                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DAVID G. NEILON,                                DOCKET NUMBER
                   Appellant,                        DA-0752-14-0081-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: January 21, 2015
                   Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           W. Philip Jones, Esquire, Avon, Connecticut, for the appellant.

           Lisa A. Stegall, Esquire, and Theresa M. Gegen, Dallas, Texas, 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 reduction in grade 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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     or regulation 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 agency demoted the appellant from an EAS-21 Postmaster position to
     an EAS-17 Supervisor, Customer Services position based on a single charge of
     Unacceptable Conduct with five specifications. Initial Appeal File (IAF), Tab 5
     at 16-24. After affording the appellant his requested hearing, the administrative
     judge sustained the charge and found that: the agency did not violate the
     appellant’s due process rights; the appellant did not prove his affirmative
     defenses of sex and age discrimination and harmful error; and the demotion
     penalty was reasonable. Initial Decision (ID) at 2-17.
¶3          Under the first specification, the agency alleged that the appellant allowed
     his employees to bring in and serve a cake with an inappropriate epithet aimed at
     a former employee written on it and then failed to address with employees this
     activity as being inappropriate. IAF, Tab 5 at 19. Based on his assessment of the
     witnesses’ credibility, including the demeanor of the agency’s witnesses, the
     administrative judge found that the agency proved the specification by
     preponderant evidence. ID at 4-5. On review, the appellant argues extensively
     that his testimony was truthful and the testimony of the agency’s witnesses was
     not.   Petition for Review (PFR) File, Tab 1 at 5-9.      However, the Board has
                                                                                      3

     limited discretion to disturb an administrative judge’s credibility determinations,
     particularly where, as here, some of those findings rely explicitly on demeanor.
     See Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (the
     Board must give deference to an administrative judge’s credibility determinations
     when they are based, explicitly or implicitly, on the observation of the demeanor
     of witnesses testifying at a hearing; the Board may overturn such determinations
     only when it has “sufficiently sound” reasons for doing so); see also Little v.
     Department of Transportation, 112 M.S.P.R. 224, ¶ 4 (2009) (credibility
     determinations made after hearing live testimony must be deemed to be at least
     implicitly based on witness demeanor). The appellant has not offered sufficiently
     sound reasons to overturn the administrative judge’s credibility findings.     See
     Haebe, 288 F.3d at 1301.
¶4        The appellant also asserts on review that he was justified in not taking any
     action to “address this activity.” Although he acknowledges that his supervisor
     instructed him to take some sort of action, the appellant alleges that the agency
     was conducting an investigation to determine whether the cake incident amounted
     to workplace harassment and the investigator instructed him to wait until the
     investigation was complete before disciplining the responsible employees. PFR
     File, Tab 1 at 6. The only evidence supporting the appellant’s claim that the
     investigator told him not to take action is the appellant’s own testimony.
     Although the investigator testified at the hearing and the appellant had an
     opportunity to elicit corroborating testimony, the appellant failed to ask him any
     questions that were relevant to the issue. Hearing Compact Disc (HCD), Disc 1
     (Testimony of R.C.).
¶5        Under specification 2, the agency charged that, on June 12, 2013, the
     appellant reported that all mail had made dispatch when it had not, and on
     June 24, 2013, he did not report late mail or deliver any late mail to the mail
     processing plant, but he had late mail at his facility. IAF, Tab 5 at 20-22. The
     appellant admitted that he had unreported late mail on those 2 days but contended
                                                                                           4

     that he was tired and it would have been unsafe for him to drive the late mail to
     the plant as required.       The administrative judge, again based largely on
     credibility, found that the agency proved the specification by preponderant
     evidence. ID at 7-8.
¶6         On review, the appellant reiterates his argument below concerning the
     process by which the agency discovered that he had unreported late mail. PFR
     File, Tab 1 at 9-13. Specifically, he contends that the photocopies in the record
     of the pieces of late mail that are the subject of the specification were “mail
     covers” 2 under 39 C.F.R. § 233.3(c)(1), and had been obtained without the
     authorization of the Chief Postal Inspector as required by 39 C.F.R. § 233.3(g)(4).
     That regulation, however, concerns the agency’s authority to use mail covers for
     law enforcement or national security purposes, and it defines “mail cover”
     narrowly so that only items that serve the purpose of the regulation are covered.
     We are not persuaded by the appellant’s argument that the evidence used against
     him under specification 2 was illegally obtained.
¶7         Specification 3 reads, “Failing to accurately report when all carriers
     returned to office.” IAF, Tab 5 at 22. The appellant was required to report to his
     supervisor when all the mail carriers had returned from delivering their routes, in
     part so the agency could confirm that its employees had returned safely from
     performing their duties.    Id.   The agency alleged that, on June 12, 2013, the
     appellant reported at 7:07 p.m. that three carriers were out when actually four
     were out.   That same evening, he reported at 7:27 p.m. that all carriers had
     returned when in fact one carrier did not return until 8:01 p.m.                   The
     administrative judge noted that the appellant admitted committing the charged
     acts but asserted that the last carrier was in the process of returning when the
     appellant sent the last email and that he was very tired that day. ID at 8-9. The

     2
        The administrative judge addressed this issue as a harmful error claim and found it
     unproven. ID at 14-15. We see no error in his analysis or in his decision to address the
     issue as a matter of harmful error.
                                                                                          5

      administrative judge found that that the record evidence was sufficient to prove
      this specification. ID at 8-9.
¶8          On review, the appellant alleges that his reports were accurate according to
      the most recent clock ring reports available to him and that he would have no way
      of knowing if a carrier were still out without performing a visual inspection. PFR
      File, Tab 1 at 14. Because it appears that the agency wanted accurate reports,
      performing the occasional visual inspection might have been necessary to perform
      this duty properly. His argument is unpersuasive.
¶9          Under specification 4, “Reporting of inaccurate information-eTravel
      Reports,” the agency charged that the appellant submitted a claim for mileage
      reimbursement for driving mail from his post office to the processing plant on
      June 13, 2013, when he had made no such trip on that date. IAF, Tab 5 at 23.
      When this was brought to his attention, he changed the date to June 12, 2013, but
      he had made no trip to the plant on that day either. Id. The administrative judge
      found the appellant’s explanation to be not credible especially given the facts
      underlying specification 2. ID at 9-10.
¶10         On review, the appellant alleges that he merely made an understandable
      mistake. PFR File, Tab 1 at 15. However, he does not proffer a sufficiently
      sound reason to set aside the administrative judge’s credibility findings.        See
      Haebe, 288 F.3d at 1301.
¶11         Under   the   last   specification,   “Failure   to   follow   leave/timekeeping
      procedures,” the agency charged that the appellant took off the week of
      May 6-10, 2013, without informing his supervisor and without submitting a leave
      slip so the timekeeper could record his time and attendance properly. IAF, Tab 5
      at 23. As a result, his time was recorded as regular time and was not charged
      against his leave balance, which required the agency to expend funds later to
      effect a correction. Id. The appellant contended that he was not at work that
      week because he was relocating his family and he was authorized to approve up
      to 5 days of his own leave. The administrative judge found that the appellant had
                                                                                        6

      more flexibility than other employees in reporting his time and attendance, but he
      was still obligated to report his time and attendance accurately. ID at 10-11.
¶12         On review, the appellant asserts that he informed his supervisor when he
      accepted the position that he would have to return to his former residence to move
      his family, so she was aware he would be taking relocation leave and it was her
      responsibility to enter his leave on his time and attendance report. PFR File,
      Tab 1 at 16-17. He alleges that he receives his pay by direct deposit and implies
      that he could not have verified that his time had been reported accurately. Id.
      at 16-17. The supervisor confirmed that the appellant told her when he accepted
      the position that he could report immediately but he would have to take a week to
      relocate his family, but she testified that he never told her that he would be gone
      on the dates in question. HCD, Disc 1 (Testimony of K.V.). The appellant’s
      implied argument, that the burden was on his supervisor to remember what he
      told her in a preselection discussion and that he had no responsibility to remind
      her when he would be gone or see that the timekeeper knew how to enter his time,
      is not reasonable. We agree with the administrative judge that the agency proved
      the fifth specification.
¶13         Turning to the appellant’s affirmative defenses, the administrative judge
      found that the appellant introduced no evidence to support his bare allegations of
      sex and age discrimination, and he found that the appellant failed to prove his due
      process claim concerning whether he was permitted a predecisional review of all
      of the evidence upon which the agency relied. ID at 12-14. The appellant does
      not challenge the administrative judge’s findings on review but instead raises new
      claims of alleged due process violations. PFR File, Tab 1 at 19. Not only are
      these new allegations not based on new and material evidence that was
      unavailable before the record closed below, they also pertain to whether the
      agency gave him complete notice of the topics that would be discussed during his
      investigatory interviews. Id. Those matters are not within the Board’s purview.
                                                                                        7

¶14        The appellant also alleged that the agency erred by designating the same
      person to be both concurring official and deciding official in his case, thereby
      creating a conflict of interest. See PFR File, Tab 1 at 18. It is permissible for an
      individual to be both the proposing official and the deciding official in an action
      and this arrangement does not constitute either harmful error or a due process
      violation. Martinez v. Department of Veterans Affairs, 119 M.S.P.R. 37, ¶ 11
      (2012). A deciding official’s expressed predisposition contrary to the appellant’s
      interests does not violate due process or constitute harmful error even if the
      deciding official had previously concurred in the desirability of taking the
      adverse action against the appellant.    Id.   The administrative judge correctly
      found that the appellant did not prove a due process violation or harmful error.
      ID at 13-14.
¶15        Finally, the appellant argues that the penalty of demotion from Postmaster
      to a lower-graded supervisory position is excessive.      PFR File, Tab 1 at 18.
      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 Davis v. U.S. Postal Service, 120 M.S.P.R. 457, ¶ 6
      (2013).   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.        Id.   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 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.   However, if the deciding official failed to appropriately
                                                                                            8

      consider the relevant factors, the Board need not defer to the agency’s penalty
      determination. Id.
¶16         The deciding official testified that he considered the appellant’s years of
      satisfactory service with no disciplinary record but found that the seriousness of
      the misconduct outweighed these factors. HCD, Disc 1 (Testimony of H.B.). The
      deciding official found that the paramount factor in arriving at the penalty of
      demotion was that the appellant’s misconduct indicated that the appellant
      functioned poorly in a position where he had no direct supervision, 3 and had to be
      placed in a position where he could be supervised, which led him to demote the
      appellant to a subordinate supervisory position. Id. The administrative judge
      found, and we agree, that the penalty selected by the agency is within the
      tolerable bounds of reasonableness and promotes the efficiency of the service.

                       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:

      3
         The principle that supervisors and those with fiduciary responsibilities are held to
      higher standards of conduct applies to postmasters inasmuch as they are both. See
      Stack v. U.S. Postal Service, 101 M.S.P.R. 487, ¶ 9 (2006); see also Stuhlmacher v. U.S.
      Postal Service, 89 M.S.P.R. 272, ¶ 25 (2001); ID at 16.
                                                                                    9

                           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
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prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e5(f) and
29 U.S.C. § 794a.




FOR THE BOARD:                         ______________________________
                                       William D. Spencer
                                       Clerk of the Board
Washington, D.C.
