UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT E. YOUNG, DOCKET NUMBER
Appellant, CH-0752-13-2103-B-1
v.
UNITED STATES POSTAL SERVICE, DATE: October 29, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Donna Drake, Markham, Illinois, for the appellant.
Deborah L. Lisy, Esquire, Chicago, Illinois, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the remand initial decision,
which sustained his reduction in grade and pay. 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 erroneous application of the law to the facts of the case; 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. 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, 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 remand initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 Effective November 6, 2010, the agency reduced the appellant in grade and
pay from his position as EAS-17 Supervisor, Distribution Operations, to the
position of Part-time Flexible City Carrier, Level CC-1. The agency charged that,
on seven occasions between January 23, and April 8, 2010, the appellant
improperly recorded and adjusted an employee’s time in the Time and Attendance
Collection System (TACS), resulting in his being paid for hours he was not
present at the work site. Young v. U.S. Postal Service, MSPB Docket No.
CH-0752-13-2103-I-1, Initial Appeal File (IAF), Tab 7 at 8-15, 16-20, 21. The
appellant filed an equal employment opportunity (EEO) complaint in which he
alleged that the agency’s action was due to discrimination based on age and sex.
Id. at 22-25. After the agency issued a final agency decision finding no
discrimination, id. at 26-38, the appellant filed an appeal with the Equal
Employment Opportunity Commission’s Office of Federal Operations, which
dismissed it as improperly filed, id. at 39-42. The appellant then filed an appeal
with the Board, 2 which the administrative judge dismissed as untimely filed.
IAF, Tab 12, Initial Decision at 2, 9. On review, however, the full Board
reversed that finding and remanded the case for adjudication on the merits.
2
The appellant requested a hearing before the Board. IAF, Tab 1 at 2.
3
Young v. U.S. Postal Service, MSPB Docket No. CH-0752-13-2103-I-1, Remand
Order at 2, 4 (June 6, 2014).
¶3 During the remand proceeding, the appellant challenged the merits of the
agency’s action and alleged that the penalty was too severe. Remand File (RF),
Tab 17. He also added a claim of race discrimination. RF, Tab 18.
¶4 Following a hearing, the administrative judge issued a remand initial
decision in which she sustained the agency’s action. RF, Tab 22, Remand Initial
Decision (RID) at 2, 20. After considering the hearing testimony and
documentary evidence, RF, Tab 6 at 94-102, 116-37; RID at 3-11, she found that,
on all seven occasions, the appellant manually input end tour (ET) clock rings for
D.L., the Mail Handler employee in question, while he was absent from his
assignment and outside of the building without his authorization, resulting in his
being paid for time he did not work, 3 RID at 12. As such, the administrative
judge sustained all specifications and the charge of improper recording and
adjusting of an employee’s time in TACS. RID at 12-14. The administrative
judge also found a nexus between the sustained misconduct and the efficiency of
the service. RID at 14-15. She considered the appellant’s affirmative defenses of
age, race, and sex discrimination, but found that, other than asserting his own
beliefs and bare allegations, he had presented no credible supporting evidence,
and therefore failed to prove his claim of discrimination. RID at 15-17. Finally,
the administrative judge found that the reduction in grade and pay is a reasonable
penalty for the sustained charge. RID at 17-30.
¶5 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agency has responded in opposition, PFR File, Tab 5,
and the appellant has filed a reply thereto, PFR File, Tab 6.
3
The agency subsequently removed D.L. based on a charge of “Unacceptable
Conduct/Unauthorized Absences from Assignment Without Authorization on
27 Occasions.” RAF, Tab 17 at 16-21. Seven of those 27 occasions formed the basis
for this action against the appellant.
4
¶6 On review, the appellant argues that the administrative judge erred in
sustaining the charge. The appellant acknowledges that he “input” D.L.’s time on
the occasions in question, but alleges that he did not “adjust” the time because he
did not make any changes to it. 4 PFR File, Tab 1 at 4. The nature of an adverse
action charge should be construed in light of the accompanying specifications and
circumstances. George v. Department of the Army, 104 M.S.P.R. 596, ¶ 7 (2007),
aff’d, 263 F. App’x 889 (Fed. Cir. 2008). When a single stated charge contains
two separate acts of misconduct that are not dependent upon each other and that
do not comprise a single, inseparable event, each act constitutes a separate
charge. Chauvin v. Department of the Navy, 38 F.3d 563, 565 (Fed. Cir. 1994).
That is not the case here. The narrative in the proposal notice makes clear the
agency’s claim that, when the appellant input incorrect entries, he thereby
adjusted or changed the TACS report to reflect that D.L. worked hours that he did
not, resulting in his receiving pay to which he was not entitled. IAF, Tab 7
at 8-13. The administrative judge found that, when the appellant input the
incorrect entries, he did “adjust” D.L.’s time, changing it from what otherwise
would have resulted in an error in the TACS report and no pay for an employee
who was not working, to an entry that resulted in what looked like an errorless
TACS report and pay for an undeserving employee. RID at 12, 14. In ascribing
no weight to the appellant’s contention that he only input D.L’s time, but did not
adjust it on the dates identified in the proposal notice, the administrative judge
considered the appellant’s admissions and what the administrative judge found
were implausible and materially inconsistent explanations for the appellant’s
4
In the same vein, the appellant challenges the administrative judge’s statement that he
initially stipulated to all seven specifications, although he later rescinded the part of the
stipulation related to the last specification, January 23, 2010. RID at 3; Hearing
Transcript at 93-95, 176-77; PFR File, Tab 1 at 6 n.2. The appellant argues that he only
stipulated to having input incorrect information regarding D.L. into the TACS, not to
having adjusted D.L.’s time. PFR File, Tab 1 at 6.
5
actions. 5 RID at 12; Hillen v. Department of the Army, 35 M.S.P.R. 453, 458
(1987). To the extent the appellant challenges the administrative judge’s
credibility findings in this regard, the appellant’s mere disagreement does not
warrant full review of the record by the Board. See Gager v. Department of
Commerce, 99 M.S.P.R. 216, ¶ 5 (2005).
¶7 The appellant further challenges the administrative judge’s reliance on
several agency witnesses’ testimony that the appellant improperly entered ET
clock rings for D.L. when he had neither personal knowledge that D.L. had
actually worked the hours nor a Postal Service (PS) Form 1260, Non-Transactor
Card, generated from a supervisor to substantiate D.L.’s ET time. PFR File,
Tab 1 at 9; RID at 5 (testimony of proposing official, Hearing Transcript (HT)
at 72), 6 (testimony of deciding official, HT at 154). The administrative judge
credited these witnesses, finding their testimony consistent with one another and
with the record evidence, and she particularly found that the proposing official’s
demeanor while testifying to be forthright and direct and not impeached on
cross-examination. RID at 13. The administrative judge also noted that the
appellant’s own witness testified similarly to the consistent practice of using the
PS-1260 when making changes in the TACS, RID at 13-14 (testimony of
supervisor J.M, HT at 201, 208, 214), and the administrative judge found that
witness credible as well, RID at 13. Based on the appellant’s arguments on
review, we discern no reason to reweigh the evidence or substitute our assessment
of the record evidence for that of the administrative judge. See Crosby v. U.S.
Postal Service, 74 M.S.P.R. 98, 105-06 (1997); see also Haebe v. Department of
Justice, 288 F.3d 1288, 1302 (Fed. Cir. 2002) (discussing that the Board may
overturn credibility determinations only when it has “sufficiently sound” reasons
for doing so). We conclude therefore that the appellant has not shown error in the
5
The administrative judge considered the appellant’s inconsistent responses during the
three pre-disciplinary interviews that the agency conducted, and in his written reply to
the charge, the summary of his oral reply, and his hearing testimony. RID at 10-14.
6
administrative judge’s finding that the agency proved that he improperly recorded
and adjusted an employee’s time in TACS.
¶8 The appellant also disputes on review the administrative judge’s finding
that he did not establish his claims of discrimination based on age, race, and sex.
In particular, the appellant argues that former supervisor J.M., identified only as
an Asian female, RF, Tab 21 at 9, also adjusted D.L.’s time without following
proper procedures but was not disciplined, and that other supervisors input clock
rings for D.L., but also were not disciplined, PFR File, Tab 1 at 24-25. In
considering this claim, the administrative judge found that, on a single occasion,
J.M. did adjust D.L.’s time, but only to disallow unauthorized overtime he did not
earn, and that therefore she and the appellant were not similarly situated. And, in
response to the appellant’s claim regarding other supervisors, the administrative
judge found that the appellant failed to specifically identify any supervisor or
manager who, like the appellant, repeatedly entered ET for undeserving craft
employees. RID at 15. Although the appellant asserts on review that both the
proposing and deciding officials testified that they were aware of other
supervisors who committed similar acts as the appellant, PFR File, Tab 1 at 24, a
review of their testimony does not support his claim, HT at 113 (testimony of
proposing official that “it’s possible” that another supervisor provided an ET for
D.L.); 160 (testimony of deciding official that it is “a problem” if a supervisor
“just fixed what was wrong” with employees’ entries for out lunch or in lunch).
Neither the proposing nor the deciding official testified that J.M. or any other
supervisor input and adjusted an employee’s time, resulting in his being paid for
time he did not work. We therefore find that the appellant has not shown that the
administrative judge erred in finding that the appellant failed to present any direct
evidence of age, race, or sex discrimination. RID at 15-16.
¶9 In finding that the appellant failed to establish discrimination by
circumstantial evidence, the administrative judge found that he did not
demonstrate that the agency’s stated reason for its action was a pretext for
7
discrimination, or, as to the appellant’s claim of age discrimination, that age was
a factor in the agency’s action. RID at 16. Other than his argument on review
that J.M. was a proper comparator employee who was treated less harshly, an
argument we have considered but, like the administrative judge, have rejected, the
appellant has failed to show error in the administrative judge’s findings regarding
his discrimination claim. 6
¶10 Finally, the appellant argues on review that the administrative judge erred
in upholding the reduction in grade and pay penalty. PFR File, Tab 1 at 21-24.
¶11 Where, as here, the agency’s charge is sustained, the Board will modify an
agency-imposed penalty only when it finds that the agency failed to weigh the
relevant factors under Douglas v. Veterans Administration, 5 M.S.P.R. 280,
305-06 (1981), or the penalty imposed clearly exceeded the bounds of
6
The administrative judge referenced the burden-shifting analysis of McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), in analyzing the appellant’s
discrimination claim. RID at 16. After this initial decision was issued, the Board
issued Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 46 (2015), in which it
determined that that framework has no application to our proceedings. Rather, the
Board in Savage reaffirmed that it will adhere to the test set forth in Mt. Healthy City
School District Board of Education v. Doyle, 429 U.S. 274, 287 (1977), in cases
involving discrimination or retaliation allegations under 42 U.S.C. § 2000e-16. Savage,
122 M.S.P.R. 612, ¶ 50. Specifically, where an appellant asserts such an affirmative
defense, the Board first will inquire whether the appellant has shown by preponderant
evidence that the prohibited consideration was a motivating factor in the contested
personnel action. In making his initial showing, an appellant may rely on direct
evidence or any of the three types of circumstantial evidence described in Troupe v.
May Department Stores Company, 20 F.3d 734, 736-37 (7th Cir. 1994) (holding that
evidence of suspicious timing, ambiguous oral or written statements, behavior toward or
comments directed at other employees in the protected group, and other bits and pieces
from which an inference of discriminatory intent might be drawn, comparator evidence,
and evidence that the agency’s stated reason for its action is a pretext for
discrimination). If the appellant meets that burden, the Board then will inquire whether
the agency has shown by preponderant evidence that the action was not based on the
prohibited personnel practice, i.e, that it still would have taken the contested action in
the absence of the discriminatory motive, and, if the Board finds that the agency has
made that showing, its violation of 42 U.S.C. § 2000e-16 will not require reversal of the
action. Savage, 122 M.S.P.R. 612, ¶ 51. Application of Savage to the facts of this case
similarly results in a finding that the appellant failed to establish his claims
of discrimination.
8
reasonableness, Jacoby v. U.S. Postal Service, 85 M.S.P.R. 554, ¶ 15 (2000). In
determining whether the selected penalty is reasonable, the Board gives due
deference to the agency’s discretion in exercising its managerial function of
maintaining employee discipline and efficiency. The Board recognizes that its
function is not to displace management’s responsibility or to decide what penalty
it would impose, but to assure that management judgment has been exercised
properly and that the penalty selected by the agency does not exceed the
maximum limits of reasonableness. Douglas, 5 M.S.P.R. at 306. Thus, the Board
will modify a penalty only when it finds that the agency failed to weigh the
relevant factors or that the penalty the agency imposed clearly exceeded the
bounds of reasonableness. Woebcke v. Department of Homeland Security,
114 M.S.P.R. 100, ¶ 7 (2010). The Board will defer to the agency’s penalty
determination unless the deciding official failed to appropriately consider the
relevant factors. Id.
¶12 The Board has articulated factors to be considered in determining the
propriety of a penalty, such as, first and foremost, the nature and seriousness of
the misconduct and its relationship to the employee’s duties, position, and
responsibilities, including whether the offense was intentional or was repeated
frequently. Singletary v. Department of the Air Force, 94 M.S.P.R. 553, ¶ 12
(2003), aff’d, 104 F. App’x 155 (Fed. Cir. 2004). Other relevant factors may
include the employee’s past discipline, his past work record, the effect of the
offenses on his ability to perform his duties, consistency with the agency’s Table
of Penalties, the employee’s potential of rehabilitation, and any mitigating
circumstances. Douglas, 5 M.S.P.R. at 305-06.
¶13 The deciding official indicated that he considered, first and foremost, the
seriousness of the offense and its relation to the appellant’s position as a
supervisor, his ability to properly administer employees’ time and attendance, his
responsibility to fairly compensate agency employees, and his repeated failure to
do so. The deciding official also considered the impact of the offense upon the
9
agency and its employees, the fact that the appellant was on clear notice of the
rules of time and attendance based on training records that reflect an extensive
history of TACS training for supervisors and managers, and the deciding
official’s lack of trust and confidence in the appellant’s ability to properly
administer time for agency employees. IAF, Tab 7 at 18. The deciding official
also considered mitigating factors, including the appellant’s 22 years of service to
the agency, 11 as a supervisor, and his potential for rehabilitation as evidenced by
his having ultimately admitted to the misconduct and expressed remorse. The
deciding official concluded that a reduction to craft was a reasonable penalty. Id.
His testimony was in accord. HT at 155-58. In upholding the penalty, the
administrative judge found that the deciding official gave adequate consideration
to all of the relevant penalty factors. RID at 19.
¶14 The appellant argues on review that the administrative judge failed to
consider as a mitigating factor the fact that the appellant was not properly trained
“for clock ring errors.” PFR File, Tab 1 at 22. The agency submitted a copy of
the appellant’s training records that include an entry, at around the time of the
charged misconduct, for “Function 1 Clock Ring Procedures,” RF, Tab 6 at 148,
and the deciding official testified that TACS also was included as a part of other
training the appellant received, HT at 168-69. The appellant also argues on
review that he did not act intentionally or for gain, PFR File, Tab 1 at 22,
although the deciding official did not consider that he had, IAF, Tab 7 at 18.
Finally, the appellant notes that the agency allowed him to continue to supervise
for a period of time after the charged misconduct. PFR File, Tab 1 at 23.
Notwithstanding, it is well established that the Board’s review of an
agency-imposed penalty is essentially to assure that the agency did
conscientiously consider the relevant factors and did strike a responsible balance
within tolerable limits of reasonableness. Douglas, 5 M.S.P.R. at 306. Under
these circumstances, we agree with the administrative judge that the agency’s
10
selection of the reduction in grade and pay penalty was a proper exercise of
managerial judgment and did not exceed the limits of reasonableness. 7
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision. 8
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request 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 your request via commercial delivery or by a method
requiring a signature, it must be addressed to:
7
With his petition for review, the appellant has submitted new evidence that he asks the
Board to consider. PFR File, Tab 1 at 9-10. The first document is Time is Money:
Time and Attendance for Supervisors, Facilitator’s Guide TD-11A (June 1999), id.
at 29-48, and the second document is Participant’s Workbook, TACS: Time and
Attendance Collection System, Supervisor Training (Feb. 23, 2001), id. at 52-60. The
appellant asserts that the Board should consider these documents rather than the exhibit
the agency submitted below, Time is Money: Time and Attendance for Supervisors,
Facilitator’s Guide TD-11A (Apr. 2014). RF, Tab 16 at 66-74. The appellant failed to
challenge this document below, and therefore cannot be heard to do so now. See Banks
v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). Moreover, the proffered
documents themselves are not new. See Avansino v. U.S. Postal Service, 3 M.S.P.R.
211, 214 (1980) (discussing that the Board will not consider evidence submitted for the
first time with the petition for review absent a showing that it was unavailable before
the record was closed despite the party’s due diligence). Therefore, we have not
considered them.
8
The administrative judge did not, in her remand initial decision, afford the appellant
the mixed-case appeal rights to which he was entitled by virtue of his claims of
discrimination that the administrative judge adjudicated. RID at 24-25. We provide
those rights now.
11
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. 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.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.