                           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             THIS FINAL ORDER IS NONPRECEDENTIAL 1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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.
