UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEVEN MICHAEL DOCKET NUMBER
NOPPENBERGER, PH-0752-13-0454-I-1
Appellant,
v.
DATE: September 15, 2014
UNITED STATES POSTAL SERVICE,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Steven Michael Noppenberger, Westminster, Maryland, pro se.
Norma B. Hutcheson, Esquire, Landover, Maryland, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal. Generally, we grant petitions such as this one only when:
the initial decision contains erroneous findings of material fact; the initial
decision is based on an erroneous interpretation of statute or regulation or the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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).
2
erroneous application of the law to the facts of the case; 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; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See 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, and based on the following points and authorities, 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).
¶2 Effective June 18, 2013, the agency removed the appellant from his position
of Rural Letter Carrier based on one charge of unsatisfactory work performance
and one charge of improper conduct and failure to follow instructions. Initial
Appeal File (IAF), Tab 1 at 16. The appellant filed the instant appeal with the
Board on June 19, 2013, to contest his removal. IAF, Tab 1.
¶3 After conducting a hearing and allowing the appellant an opportunity to
provide additional testimony, the administrative judge issued an initial decision
affirming the appellant’s removal. IAF, Tab 27, Initial Decision (ID) at 1. Upon
consideration of record and testimonial evidence and making credibility
determinations, the administrative judge found that the agency proved, by
preponderant evidence, the six specifications listed for the charge of
unsatisfactory work performance and the five specifications listed for the charge
of improper conduct and failure to follow instructions. ID at 2-4. The
administrative judge also found that the appellant failed to challenge or deny the
specifics of the charges. ID at 3-4. In addition, the administrative judge found
that, while reprisal for exercising a grievance is a prohibited personnel practice
under 5 U.S.C. § 2302(b)(9), here, the appellant failed to establish a nexus
3
between his removal and his grievance activities; the administrative judge also
found ample support in the record for the conclusion that the agency’s action was
based on the stated charges. ID at 5-6. As a result, the administrative judge
found that the appellant failed to prove his affirmative defense. Finally, the
administrative judge found that the penalty of removal was reasonable and
promoted the efficiency of the service. ID at 7-9.
¶4 The appellant timely filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency filed a response, PFR File, Tab 3, and the appellant filed
a reply to the agency’s response, PFR File, Tab 4. 2
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 On review, for the most part, the appellant denigrates the agency, his union,
and the Board but does not contest the administrative judge’s findings that the
agency proved both charges by preponderant evidence and that the penalty was
reasonable. See PFR File, Tabs 1, 4. Because those findings are supported by the
weight of the record evidence and applicable law, and the appellant has provided
no reason to disturb them, we defer to the administrative judge’s well-explained
findings regarding those issues. See Crosby v. U.S. Postal Service, 74 M.S.P.R.
98, 106 (1997) (finding no reason to disturb the administrative judge’s findings,
where she considered the evidence as a whole, drew appropriate inferences, and
made reasoned conclusions); Broughton v. Department of Health & Human
Services, 33 M.S.P.R. 357, 359 (1987) (same).
¶6 The appellant does challenge the administrative judge’s finding regarding
his retaliation claim. PFR File, Tab 1 at 4-5. Nonetheless, as discussed below,
we agree with the administrative judge that the appellant failed to establish that
2
The appellant filed a pleading titled “Submission of Settlement Agreement.” PFR
File, Tab 5. However, the pleading is a settlement offer, to which the agency has not
filed a response. Id. The Board need not consider the appellant’s settlement offer when
reviewing the appropriateness of his removal, as the offer is entitled to no weight. See
Nettles v. Department of the Army, 52 M.S.P.R. 181, 185 (1991).
4
his removal was in retaliation for filing grievances with the National Labor
Relations Board (NLRB). Furthermore, the appellant’s claims of judicial bias,
see PFR File, Tab 1 at 4-5, Tab 4 at 4-5, Tab 4 at 4-5, are without merit and,
similarly, do not provide any reason for disturbing the initial decision.
We discern no basis for disturbing the administrative judge’s finding that the
appellant failed to establish his retaliation claim.
¶7 A claim of retaliation for exercising “any appeal, complaint, or grievance
right granted by any law, rule, or regulation” is covered under 5 U.S.C.
§ 2302(b)(9), and can be raised as an affirmative defense to an otherwise
appealable action. Rhee v. Department of Treasury, 117 M.S.P.R. 640, ¶ 20
(2012). For an appellant to prevail on an affirmative defense of illegal retaliation
for activity protected under 5 U.S.C. § 2302(b)(9), he has the burden of showing
that: (1) he engaged in an activity protected under the section; (2) the accused
official knew of the protective activity; (3) the adverse action under review could
have been retaliation under the circumstances; and (4) there was a genuine nexus
between the alleged retaliation and the adverse action. Id., ¶ 21. The
administrative judge correctly found that, while the appellant met the first three
prongs of the test, he failed to establish a nexus between his filing of grievances
with the NLRB and his removal.
¶8 To establish a genuine nexus between the protected activity and the adverse
employment action, the appellant must prove that the employment action was
taken because of the protected activity. Murray v. General Services
Administration, 93 M.S.P.R. 560, ¶ 6 (2003). As is required, the administrative
judge’s finding was based on a careful weighing of the intensity of the officials’
motive to retaliate against the gravity of the charged misconduct or the
inadequacy of the performance of duties. See Warren v. Department of the Army,
804 F.2d 654, 658 (Fed. Cir. 1986) (a careful scrutiny of the intensity of the
motive to retaliate is necessary under test (4) to be weighed with the gravity of
the misconduct charged, or inadequacy of the performance of duties, so that the
5
trier of fact can make an informed and reasoned determination whether the
“nexus” exists); Pyun v. Social Security Administration, 111 M.S.P.R. 249, ¶ 12
(2009) (same).
¶9 The administrative judge found that the appellant’s grievances primarily
concerned questions about his mail route. ID at 5. However, as the
administrative judge further found, the allotted time for the appellant’s route was
determined by contract between the union and the agency, and the policy affected
all rural letter carriers. ID at 5. Thus, the administrative judge correctly found
that, even though the officials were aware of the appellant’s grievance activity,
the officials had “little reason or motive to retaliate” against the appellant. ID
at 6. Contrary to the appellant’s insufficiency of evidence or argument, see PFR
File, Tab 1 at 4-5, the record and testimonial evidence fully supports the
administrative judge’s determination that “[t]he appellant’s deliberate refusals to
finish his mail route or other activities as directed by his supervisors clearly have
a serious, negative impact on the agency’s ability to complete its mission,” ID
at 6. Thus, the gravity of the misconduct charged weighs against a finding that
the agency removed the appellant in retaliation for his grievance activity. The
appellant’s bare statements that he was retaliated against, see PFR File, Tab 1
at 4-5, do not rebut this finding. Therefore, because the appellant failed to
establish that a nexus existed between his grievance activity and his removal, he
failed to prove his affirmative defense of retaliation.
The appellant has not established that the administrative judge was biased.
¶10 On review, as below, the appellant argues, among other similar claims, that
the administrative judge “blatantly favored” the agency. Id. at 4. While the
Board takes seriously the concerns of the parties who come before it, to establish
bias or prejudice against an administrative judge, a party must overcome the
presumption of honesty and integrity that accompanies administrative judges.
Tyler v. U.S. Postal Service, 90 M.S.P.R. 545, ¶ 6 (2002). An administrative
6
judge’s conduct during the course of a Board proceeding warrants a new
adjudication only if the administrative judge’s comments or actions evidence “a
deep-seated favoritism or antagonism that would make fair judgment impossible.”
Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002)
(quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). Furthermore, the
administrative judge has wide discretion in determining what should be received
into evidence and has the authority to exclude irrelevant or overly repetitious
testimony. See Taylor v. Department of Treasury, 34 M.S.P.R. 495, 499 (1987).
¶11 Here, the appellant’s claim of bias is based on the administrative judge’s
refusal to allow the appellant to admit irrelevant evidence and the administrative
judge’s well-reasoned finding that the appellant simply failed to meet his burden
to establish his affirmative defense of retaliation. Thus, the appellant fails to
show that the administrative judge went beyond the bounds of her discretion or
exhibited bias or prejudice.
¶12 In sum, the appellant’s claims that his removal was in retaliation for filing
grievances with the NLRB are unsupported by the evidence or argument that he
presents. Therefore, because the appellant’s assertions fail to show that the
administrative judge erred in affirming the appellant’s removal, we find no reason
to disturb the initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
7
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.