                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     WADIE BUTLER,                                   DOCKET NUMBER
                         Appellant,                  DA-0752-14-0196-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: September 23, 2014
                   Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Kenneth Brady and Samuel C. Beale, Esquire, Houston, Texas, for the
             appellant.

           Nadalynn F. Hamilton, 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 the appellant’s 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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                         BACKGROUND
¶2           On November 12, 2013, the agency proposed the appellant’s removal from
     his position as Full-time Regular City Carrier, for unacceptable conduct. Initial
     Appeal File (IAF), Tab 6 at 15. According to the specification, on August 13,
     2013, while assigned to official duties on Route 7227 at Beechnut Station in
     Houston, Texas, “witness statements and a joint Labor-NALC 2 investigation
     revealed [that the appellant was] involved in a physical and verbal altercation
     with . . . [the] Manager at Beechnut Station.” IAF, Tab 5 at 15. The appellant
     responded. IAF, Tab 6 at 22-29. The deciding official sustained the charge and
     removed the appellant effective January 17, 2014. IAF, Tab 6 at 10-13.
¶3           The appellant, a preference-eligible veteran, timely filed a Board appeal, in
     addition to filing a grievance with the agency.          IAF, Tab 1.     On appeal, the
     appellant partially denied the charge, argued that the penalty was too severe, and
     claimed disparate treatment. IAF, Tab 1 at 12, Tab 11, Hearing Compact Disc
     (HCD). The agency responded in opposition. IAF, Tab 6 at 3-7. After holding a

     2
         NALC is an abbreviation for the National Association of Letter Carriers.
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     hearing, the administrative judge: (1) sustained the charge of unacceptable
     conduct; (2) found that the appellant’s removal was reasonable and promoted the
     efficiency of the service; and (3) further found that “the seriousness of the
     appellant’s conduct militate[d] against mitigating the penalty.”     IAF, Tab 12,
     Initial Decision (ID).   Thus, the administrative judge affirmed the appellant’s
     removal. ID.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶4        The appellant has timely filed a petition for review. Petition for Review
     (PFR) File, Tab 1. On review, the appellant argues that: (1) the administrative
     judge improperly excluded a “key witness”; (2) the agency committed procedural
     error by selecting a biased deciding official; and (3) the administrative judge
     failed to properly consider the Douglas factors. Id. The agency has responded in
     opposition. PFR File, Tab 3.
¶5        The appellant does not challenge the administrative judge’s findings that
     the agency proved the charge of unacceptable conduct by preponderant evidence
     and that the appellant failed to prove disparate treatment for failing to “identify
     any similarly-situated employee who received a lesser penalty.” Id.; ID at 9-10.
     Based on our review of the record, we discern no error in the administrative
     judge’s findings. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997)
     (finding no reason to disturb the administrative judge’s findings where 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).

     The appellant failed to preserve his objection to and establish error in the
     administrative judge’s decision to exclude the proposing official as a witness.
¶6        The appellant alleges that the administrative judge erred in excluding the
     proposing official as a witness. PFR File, Tab 1 at 5. However, an appellant’s
     failure to timely raise objections to witnesses before the administrative judge
                                                                                       4

     precludes him from raising them for the first time on petition for review. Tarpley
     v. U.S. Postal Service, 37 M.S.P.R. 579, 581 (1988). The appellant failed to raise
     his objection to the administrative judge’s summary of the telephonic prehearing
     conference that notified the parties of the approved witnesses, IAF, Tab 9, or at
     the hearing, see HCD, despite being provided the opportunity to do so. Thus, the
     appellant has waived his objection to the administrative judge’s exclusion of the
     proposing official as a witness.
¶7        Moreover, the administrative judge has wide discretion to exclude witnesses
     where it has not been shown that their testimony would be relevant, material, and
     nonrepetitious. 5 C.F.R. § 1201.41(b)(8), (10); see Franco v. U.S. Postal Service,
     27 M.S.P.R. 322, 325 (1985). According to the appellant, the proposing official’s
     testimony was “key” because the proposing official was his “immediate
     supervisor” and allegedly admitted to a union representative that he would have
     proposed a lesser penalty. Id. at 5-6. Yet, the appellant has failed to show the
     relevance of this testimony. The deciding official, not the proposing official, has
     the authority to make the penalty determination. Furthermore, as evidenced by
     the agency’s notice, the proposing official in fact recommended removal, see IAF,
     Tab 6 at 15-18; therefore, any subsequent statement by the proposing official that
     contradicts his proposal would affect his, not the deciding official’s, credibility.
     See McCauley v. Department of the Interior, 116 M.S.P.R. 484, ¶ 9 (2011).
     Consequently, the appellant has failed to show that the administrative judge erred
     in excluding the proposing official as a witness.

     The appellant has failed to show that the agency’s deciding official prejudged the
     merits of the removal action or was otherwise biased against him.
¶8        The appellant argues that the agency committed procedural error because
     the agency denied his “right to have his case heard by a neutral third party Area
     Manager.” PFR File, Tab 1 at 5-6. An appellant’s due process rights are violated
     when his basic rights are determined by a biased decision maker. Martinez v.
                                                                                          5

      Department of Veterans Affairs, 119 M.S.P.R. 37, ¶ 10 (2012). The burden is on
      the appellant to establish that the decision maker was actually biased. Id.
¶9         In support, the appellant argues that the deciding official was biased
      because she was the “immediate supervisor and possible mentor” of the Manager
      of Beechnut Station, who was the other person involved in the charged
      altercation. PFR File, Tab 1 at 5-6. However, those facts alone are insufficient
      to establish bias, even if that connection somehow led the deciding official to be
      predisposed against the appellant.        See Svejda v. Department of Justice,
      7 M.S.P.R. 108, 111 (1981) (finding no general proscription of the appointment
      of a person as deciding official who may be familiar with the facts of the case or
      may have a predisposition against the appellant).       The appellant’s generalized
      allegations fail to establish that the deciding official’s independent judgment was
      compromised or that she did not meaningfully consider all of the evidence.
      Rather, based on the record evidence and the deciding official’s testimony, the
      administrative judge properly found that the deciding official “properly exercised
      her discretion.” ID at 12. Because the appellant has not shown any bias, much
      less bias constituting harmful error, he has failed to establish that the agency
      committed procedural error by selecting this particular deciding official.

      The administrative judge properly considered the Douglas factors.
¶10        The appellant alleges that the administrative judge erred in finding that the
      penalty was reasonable because he considered only 3 of the 12 Douglas 3 factors.
      PFR File, Tab 1 at 6-10. As the administrative judge correctly stated, where, as
      here, all of the agency’s charges are sustained, the Board will review the
      agency-imposed penalty only to determine if the agency considered all the
      relevant factors and exercised management discretion within the tolerable limits
      of reasonableness.    Ellis v. Department of Defense, 114 M.S.P.R. 407, ¶ 11

      3
        See Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981) (setting forth
      the factors appropriate for consideration in determining the reasonableness of an
      agency-imposed penalty).
                                                                                            6

      (2010); Douglas, 5 M.S.P.R. at 305-06.         The agency need not address all 12
      factors, merely those that are relevant. Douglas, 5 M.S.P.R. at 306 (clarifying
      that not all 12 factors will necessarily be pertinent in every case). The Board will
      modify or mitigate an agency-imposed penalty only where it finds that the agency
      failed to weigh the relevant factors or the penalty clearly exceeds the bounds of
      reasonableness. Singletary v. Department of the Air Force, 94 M.S.P.R. 553, ¶ 9
      (2003), aff’d, 104 F. App’x 155 (Fed. Cir. 2004).
¶11         We disagree with the appellant’s contention. The decision letter and the
      deciding official’s testimony clearly indicate that she considered the relevant
      Douglas factors. 4   In her decision letter, the deciding official stated that she
      assessed the penalty in accordance with the Douglas factors.           IAF, Tab 6 at
      10-11. Also, she accounted for mitigating and aggravating factors, specifically,
      the appellant’s “length of service, position, past record,” and “potential for
      rehabilitation” and “the nature and seriousness of the offense.” Id. The deciding
      official’s testimony also was consistent with her decision letter, and it elaborated
      on the rationale behind her decision.        See ID at 10-12.       In particular, the
      administrative judge noted that the deciding official found that the appellant acted
      intentionally, he complained of the Beechnut Station Manager rather than offer an
      apology after the incident, he created an unsafe environment for employees, and
      his actions inhibited managers’ ability to correct employees without fear. ID at
      2-3, 10-11.
¶12         Next, the appellant argues that the agency failed to adhere to its own
      progressive discipline policy. PFR File, Tab 1 at 7. Progressive discipline is
      intended to ensure that an employee is on notice that his misconduct will not be

      4
         To the extent the appellant suggests that a deciding official must state, with
      particularity, which of the Douglas factors relate to the specification supporting a
      charge, he provides no authority for his position, and we are aware of none. We further
      find that the administrative judge did not abuse his discretion in allowing the deciding
      official to testify as to her rationale for imposing the penalty. See 5 C.F.R.
      § 1201.41(b)(10) (authority of the administrative judge to receive relevant evidence).
                                                                                        7

      tolerated.   See Cascio v. General Services Administration, 21 M.S.P.R. 7, 10
      (1984). Progressive discipline may be appropriate when there is a chance that it
      will successfully modify the appellant’s conduct and lesser sanctions are expected
      to deter such conduct in the future.       See Merchant v. U.S. Postal Service,
      52 M.S.P.R. 330, 334, aff’d, 980 F.2d 745 (Fed. Cir. 1992) (Table). Here, the
      deciding official emphasized that the agency has a zero tolerance policy regarding
      violence, of which the appellant was on notice. HCD. Also, she determined that
      a lesser penalty would not deter future misconduct, but instead would condone
      such behavior. HCD. Thus, to the extent that it has a progressive discipline
      policy, the agency properly declined to implement it here, where the appellant
      intentionally violated the agency’s zero tolerance policy.
¶13         Regarding possible mitigating factors, although the deciding official did not
      address the issue of provocation, as she was “unaware” of any provocation, the
      administrative judge did address the issue. ID at 11. Here, the appellant alleged
      that the Beechnut Station Manager had “purposely and maliciously” shorted the
      appellant’s pay 1 month prior to the incident, and also that he was punishing the
      appellant for not finishing his route the prior day. HCD. To whatever extent that
      Manager’s actions could be construed as provocation, the Manager did not take
      physical action against the appellant. See ID 2-9. Thus, we find that provocation
      does not justify mitigation of the appellant’s penalty.
¶14         Therefore, we agree with the administrative judge that the agency
      considered the appropriate Douglas factors and we defer to the agency’s imposed
      penalty of removal. See Davis v. U.S. Postal Service, 120 M.S.P.R. 457, ¶ 16 n.4
      (2013) (removal under an agency’s zero tolerance policy is entitled to deference
      when the deciding official properly considers the relevant Douglas factors). In
      sum, we find no reason to mitigate the appellant’s removal or to disturb the initial
      decision.
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                 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

     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
                                                                           9

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.
