UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL S. LAMBERT, DOCKET NUMBER
Appellant, AT-0752-13-0368-B-2
v.
UNITED STATES POSTAL SERVICE, DATE: September 22, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Norman Jackman, Esquire, Cambridge, Massachusetts, for the appellant.
Christopher Pearson, Atlanta, Georgia, 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 denied his affirmative defense of age discrimination. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. 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 initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The agency removed the appellant from his Rural Carrier position for
giving a teenager a ride in his postal vehicle, and the appellant filed an appeal
with the Board. Lambert v. U.S. Postal Service, MSPB Docket
No. AT-0752-13-0368-I-1 (I-1), Appeal File (AF), Tab 1. Following receipt of
the parties’ last-chance settlement agreement, the administrative judge dismissed
the appeal as settled on May 7, 2013. I-1 AF, Tabs 14-15. The appellant filed a
petition for review of the initial decision, and the Board remanded his age
discrimination affirmative defense to the administrative judge for further
adjudication because the settlement agreement did not include the language
required by the Older Workers Benefit Protection Act (OWBPA). I-1 Petition for
Review (PFR) File, Tabs 1, 6; Lambert v. U.S. Postal Service, MSPB Docket
No. AT-0752-13-0368-I-1, Remand Order (May 15, 2014) (I-1 Remand Order).
¶3 In the I-1 Remand Order, the Board found that the agency’s failure to
comply with the OWBPA invalidated the appellant’s waiver of his age
discrimination claim and remanded the appeal for further adjudication of that
claim only. I-1 Remand Order at 5. The Board advised the parties that the merits
3
of the removal action were not at issue on remand, except as the administrative
judge deemed necessary to determine whether the removal was based on age
discrimination. Id. On remand, the administrative judge granted the agency’s
motion for summary judgment against the appellant, finding no genuine issue of
material fact warranting a hearing on the appellant’s claim that he was
discriminated against on the basis of age. Lambert v. U.S. Postal Service,
MSPB Docket No. AT-0752-13-0368-B-1 (B-1), AF, Tab 26, Initial Decision
at 2, 5-8.
¶4 The appellant filed a petition for review, and the Board remanded the
appellant’s age discrimination claim for a hearing consistent with the standards
set forth in Savage v. Department of the Army, 122 M.S.P.R. 612, ¶¶ 46, 48-51
(2015). B-1 PFR File, Tabs 1, 4; Lambert v. U.S. Postal Service, MSPB Docket
No. At-0752-13-0368-B-1, Remand Order (Sept. 28, 2015). After holding the
requested hearing, the administrative judge issued another remand initial decision
affirming the agency’s action and finding no evidence that the appellant’s age
played a role in the agency’s removal decision. Lambert v. U.S. Postal Service,
MSPB Docket No. AT-0752-13-0368-B-2 (B-2), AF, Tab 20, Initial Decision
(B-2 ID) at 5. The appellant filed a petition for review, and the agency responded
in opposition to his petition. B-2 PFR File, Tabs 1, 3.
¶5 On review, the appellant argues that the administrative judge improperly
credited the hearsay testimony of the agency’s witnesses over the appellant’s
in-person hearing testimony concerning his alleged misconduct. B-2 PFR File,
Tab 1 at 4-8. Specifically, he argues that the teenager was in his postal vehicle
for 5-10 minutes, and not 45 minutes to 1 hour, as claimed by the teenager’s
father, who did not testify at the hearing. Id. at 7. The appellant argues that his
actions did not threaten the security of the mail and that the agency failed to call
the teenager as a witness at the hearing because his testimony would have hurt the
agency’s case. Id. at 8. The appellant also argues that the deciding official
lacked first-hand knowledge of his misconduct and that she relied on information
4
provided from individuals who obtained their information from the teenager’s
father. Id. at 7.
¶6 Because the appellant’s arguments concern only the merits of the agency’s
removal action and are unrelated to his claim of age discrimination, we find that
his argument is beyond the scope of the Board’s review of the remand
initial decision.
¶7 On review, the appellant reiterates his contention that his age was the real
reason for his removal and argues that he is entitled to a presumption of age
discrimination. Id. at 8. He also reasserts some of the arguments that he made on
appeal, which he contends are sufficient proof that the stated reasons for his
removal were pretext for age discrimination. Id. at 9. For example, he reiterates
that the former Officer in Charge in Gainesville frequently asked him when he
was going to retire. Id. He also reasserts his arguments that “others” criticized
him for taking too long to do his route and told him to get his eyes checked on
numerous occasions. Id. However, the administrative judge considered the
appellant’s testimony about the alleged incidents and found that they did not
constitute age discrimination. B-2 ID at 3, 5. The administrative judge also
noted that the former Officer in Charge left the Gainesville Post Office before the
incident at issue and that he played no role in the agency’s removal decision.
B-2 ID at 5.
¶8 Applying the Board’s criteria in Savage, the administrative judge found
that, although the appellant may have believed his age was a factor in the
agency’s decision, he did not show that it was an improper motivating factor. 2
2
The Board held in Savage that, when an appellant asserts an affirmative defense of
discrimination or retaliation under 42 U.S.C. § 2000e–16, 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. 122 M.S.P.R.
612, ¶ 51. Such a showing is sufficient to establish that the agency violated 42 U.S.C.
§ 2000e–16, thereby committing a prohibited personnel practice under 5 U.S.C.
§ 2302(b)(1). Savage, 122 M.S.P.R. 612, ¶ 51.
5
B-2 ID at 3, 5. The administrative judge found it undisputed that the appellant
gave a 15-year old teenager a ride in his postal vehicle and that the event that
triggered the agency’s investigation was a telephone complaint made by the
teenager’s father to the Gainesville Postmaster. B-2 ID at 5. The administrative
judge further found that, absent the father’s complaint, the agency would have
had no basis to conduct the investigation resulting in the removal of the appellant.
Id. In reaching her decision, the administrative judge credited the testimony of
the agency’s witnesses stating that the appellant’s conduct, not his age, was the
cause for his removal. 3 B-2 ID at 4-5.
¶9 The Board must defer to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on observing the
demeanor of witnesses testifying at a hearing; the Board may overturn such
determinations only when it has “sufficiently sound” reasons for doing so. Haebe
v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). The appellant
has not shown that the administrative judge’s demeanor-based determinations are
inconsistent with the weight of the evidence, and we find that his arguments
constitute mere disagreement with the administrative judge’s thorough,
well-reasoned findings on appeal. See Crosby v. U.S. Postal Service, 74 M.S.P.R.
98, 105-06 (1997) (finding no reason to disturb the administrative judge’s
findings when she considered the evidence as a whole, drew appropriate
3
The administrative judge considered the testimony of the Gainesville Postmaster, who
was the concurring official in the proposal to remove the appellant. B-2 ID at 4. The
Gainesville Postmaster testified that: (1) he met with the teenager’s father (at his
demand) about his complaint that the appellant provided his teenage son with a ride in a
postal vehicle for 45 minutes to an hour without the father’s permission on
December 14, 2012; (2) the father’s complaint was referred to the Office of Inspector
General who issued a report on December 27, 2012; and (3) the resulting removal action
was based on the appellant’s conduct, not his age. Id. The administrative judge also
considered the deciding official’s testimony that: (1) carriers are prohibited from
having unauthorized passengers; (2) the appellant’s conduct was a liability to the
agency and jeopardized the security of the mail; (3) she removed the appellant based on
his conduct, not his age; and (4) she did not know the appellant when she decided to
remove him. B-2 ID at 4-5.
6
inferences, and made reasoned conclusions); Broughton v. Department of Health
& Human Services, 33 M.S.P.R. 357, 359 (1987) (same). We have considered the
appellant’s remaining arguments on review, and we find no basis for disturbing
the initial decision. 4 The appellant presents no new, material, previously
unavailable evidence or argument in support of a finding that the administrative
judge erred. We therefore deny the appellant’s petition for review.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
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:
4
For example, the appellant argues that he did not give the teenager a ride; he just
“[brought] the boy the short distance to the place where he needed to be.”
B-2 PFR File, Tab 1 at 10. We find that the appellant’s argument is a distinction
without a difference. The appellant also reasserts his argument that he was a “good
Samaritan” reacting to the emergency situation presented by the teenager crying in the
street. Id. at 9. However, the administrative judge considered this argument on appeal
and concluded that it was not an emergency situation because the appellant continued to
deliver his route without calling 911 or his supervisor. B-2 ID at 5. We also disagree
with the appellant’s claim that, because the agency allegedly insisted that he retire
under the terms of the parties’ settlement agreement, this proves that his removal was
based on age discrimination. B-2 PFR File, Tab 1 at 9.
7
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 U.S. 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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.