                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     PREET M. SINGH,                                 DOCKET NUMBER
                   Appellant,                        SF-0752-15-0629-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: September 1, 2016
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Elaine W. Wallace, Esquire, Oakland, California, for the appellant.

           Christoph Riddle, Esquire, and Nina Paul, Esquire, San Francisco,
             California, 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 initial decision, which
     affirmed his removal. 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     erroneous application of the law to 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.      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).

                                     BACKGROUND
¶2        The appellant, a Supervisor of Distribution Operations at the agency’s
     Oakland Processing and Distribution Center, appealed his removal for two
     specifications of improper conduct. Initial Appeal File (IAF), Tab 1. In pertinent
     part, the proposing official alleged that the appellant engaged in an altercation
     with a subordinate employee while on duty and that he subsequently interfered
     with the agency’s investigation into the altercation. IAF, Tab 5 at 81-90. After
     providing the appellant with two opportunities to respond to information that was
     omitted from the documentation that the agency provided to him with the notice
     of proposed removal, id. at 68-69; IAF, Tab 30 at 15-16, the deciding official
     considered the appellant’s numerous written and oral responses, but he found the
     statements of other witnesses more credible than the appellant’s categorical
     denial that he had struck the subordinate employee, IAF, Tab 5 at 35-41.
     Regarding the second specification, the deciding official found the appellant’s
     admissions that he had sought to correct an eyewitness’s statement concerning the
     time that the incident occurred and had requested that the eyewitness use names
     instead of pronouns in her statement established that he inappropriately interfered
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     with the agency’s investigation into the incident.    Id. at 41.    Pursuant to his
     review of the Douglas factors, the deciding official found, among other things,
     that the misconduct at issue was extremely serious, particularly in light of the
     appellant’s supervisory position and his clear knowledge of agency policy
     regarding workplace violence. Id. at 42; see Douglas v. Veterans Administration,
     5 M.S.P.R. 280, 306 (1981). The deciding official also found no potential for
     rehabilitation, explaining that the misconduct exhibited “a stunning lack of
     self-control” that caused him to lose confidence in the appellant’s capacity to
     perform his supervisory duties without resorting to violence. IAF, Tab 5 at 42.
¶3        The appellant filed a timely appeal in which he requested a hearing and
     argued that the agency had relied on false evidence. IAF, Tab 1. He asserted
     affirmative defenses of harmful procedural error and denial of due process and
     also invoked the equitable doctrine of unclean hands. IAF, Tab 34 at 2-3. The
     appellant argued that the agency failed to meet its burden of proof and contended
     that removal was too harsh a penalty under the circumstances. Id.
¶4        After holding a hearing, the administrative judge sustained the first
     specification of improper conduct, finding that, even though the appellant was not
     the initial aggressor, the agency established that he engaged in a slapping fight
     with a subordinate employee. IAF, Tab 50, Initial Decision (ID) at 5-10. The
     administrative judge also sustained the second specification of improper conduct,
     finding that the appellant admitted that he had attempted to influence or alter the
     statement of an acting supervisor who witnessed the altercation. ID at 10-11.
     The administrative judge further found that the agency established a nexus
     between the established misconduct and the efficiency of the service.             ID
     at 11-12.
¶5        The administrative judge determined that the appellant failed to establish
     his affirmative defenses, finding that the agency gave the appellant notice and an
     additional opportunity to respond to evidence that the deciding official had a
     contemporaneous exchange with one of the witnesses to the altercation and that
                                                                                               4

     the agency did not err in designating that individual as the deciding official. ID
     at 12-14.   She further found that the appellant failed to demonstrate that the
     agency had allowed union officials to coach certain witnesses, had manufactured
     evidence in support of his removal, or that it somehow had “unclean hands”
     regarding such actions.       ID at 14-15.     Concerning the irregularities that the
     appellant alleged in the agency’s investigation of the altercation and imposition
     of his discipline, the administrative judge found that the appellant failed either to
     identify any law, regulation, or policy that the agency violated or demonstrate
     that the agency would have reached a different conclusion if it had conducted
     itself differently in this matter. ID at 16-20. Thus, having found that the agency
     did not deny the appellant due process or make a harmful procedural error, the
     administrative judge found that the deciding official considered the relevant
     Douglas factors and that the penalty of removal was within the tolerable limits of
     reasonableness in light of Board precedent and the circumstances involved. 2 ID
     at 20-23.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶6         In his petition for review, the appellant challenges the administrative
     judge’s credibility determinations regarding the first specification, which
     concerns the appellant’s altercation with his subordinate.           Petition for Review
     (PFR) File, Tab 4 at 15-19. Notwithstanding those alleged inconsistencies, we
     agree with the administrative judge that the appellant’s inherently implausible
     testimony that all the other witnesses were completely wrong or inaccurate,
     Hearing Transcript (HT) (Oct. 7, 2015) at 232; HT (Oct. 8, 2015) at 268, 276,
     288, negatively impacted his credibility, ID at 7-10. In particular, the statements
     and testimony of other witnesses concerning the appellant striking the subordinate


     2
       In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
     articulated a nonexhaustive list of 12 factors that are relevant in assessing the penalty to
     be imposed for an act of misconduct.
                                                                                        5

     employee were largely consistent with each other.       Id.     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. Haebe v. Department of Justice,
     288 F.3d 1288, 1301 (Fed. Cir. 2002); Faucher v. Department of the Air Force,
     96 M.S.P.R. 203, ¶ 8 (2004) (finding that the Board may overturn an
     administrative judge’s demeanor-based credibility determinations when those
     findings are incomplete, inconsistent with the weight of the evidence, and do not
     reflect the record as a whole) . The appellant fails to identify such sufficiently
     sound reasons in his petition for review, and we find that the administrative
     judge’s findings are both consistent with the weight of the evidence and reflect
     the record as a whole.
¶7        The appellant also argues that the administrative judge erred in sustaining
     the second specification because the agency failed to establish that the appellant
     followed for an hour the individual who witnessed the altercation, as set forth in
     the notice of proposed removal. PFR File, Tab 4 at 6. He maintains that his
     supervisor instructed him to get the individual’s statement and that he only sought
     to make sure the statement was clear and understandable.          Id.   The appellant
     reiterates his position that he did not attempt to influence the individual’s
     statement and argues that there is no evidence to support the finding that he failed
     to cooperate with the agency’s investigation.       Id. at 7.    He claims that his
     supervisor’s instruction for him to take the individual’s statement was “such a
     glaring error that most supervisors would respond by noting that they would
     never do such a thing” and argues that the supervisor’s failure to remember
     whether she actually asked him to do it suggests she is likely to have done so. Id.
     As to this specification, the appellant further argues that the administrative judge
     misjudged the credibility of the witnesses, ignoring key Hillen factors to conclude
     that the appellant interfered with the investigation by attempting to influence the
                                                                                        6

      witness statement in question. Id. at 11-15; see Hillen v. Department of the Army,
      35 M.S.P.R. 453, 458 (1987) (setting forth factors to be considered by an
      administrative judge in making credibility determinations).
¶8         We disagree with the appellant.      Given his personal involvement in the
      altercation at issue, it would be unusual for the appellant’s supervisor to have
      involved him in securing statements from any of the witnesses.          Indeed, the
      appellant’s supervisor implicitly acknowledged this point when she testified that,
      when the appellant sought to correct the witness, he would have “no business
      knowing” the content of the statement because it was part of an ongoing
      investigation. HT (Oct. 7, 2015) at 264-65. Additionally, we note the individual
      making the statement at issue testified that it was the appellant who said to her
      that he would need a statement from her, not the appellant’s supervisor.         Id.
      at 157-58.
¶9         Nevertheless, even if his supervisor had asked the appellant to take the
      statement at issue, the record supports the administrative judge’s finding that the
      appellant inappropriately interfered with the investigation.    ID at 10-11.    The
      appellant admitted “sharing” his position that he did not hit the subordinate
      employee, HT (Oct. 8, 2015) at 283, and we agree with the administrative judge
      that the individual making the statement in question credibly testified that the
      appellant’s pressure in that regard made her uncomfortable, causing her to discard
      the partial statement she executed under the appellant’s influence and rewrite it,
      id. at 159-69; ID at 10-11. Importantly, concerning the first specification, that
      individual’s rewritten statement reflects that the appellant did hit the subordinate
      employee, IAF, Tab 5 at 141-42, and the appellant’s testimony indicates that he
      clearly understood the serious consequences of doing so, HT (Oct. 8, 2015)
      at 265-66, giving him ample incentive to try to influence the statement at issue to
      indicate that he did not hit the subordinate employee.
¶10        The appellant argues that the deciding official committed harmful error by
      considering information not included in the notice of proposed removal, that
                                                                                        7

      being the deciding official’s comment that managers had reported to him
      previously that the appellant had performance issues.         PFR File, Tab 4 at 21.
      However, the information in the notice of proposed removal on this particular
      Douglas factor and the analysis of it is substantially the same as it is in the
      decision letter, both of which found the information to weigh against the penalty
      of removal.    IAF, Tab 5 at 42, 88.     The deciding official determined that the
      appellant’s overall satisfactory performance did not mitigate the seriousness of
      his misconduct. Nonetheless, a deciding official’s familiarity with the facts of
      the case does not constitute a due process violation or harmful error. Martinez v.
      Department of Veterans Affairs, 119 M.S.P.R. 37, ¶ 11 (2012). We find that, on
      this record, the appellant fails to meet his burden to establish actual bias or an
      intolerable risk of unfairness pertaining to this issue. Id., ¶ 10.
¶11         The appellant argues that the penalty of removal should be mitigated in
      light of Faucher. PFR File, Tab 4 at 12, 19-20. The Board has found mitigation
      of a removal to a suspension appropriate in a charge of physical assault on a
      coworker when: (1) no serious injury results; (2) no weapons are used; (3) the
      employee has a history of satisfactory performance; (4) the agency does not rely
      upon a prior disciplinary record in selecting the penalty; and (5) there is an
      element of provocation present.      Faucher, 41 M.S.P.R. at 339.     The appellant
      contends that he is less culpable than the appellant in Faucher because he only
      raised his arms in self-defense. PFR File, Tab 4 at 20. The administrative judge
      found that the appellant struck the subordinate employee, and, as noted above, we
      agree with her assessment of the evidence.        ID at 9.   We also agree with the
      administrative judge that the appellant failed to avail himself of several
      opportunities to defuse the situation during the multiple verbal exchanges that
      occurred between the parties to the altercation before the situation turned
      physical. ID at 22. Nevertheless, despite any similarities between the conduct
      recounted in the first specification and that which occurred in Faucher, the
      second specification not only distinguishes this case from Faucher, but is crucial
                                                                                       8

      to the penalty analysis, especially considering the judgment of the deciding
      official that the appellant sought to influence the witness statement at issue for
      his own gain. IAF, Tab 5 at 41.
¶12        When, as here, all of the agency’s charges are sustained, the agency’s
      penalty determination is entitled to deference and should be reviewed only to
      determine if it is within the parameters of reasonableness.        E.g., McNab v.
      Department of the Army, 121 M.S.P.R. 661, ¶ 11 (2014). The record reflects that
      the deciding official considered the relevant Douglas factors and that the
      administrative judge explicitly did so in light of Faucher.     ID at 20-23; IAF,
      Tab 6 at 41-43. We find that, considering the significant misconduct established
      in the matter, especially in view of the appellant’s status as a supervisor and the
      higher standard of conduct and integrity that entails, the penalty of removal is
      well within the bounds of reasonableness. E.g., Neuman v. U.S. Postal Service,
      108 M.S.P.R. 200, ¶ 23 (2008) (observing that agencies are entitled to hold
      supervisors to a higher standard of conduct).
¶13        The appellant also argues in his petition for review that he received
      ineffective counsel, alleging that his representative made several mistakes in
      representing him. PFR File, Tab 4 at 20-22. He suggests that his representative
      never read the agency file, id. at 20, but the record shows these documents were
      served on the appellant electronically because he registered as an e-filer and also
      were served by mail on his representative of record when the agency filed its
      response file, IAF, Tab 5 at 181. He also notes his representative’s failure to
      properly serve several documents, contending that in one instance such failure
      cost him important witness testimony regarding his allegation that certain
      witnesses were coached by union officials.           PFR File, Tab 4 at 20-21.
      Nevertheless, the appellant fails to show that any of this would have changed the
      result, and the Board has long held that an appellant is responsible for the errors
      of his chosen representative. Sofio v. Internal Revenue Service, 7 M.S.P.R. 667,
      670 (1981).
                                                                                       9

¶14        Finally, the appellant argues that the administrative judge erred in admitting
      a late-discovered document that should have been included with the agency file
      involving these same witnesses and which he claims was fabricated to support his
      removal.    PFR File, Tab 4 at 23-26.         The administrative judge devoted
      considerable space to the analysis of this claim, and we agree with her that the
      appellant failed to demonstrate that the union inappropriately influenced any of
      the witness statements in dispute or that any of these employees were biased
      against the appellant. ID at 7-9. We also agree with the administrative judge
      that, because the late-discovered document was not a part of the file that the
      proposing official or the deciding official considered, it does not demonstrate a
      harmful procedural error. ID at 14-15. Nor do we find that the administrative
      judge’s choice to admit this evidence amounts to an abuse of her considerable
      discretion concerning admitting evidence into the record. PFR File, Tab 4 at 26;
      see Townsel v. Tennessee Valley Authority, 36 M.S.P.R. 356, 359 (1988)
      (observing that an administrative judge has broad discretion to regulate the course
      of the hearing, including with regard to evidentiary issues).

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the U.S.
      Court of Appeals for the Federal Circuit. You must submit your request to the
      court at the following address:
                                    U.S. Court of Appeals
                                    for the Federal Circuit
                                   717 Madison Place, N.W.
                                    Washington, DC 20439

      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
                                                                                 10

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 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 U.S. 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 U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm.        Additional information 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.
      If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems 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:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
