiction to hear an appeal is a question of law that we review de
novo. Palmer v. Merit Systems Protection Board, 550 F.3d 1380, 1382 (Fed.
Cir. 2008). Factual findings, including those on which a jurisdictional
determination is based, are reviewed for substantial-evidence support. Bolton
v. Merit Systems Protection Board, 154 F.3d 1313, 1316 (Fed. Cir. 1998).
Substantial evidence is “such relevant evidence as a rea-sonable mind might
accept as adequate to support a conclusion.” Consolidated Edison Co. v.
National Labor Relations Board, 305 U.S. 197, 229 (1938).
A
Petitioner argues that (1) his due process rights were violated because he
received inadequate notice of his union arbitration rights and (2) the Board
lacked jurisdiction over his appeal because he initiated a union grievance and
the CBA prevents the Board from adjudicating his appeal. Petitioner Opening
Br. at 2-3; Petitioner Reply Br. at 1-2. Neither argument has merit.
Petitioner provides no support for the proposition that he received inadequate
notice of his right to file and pursue a grievance under the CBA. See Petitioner
Reply Br. at 2. We discern no error in the Board’s findings that adequate notice
was provided, as the record reflects that petitioner
SOTO v. USPS 6
was aware of his rights under the CBA and actually did file a union grievance.
2024 Decision, at *1-2.
25
Petitioner also provides no support for the assertion that his exercise of his
arbitration rights under the CBA precluded the Board from adjudicating his
appeal. As a preference-eligible employee of the agency, petitioner was
permitted by statute to seek review of the removal decision through an appeal
to the Board and through arbitration under the CBA, and he chose to pursue
relief under both mechanisms. Bacashihua v. Merit Systems Protection Board,
811 F.2d 1498, 1502 (Fed. Cir. 1987) (discussing the inapplicability of 5 U.S.C.
§ 7121 to the agency); see Mays, 995 F.2d at 1060. Nothing in the statute ousts
the Board of jurisdiction to proceed in that circumstance. Nor does petitioner
identify anything in the CBA that does so. Petitioner Opening Br. at 1-5;
Petitioner Reply Br. at 1-5. To the contrary, according to the Union’s manual
interpreting the CBA, both proceedings remain live and it is the grievance
proceeding that stalls for the Board to proceed, not the reverse: ‘“Grievances of
preference eligible employees who also have a live [Board] appeal on the same
action will not be scheduled for arbitration until a final determination is
reached on the [Board] appeal.’” 2023 Decision, at 36. The Board, therefore, did
not err in adjudicating the Board ap-peal.
B
We understand petitioner to argue that his due process rights were also
violated because the deciding official had an alleged conflict of interest because
he served as a wit-ness against petitioner in a separate Union-related matter.
Petitioner Opening Br. At 3; ECF No. 2 at 12-14 (Peti-tioner’s uncorrected
opening brief). The Board did not err in rejecting this argument. The record is
devoid of factual support for this assertion that could overcome the recognition
that, in the employment setting, a deciding official is not generally disqualified
by knowledge of the employee or
SOTO v. USPS 7
the employee’s prior conduct. See Norris v. Securities and Exchange
Commission, 675 F.3d 1349, 1354 (Fed. Cir. 2012); 5 C.F.R. § 752.404.
Ill
For the foregoing reasons, we affirm the Board’s decision that it possessed
jurisdiction over petitioner’s appeal and its decision on the merits of
petitioner’s appeal.
The parties shall bear their own costs.
AFFIRMED
26
(i). Appendix: Annex III
Determination on rehearing, January 9, 2026
Case: 25-1275 Document: 27 Page: 1 Filed: 01 /09/2026
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
LUIS J. SOTO,
Petitioner
v.
UNITED STATES POSTAL SERVICE,
Respondent
2025-1275
Petition for review of the Merit Systems Protection
Board in No. NY-0752-23-0059-1-1.
ON PETITION FOR PANEL REHEARING
Before TARANTO, BRYSON, and CUNNINGHAM, Circuit Judges.
PER CURIAM.
ORDER
On December 16, 2025, Luis J. Soto filed a request for
reconsideration which the court construed as a petition for panel rehearing
[ECF No. 26].
Upon consideration thereof,
41
Case: 25-1275 Document: 27 Page: 2 Filed: 01 /09/2026
SOTO v. USPS
2
IT IS ORDERED THAT:
The petition for panel rehearing is denied.
January 9, 2026
Date
FOR THE COURT
Jarrett B. Perlow
Clerk of Court
42
(i). Appendix: Annex X
AJ MSPB Determination
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NEW YORK FIELD OFFICE
LUIS J. SOTO,
Appellant,
DOCKET NUMBER
NY-0752-23-0059-1-1
V.
UNITED STATES POSTAL SERVICE,
Agency
DATE: June 13, 2023
Cindy M. Cruz-Rivera, Carolina, Puerto Rico, for the appellant.
Krista M. Irons and Managing Counsel, Esquires, St. Louis, Missouri, for the
agency.
BEFORE
Maria M. Dominguez
Administrative Judge
INITIAL DECISION
INTRODUCTION
On February 14, 2023, the appellant filed an appeal with the Merit Systems
Protection Board (Board), challenging the decision of the U.S. Postal Service
(USPS or agency), to remove him from his position as a Lead Sales and Services
Associate (LSSA) at the Canovanas Post Office, effective February 17, 2023.
Initial Appeal File (IAF), Tab 1. The Board has jurisdiction over this matter
under S U.S.C. §§ 7511-13 and 7701(a) and, 39 U.S.C. § 1005(a)(4)(A). The
hearing the appellant requested was held via Zoom for Government on April
25 and 26, 2023. Hearing Recording 1 (HR1) and Hearing Recording 2 (HR2).1
For the reasons set forth below, the agency's removal action is AFFIRMED.
119
ANALYSIS AND FINDINGS
Background
The following facts can be gleaned from the record and/or were established at
the hearing. At all times relevant to this appeal, the appellant held the position
of LSSA at the Canovanas Post Office. HR1, appellant's testimony; see also IAF,
Tab 8 at 22,2 Postal Service Form 50 (PS Form 50). The appellant was also a
shop steward for the American Postal Workers Union (APWU), AFL-CIO Local
1070, in charge of the Canovanas Postal Office and also an Eastern Regional
Vice President for Puerto Rico. HR1, appellant's testimony; see also IAF, Tab
7, appellant's response to affirmative defenses order.
On July 29, 2022, the appellant was scheduled to meet with Jonathan
Martinez, Supervisor, Customer Services, of the Arecibo Post Office, in regards
to some union grievances. HR1, appellant's and Mr. Martinez's testimony. This
meeting was scheduled to take place in the morning, at around 10:00 a.m., at
the Canovanas Post Office, which means Mr. Martinez had to drive about 1
and ~Vz hours to get there, since Canovanas Post Office is located approximately
50 miles from the Arecibo Post Office. See id.
At the beginning of the meeting, Mr. Martinez asked the appellant whether he
had his shop steward's certification from the APWU authorizing him to address
grievances from the Arecibo Post Office. See id. In response, the
1 HR1 refers to the first day of hearing (April 25, 2023), whereas HR2 refers to
the second day (April 26, 2023). These recordings are located in the Initial
Appeal File (IAF) at Tabs 35 and 37, respectively.
2 References to page numbers herein are made to the electronic filing page
numbers rather than to any other page numbers listed on the documents. The
electronic filing page numbers are located on the bottom, right-hand side of the
documents referenced.
appellant started insulting Mr. Martinez. HR1, Mr. Martinez's testimony. The
appellant admittedly repeatedly asked Mr. Martinez whether he knew how to
read and was inept,3 after which Mr. Martinez terminated the meeting. HR1,
appellant's and Mr. Martinez's testimony.
When Mr. Martinez announced that the meeting was over, the appellant called
for Raymond Acevedo, Supervisor, Customer Service, of the Canovanas Post
120
Office, and asked him remove the appellant from the office. See id. Mr. Acevedo
subsequently described this exchange in a statement he provided to the Initial
Management Inquiry Process (IMIP) on September 1, 2022 as follows:
Approximately at 10:30-10:33 am, was the first time I heard Mr. Soto
Screaming my name. Before that, I did not hear anyone screaming,
shouting or calling me. After I heard him calling me, he told me "come
here, so you can escort this imbecile out of here. After I heard him
speaking in that manner, I told Mr. Soto to stop it, that this type of
conduct is not tolerated at the Postal Service and I stayed in the
doorway that leads to the supply room.
IAF, Tab 8 at 80 (grammar, punctuation and capitalization as in original).
While Mr. Acevedo was in the process of escorting Mr. Martinez out of the
Canovanas Post Office, the appellant and Mr. Martinez made physical contact
with each other, but there is a dispute as to who initiated it and what the
contact consisted of, as will be discussed more fully below. See generally HRI,
appellant's and Mr. Martinez's testimony. In addition, the appellant appears
to have raised his voice and repeatedly said demeaning things to Mr. Martinez,
although this is in dispute as well. See id. Mr. Acevedo's statement indicates:
"Soto kept telling me to escort this imbecile, and Mr. Martinez said to Soto
'keep talking, you are giving me more information," while he was slowly
preparing to leave.'" IAF, Tab 8 at 80.
3 During cross-examination, the appellant denied having asked Mr. Martinez
if he was "incompetent." HR2.
Shortly thereafter, Mr. Martinez telephoned the USPS Inspection Service,
Postal Police (USPSIS), and filed an Incident Report. IAF, Tab 8 at 69-70; HRI,
Mr. Martinez's testimony. That same day, he also went to the local police
station in an effort to obtain a protective order against the appellant, but was
unsuccessful in doing so. HRI, appellant's and Mr. Martinez's testimony. That
same day, the appellant was placed on emergency placement, without pay,
until further notice. See IAF, Tab 8 at 50, letter referencing the emergency
placement letter of July 29, 2022.
On August 8, 2022, the agency conducted a telephonic Pre-Disciplinary
Interview (PDI) of the appellant pertaining to the July 29, 2022 incident,
during which the appellant was accompanied by Angieliz Colondres, his union
representative. HRI, appellant's testimony; see also IAF', Tab 24. •
121
By letter dated August 26, 2022, the appellant's emergency placement was
rescinded and he was notified that he would be fully reimbursed for the entire
period of time he was in an unpaid, emergency placement; instead, he would
be in a paid administrative leave until further notice. There is no dispute that
said letter also instructed him not to enter any USPS facility unless he was
doing so as a customer. IAF, Tab 8 at 50; HR1, appellant's testimony.
Also on August 26, 2022, the agency initiated an IMPI pertaining to the July
29, 2022 incident, which resulted in 2 interviews of the appellant being
conducted -on September 16, 2022 and on October 5, 2022, the latter of which
was the same day the IMIP was completed. IAF, Tab 8 at 55-142. Although the
appellant reported to his interview on September 16, 2022, it had to be stopped
and rescheduled due to the fact the appellant was uncooperative. See id. at
120- 21. At his October 5, 2022 interview, the appellant largely disputed the
allegations against him. See id. at 109-11.
Despite having received express instructions by the USPS not to enter any
postal facility other than as a customer, on October 12, 2022, the appellant
entered the Hato Rey Station to serve as a union representative for Yilmarie
Dones. HRI, appellant's testimony; see also IAF, Tab 18, stipulation # 5; id.,
Tabs 12 and 13, statements from Hector Rivera and Ana Victoria (also known
as Ana Guzman), indicating that the appellant was at the Hato Rey Station
that day.
As a result of the above, a notice of another PDI was sent to the appellant's
address of record on October 28, 2022, wherein he was notified to report for a
PDI on November 1, 2022. Id., Tab 8 at 52. The appellant appeared for the
scheduled PDI along with his union representative Javier Rivera, during
which he admitted to receiving and signing for the letter that informed him he
was on administrative leave and instructed him not to enter any USPS facility
except as a customer. See id. at 46-48. He also admitted to disregarding the
instructions and entering the Hato Rey Station as Ms. Dones' shop steward on
October 12, 2022. See id. Finally, at this PDI, the appellant was once again
instructed not to enter any postal facility except as a customer through the
front door.
On November 3, 2022, the appellant admittedly entered the Carolina Main
Post Office (Carolina MPO) as a union representative while campaigning for
the APWU position as a Vice President. Id. at 40-45, Credible
Threat/Assault/Harassment Report with accompanying documentation in
support thereof. Upon becoming aware of the fact the appellant was on
122
administrative leave without authorization to enter a USPS facility, Debbie
Diaz, Postmaster of the Carolina MPO (Postmaster Diaz), instructed him to
leave, at which point he allegedly became aggressive with her, as evidenced by
the fact she filed a Credible Threat/Assault/Harassment Report alleging he
was "aggressive while charging towards [her]," invaded her personal space,
verbally attacked her, called her "vieja loca" (crazy old lady) and "puta"
(whore), and pointed a finger at her face. Id. at 44; HR1, Postmaster Diaz's
testimony; appellant's testimony.
Postmaster Diaz reported the incident to the USPSIS, after which the USPSIS'
s Postal Inspector Jorge Rios Amador responded and investigated the
allegations. Id. On November 4, 2022, an Assault and Threat Specialty Report
was issued by Inspector Rios Amador, wherein he indicated that the appellant
had verbally assaulted Postmaster Diaz and, had used offensive language to
the point that Postmaster Diaz felt intimidated and believed the appellant was
going to physically assault her. IAF, Tab 8 at 39-45.
On November 29, 2022, the appellant was mailed another PDI notice, id. at 38,
which directed him to report for another PDI on December 2, 2022, to which
the appellant did not report. Consequently, he was sent another notice on
December 19, 2022 which rescheduled the PDI for December 23, 2022, via
Zoom or telephone. Once again, the appellant refused to report for it.
In light of the above, on January 3, 2023, Mr. Acevedo, with the concurrence of
Milton M. Borja, Postmaster of the Canovanas Post Office (Postmaster Borja),
issued a Notice of Proposed Removal (NOPR), to the appellant, charging him
with improper conduct and failure to follow instructions. Id. at 33-37.
The NOPR provided the appellant with an opportunity to respond to the
proposed action within 10 calendar days from his receipt thereof. Id. On
January 12, 2023, the appellant provided a written reply, indicating that the
NOPR omitted the fact he is a shop steward for the APWU charged with the
Canovanas Post Office and, was appointed as the Eastern Region Vice
President for Puerto Rico. Id. at 23-32. Additionally, he alleged that the failure
to follow instructions charge did not apply to him because those instructions
applied only while in his capacity as a USPS employee, but not while he was
acting as a shop steward under the collective bargaining agreement (CBA) with
the APWU. See id.
Moreover, he asserted that Herminio Rivera, Manager, Post Office Operations
for the East Area of Puerto Rico (MPOO Rivera), was a prosecution witness
123
against him in a case presented before a state court in Puerto Rico against him
by Postmaster Yashira Quiles of the Luquillo Post Office (Postmaster Quiles)
and, that he had reservations about MPOO Rivera's impartiality while acting
as a deciding official here. See id. He also argued that the accusations brought
against him by management were nothing more than a "union busting
strategy"
coordinated by management at the Puerto Rico District. IAF, Tab 8 at 30.
Finally, he averred that even if deference ought to be given to the alleged
incidents, the prosing official, along with Postmaster Borja, never considered
any alternative disciplinary actions. See id.
On February 9, 2023, after considering the appellant's written reply, id. at 2332, and the relevant Douglas factors, MPOO Rivera issued a Letter of Decision
(decision letter) sustaining the charges and finding the penalty of removal to
be reasonable. Id. at 17-21. This appeal followed. Id., Tab 1.
Burdens of proof
In an appeal in which a federal agency takes an adverse action against a
tenured employee, the Board will sustain the action if the charge is supported
by a preponderance of the evidence. 5 U.S.C. § 7701(c)(1)(B); 5 C.F.R.§ 120
1.56(b)(1)(h). 4 In addition, the agency must show that its action promotes the
efficiency of the service and that the imposed penalty is reasonable. Vaughn v,
U.S. Postal Service, 109 M.S.P.R. 469, ,r 13 (2008). With respect to any
affirmative defenses, the appellant bears the burden of proof by preponderant
evidence. 5 U.S.C. § 7701(c)(2); 5 C.F.R. § 1201.56(b)(2)(i)(C).
The agency proved its charge of improper conduct by preponderant evidence.
"A charge of 'improper conduct' has no specific elements of proof; it is
established by proving that the appellant committed the acts alleged in
support of the 'improper conduct' label." Parbs v. U.S. Postal Service, 107
M.S.P.R. 559, ,r 8 (2007) (citing Alvarado v. Department of the Air Force, 103
M.S.P.R. 1, ,r 22 (2006)). Moreover, an agency is required to prove only the
essence of its charge of improper conduct and need not prove each factual
specification supporting the charge or prove each specification in its entirety.
See Hicks v. Department of the
4 A preponderance of the evidence is that "degree of relevant evidence that a
reasonable person, considering the record as a whole, would accept as sufficient
124
to find that a contested fact is more likely to be true than untrue." 5 C.F.R. §
1201.4{q).
Treasury, 62 M.S.P.R. 71, 74 (1994), affd, 48 F.3d 1235 (Fed. Cir. 1995)
(Table); Diaz v. Department of the Army, 56 M.S.P.R. 415, 419-420 (1993)
(unlike the charge label and its elements, specifications need not be proven in
their entirety).
In support of its improper conduct charge, the NOPR indicated, in relevant
part, as follows:
On August 26, 2022, an Initial Management Inquiry Process ("IMIP") began
in regard to an allegation of workplace harassment involving you, Luis Soto,
toward Jonathan Martinez, that occurred on or about July 29, 2022. The
investigation, which included a series of interviews of the witnesses present
during the events of July 29, 2022, revealed that on or about July 29, 2022,
Jonathan Martinez arrived at the Canovanas Post Office to review union
grievances with you. During this meeting, you became upset and aggressive,
and began making remarks such as stating that Mr Martinez was inept,
incompetent, and asked him if he knew how to read. It was at this point
that Mr. Martinez informed you that he would not continue the meeting if
you could not show respect.
You then became boisterous and called for a supervisor to come and remove
Mr. Martinez from the meeting. Supervisor Acevedo opened the door to the
room in which the meeting was being held and as you were raising your
voice towards Mr. Martinez. You then proceeded to hit Mr. Martinez's hand
with a binder you were holding while Mr. Martinez was gathering his
belonging to leave the meeting. As Mr. Martinez moved to exit the room,
you physically hit him on his right bicep with your shoulder as Mr. Martinez
attempted to exit the meeting room. At this point, you attempted to charge
at Mr. Martinez and lunge at him with both arms outstretched reaching for
his face while screaming at him to the point where a supervisor had to
intervene to stop you. Mr. Martinez proceeded to place his hands in the air
and walk out of the meeting room while you yelled the following at him:
"Saca a este cabron de aqui, antes de que lo coja. Es mas, you te cojo afuera
cabron." This roughly translates to: "Get this "carbon" out of here before I
get a hold of him. As a matter of fact, I will get you outside "cabron." Mr.
Martinez proceeded to call the postal police because of your actions.
125
As part of this investigation, you were scheduled for an IMIP interview on
September 13, 2022, at the District Office, which was then rescheduled for
September 16, 2022, because you alleged that you did not receive the letter
notification. On September 16, 2022. you reported for your interview.
During your interview, you were disruptive and uncooperative which
caused the investigators to have to stop the interview process. A second
Interview was then scheduled for you on October 5, 2022.
On Monday, August 8, 2022, a Pre-Disciplinary Interview was held with
you and your representative, Angieliz Colondres, who was present via
telephone. During your POI, you denied ever raising your voice during the
grievance meeting on July 29, 2022. You also denied ever cursing at Mr.
Martinez or calling him a "cabron." You further denied hitting Mr. Martinez
on the hand with your binder and hitting Mr. Martinez with your shoulder.
IAF, Tab 8 at 33-34 (grammar, punctuation and capitalization as in original).
In support of this charge, Mr. Martinez testified that he had asked the
appellant to meet with him telephonically to discuss grievances, noting that
due to some negative experiences he had had with the appellant in the past,
he preferred not to meet with him in person. However, the appellant had
refused, telling Mr. Martinez that he would only be available by telephone
between 9:00 and 11:00 p.m. on Sundays. Consequently, Mr. Martinez
reluctantly agreed to meet with him on July 29, 2022 at the Canovanas Post
Office, but requested that Mr. Acevedo stay close by in the event there were
any problems. HR1.
According to Mr. Martinez, when the appellant arrived for the meeting on 'July
29, 2022, they started discussing the basic elements of a particular grievance,
but because the computer was slow, they moved onto another grievance, at
which time Mr. Martinez asked the appellant if he had his shop steward's
certification since Article 17.2.D5 of the CBA states that if a union
5 Article 17.2.D reads as follows:
At the option of the Union, representatives not on the Employer's payroll shall
be entitled to perform the functions of a steward or chief steward, provided
such representatives are certified in writing to the Employer at the Area Level
and providing such representatives act in lieu of stewards designated under
the provisions of 2.A or 2.B above.
htttps://apwu.org/contracts/2021-2024-apwuusps-collective-bargainingagreement.representative is not from that employer' s office, he has to be
126
certified by the APWU to oversee grievances from that specific duty station.
Here, since the appellant was not from the office related to the grievance they
were discussing, he had to have a certification. HR], Mr. Martinez's testimony.
Mr. Martinez testified that in response, the appellant started to insult him,
telling him he was inept and incompetent, and asking him if he knew how to
read, to which Mr. Martinez responded by sking the appellant to refrain from
this behavior and warning him that if this continued, he would terminate the
meeting. The appellant, however, allegedly disregarded the request. Instead,
he continued to insult him, saying things like: "go back and cry to your boss,"
"you're stupid," "you're inept," after which Mr. Martinez ultimately decided to
end the meeting. HR1.
Mr. Martinez testified that once the meeting was terminated, the appellant
called for Mr. Acevedo, shouting: "Remove this idiot from the office."
Immediately thereafter, a clerk with whom Mr. Martinez was not familiar,
stood at the entrance of the office and proceeded to laugh and smile, which Mr.
Martinez took to mean that the appellant had planned this. He testified that
the appellants barrage began even before they had started to discuss the
details of the grievance, and Mr. Acevedo came into the area while the
appellant was referring to Mr. Martinez as "stupid" and an "idiot." HR1.
A review of Mr. Acevedo's statement, provided during his IMIP interview on
September 1, 2022, corroborates the improper comments the appellant made.
He indicated, in relevant part, as follows:
Approximately at 10:30-10:33 am, was the first time 1 heard Mr. Soto
Screaming my name. Before that, I did not hear anyone screaming, shouting
or calling me. After I heard him calling me, he told me "come here, so you
can escort this imbecile out of here. After I heard him speaking in that
manner, I told Mr. Soto to stop it, that this type of conduct is not tolerated
at the Postal Service and I stayed in the doorway that leads to the supply
room. Mr. Martinez was standing besides the Postmaster's desk, while Mr.
Soto was standing at the door, holding it. This door is the same door I was
standing at the doorway. Also, clerk Robin Feliciano was holding another
door that leads to the lobby/window and looking inside the office. Soto kept
telling me to escort this imbecile, and Mr. Martinez said to Soto "keep
talking, you are giving me more information," while he was slowly
preparing to leave. Both of them were acting like little kids.
Before this, Mr. Soto tends to higher his voice and to shout to other people.
This has not happened with me, but I have seen him do it to Postmaster
Borja and other employees. Usually the other people from Management....
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Mr. Soto's actions and lack of respect and his violation of the Zero Tolerance
Policy are not going to be tolerated.
'k'k'k'k'k
In all the time I was present, Mr. Martinez did not say anything to
disrespect Mr. Soto, as Mr. Soto was doing, they basically kept saying the
same, Mr. Soto telling me to escort this imbecile, and Martinez responding,
keep talking, more information for me.
IAF, Tab 8 at 80-81 (grammar, punctuation and capitalization as in original).
Mr. Martinez's testimony corroborates the fact he did not respond in kind. In
fact, he denied having insulted the appellant or responding to anything he said.
Rather, he began to pack his belongings, while Mr. Acevedo was standing
outside the office. Mr. Martinez testified that although Ms. Acevedo could not
see him from where he was standing, Mr. Martinez knew Mr. Acevedo was
right outside since he heard his voice. According to Mr. Martinez, since the
appellant was holding the door open and the office where they met was small,
the appellant was within an arm's reach from the desk Mr. Martinez was
sitting at. HR1.
Mr. Martinez then bent over to disconnect his laptop and grab his backpack,
which is "when [he] felt a tap on [his] hand." He testified that the appellant
had a small binder, which is what Mr. Martinez believes the appellant "hit him
with." He testified that after the appellant made contact with his hand with
this binder, the appellant looked at one of the clerks and they both started
laughing, which reinforced Mr. Martinez's belief that the appellant was trying
to provoke him, to which Mr. Martinez did not respond. He testified that
without acknowledging that the appellant had just hit his hand with the
binder, he merely continued to pack his belongings, then stood next to the exit
door where one of the clerks was standing. Because he feared that the
appellant may strike him from behind if he exited the door closest to the clerk,
he proceeded to exit through the door he believed was the safest, since doing
so would result in his facing the appellant, who was holding the door open, and
which was where Mr. Acevedo stood, on the other side of the doorway. HR1.
Mr. Martinez testified that after strapping his backpack over his right
shoulder, he proceeded to walk "almost from the side" through the door the
appellant was holding open because he believed the appellant was going to "do
something." As he proceeded to leave, the appellant "tried to shoulder-check"
him, but because Mr. Martinez was walking at an angle, the appellant's
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"forearm just hit [his] bicep." Mr. Martinez described a "shoulder-check" as
"someone ... bump[ing] his shoulder with my shoulder with a hostile intent to
hit me." While demonstrating the movement at the hearing, Mr. Martinez
testified that the appellant "moved his shoulder forward, in a quick motion,
hitting [him] on [his] shoulder." HRI. According to Mr. Martinez, the appellant
then immediately spun around on off-side, at this point out of the office,
pointed to the other clerk, and said, "see, he hit me." Mr. Martinez then raised
his hands in the air as if surrendering and, stated that he never touched the
appellant., which is when the appellant became "really angry" and said, "no,
you hit me, ... , remove this guy before I get him, better yet, I'm going to get
this - right now." Mr. Martinez testified that at this point, the appellant lunged
at him, which is when Mr. Martinez stepped back and Mr. Acevedo proceeded
to stand between them. He testified that at the same time, the appellant was
trying to grab him and was lunging at his face with his hands, insulting him
verbally, and saying that he was going to get Mr. Martinez outside. Moreover,
he testified that had Mr. Acevedo not been there, this incident would have
turned into a "physical altercation." Mr. Martinez described the appellant's
tone of voice during the incident as "very violent," "very hectic," and "very
aggressive." Finally, he testified that he immediately telephoned the USPS
police and exited the building as quickly as he could, after which he also went
to the local police. HRI.
On the other hand, during his testimony, the appellant denied having: referred
to Mr. Martinez as "incompetent"; made contact with him with a binder; or
shoulder-checked him on Mr. Martinez's way out of the office. Rather, he
testified that: the conduct he engaged in was acceptable union activity in the
course of union business; his tone of voice was not inappropriate as he normally
speaks loudly; and, it was Mr. Martinez who was the aggressor when he
attacked the appellant with his backpack. HR! and HR2. On crossexamination, however, the appellant admitted to asking Mr. Martinez if be
knew how to read and if he was inept. HR2.
Where, as here, the parties present conflicting testimony and evidence, I must
make credibility determinations to resolve the issue. Vicente v. Department of
the Army, 87 M.S.P.R. 80, , 7 (2000) (where it is impossible to believe the
conflicting testimony of witnesses on opposing sides, resolution of the appeal
depends on an assessment of witness credibility). 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: (I) the witness's opportunity and capacity to
129
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; (S)
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).
In support of the agency's version of events, I note that Mr. Martinez's
testimony at the hearing was consistent with the statement he gave
during his IMIP interview on September 1, 2022, wherein he asserted as
follows:
It is then that I ask if he had the steward certification to discuss the
grievances from Rio Grande. The certification is required as per article
17.2 D of the APWU Agreement. After I requested the steward
certification, his demeanor changed, he became upset. His attitude
turning aggressive after only 2 or 3 questions over the certification. He
starts making remarks of me being an inept and incompetent and asking
where did it said that he needed a steward certification, and if I knew
how to read. I proceed to look up the agreement in the computer and read
out loud the article 17.2 D. After this, outburst from Soto, I also told him
that I was going to discuss the grievances but there had to be mutual
respect, that if a second outburst happened, I was going to leave, that
violence and disrespect will not be tolerated. This is not the first time he
disrespects me. On April 2022 we had a telephone conversation, and he
had told me I had no authority to view grievances, that I was and inept
and ignorant. On • July 8, • again on a telephone call he addressed me as
inept and ignorant. I wrote him back by email, stating that there needed
to be mutual respect. I copied in my emails Mr. Kendrick Comulada,
Carolina Bello, and Jose Muniz so they were aware of the situation. Luis
Soto got riled and starts calling for the supervisor to come to the office
and to take away this stupid incompetent. I don't react at his comments
or say anything. I told him that unfortunately due to his conduct I was
not able to continue the meeting. But Luis Soto continues with his insults
to the point of raising his voice. At the moment, a clerk opened one of the
postmaster office doors and stands there, but doesn't do anything, does
not tried to calm Luis Soto, just stares at the scene smiling. The scene
looked like it was planned, the clerk appeared to quickly, and looked
expectant, as if waiting for something to happen. I started to write down
the comments he (Luis Soto) was making but I stopped not wanting to
take my eyes away from him. When Sup. Acevedo enters the office, he
hears what Soto is saying, about me being incompetent and stupid.
130
Raymond tells him that there needed to be mutual respect, Soto tells him
that I was and idiot and I needed to be escorted outside of the facility. I
then speak up and say that the more he said to me, the more I will have
to write. Raymond then steps outside the office near the door while I
finish gathering my belongings. As I get down to one of the cables of my
laptop, I felt something hit my hand, then I look up, I see Soto with a
binder on his hand and smiling at the clerk that had remained standing
at one of the office doors. I look at him, and finish picking my stuff and
say nothing. We were approximately 3 to 5 feet apart while in the office.
Soto moved right next to the door Acevedo had gone out, holding it back.
All the while the clerk was there watching what was going on, still
standing on the door entrance. I put my backpack on my right side as I'm
going out of the office, Soto "shoulder checks me" hitting my right bicep
with his forearm and it is when be asks the clerk "you saw that he hit
me"? I turned clockwise with my hands in the air. Soto tries to charge at
me, Sup. Raymond steps in and blocks him. I take a step back with my
hands in the air and speak and say I didn't hit you as I'm holding my
backpack. While the Supervisor is blocking Soto, he continues to tell the
supervisor to take me away and I quote "Saca a este cabron de aqui, antes
de que lo coja. Es mas, yo te cojo afuera cabron". I instantly called the
postal police and informed the situation; the time of the call was 10:35am.
The call lasted 4 minutes and 35 seconds. The officer that took the call
was able to hear Soto insulting me. The clerks were watching and smiling
at the scene. Raymond is blocking and holding Soto at the door. I continue
to exit the facilities while speaking to Postal Police. As I recall my actions,
I never insulted or did anything to call for this outbreak from Soto.
IAF, Tab 8 at 74-75 (grammar, punctuation and capitalization as in original).
Although Mr. Acevedo's statement makes clear he did not see who made
physical contact with whom, he testified that he heard a scuffle when he turned
to leave with Mr. Martinez after the appellant had requested that he escort
Mr. Martinez out. He indicated in his statement as follows:
This all happened in about 3-4 minutes. After Martinez was ready to
leave, I told him to come out of the office, and automatically I rotate my
body to keep walking and I see clerk Javier Rivera, the other steward,
standing at the end of the supply room. As I see him and I turned my
back. I heard a "forcejeo"6 between them and both seemed like closing to
each other, and I immediately stood in the middle of them, not
permitting anything else to happen. As this was happening, Soto said
"you hit me" and Martinez said "no, you hit me." Mr Soto called Mr
Martinez a "cabron"7 multiple times. As this was
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6 On translate.google.com, "forcejeo" translates to "struggle" or "tussle."
7 On translate.google.corn, "cabron" translates to "bastard."
happening, neither of the clerks (Robin Feliciano and Javier Rivera) was
saying something. When they started shouting, Robin Rivera8 said he
saw Martinez hitting Mr. Soto.
Mr. Martinez and Mr. Soto were both continuously talking to each other.
After this, I told Martinez, who was on the phone calling Postal Police,
to come with me and escorted him outside the office for his own security
and the security of everybody else as I was also calling the Postal Police.
After this immediately called Postmaster Borja to let him know what has
happened. At this office, the Zero Tolerance Policy has been reminded
multiple times.to all employees.
IAF, Tab 8. at 81 (grammar, punctuation and capitalization as in original).
Although I have also considered the testimony of Javier Rivera (the other clerk
who testified on the appellant's behalf and who was also present during the
incident), I did not find him to be as credible as Mr. Martinez. First, I note that
he
was reading from a statement during his testimony, although arguably, he
could have recalled the incident if he was present for it. Second, Mr. Rivera
was a biased witness as he acted as the appellant's union representative on
November 1, 2022, during the appellant's PD1. Id. at 52. Third, Mr. Rivera's
version of events is inconsistent with Mr. Feliciano's, as will be explained in
more detail below. Fourth, it is unlikely that Mr. Rivera had the ability to
observe the incident as it unfolded since, as was evident during his crossexamination, he was behind Mr. Acevedo, and would have had to see through
Mr. Acevedo's body in order to observe what occurred.. If Mr. Acevedo was in
front of him, and Mr. Acevedo could not see the incident from where he was
standing, see id. at 80-81 (Mr. Acevedo's statement), ML Rivera could not have
seen it either since he was behind Mr. Acevedo, and outside the door of the
room where the meeting took place. HR1, Mr. Rivera's testimony. In fact, when
asked how he was able to s.ee
8 This appears to be a typographical error since Robin's last name is Feliciano.
However, during his testimony, Mr. Feliciano did not state that he witnessed
Mr. Martinez hit the appellant. Rather, he testified that Mr. Martinez's
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backpack was so "huge" that he could not get through the door without
bumping the appellant with it. HRI.
the incident unfold despite Mr. Acevedo being in his line of vision between him
and Mr. Martinez, Mr. Rivera testified, that Mr. Acevedo "isn't that big." Next,
when asked, "So, if Mr. Soto's body was blocking the doorway as Mr. Martinez
was attempting to exit the room while also trying to walk around Mr. Acevedo
to exit the room, bow could you see him?," Mr. Rivera testified, "No, he was
holding the door open but he wasn't in the way, actually." HRI. Fifth, it is
improbable that Mr. Rivera provided a statement to the union of his own
volition, as testified to during cross-examination, when asked. In this regard,
Mr. Rivera testified that he provided a statement to the union about the
incident in question but was not asked to do. When asked why he did so then,
he testified "It's a regular procedure, every time you see something, that's your
statement." However, he then testified that the statement he provided to the
union was dated September 9, 2022, which was a month and Vi after the event
as issue. Clearly, Mr. Rivera could not keep his story straight since the
September 9, 2022 statement at issue was what he provided to the IMIP,
although Mr. Ri.vera testified that this same statement was what he gave the
union. Compare HRI, Mr. Rivera's testimony with IAF, Tab 8 at 103.
Finally, I note that the appellant's own witness, Robin Feliciano (the other
clerk who was present during the incident on July 29, 2022), discredited the
appellant's version of events by testifying that the backpack Mr. Martinez was
carrying was so "huge" that he simply could not fit through the doorway with
said backpack on his shoulder without grazing the appellant. According to Mr.
Feliciano, as Mr. Martinez was attempting to fit through the doorway to exit
the conference room door, because the appellant was standing in front of it,
and partially blocking the door with his body, the appellant came into contact
him while trying to exit the area with his backpack hanging from one shoulder.
HRI.
Consequently, after carefully considering all the evidence and testimonly of
record, I find that the appellant's version of events was discredited by the
testimony of his own witnesses and, that of Mr. Martinez. His story that he
was attacked by Mr. Martinez and that he was not the aggressor despite his
verbal attack on Mr. Martinez, as evidenced in the record, is simply not worthy
of belief. On the contrary, ,1 find that it is more likely than not that the incident
occurred as explained by Mr. Martinez during his testimony. Being that Mr.
Acevedo's written statement also indicates that he had to stand in between Mr.
Martinez and the appellant in order to avoid an altercation, I find that there
133
is sufficient evidence to establish that the appellant engaged in the charged
improper conduct with respect to the verbal and physical alteration he
initiated against Mr. Martinez.
Even if the appellant's tone, as described, was a consequence of his union
activities, I find his questioning of Mr. Martinez, as well as his yelling to a
supervisor to Hget [Mr. Martinez] out of here," was improper and
unprofessional. The appellant could have simply provided Mr. Martinez with
the certification he was seeking and, refrained from making demeaning
statements to him, or yelling out to have a supervisor "get him out of here."
Instead, he proceeded with the commentary and yelling, causing others to come
around to see what was happening. Having reviewed the documentary and
testimonial evidence, I credit Mr. Martinez's testimony. See Hillen, 35
M.S.P.R. 453, 458. I observed that he testified in a clear, straightforward, and
detailed manner, which was confident and assured. I find no reason to question
his credibility. As noted above, I also find that his testimony was consistent
with what he previously provided. Accordingly, I find that the agency proved,
by preponderant evidence, that the appellant engaged in the conduct as
described in the conduct charged and, that it was improper. The improper
conduct charge is SUSTAINED.
The agency proved its charge of failure to follow instructions by preponderant
evidence.
To prove a "failure to follow instructions" charge, the agency must show that
(1) proper instructions were given, and (2) the appellant failed to follow the
instructions. The agency does not need to show that the failure to follow
instructions was intentional. Powell v. U.S. Postal Service, 122 M.S.P.R. 60, 1
5 (2014) (citing Hamilton v. U.S. Postal Service, 71 M.S.P.R. 547, 555-56
(1996)).
In support of its failure to follow instructions charge, the agency asserted, in
relevant part, as follows:
On August 26, 2022, you were sent a letter via Express Mail ... placing
you on Administrative Leave and instructing you to remain outside any
Postal Facilities other than as a customer. In the letter you were
provided specific instructions that you cannot enter any Postal Facility
except through the front door as a customer until further express
notific_ation. On October 12, 2022, you entered the Hato Rey Station and
served as a union representative for Ms. Yilmarie Dones. You
disregarded the instructions given to you and entered the Hato Rey
134
Station after being expressly instructed not to enter any postal facility
except as a customer.
On October 28, 2022, a Notice of Pre-Disciplinary Interview ("POI") was
mailed to your address of record. This letter notified you to report for a
PDI on November 1, 2022, at 10:30 AM. On November I, 2022, you
attended your scheduled PDI at the Canovanas Post Office with your
representative, Javier Rivera, present. During your POI, you admitted
that you received and signed for express mail piece E1350828597US,
which was the Administrative Leave notification letter sent to you by
postal management instructing you not to enter any postal facilities
other than as a customer. You then admitted that you disregarded the
instructions in this letter when you entered the Hato Rey Station, which
is a postal facility, to represent Yilmarie Dones as her shop steward.
On November 3; 2022, at approximately 8:25AM, you yet again entered
a post office in your capacity as a union representative after being issued
a letter instructing you not to enter a post office except for as a customer,
and after being previously notified during a Pre-Disciplinary Interview
on November I, 2022. On November 3, 2022, you entered the Carolina
Main Post Office and proceeded to address the clerks on the workroom
floor. When Postmaster Debbie Diaz became aware that you were not
permitted on the workroom floor, she asked you to leave. You refused to
leave and proceeded to yell at her in an aggressive manner by charging
towards her, invading her personal space, and called her a "vieja loca"
(crazy old lady), "puta" (bitch), and pointing your finger in her face.
Postmaster Diaz reported this incident to the United States Postal
Service Inspection Service ("USPSIS"), and USPSIS Postal Inspector
Jorge Rios Amador responded and investigated. In his Assault and
Threat Specialty Report, Dated November 4, 2022, which details his
findings, Postal Inspector Rios Amador reported that Postmaster Diaz
stated that she was verbally assaulted by you, Luis Soto, and that she
asked you to leave the post office because you were on notice that you
were not permitted on the workroom floor. Postmaster Diaz further
stated that yol,l refused to leave the post office and used offensive
language to the point where she felt intimated and believed you were
going to physically assault her.
On November 29, 2022, you were mailed a Notice of Pre-Disciplinary
Interview ("PDI") with tracking number E1360312383US. This letter
135
instructed you to report for a PDI on December 2, 2022, at 11:00 AM at
the District Office. You refused to report for this PDI as scheduled due
to the location of the PDI. On December 19, 2022, you were again sent a
Notice of PDI letter notifying you that you were scheduled for a PDI on
December 23, 2022, via ZOOM/phone. You again refused to report for the
PDI as instructed.
IAF, Tab 8 at 34-35 (grammar, punctuation and capitalization as in original).
The evidence in support of this charge is the appellant's own admission, during
the hearing, that he received the August 26, 2022 letter from Postmaster Borja
placing him on paid administrative leave and instructing him not to enter any
postal facility except as a customer, until further notice. HR!. He also admitted
that despite this instruction, he entered the Hato Rey Station on October 12,
2022 in order to serve as a union representative for Ms. Dones. HR1.
Moreover, at the hearing, the appellant admitted that during his PDI on
November 1, 2022, he was reminded of the instruction not to enter any postal
facility except as a customer until further notice. During direct examination,
he also admitted that he entered USPS premises on November 3, 2022 once
again, without authorization, when he entered the Carolina MPO in order to
campaign for the union. HR 1.
Additionally, the appellant admitted that he failed to report for the scheduled
PDI on December 2, 2022, which then had to be rescheduled to December 23,
2022, via Zoom, the latter of which he also failed to appear for. Thus, I find
that by the appellants own admissions, the agency has proved the charge.
I am unpersuaded by the appellant,s claim that he was somehow immune from
having to abide by the August 26, 2022 letter placing him on administrative
leave by virtue of the fact said letter did not carve out an exception for him to
'enter postal premises in order to conduct union activities. HR1. The fact of the
matter is that said letter properly placed the appellant on administrative leave
pending an investigation into his improper conduct on July 29, 202i and,
consequently, constituted a proper instruction by the agency. If I was to believe
the appellant's claim in this regard, anyone can enter USPS premises,
regardless of whether he has ill intent, under the guise that he is there to
conduct "union business." Here, the letter placing the appellant on
administrative leave and prohibiting him from entering a postal installation,
except as a customer, took no position either way on whether the appellant
could enter postal premises to conduct union activities.
136
The appellant, by his own testimony, and through that of his witness, Angieliz
Colondres, Vice President or Acting President of the APWU at that time,
discredited the appellant's argument that he had authorization to be there. In
effect, despite the requirement to provide advance notice to management that
he intended to visit postal premises, nobody advised the agency that the
appellant intended to be there, only Ms. Colondres did, as to her own presence
there. HRI & HR2, Ms. Colondres' and appellant's testimony.
Specifically, on cross-examination, the appellant admitted that as a shop
steward, he is familiar with the CBA between the APWU and the USPS. He
also testified that he is familiar with Article 23 of the CBA, which governs the
rights of union officials to enter postal promises. He acknowledged that Article
23 specifically requires "reasonable advance notice to the Employer" by a union
representative who wishes to be permitted to enter postal installations to
conduct union activities. HR2.
Here, there is no dispute that the appellant did not provide "reasonable
advance notice" of his anticipated visit to the Hato Rey Station to conduct
union activities on October 12, 2022, nor requested permission to do so, either
to Ana Victoria, Postmaster of Mayaguez, or Hector Rivera, Manager of Catano
Annex, nor to any other management official, for that.matter, prior to entering
said location. HRI and HR2; see also IAF, Tab 12, Hector Rivera's email to
Carolina Bello; id., Tab 13, Ana Victoria's email to Carolina Bello.
The appellant also failed to provide reasonable notice or, to request permission
to access the Carolina MPO on November 3, 2022. HRI, Ms. Colondres' and
appellant's testimony. In fact, Ms. Colondres testified that in regards to this
November 3, 2022 campaign meeting at the Carolina MPO, she had advised
Carlos Del Toro, Post Office Operations Manager (POOM Del Toro), that she
intended to be there that day. He, in turn, communicated this to Postmaster
Diaz, which was in accordance with Article 23 of the CBA. HRI.
The record is devoid of any proof that Ms. Colondres also requested that the
appellant be permitted access on that date as well. In fact, Ms. Colanders'
testimony suggests otherwise. She testified that at some point, an order of
protection was brought up by POOM Del Toro, at which time "he mentioned
the order of protection and I told him that there was no active order of
protection so we were not violating any rights," by being there. HRI. However,
as indicated above, the appellant never requested access for himself.
137
Finally, I note that during cross-examination, the appellant acknowledged that
at no point on October 12, 2022 or, on November 3, 2022, do his time and
attendance records reflect that he was on official union time. Had the appellant
given notice to the installation head that he intended to enter postal premises
on October 12, 2022 or November 3, 2022, as required by Article 23 of the CBA
(thereby being present on postal premises with express authority), the USPS
would have taken him off of paid administrative leave and placed him on union
shop steward time for pay purposes. Instead, the _appellant's own testimony
revealed that he: failed to follow the CBA; failed to give reasonable advance
.notice to be permitted on postal premises; entered postal premises without
permission; continued to be paid administrative leave rather than union shop
steward pay; and, lastly, failed to the follow the instructions given to him in
the August 26, 2022 administrative leave letter. IAF, Tab 8 at 133. For all the
above reasons, I find that the appellant's claim that entering USPS premises
for the purpose of conducting union business absolved him of his failure, to
follow instructions was discredited through his own testimony and^that of his
witness, Ms. Colondres.
I also find that Postmaster Diaz's testimony further supports the agency's
failure to follow instructions charge since, according to her, upon learning that
the appellant did not have permission to be on postal premises, she approached
him while he was on the workroom floor and, simply asked him to finish
conducting his union business in the customer lobby where he was permitted,
rather than on the workroom floor. HRI. Postmaster Diaz denied having
attempted to thwart the appellant's union activities; rather, she testified that
she merely requested that he exit the area he was not permitted to be in and,
continue his activities where he was authorized to be. She also testified that
by the time she realized he was not authorized to be there, the union meeting
had ended. However, upon her asking hini to move to another location, the
appellant became irate, charged towards her in an aggressive manner, entered
her personal space, and began calling her "crazy old lady" and "bitch." HRI.
Finally, MPOO Rivera, the deciding official, testified that he considered the
statements of Ana Guzman, Hector Rivera, Postmaster Diaz, the USPSIS
Assault and Threat Specialty Report and, the appellant's response to the
NOPR in making his decision to sustain this charge. He further testified that
he found Postmaster Diaz's statement to be credible and determined that the
August 26, 2022 administrative leave letter, as well as the subsequent PDI on
November 1, 2022, placed the appellant on direct notice that he was not
permitted to enter postal premises except as a customer. I agree.
138
I find that despite the instruction given in the August 26, 2022 letter, the
appellant entered the Hato Rey Station on October 12, 2022, without
authorization. After being reminded of this instruction once again during the
November 1, 2022 PDI, the appellant blatantly disregarded this instruction 2
days later, on November 3, 2022, when he entered the Carolina MPO. As such,
I find that the agency met its burden of proof with respect to its failure to follow
instructions charge. This charge is, consequently, also SUSTAINED.
The agency established the required nexus by preponderant evidence.
In addition to the requirement that the agency prove its charges, it also must
prove that there is a nexus, i.e., a clear and direct relationship between the
articulated grounds for an adverse action and either the appellant's ability • to
accomplish his duties satisfactorily or some other legitimate government
interest. Ellis v. Department of Defense, 114 M.S.P.R. 407, ,i 8 (2010); see also
Scheffler v. Department of the Army, 117 M.S.P.R. 499, ,1 9 (2012), aff d, 522
F. App'x 913 (Fed.Cir.2013) (holding that the nexus requirement, for purposes
of determining whether an agency has shown that its action promotes the
efficiency of the service, means there must be a clear and direct relationship
between the articulated grounds for an adverse action and either the
employee's ability to accomplish his duties satisfactorily or some other
legitimate government interest); see also Parker v. U.S. Postal Service, 819
F.2d 1113, 1116 (Fed. Cir.1987) (finding there is a clear and direct inverse
relationship between the legitimate government interests of providing a safe
environment for the agency's employees and an employee's inappropriate
conduct of engaging in physical altercations with a co-worker on agency
premises); Wiley v. U.S. Postal Service, 102 M.S.P.R. 535, ,i 13 (2006) (a nexus
exists between the sustained charge of violating the agency's Zero Tolerance
Policy on_ violence in the workplace and the agency's mission of providing a
safe environment for its employees and providing service to its customers).
Here, there is an obvious relationship between the sustained charges and the
efficiency of the service. Deciding official MPOO Rivera testified that he found
that the appellant's removal promotes the efficiency of the service because the
USPS has an interest in maintaining a safe work environment for all
employees. MPOO Rivera also found that the appellant's blatant disregard of
the instructions he was given negatively impacted the efficiency of the service
and caused a disruption in the workplace, particularly at the Carolina MPO,
since his improper conduct and failure to follow instructions both occurred on
postal premises and, caused a disruption to the operation when two other
clerks and a supervisor had to stop their work and became witnesses to the
incident and halt the physical altercation that the appellant initiated with Mr.
139
Martinez on July 29, 2022. See Blevins v. Department of the Army, 26 M.S.P.R.
101, 104 (1985), affd, 790 F.2d 95 (Fed. Cir. 1986) ("There is a causal connection
between an employee's refusal to comply with what the agency believes are
properly promulgated instructions and the efficiency of the service. Failure to
follow instructions or abide by requirements affects the agency's ability to
carry out its mission."); see also Howarth v. U.S, Postal Service, 77 M.S.P.R. 1,
7 (1997) (finding that there was nexus between the appellant's refusal to
comply with the agency's legitimate instruction because failure to follow
instructions inherently affects the agency's ability to carry out its mission). As
a result, I find that the agency proved, by preponderant evidence, that a nexus
exists between the efficiency of the service and the charged misconduct.
The penalty of removal was within the bounds of reasonableness considering
the seriousness of the appellant's misconduct.
Finally, the agency must establish by preponderant evidence that its choice of
penalty was within the tolerable bounds of reasonableness. Hall v. Department
of Defense, 117 M.S.P.R. 687, ,r 6 (2012). When an agency's charges have been
sustained, the Board will review an agency-imposed penalty only to determine
if the agency considered all the relevant factors and exercised management
discretion within the tolerable limits of reasonableness. Stuhlmacher v. U.S.
Postal Service, 89 M.S.P.R. 272 (2001) and Fowler v. U.S. Postal Service, 77
M.S.P.R. 8, 12, rev. dismissed, 135 F.3d 773 (Fed. Cir. 1977) (Table)); Douglas
v. Veterans Administration, 5 M.S.P.R. 280,306 (1981).9
9 Those Douglas factors are: (1) the nature and seriousness of the offense, and
its relation to the employee's duties, position, and responsibilities, including
whether the .offense was intentional or technical or inadvertent, or was
committed maliciously or for gain, or was frequently repeated; (2) the
employee's job level and type of employment, including supervisory or fiduciary
role, contacts with the public, and prominence of the position; (3) the
employee's past disciplinary record; (4) the employee's past work record,
including length of service, performance on the job, ability to get along with
fellow workers, and dependability; (5) the effect of the offense upon the
employee's ability to perform at a satisfactory level and its effect upon
supervisors' confidence in the employee's ability to perform assigned duties; (6)
consistency of the penalty with those imposed upon other employees for the
same or similar offenses; (7) consistency of the penalty with any applicable
agency table of penalties; (8) the notoriety of the offense or its impact upon the
reputation of the agency; (9) the clarity with which the employee was on notice
of any rules that were violated in committing the offense, or had been warned
about the conduct in question; (10) potential for the employee's rehabilitation;
140
(11) mitigating drcumstances surrounding the offense such as unusual job
tensions, personality problems, mental impairment, harassment or bad faith,
malice or provocation on the part of others involved in the matter; and (12) the
adequacy and effectiveness of alternative sanctions to deter such conduct in
the future by the employee or others. Douglas, 5 M.S.P.R. at 305-06. And not
every factor is relevant in every case. Chavez v. Small Business
Administration, 121 M.S.P.R. 168, ^9 (2014) (finding that a deciding official
does not have to consider each of the Douglas factors in making his penalty
determination); Hooper v. Department of the Interior, 120 M.S.P.R. 658,, 10
(2014).
In determining whether the penalty is reasonable, the Board gives deference
to the agency's discretion in exercising its managerial function of maintaining
employee discipline and efficiency, recognizing that the Board's function is not
to displace management's responsibility, but to ensure that management
judgment has been properly exercised. Howard v. U.S. Postal Service, 72
M.S.P.R. 422, 425 (1996). Thus, where the agency's charges have been
sustained, the Board will modify a penalty only when it finds the agency failed
to weigh specific Douglas factors or that the selected penalty clearly exceeded
the bounds of reasonableness. See Parker v. U.S. Postal Service, 111 M.S.P.R.
510, ,i 9 (2009).
Here, MPOO Rivera credibly testified that he thoroughly reviewed the
evidence file. He testified that he considered the evidence of record, including
the appellant's response to the NOPR and all the relevant Douglas factors
when making the decision to remove the appellant. During his testimony, he
also established that he exercised reasonable management discretion in
connection with the decision to remove the appellant from his position with the
USPS. MPOO Rivera testified that the appellant had engaged in serious,
improper conduct when he initiated a physical and verbal altercation against
Mr. Martinez. But for the appellant's actions, no altercation would have
ensued. HRI.
Moreover, MPOO Rivera testified that the appellant had blatantly disregarded
direct instructions he was given. He also testified that he properly weighed the
relevant Douglas factors. Specifically, MPOO Rivera testified that he
considered the appellant's 7 years of government service, his work history, and
lack of prior discipline as mitigating factors that weighed in his favor. HRI.
However, the deciding official found that these mitigating factors did not
outweigh the seriousness of the appellant's improper conduct and failure to
141
follow instructions. He testified that as a LSSA, the appellant was tasked with
providing instructions to other Sales and Services Associates at the Canovanas
Post Office and as such, he was held to a higher standard as he holds a position
that requires trust and authority. Moreover, he testified that the appellant's
improper conduct was egregious because he created an unsafe working
environment. He also found that all of the charged conduct occurred on postal
property and that several other employees stopped their assigned duties to
either watch or, to assist in stopping the appellant's improper behavior. HRI.
MPOO Rivera found that through his actions, the appellant violated the
USPS's Zero Tolerance Policy and, in light of his role as a shop steward, he was
on notice of what type of conduct violated this policy. See IAF, Tab 8 at 19. In
his decision letter, the deciding official asserted that the appellant's improper
conduct and failure to follow instructions showed a blatant disregard for his
responsibilities as a postal employee. He testified that ultimately, in light of
how the appellant had conducted himself and because of his blatant disregard
for instructions given to him, MPOO Rivera had lost confidence in his ability
to perform his duties as a LSSA. HRI.
Additionally, the deciding official testified that the appellant had not taken
responsibility for his actions, had denied any wrongdoing, and, had shown no
remorse for his actions. Finally, MPOO Rivera testified that although he
considered alternative sanctions, he found that the appellant had no potential
for rehabilitation as he has not taken accountability for his improper conduct
or failure to follow instructions, and, instead, had tried to justify his
wrongdoing by incorrectly asserting that he is permitted to engage in such
conduct during union activities. As such, he determined that the appellant's
removal was appropriate and, that no lesser penalty would suffice. HRI. I
agree.
Upon review of the entirety of the record, I find that MPOO Rivera reasonably
exercised his discretion and appropriately weighed the relevant Douglas
factors in concluding that the appellant's conduct warranted a removal. The
Board has previously upheld a removal in similar appeals. See Deutsch v. U.S.
Postal Service, 39 MSPR 386, 390 (1989) (physical assault without provocation
"is sufficient, standing a. Jone to warrant his removal."). Having considered
the relevant Douglas factors and the evidence, I find that the agency-imposed
penalty does not exceed the bounds of reasonableness and, that the agency has
shown that the action taken promotes the efficiency of the federal service. 5
U.S.C. § 7513(a); Wiley, 102 M.S.P.R. 535 (sustaining the appellant's removal
142
based on the single sustained charge of improper conduct/violation of Zero
Tolerance Policy).
Affirmative defenses
Even in a case in which the agency produces sufficient evidence to meet its
burden of proof, the Board cannot sustain the agency's decision if the appellant
meets his burden of proving an affirmative defense. 5 U.S.C. § 7701(c)(2); 5
C.F.R. § 1201.56(a)(2)(iii), (b). In this case, the appellant asserted that the
agency committed harmful procedural error and, denied him his due process
rights. See IAF, Tab 7.
The appellant failed to prove, by preponderant evidence, that the agency
engaged in harmful procedural error.
The appellant has the burden of proving his affirmative defenses by a
preponderance of the evidence. See 5 C.F.R. § 1201.56(b)(2)(i). In this regard,
the appellant argued that the agency engaged in harmful procedural error by
virtue of the fact it charged him for conduct that occurred while he was acting
purely in his capacity as a union official and, that its disciplinary action is no
more than "union busting" activities in violation of Articles 1, 16, 17, and 23 of
the CBA between the USPS and the APWU. In effect, he argued that his
removal is void because it is an attempt to discipline him for conduct he
engaged in while conducting his union activity. See IAF, Tab 7. For the reasons
that follow, I find that his claim lacks any merit.
The Board treats the provisions of a CBA to which an agency is a party in the
same manner that it treats provisions of agency regulations, and it will enforce
employee rights derived from such agreements. See Randle v. Department of
the Navy, 50 M.S.P.R. 574, 581 (1991). To prevail on his claim that the agency
failed to follow the provisions the CBA to which it agreed, the appellant must
establish harmful error, i.e., the appellant must establish that the agency
committed a procedural error and that the procedural error was 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. See 5 C:F.R. § 1201.4(r); Hall v.
Department of the Navy, 73 M.S.P.R. 251, 255 (1997); see also Borden v.
Department of Justice, 59 M.S.P.R. 353, 356 (1993) (a violation of the parties'
CBA may constitute harmful procedural error warranting reversal of the
agency's action).
Harmful procedural error cannot be presumed; an agency error is harmful only
where the record shows that the error was likely to have caused the agency to
143
reach a conclusion different from the one it would have reached in the absence
or cure of the error. Hidalgo v. Department of Justice, 93 M.S.P.R. 645, 1 13
(2003). The burden is upon the appellant to show that the agency committed
an error and that the error was harmful, i.e., that it caused substantial
prejudice to his rights. Turner v. U.S. Postal Service, 85 M.S.P.R. 565, 1 5
(2000).
July 29, 2022 "union activity"
Article I of the CBA lists those crafts employees recognized as covered under
the CBA 10; Article 16 lists discipline procedures for those covered
10 It states, in relevant part: The Employer recognizes the Union designated
below as the exclusive bargaining representative of all employees in the
bargaining unit for which each has been recognized and certified at the
National Level:
American Postal Workers Union, AFL-CIO - Maintenance Employees
American Postal Workers Union, AFL-CIO - Motor Vehicle Employees
employees, raning from a letter of warning to a removal, and provides for
.indefinite suspensions for suspected criminal conduct and emergency
placement in off-duty status; Article 17 details representation by stewards of
those listed employees; and Article 23 details the right of union officials to
enter postal installations upon reasonable notice.
Article 23 states, in pertinent part, as follows:
Upon reasonable notice to the Employer, 4uly authorized
representatives of the Union shall be permitted to enter postal
installations for the purpose of performing and engaging in official union
duties and business related to the Collective Bargaining Agreement.
There shall be no interruption of the work of employees due to such visits
and representatives shall adhere to the established security regulations.
https://apwu.org/contracts/2021-2024-apwuusps-collective-bar 2ainingagreement.
As for the appellant's claim that the charged conduct which occurred on July
29, 2022 is "normal" in union discussions with management, I find that the
testimony revealed that the conduct with which he was charged took place
after the union activity had ceased. The fact of the matter is that when the
appellant met with Mr. Martinez on July 29, 2022 to discuss grievances, the
appellant's request to Mr. Acevedo to "escort this imbecile out of here," as well
144
as the aggression he showed to the appellant, coupled with the physical contact
he made
American Postal Workers Union, AFL-CIO - Postal Clerks
- The Special Delivery Messengers were merged into the Clerk Craft by
Memorandum of Understanding dated November 20, 1997.
American Postal Workers Union, AFL-CIO - Mail Equipment Shops
Employees
American Postal Workers Union, AFL-CIO - Material Distribution Centers
Employees
American Postal Workers Union, AFL-CIO - Operating Services and Facilities
Services Employees.
https://apwu.org/contracts/2021-2024-apwuusps-collective-bargainingagreement.
with Mr. Martinez, occurred after Mr. Martinez had already concluded the
grievance meeting. Both Mr. Martinez and the appellant testified that Mr.
Martinez decided to end the meeting, and in fact did so, when the appellant
continued to carry on with the comments he was making. In fact, there is no
dispute that both Mr. Martinez and the appellant had gotten up from table to
exit the office when the appellant initiated the. physical contact and proceeded
to scream for Mr. Acevedo's attention. See g^n(?rally HRJ.
The agency, in its closing argument, notes that the National Labor Relations
Board (NLRB) has been repeatedly asked to determine whether employers
have unlawfully discharged or otherwise disciplined employees who had
engaged in abusive conduct in connection with activity protected by Section 7
of the National Labor Relations Act (Act). The NLRB now holds that abusive
conduct is not protected by the Act and should be differentiated from conduct
that is protected by the Act. It is the employer's burden to show that it would
have issued the same discipline for. See IAF, Tab 39.
Even if the appellant was still actively engaged in grievance discussions when
he lunged at Mr. Martinez's face and shoulder-checked him, his removal for
improper conduct was not related to his engagement in union activities;
instead, he was removed for initiating a verbal and physical altercation with
Mr. Martinez while on postal premises, which constitutes improper conduct,
whether while in the course of his union activities or, otherwise. Such conduct
is not protected as union activity.
145
In General Motors LLC, 14-CA-197985 369 NLRB No. 127 (2020), the NLRB
modified the standard for determining whether employees have been lawfully
disciplined ot discharged after making abusive or offensive statements in the
course of activity otherwise protected under the Act, including profane, racist,
and sexually unacceptable remarks. Thus, the type of behavior the appellant
engaged in on July 29, 2022 was specifically deemed to be no longer acceptable
or protected during union activity. Under this new standard, the appellant
must first prove that his union activity was the motivating factor for the
discipline. If that burden is met, the employer must then prove it would have
taken the same action even in the absence of the protected activity.
Here, the appellant has not presented any evidence to carry his burden of proof
since he was removed for improper conduct and failure to follow instructions not for his engagement in union activities. Although the appellant was a union
shop steward, he not only made demeaning statements when speaking to Mr.
Martinez, he "shoulder-checked, which could have caused physical harm.
Although an employee may generally not be removed for rude or impertinent
conduct in • the course of presenting grievances, it is well-settled that where
threats of physical harm are present, an employee can be removed. Special
Counsel v. Nielson, 71 M.S.P.R. 161,176 (1996). In light of the above, I find
that the appellant has failed to prove, by preponderant evidence, his
affirmative defense of harmful procedural error with regard to his conduct on
July 29, 2022.
State court's denial of protective order:
Although I have also considered the appellant's claim that a state court already
determined that the alleged assault by the appellant on Mr. Martinez did not
occur, and that the removal action, consequently, constitutes "double jeopardy
see IAF, Tab 7 at 6, I also find that said claim lacks any merit. Here, the
appellant argues that by virtue of the fact Mr. Martinez's request for a
protective order against him was denied on August 25, 2022, the alleged
assault simply did not occur. See id. at 6 and 27, order denying motion for
protective order. However, the state's decision not to grant a protective order
on the ground that Mr. Martinez did not establish the necessary elements
required for it, are not the same underlying elements pertaining to this adverse
action.
In other words, Mr. Martinez's request for a protective order is not a complaint
of assault against the appellant. I find that his argument that "by not
146
appealing the judge's decision, it turned into a final and binding
determination
that Luis J. Soto-Soto did not assault Jonathan Martinez," IAF, Tab 7 at 6,
lacks any basis in law. Since that judge's determination as to whether a
protective order was warranted requires a different analysis altogether, his
denial of it has no bearing on the instant matter. Consequently, I disagree with
the appellant's claim that having disciplined him for improper conduct
"constitutes a constitutionally prohibited double jeopardy" or, harmful
procedural error based on the fact Mr. Martinez was denied a protective order,
pertaining to the appellant. In light of the above, I further find that the
appellant has failed to prove his affirmative defense of harmful procedural
error with regard to his claim of the denial of Mr. Martinez's request for a
protective order.
The appellant failed to prove, by preponderant evidence, that his due process
rights were violated.
Finally, the appellant alleged that his due process rights were violated when:
(1) he was issued a letter on August 26, 2022' which placed him on emergency
placement without providing him proper notice; (2) the notice of decision to
remove him allegedly failed to advise him of his right to file • a grievance in
regards thereto; and (3) deciding official MPOO Rivera was allegedly a
prosecution witness pertaining to a matter raised by Postmaster Quiles and
his impartiality is in question. See IAF, Tab 7.
Only the second and third claims are before me since the first one was
dismissed in light of the fact the appellant was retroactively reimbursed for
said leave, and the appellant, through his representative, acknowledged, at the
beginning of the hearing, that this was not an issue the appellant wished to
proceed with. See HRI.
An agency's failure to provide an employee with prior notice and an
opportunity to present a response to an appealable agency action constitutes a
due process violation. See Stephen v. Department of the Air Force, 47 M.S.P.R.
672, 680-81 (1991) (citing Cleveland Board of Education v. Loudermill, 470
U.S. 532, 542, 546 (1985)). An action in which due process is not provided must
be reversed. Id. Thus^for example, if an agency, intends to rely on aggravating
factors, such as prior discipline, in determining a penalty, those factors should
be included in the advance notice of adverse action so that the employee will
have a fair opportunity to respond to those factors before the agency's deciding
official. Vena v. Department of Labor, 111 M.S.P.R. 165, 11 9 (2009).
147
The Board has held that an employee's due process right to notice extends to
both ex parte information provided to a deciding official and information
known personally to the deciding official, if the information was considered in
reaching the decision and not previously disclosed to the appellant. Solis v.
Department of Justice, 117 M.S.P.R. 458, 1 7 (2012).
A deciding official violates an employee's due process rights if they rely on new
and material information received ex parte as a basis for their decision on the
merits of a proposed charge or the penalty to be imposed. Gray v. Department
of Defense, 116 M.S.P.R. 461, ,r 6 (2011) (citing 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)). Thus, the appellant
bears the burden of showing both that the deciding official relied on the
information, and that such reliance rises to the level of a due process violation.
Bennett v. Department of Justice, 119 M.S.P.R. 685, ,r 12 (2013) (citing Stone,
I 79 F.3d at 1377 and Ward, 634 F.3d at 1280).
Failure to notify the appellant of his right to file a grievance
I have carefully considered the evidence on the due process issue. As to his first
claim (that the notice of decision failed to advise him of his right to file a
grievance in regards thereto), the NOPR specifically provided him with his
right to file a grievance. See IAF, Tab 8 at 37. During cross-examination, the
appellant was asked to read his right to file a grievance into the record and did
so. HR2. Moreover, the APWU did file a grievance pertaining to the appellant's
removal, to which appellant testified during his cross-examination.
Consequently, there is no dispute that the appellant pursued his grievance
arbitration rights up until the date of his Board hearing in this appeal as he
had to elect which forum he wanted to proceed to hearing in. As noted by the
agency, this procedure is governed by the CBA between the agency and the
APWU.
Specifically, Article 16.9 of the CBA governs this contract issue, and the Joint
Contract Interpretation Manual states the following in Article 16.9:
Grievances of preference eligible employees who also have a live MSPB
appeal on the same action will not be scheduled for arbitration until a
final determination is reached on the MSPB appeal. Article 16.9.B
waives Postal Service liability for the period from the date the case
would have been scheduled for arbitration and the date it is actually
scheduled for arbitration.
148
For the purpose of a grievance appeal over a notice of proposed removal,
the time limits run from the proposed removal notice, not from the
decision letter on the proposed removal notice. Once . a grievance on a
notice of proposed removal is filed, it is not necessary to also file a
grievance on the decision letter. • Receipt of a notice .of proposed removal
starts the thirty-day advance notice period Article 16.5.
https://apwu.org/contracts/2021-2024-apwuusps-collective-bargainingagreement;
https://apwu.org/contracts/icim-2022-ioint-contractinterpretation-manual.
For this reason, I find that not only was the appellant correctly apprised of his
grievance rights, he elected to pursue such rights until the date of his hearing
before the Board. As such, the appellant's claim that he was denied his due
process rights must also fail. I find that he has failed to establish, by
preponderant evidence, that he was denied his due process rights.
MPOO Rivera's alleged lack of impartiality
Finally, as to the appellant's claim that deciding official MPOO Rivera lacked
impartiality simply because he was a prosecution witness against him in a
matter brought by Postmaster Quiles, I find that the record is devoid of any
information which would lead me to find that this claim is valid. In effect, the
appellant presented absolutely no evidence that establishes that MPOO Rivera
was not impartial. Consequently, I find that the appellant failed to prove this
claim as well.
Conclusion
Having determined that the agency carried its burden of proof with respect to
establishing the basis for the appellant's removal and the reasonableness of
the penalty, and having determined that the appellant failed to establish his
affirmative defenses, I conclude that the agency's action must be affirmed.
DECISION
The agency's removal action is AFFIRMED.
FOR THE BOARD:
ISi
Maria M. Dominguez
Administrative Judge
149
NOTICE TO APPELLANT
This initial decision will become final on July 18, 2023, unless a petition for
review is filed by that date. This is an important date because it is usually the
last day on which you can file a petition for review with the Board. However,
if you prove that you received this initial decision more than 5 days after the
date of issuance, you may file a petition for review within 30 days after the
date you actually receive the initial decision. If you are represented, the 30day period begins to run upon either your receipt of the initial decision or its
receipt by your representative, whichever comes first. You must establish the
date on which you or your representative received it. The date on which the
initial decision becomes final also controls when you can file a petition for
review with one of the authorities discussed in the "Notice of Appeal Rights"
section, below. The paragraphs that follow tell you how and when to file with
the Board or one of those authorities. These instructions am,.important
because if you wish tci file a petition, you must file it within the proper time
period.
BOARD REVIEW
You may request Board review of this initial decision by filing a petition for
review.
If the other party has already filed a timely petition for review, you may file a
cross petition for review •.
Your petition or cross petition for review must
state your objections to the initial decision, supported by references to
applicable • • laws, regulations, and the record. You must file it with:
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Merit Systems Protection Board
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Washington, DC 20419
A petition or cross petition for review may be filed by mail, facsimile (fax),
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Criteria for Granting a Petition or Cross Petition for Review
Pursuant to 5 C.F.R. § 1201.115, the Board normally will consider only issues
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150
(a) The initial decision contains erroneous findings of material fact. (I) Any
alleged factual error must be material, meaning of sufficient weight to warrant
an outcome different from that of the initial decision. (2) A petitioner who
alleges that the judge made erroneous findings of material fact must explain
why the challenged factual determination is incorrect and identify specific
evidence in the record that demonstrates the error. In ■ reviewing a claim of an
erroneous finding of fac^, the Board will give deference to an administrative
judge's credibility determinations when they are based, explicitly or implicitly,
on the observation of the demeanor of witnesses testifying at a hearing.
(b) 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
petitioner must explain how the error affected the outcome of the case.
(c) The 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.
(d) New and material evidence or legal argument is available that, despite the
petitioner's due diligence, was not available when the record closed. To
constitute new evidence, the information contained in the documents, not just
the documents themselves, must have been unavailable despite due diligence
when the record closed.
As stated in 5 C.F.R. § 1201.1 14(h), a petition for review, a cross petition for
review, or a response to a petition for review, whether computer generated,
typed, or handwritten, is limited to 30 pages or 7500 words, whichever is less.
A reply to a response to a petition for review is limited to 15 pages or 3750
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circumstances. The page and word limits set forth above are maximum limits.
Parties are not expected or required to submit pleadings of the maximum
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long.
151
If you file a petition or cross petition for review, the Board will obtain the record
in your case from the administrative judge and you should not submit anything
to the Board that is already part of the record. A petition for review must be
filed with the Clerk of the Board no later than the date this initial decision
becomes final, or if this initial decision is received by you or your representative
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claim that you and your representative both received this decision more than
5 days after its issuance, you have the burden to prove to the Board the earlier
date of receipt. You must also show that any delay in receiving the initial
decision was not due to the deliberate evasion of receipt. You may meet your
burden by filing evidence and argument, sworn or under penalty of perjury (see
5 C.F.R. Part"1201, Appendix 4) to support your claim. The date of filing
mail is determined by the postmark date. The date of filing by fax or by
electronic filing is the date of submission. The date of filing by personal
delivery is the date on which the Board receives the document. The date of
filing by commercial delivery is the date the document was delivered to the
commercial delivery service. Your petition may be rejected and returned to you
if you fail to provide a statement of how you served your petition on the other
party. See 5 C.F.R. § 1201.4(j). If the petition is filed electronically, the online
process itself will serve the petition on other e-filers. See 5 C.F.R. §
1201.14(j)(l).
A cross petition for review must be filed within 25 days after the date of service
of the petition for review.
NOTICE TO AGENCY/INTERVENOR
The agency or intervenor may file a petition for review of this initial decision
in accordance with the Board's regulations.
NOTICE OF APPEAL RIGHTS
You may obtain review of this initial decision .only after it becomes final, as
explained in the "Notice to Appellant" section above. 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
152
a statement of how courts will rule regarding which cases fall within • their
jurisdiction. If you wish to seek review of this decision when it becomes final,
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 this decision becomes final. 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 Plac^, 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, ^ww.cafe.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 Practicefand Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeat"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
153
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
civi) action with an appropriate U.S. district court (not the U.S. Court of
Appeals for the Federal Circuit), within 30 calendar days after this decision
becomes final under the rules set out in the Notice to Appellant section, above.
5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems Protection Board, 582 U.S.
420 (2017). 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/Court
Websites.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 this decision
becomes final as explained above. 5 U.S.C. § 7702(b)(1).
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
154
(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 with the U.S. Court of
Appeals for the Federal Circuit or any court of appeals of competent
jurisdiction. The court of appeals must receive your petition for review within
60 days of the date this decision becomes final under the rules set out in the
Notice to Appellant section, above. 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:
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 ://w ww.uscourts. gov/CourtLocator/CourtWebsites. aspx.
155
(i). Appendix: Annex XIII
Determination of the Board of MSPB
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LUIS J. SOTO,
Appellant,
v.
UNITED STATES POSTAL SERVICE,
Agency.
DOCKET NUMBER NY-0752-23-0059-1-1
DATE: October 9, 2024
THIS FINAL ORDER IS NONPRECEDENTIAL1
Cindy M. Cruz-Rivera, Carolina, Puerto Rico, for the appellant. Krista M.
Irons, Esquire, St. Louis, Missouri, for the agency.
BEFORE:
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the appellant’s removal. 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
1 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
181
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) 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 and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly found that the Board has jurisdiction over
this appeal.
For the first time on review, the appellant primarily argues that the Board
lacks jurisdiction over his appeal. Petition for Review (PFR) File, Tab 1. The
Board will generally not consider an argument raised for the first time in a
petition for review absent a showing that it is based on new and material
evidence not previously available despite the party’s due diligence; however,
because the appellant’s argument implicates the Board’s jurisdiction, we will
address his claim. Clay v. Department of the Army, 123 M.S.P.R. 245,
6
(2016): Poole v. Department of the Army, 117 M.S.P.R. 516, 9 (2012).
A Postal Service employee may file a Board appeal challenging an adverse
action taken under 5 U.S.C. chapter 75 only if: (1) he is a preference eligible, a
management or supervisory employee, or an employee engaged in personnel
work in other than a purely nonconfidential clerical capacity; and (2) he has
completed 1 year of continuous service in the same or similar positions. See
Toomey v. U.S. Postal Service, 71 M.S.P.R. 10, 12 (1996). Here, the
administrative judge found that the Board had jurisdiction over the appellant’s
removal. Initial Appeal File
(IAF), Tab 40, Initial Decision (ID) at 1. On review, the appellant argues that
the administrative judge erred in assuming jurisdiction over his appeal. PFR
File, Tab 1 at 8-14.
182
In arguing that the Board lacks jurisdiction over the appeal he filed, the
appellant appears to assert that the underlying matter in his appeal is an
unfair labor practice (ULP) complaint, which is within the jurisdiction of the
Federal Labor Relations Authority (FLRA). PFR File, Tab 1 at 8-17.
Specifically, he appears to argue that the agency committed a ULP when it
improperly removed him in violation of the collective bargaining agreement
(CBA) and failed to advise him of his right to “continue his previous arbitration
process or present a new one on the removal,” thereby forcing him to appeal to
the Board. Id. Therefore, he argues that the administrative judge should have
dismissed his appeal before holding a hearing on the merits. Id.; IAF, Tab 15
at 4-9. We find his arguments unavailing.
The Board has previously explained that the Civil Service Reform Act (CSRA)
replaced the prior patch work system of laws and gave the FLRA authority over
some matters but precluded the FLRA from adjudicating others, including
removal actions that fall under the Board’s authority. Marshall v. Department
of Veterans Affairs, 106 M.S.P.R. 478,
11-14 (2007). Specifically, it
explained that under 5 U.S.C. § 7116(d), “[i]ssues which can properly be raised
under an appeals procedure may not be raised [before the FLRA] as unfair
labor practices.” Marshall, 106 M.S.P.R. 478, K 13. As in Marshall, the
“appeals procedure” relevant to the instant case is provided by the Board,
which, under the CSRA, must adjudicate employee appeals from removals. Id.;
see also 5 U.S.C. §§ 7512, 7513(d). Therefore, the propriety of the appellant’s
removal is properly raised in an appeal filed with the Board and may not be
raised as a ULP before the FLRA. Marshall, 106 M.S.P.R. 478, 1] 14; see Dept,
of Commerce v. Federal Labor Relations Authority , 976 F.2d 882, 888 (4th Cir.
1992).
To the extent that the appellant argues that the agency forced him to proceed
in this forum because it failed to advise him of his right to continue his pending
grievance or allow him to file a new grievance on his removal in its decision
letter, his argument is without merit. PFR File, Tab 1 at 8-14. Generally, an
individual affected by a personnel action, such as a removal, that is both
appealable to the Board and covered by a negotiated grievance procedure may
contest the action before the Board or in a grievance, but not both. 5 U.S.C.
§ 7121(e)(1); Anderson v. U.S. Postal Service, 109 M.S.P.R. 558, ^[ 5 (2008).
However, this binding election of remedies does not apply to Postal Service
employees with appeal rights, who are entitled to pursue both a grievance and
a Board appeal simultaneously. See Mays v. U.S. Postal Service, 995 F.2d
1056, 1058 (Fed. Cir. 1993); Anderson, 109 M.S.P.R. 558, If 5.
183
First, the appellant conceded below that the agency advised him of his right to
file a grievance in its notice of proposed removal and testified that he did so.
ID at 35-36; Hearing Audio, Tab 35-15 (testimony of the appellant); IAF, Tab
8 at 37. The appellant also acknowledges in his petition for review that “he was
warned of his right to file a grievance” in the notice of proposed removal, and
he filed a grievance. PFR File, Tab 1 at 12. According to the record, the
appellant is a preference eligible and had completed more than 1 year of
continuous service in his position before his removal. IAF, Tab 8 at 22.
Therefore, to the extent that he filed a grievance on his proposed removal, he
was not prohibited from filing a Board appeal. Thus, we agree with the
administrative judge that the Board has jurisdiction over his appeal.
Accordingly, we deny the petition for review and affirm the initial decision,
which sustained the agency’s removal decision based on charges of improper
conduct and failure to follow instructions.
NOTICE OF APPEAL RIGHTS2
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
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).
184
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:
2 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.
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 mayS 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
185
requirement of prepayment of fees, costs, or other security.
U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
See
42
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.3 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).
186
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.
3 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.
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/CourtW ebsites. aspx.
FOR THE BOARD:
Gina K. Grippando Clerk of the Board
Washington, D.C.
CERTIFICATE OF SERVICE
187
I certify that the attached Document(s) was (were) sent as indicated this day
to each of the following:
Appellant Electronic Service Luis Soto
Served on email address registered with MSPB
Agency Representative
U.S. Mail Managing Counsel
Chief Counsel - MSPBLaw Department - MSPB1720 Market Street, Room
2400
St. Louis, Missouri 63155-9948
Agency Representative Electronic Service Krista Irons
Served on email address registered with MSPB
Private Attorney Electronic Service Cindy Cruz-Rivera
Served on email address registered with MSPB
10/09/2024
(Date)
John Hayes
188
Additional material
from this filing is
available in the
Clerk's Office.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.