                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     HERBERT L. BUCHANAN,                            DOCKET NUMBER
                   Appellant,                        DA-0752-12-0008-B-2

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: November 10, 2014
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

            Sammi Wilmoth, Esquire, Fayetteville, Arkansas, for the appellant.

            Susan L. LaSalle, 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 remand initial decision,
     which affirmed the agency’s removal action. 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 appellant filed an appeal from the agency’s action removing him from the
     position of City Letter Carrier with the U.S. Postal Service based on misconduct.
     MSPB Docket No. DA-0752-12-0008-I-1 (I-1), Initial Appeal File (IAF), Tab 1,
     Tab 5 at 72. The record reflects that the appellant was investigated after the Data
     Mining Group of the Office of Inspector General (OIG) notified the agency that
     the appellant may have been involved with theft of mail. The agency alleged that
     an    investigation   determined   that   in   November   2010,   Wal-Mart    mailed
     promotional gift cards valued at $5.00 each to residents of Springdale, Arkansas.
     Id. Recipients of the cards were required to call a Wal-Mart telephone number to
     activate them prior to use. The agency alleged that records disclosed that the
     appellant activated 22 of the gift cards from his cellular telephone. Wal-Mart
     receipts reflect that the appellant redeemed and converted 12 of those gift cards
     for his personal use.     Id.   The proposal notice also stated that, during the
     investigatory interview the appellant admitted that he took the Wal-Mart gift
     cards from mailings sent through the Springdale post office that were in a mail
     tub in his mail truck. The appellant acknowledged that he should have returned
     the cards to the office for disposal as undeliverable bulk business mail (UBBM).
                                                                                       3

     The proposal notice alleged further that the appellant admitted activating some of
     the cards from his personal cell phone and that he made personal purchases at the
     Wal-Mart stores in Fayetteville and Springdale. Id. The appellant’s employment
     was terminated effective October 3, 2011. See IAF, Tab 4 at 65-68, Tab 5 at 72.
¶3      On appeal, the administrative judge sustained the charged misconduct and
     affirmed the appellant’s removal, finding that the agency proved that the
     appellant retrieved Wal-Mart cards from the mail and activated them for his
     personal use, and that the appellant failed to prove his affirmative defenses. IAF,
     Tab 28, Initial Decision (ID) at 6. The appellant filed a petition for review in
     which he argued that the agency violated his right to due process and, in the
     alternative, that the agency committed harmful procedural error. IAF, Tab 27 at
     11; I-1, Petition for Review (PFR) File, Tab 1 at 12. Specifically, the appellant
     argued that the agency erred because it did not provide him the opportunity to
     review the evidence it relied on in reaching its removal decision. Id. at 12. In
     particular, the appellant asserted that the agency did not provide him the OIG
     report or the ex parte comparator information that the deciding official considered
     when making the determination to remove him. Id.
¶4      The Board remanded the case for the administrative judge to determine
     whether the agency provided the appellant all of the information relied on in the
     determination to remove him, including the OIG report and the comparator
     information, prior to the appellant’s response to the notice of removal.        On
     remand, the administrative judge found that the agency provided the appellant
     with all of the information relied on in the determination to remove him
     including: (a) the OIG report considered by the deciding official;         (b) the
     comparator information received from Labor Relations and considered by the
     deciding official; and (c) the information received from the proposing official by
     the deciding official regarding the appellant’s work history and potential for
     rehabilitation, prior to the appellant’s response to the removal notice.    MSPB
                                                                                        4

     Docket No. DA-0752-12-0008-B-2 (B-2), Remand Initial Decision (RID) at 2-8.
     The appellant has filed a petition for review of the remand initial decision.
¶5      On review, the appellant challenges the administrative judge’s findings and he
     argues that the removal action should be reversed or, in the alternative, that the
     penalty should be mitigated to a suspension. B-2, Remand Petition for Review
     (RPFR) File, Tab 3. We have considered the appellant’s arguments on review
     concerning the administrative judge’s weighing of the evidence; however, the
     applicable law and the record evidence support the administrative judge’s
     findings that the agency provided the appellant with all of the information relied
     on in the determination to remove him. Thus, we discern no reason to reweigh
     the evidence or substitute our assessment of the record evidence for that of the
     administrative judge. 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 the
     administrative judge considered the evidence as a whole, drew appropriate
     inferences, and made reasoned conclusions); Broughton v. Department of Health
     & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
¶6      Specifically, the appellant contends that the administrative judge did not
     sufficiently consider and address all of the credibility factors when making his
     credibility determinations. RPFR File, Tab 3 at 9-12. The appellant asserts that
     his version of what transpired on August 8, 2011, the date the agency claims that
     his union representative was provided a copy of the OIG report, is more credible
     than the agency’s testimony. RPFR File, Tab 3 at 9-12. The appellant contends
     that his union representative consistently testified through two hearings that he
     did not see the OIG report prior to filing the grievance on August 25, 2011. Id.
     Similarly, the appellant argues that the comparator information was not provided
     prior to his response to the agency’s action and that the earliest possible time that
     potential comparators may have been mentioned was at the August 10 th meeting,
     and then it was only a general reference to another employee who was not
     identified. RPFR File, Tab 3 at 12-13.
                                                                                          5

¶7       However, while the administrative judge may not have addressed every
     statement made during the hearing, the administrative judge did make explicit
     credibility determinations based on the deciding official’s demeanor, and he
     relied on documentary evidence supporting that testimony in finding that the
     agency’s version of what transpired is more credible than the appellant’s version.
     RID at 3-8.     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 Haebe v. Department of Justice, 288 F.3d 1288, 1302 (Fed. Cir.
     2002) (the Board may overturn credibility determinations that are implicitly or
     explicitly based on demeanor only when it has “sufficiently sound” reasons for
     doing so).
¶8       Here, the administrative judge thoroughly reviewed the evidence and the
     hearing testimony and cited to Hillen v. Department of the Army, 35 M.S.P.R.
     453, 458 (1987), 2 in setting forth his credibility determinations. See RID at 4.
     Specifically, the administrative judge credited the deciding official’s testimony
     over the appellant’s version of events, finding that the deciding official’s
     testimony was straightforward and consistent. RID at 3-4.
¶9       Further, the administrative judge considered all of the evidence and found it
     more plausible that the appellant received the OIG investigation report on
     August 8, 2010, as the proposing official testified.       The administrative judge


     2
       To resolve credibility issues, an administrative judge must identify the factual
     questions in dispute, summarize the evidence on each disputed question, state which
     version he believes, and explain in detail why he found the chosen version more
     credible, considering such factors as: (1) the witness's opportunity and capacity to
     observe the event or act in question; (2) the witness's character; (3) any prior
     inconsistent statement by the witness; (4) a witness's bias, or lack of bias; (5) the
     contradiction of the witness's version of events by other evidence or its consistency
     with other evidence; (6) the inherent improbability of the witness's version of events;
     and (7) the witness's demeanor. Hillen, 35 M.S.P.R. at 458.
                                                                                      6

      found further that the appellant provided no evidence that the deciding official
      considered any comparator that the appellant was unaware of, and, while the
      appellant may not have known of the comparator at the beginning of the
      August 10, 2010 meeting, the appellant was aware of the comparator before the
      meeting ended. RID at 5. In addition, the administrative judge found that the
      appellant failed to show that the agency considered any comparator who was not
      disclosed to him. RID at 5. Thus, the administrative judge thoroughly addressed
      his credibility determinations in the remand initial decision and we discern no
      reason to disturb those well-reasoned findings.     See Crosby, 74 M.S.P.R. at
      105-06.
¶10      The appellant also challenges the administrative judge’s findings regarding the
      ex parte conversation that occurred between the proposing and deciding officials.
      Specifically, the appellant argues that a conversation between the proposing and
      deciding officials contained new information, i.e., information from the OIG
      report and comparator information, which he was not aware of at the time he
      responded to the charged misconduct. RPFR File, Tab 3 at 14/24. The appellant
      reasserts that this conversation constituted a due process violation and that the
      removal should be reversed in its entirety. RPFR File, Tab 3 at 16-20. However,
      the administrative judge found that the only topic discussed during this
      conversation was that the appellant was a good employee with no prior discipline.
      RID at 6. While the appellant may not have been aware of this discussion prior to
      the August 10, 2011 meeting, the administrative judge found that it did not
      constitute an improper ex parte conversation.      RID at 6.     Specifically, the
      administrative judge found that, because the proposal notice indicated that the
      appellant’s lack of prior discipline was considered, the appellant failed to
      establish that an ex parte conversation, the contents of which he was unaware
      before the August 10, 2011 meeting, had occurred. RID at 6.
¶11      The administrative judge found further that, even assuming arguendo that the
      agency did not provide the appellant with information relied on by the deciding
                                                                                      7

      official in making his determination to remove the appellant, the deciding
      official’s reliance on this information did not rise to the level of a due process
      violation.   RID at 7.   Here, the OIG report revealed that the appellant took
      Wal-Mart cards from a mail tub in his truck, activated 22 cards and converted 12
      cards for his personal use, conduct which the appellant admitted and
      acknowledged was wrong.      Because the appellant had already admitted to the
      misconduct, the administrative judge found nothing in the record to indicate that
      the OIG report provided new information to the deciding official, information to
      which the appellant was not provided the opportunity to respond. RID at 7. The
      administrative judge also found no indication that the ex parte communication
      placed undue pressure on the deciding official to rule in a particular manner. RID
      at 7-8. Nor did the administrative judge find any evidence that would support a
      finding that the deciding official was improperly influenced by information
      obtained from the OIG report, consideration of the appellant’s prior work history,
      or that there was a postmaster who engaged in similar misconduct and resigned.
      Thus, the administrative judge found that the appellant failed to show that the
      agency violated his due process rights.      While the appellant challenges the
      administrative judge’s findings and reasserts the arguments he raised below, the
      appellant has shown no basis upon which to disturb the administrative judge’s
      well-reasoned findings and determinations.
¶12      The appellant also argues that, although the agency claimed below that there
      was only one comparator, testimony during the hearing indicated that other
      potential comparators existed. RPFR, File, Tab 3 at 15. However, as to whether
      other comparators existed, the deciding official credibly testified that the only
      comparator he was aware of and that he considered when making his decision is
      the one comparator identified to the appellant during the August 10, 2011
      meeting.     Even though the appellant argues on review that there were other
      potential comparators, the appellant has provided no evidence that the agency
      considered any comparators not identified to him. Thus, the administrative judge
                                                                                         8

      correctly found that the appellant has failed to show a violation of his due process
      rights.
¶13      The appellant also argues that, in the alternative, even if there is no due
      process violation, the agency committed harmful procedural error and the removal
      penalty should be mitigated to a suspension.        RPFR File, Tab 3 at 20-22.
      However, harmful error under 5 U.S.C. § 7701(c)(2)(A) cannot be presumed; an
      agency error is harmful only where the record shows that the procedural error was
      likely to have caused the agency to reach a conclusion different from the one it
      would have reached in the absence or cure of the error. Stephen v. Department of
      the Air Force, 47 M.S.P.R. 672, 681, 685 (1991).
¶14      Here, the appellant admitted the misconduct cited in the OIG report, he was
      advised of the one comparator the agency considered in deciding to remove him,
      and the deciding official considered his lack of a disciplinary record. Further, the
      deciding official considered the entire evidentiary record and concluded that the
      appellant’s misconduct was very serious and that removal was warranted.        While
      the appellant continues to argue that the agency committed harmful error, he has
      made no showing that, even in the absence of the agency’s failure to disclose the
      OIG investigative report, the outcome would have been different. Accordingly,
      the appellant has shown no basis upon which to disturb the initial decision.

                      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. You must submit your request to
      the court at the following address:
                                United States Court of Appeals
                                    for the Federal Circuit
                                  717 Madison Place, N.W.
                                   Washington, DC 20439
                                                                                  9

     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 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 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 your court
appeal, 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 court. 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:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
