                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MARK J. OBIEDZINSKI,                            DOCKET NUMBER
                   Appellant,                        PH-0752-15-0522-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: October 5, 2016
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           William Simpson, Esquire, Philadelphia, Pennsylvania, for the appellant.

           Lori L. Markle, Esquire, Philadelphia, Pennsylvania, 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 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 regulation
     or the erroneous application of the law to the facts of the case; the administrative

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).
¶2          The    agency    removed    the   appellant   from     his   EAS-17   Supervisor,
     Distribution Operations (SDO), effective August 22, 2015, based on a single
     charge of “IMPROPER CONDUCT/Failure to Follow Instructions.” Initial
     Appeal File (IAF), Tab 6 at 15-20, 54-57. As discussed in more detail below, the
     agency directed him to report for duty on July 10, 2014, 2 which was normally one
     of his scheduled off days, and he did not report for duty. He filed an appeal in
     which he claimed that the agency was wrong to try to force him to work on one of
     his off days. IAF, Tab 1 at 6.
¶3          After holding the requested hearing, the administrative judge found that the
     agency proved the charge by preponderant evidence.                  IAF, Tab 31, Initial
     Decision (ID) at 10.      The administrative judge also found that the penalty of
     removal was within the acceptable bounds of the agency’s management
     discretion. ID at 11-16. The appellant petitions for review of the initial decision.
     Petition for Review (PFR) File, Tab 1.
¶4          The administrative judge’s fact findings as set forth below are not disputed
     by the appellant on review. The appellant is a postal supervisor who worked a
     full-time schedule with Wednesdays and Thursdays as his regularly scheduled off

     2
         All dates are in 2014 except where otherwise indicated.
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     days. Because one of the other supervisors was on a preapproved vacation, the
     agency had to shuffle its supervisory schedules to provide appropriate coverage.
     When the agency posted the schedule for the week of July 5-11, it scheduled the
     appellant to come in on Thursday, July 10, normally the appellant’s off
     day. Id. at 100. On July 8, the Lead Manager of Distribution Operations (MDO)
     used the walkie-talkies to remind the SDOs that some of them were required to
     work their off days. The appellant responded over the walkie-talkie that he was
     starting his vacation in the next few hours (he was not scheduled to work on
     July 9).   The appellant’s remark was overheard by another supervisor who
     reported it up the chain of command, which resulted in a meeting with the
     appellant, the Lead MDO, and the Plant Manager.
¶5         At that meeting, they told the appellant twice that he was required to work
     on July 10. He responded first that he did not need to work that day because it
     was his off day. The second time, he responded that he would not come to work
     on July 10 because he had family obligations. He neither reported for work nor
     called in to request leave on July 10.    Based on these undisputed facts, the
     administrative judge found that the agency proved its charge by preponderant
     evidence, and we agree.
¶6         Although the appellant defiantly insisted to the agency that it had no
     authority to compel him to come to work on his off day, he had a medical
     appointment scheduled for that day and, therefore, a legitimate reason to be on
     leave that day.   However, the appellant did not inform the agency about his
     appointment, request leave before the appointment, call in on the day of the
     appointment, or raise it as a defense during the removal proceedings. He did,
     however, submit documentation in support of a request for leave under the Family
     and Medical Leave Act of 1993 (FMLA) after the fact.         At the hearing, the
     appellant explained that he did not inform the agency about his medical
     appointment because he wanted to keep his medical issues private.
                                                                                           4

¶7         On review, the appellant states that his representative did not make the
     arguments the appellant wished him to make, did not submit the documents the
     appellant wished him to submit, and otherwise did not handle his appeal properly.
     PFR File, Tab 1 at 3-4. He also alleges that his wife is permanently disabled and
     he asked his representative to submit evidence showing that the appellant devoted
     a great deal of time to her care. Id. at 4-6. He avers that the agency’s failure to
     respect the appellant’s commitment to his wife violates the Americans with
     Disabilities Act Amendments Act of 2008. Id. at 6. He further asserts that he
     was on approved FMLA leave during his absence. Id. at 5.
¶8         With his petition for review, he submits several pages of Department of
     Labor FMLA forms. These forms are already in the record and, therefore, are not
     new and material evidence. Meier v. Department of the Interior, 3 M.S.P.R. 247,
     256 (1980).     Moreover, the documents reveal what is already known, that the
     appellant was incapacitated for duty from July 9 through July 25, 2014.            PFR
     File, Tab 1 at 9-10. Even if the appellant was entitled to leave on July 10, he
     knew in advance that he had a medical appointment and was not entitled to just
     not show up for work.       Aside from these documents, the appellant does not
     describe any other evidence or argument that his representative should have
     submitted. 3 In the end, the appellant is responsible for the errors of his chosen
     representative. Sofio v. Internal Revenue Service, 7 M.S.P.R. 667, 670 (1981).
¶9         In his reply to the agency’s response to his petition for review, the appellant
     implies that the administrative judge was biased in favor of the agency because
     the administrative judge and the agency representative were formerly colleagues
     when the administrative judge previously worked at the agency.               This bare
     assertion, without some indication of deep-seated favoritism, is insufficient to
     overcome      the   presumption   of   honesty   and    integrity   that   accompanies

     3
       The argument concerning the appellant’s obligations to care for his disabled wife
     is not relevant in this case because the appellant did not appear for work on July 10 to
     care for his wife.
                                                                                       5

      administrative adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R.
      382, 386 (1980).
¶10        The appellant contends for the first time on review that the deciding official
      in his case was not a local management official, did not know the participants,
      and should have conducted his own independent investigation before making a
      decision. PFR File, Tab 1 at 15. The appellant, who was represented by counsel
      below, had ample opportunity to raise this harmful error/due process claim before
      the record closed below. Because he has not shown why, despite his due
      diligence, he could not have done so, the Board need not consider it. Banks v.
      Department of the Air Force, 4 M.S.P.R. 268, 271 (1980).
¶11        Turning to the penalty, where 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 (2010). In making this determination, the Board
      must give due weight to the agency’s primary discretion in maintaining employee
      discipline and efficiency, recognizing that the Board’s function is not to displace
      management’s responsibility, but to ensure that managerial judgment has been
      properly exercised. Id. The Board will modify or mitigate an agency-imposed
      penalty only where it finds the agency failed to weigh the relevant factors or the
      penalty clearly exceeds the bounds of reasonableness. Id.
¶12        The appellant has 10 years of service and has been a supervisor since 2007.
      He has a prior disciplinary record consisting of a May 16, 2013 Letter of Warning
      in Lieu of 7-Day Suspension for failure to meet the availability/dependability
      requirements of his position. IAF, Tab 6 at 112-16. This is not a case in which
      an employee engaged in essentially private defiant behavior towards a supervisor.
      The appellant broadcast over the walkie-talkie that he was not going to report for
      work on July 10 so that anyone within range could hear and then followed
      through by not reporting for duty. This undermines discipline, sets an appalling
                                                                                          6

      example for employees, and is practically incomprehensible in a supervisor, who,
      of course, is held to a higher standard of conduct.           Edwards v. U.S. Postal
      Service,      116 M.S.P.R.     173,    ¶ 14    (2010);    Neuman v.      U.S.   Postal
      Service, 108 M.S.P.R. 200, ¶ 23 (2008).          In determining the propriety of a
      penalty, the Board places primary importance on the nature and seriousness of the
      offense and its relation to the appellant’s duties, position, and responsibilities.
      Neuman, 108 M.S.P.R. 200, ¶ 23. One of the appellant’s duties as a supervisor is
      to make sure that his employees come to work when they are supposed to and
      enforce the rules when they do not. His own defiance in refusing to report for
      work when the exigencies of business required a change to his regular schedule is
      plainly inconsistent with his supervisory responsibilities.
¶13           The deciding official was particularly concerned about the appellant’s lack
      of rehabilitative potential. The appellant showed no remorse for his actions, he
      never explained his behavior or apologized for it, and he did not take any
      responsibility for it, which tends to show that a lesser penalty would not be
      sufficient to deter similar conduct in the future. The Board has found that an
      appellant’s attempt to shift the blame for his misconduct to others or his display
      of an arrogant attitude during the removal process reflects poor potential for
      rehabilitation. Alberto v. Department of Veterans Affairs, 98 M.S.P.R. 50, ¶ 10
      (2004); Adam v. U.S. Postal Service, 96 M.S.P.R. 492, ¶ 9 (2004), aff’d, 137 F.
      App’x 352 (Fed. Cir. 2005); IAF, Tab 6 at 16. As the administrative judge noted
      in the initial decision, the appellant testified at the hearing that the agency was
      equally to blame for the situation. ID at 14.
¶14           We agree with the administrative judge that the deciding official considered
      the Douglas 4 factors most relevant to the case. The appellant may wish that the
      deciding official had weighed the Douglas factors differently, but that provides
      no basis for the Board to disturb the agency’s penalty determination.

      4
          Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981).
                                                                                    7

                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:
                          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 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
                                                                                  8

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.
