                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     FRANK D'ANNUNZIO,                               DOCKET NUMBER
                  Appellant,                         NY-0752-14-0148-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: February 26, 2015
                   Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Steven Newman, Esquire, New York, New York, for the appellant.

           Michael R. Salvon, Esquire, Windsor, Connecticut, 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 for misconduct. 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


     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     or the 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        The appellant was an EAS-25 Sales Manager for the agency. Initial Appeal
     File (IAF), Tab 10 at 12. Effective December 27, 2013, the agency removed him
     based on two charges:       Misuse of Government Travel Card and Improper
     Conduct. Id. at 13-18. The first charge was based on the appellant’s use of his
     government travel credit card to make more than 475 improper transactions
     between March 2010 and April 2013—purchases and cash advances that were
     either not work related or were in excess of the authorized amount. Id. at 29-40.
     The agency alleged that these improper transactions amounted to more than
     $42,000. Id. at 30-31, 35, 38. The second charge was based on the appellant,
     without authorization, driving a government vehicle to his residence and leaving
     it overnight before putting it to official use the following morning. Id. at 40.
¶3        The appellant filed a Board appeal and raised an affirmative defense of
     whistleblower reprisal.   IAF, Tab 1 at 1-2, Tab 11 at 4.       After a hearing, the
     administrative judge issued an initial decision affirming the removal and denying
     the appellant’s whistleblower defense. IAF, Tab 26, Initial Decision (ID).
¶4        The appellant has filed a petition for review, disputing the administrative
     judge’s penalty and whistleblower analyses.       Petition for Review (PFR) File,
                                                                                       3

     Tab 1 at 5. He also argues that the agency provided only its original Inspector
     General report, and not a copy of the revised report. Id. The agency has filed a
     response in opposition. PFR File, Tab 3.
¶5         Regarding penalty, the appellant argues that the agency failed to follow its
     progressive discipline policy as stated in its August 8, 2014 memorandum
     regarding the use of its Program Audit Tool. 2 PFR File, Tab 1 at 4. He asserts
     that this memorandum implements a policy of progressive discipline by providing
     that “misuse of the card will be disciplined up to and including removal from
     service,” yet the agency immediately imposed the maximum penalty of removal.
     Id. He also argues that his attorney failed to question one of the witnesses at the
     hearing about progressive discipline. Id. The appellant further argues that he
     repaid all of the costs associated with his improper transactions, and that the
     agency therefore suffered no financial loss. Id.
¶6         Where, as here, all of the agency’s charges have been sustained, the Board
     will review an agency-imposed penalty only to determine if the agency
     considered all of the relevant factors and exercised management discretion within
     tolerable limits of reasonableness.   See Woebcke v. Department of Homeland
     Security, 114 M.S.P.R. 100, ¶ 7 (2010); see also Douglas v. Veterans
     Administration, 5 M.S.P.R. 280, 306 (1981). 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.   Woebcke, 114 M.S.P.R. 100, ¶ 7.       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 properly
     exercised and that the penalty selected by the agency does not exceed the
     maximum limits of reasonableness. Id. Thus, the Board will modify a penalty


     2
       The Pro gram Audit Tool is a system that the agency uses to monitor its employees’
     travel card usage. IAF, Tab 10 at 2.
                                                                                         4

     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. Id.
¶7         Regarding the agency’s alleged policy of progressive discipline contained in
     an August 8, 2014 memorandum, the appellant has not provided a specific record
     citation to the memorandum, and despite our independent search for it, we were
     unable to locate a copy.      PFR File, Tab 1 at 5; see 5 C.F.R. § 1201.114(b) (a
     petition for review must be supported by specific references to the record). In
     any event, even assuming that there is such a memorandum containing the
     language that the appellant quotes in his petition for review, PFR File, Tab 1 at 5,
     we do not interpret this as creating a binding policy of progressive discipline on
     the agency.    Instead, it provides for a wide range of penalties for travel card
     misuse, including removal, without mention of any requirement for disciplinary
     action.    Furthermore, the appellant has not explained how the agency’s
     December 13,     2013 removal       decision   should   have   been   affected   by a
     memorandum that was not issued until 8 months later. IAF, Tab 10 at 13. The
     appellant further argues that his representative failed to cross examine the Sales
     Performance Analyst involved in proposing his removal regarding her failure to
     use progressive discipline.    PFR File, Tab 1 at 5.      However, the appellant is
     responsible for the actions and inactions of his chosen representative. See Larry
     v. Department of Justice, 76 M.S.P.R. 348, 352 (1997).                Therefore, the
     representative’s failure to pursue this line of inquiry at the hearing provides no
     basis to disturb the initial decision.
¶8         Regarding the appellant’s argument that the agency suffered no financial
     loss because of his misconduct, the agency does not seem to dispute this fact,
     PFR File, Tab 3 at 12, and we agree with the appellant that his travel card-related
     offense would have been even more serious had he absconded with agency funds,
     PFR File, Tab at 5. Nevertheless, even in the absence of financial loss to the
     agency, the appellant’s frequently repeated misconduct of making hundreds of
     improper transactions over a 3-year period was serious, especially for a
                                                                                       5

      managerial employee. See Kennedy v. U.S. Postal Service, 75 M.S.P.R. 281, 286
      (1997) (the appellant’s status as a manager was an aggravating factor).
      Throughout this time period, the appellant essentially used his government travel
      card as his own personal credit card, and although he paid the balance in full
      when it was due, his actions were incompatible with the agency’s responsibility
      to maintain appropriate controls over its travel card program. Hearing Compact
      Disc (HCD) (testimony of the deciding official). More importantly, regardless of
      the ultimate impact of his transgressions, the appellant knew or should have
      known that he was repeatedly violating agency rules, and this fact alone caused a
      serious breach of trust between him and his employer. ID at 10; HCD (testimony
      of the deciding official).   Although there are some mitigating factors present,
      including the appellant’s 5 years of excellent, discipline-free service, on balance
      we agree with the administrative judge that removal was within the tolerable
      limits of reasonableness for both sustained charges.       ID at 10; see Douglas,
      5 M.S.P.R. at 306.
¶9         The appellant also argues that the administrative judge “did not take
      seriously into consideration first the OIG [Office of Inspector General]
      complaints, then Whistleblower complaints filed against” the proposing and
      deciding officials. PFR File, Tab 1 at 5; IAF, Tab 23. Before the Board will
      undertake a complete review of the record, however, the petitioning party must
      explain why the challenged factual determination is incorrect, and identify the
      specific evidence in the record which demonstrates the error.           Weaver v.
      Department of the Navy, 2 M.S.P.R. 129, 133 (1980). The appellant’s argument
      constitutes mere disagreement with the administrative judge’s findings and
      credibility determinations on his whistleblower defense, and therefore provides
      no basis to grant the petition for review. See id. at 133-34.
¶10        Finally, the appellant argues that the agency failed to file a copy of its
      revised Inspector General report, which he claims contradicts the original “highly
                                                                                  6

prejudicial” report that the agency submitted below. 3 PFR File, Tab 1 at 5; IAF,
Tab 10 at 44-738.     The appellant’s argument provides no basis to disturb the
initial decision. To the extent that this revised report exists and the appellant
wished for it to be included in the record, it was incumbent upon him to request it
through the Board’s discovery procedures, up to and including filing a motion to
compel. See 5 C.F.R. §§ 1201.71-1201.74. The appellant’s failure to file such a
motion below precludes him from raising the issue on review.          See Szejner v.
Office of Personnel Management, 99 M.S.P.R. 275, ¶ 5 (2005), aff’d,
167 F. App’x 217 (Fed. Cir. 2006).

                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.
      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 want to request review of the Board’s decision concerning your
claims   of   prohibited   personnel   practices   under 5   U.S.C.    § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States 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 after the


3
 The agency appears to deny the existence of a revised Inspector General report. PFR
File, Tab 3 at 9.
                                                                                  7

date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time. You may choose to request
review of the Board’s decision in the United States Court of Appeals for the
Federal Circuit or any other court of appeals of competent jurisdiction, but not
both.     Once you choose to seek review in one court of appeals, you may be
precluded from seeking review in any other court.
         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 about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
respective         websites,     which       can      be      accessed      through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
         If you are interested in securing pro bono representation for an appeal to
the United States Court of Appeals for the Federal Circuit, 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 Federal Circuit. The Merit Systems
                                                                           8

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.
