                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     RANDOLPH HITCHCOCKBEY,                          DOCKET NUMBER
                  Appellant,                         CH-0752-14-0855-I-3

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: December 28, 2016
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Randolph Hitchcockbey, Chicago, Illinois, pro se.

           Maryl R. Rosen, Esquire, Chicago, Illinois, 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
     sustained 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
     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. 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, we conclude that the p etitioner 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        Effective September 3, 2014, the agency removed the appellant from his
     position as Supervisor of Customer Service based on a charge of Unacceptable
     Conduct in the Workplace. Hitchcockbey v. U.S. Postal Service, MSPB Docket
     No. CH-0752-14-0855-I-1, Initial Appeal File (IAF), Tab 4 at 52, 63. The agency
     based the charge on a series of incidents involving the appellan t’s interactions
     with two subordinate female employees at two different locations, who alleged
     that he engaged in inappropriate conduct that made them feel uncomfortable in
     the workplace. Id. at 63-66. Both employees filed equal employment opportunity
     complaints, which resulted in a paid settlement by the agency. Hitchcockbey v.
     U.S. Postal Service, MSPB Docket No. CH-0752-14-0855-I-3, Appeal File
     (I‑3 AF), Tab 20, Initial Decision (ID) at 17-18. 2     The agency removed the
     appellant for alleged misconduct which included, among other things, sending
     inappropriate texts and making lewd comments. IAF, Tab 4 at 63-64. He also
     allegedly sexually assaulted another woman that he supervised, on two separate
     occasions, and exposed himself to her. Id. at 65. The agency specified in the

     2
       The appellant initially filed this case on September 23, 2014. IAF, Tab 1. The
     administrative judge subsequently dismissed the appellant’s appeal twice, without
     prejudice to refiling. IAF, Tab 11; Hitchcockbey v. U.S. Postal Service, MSPB Docket
     No. CH-0752-14-0855-1-2 (I-2 AF), Tab 12.
                                                                                       3

     charge that the appellant’s conduct violated the agency’s rules and regulations.
     Id. at 67-68.
¶3         The deciding official for the agency concluded that the appellant’s
     unacceptable conduct violated         the Postal Service Policy on Workplace
     Harassment.     Id. at 52-55, 67.    The deciding official also determined that the
     appellant’s unacceptable conduct violated the Postal Service rules and regulations
     regarding Loyalty, Discharge of Duties, Behavior and Personal Habits, and
     Violent and/or Threatening Behavior. Id. The appellant filed an appeal with the
     Board challenging the agency’s removal action. I-3 AF, Tab 1.
¶4         After holding a hearing, the administrative judge issued an initial decision
     sustaining the charge as specified and affirming the removal penalty. ID at 29.
     The administrative judge found, inter alia, that: (1) the testimony of the agency’s
     witnesses was more credible than the appellant’s denial that he committed the
     charged misconduct; (2) the appellant failed to prove that the accusations against
     him were fabricated; (3) preponderant evidence supported the charge; and (4) the
     agency proved nexus between the efficiency of the service and the unacceptable
     conduct.     ID at 18-29.   The administrative judge also found that the agency
     considered relevant factors in making its penalty selection, and that the selected
     removal penalty was reasonable, considering the appellant’s supervisory position,
     the repeated and serious nature of his misconduct, and the agency’s loss of trust
     in him. ID at 28‑29. The appellant filed a petition for review, and the agency
     responded in opposition to his petition.         Petition for Review (PFR) File,
     Tabs 1, 5.
¶5         On review, the appellant states that he was denied the right to submit
     evidence and call witnesses.        PFR File, Tab 1 at 3.   We find that the record
     does not support his argument.        Based on the record, the administrative judge
     gave the appellant ample time and opportunity to prepare for the hearing on his
                                                                                             4

     appeal. 3   In response to the administrative judge’s prehearing order, the
     appellant’s counsel provided prehearing submissions and amended submissions
     designating eight witnesses, all of whom were approved and appeared at the
     hearing. I-3 AF, Tabs 3, 7‑8, 10. The appellant also specified in his prehearing
     submission that he would rely on the documents in the agency file, and he did not
     identify any additional documents for use at the hearing. I-3 AF, Tabs 7‑8.
¶6         Regarding the appellant’s argument that he was unable to submit certain
     evidence because agency human resources personnel stated that they were
     unable to find any records, we note that the Board’s acknowledgment order
     informed the appellant of the Board’s discovery procedures under 5 C.F.R.
     §§ 1201.71‑1201.85. PFR File, Tab 1 at 3; IAF, Tab 2 at 3; I-3 AF, Tab 2 at 1.
     In the event that an agency refuses to voluntarily make pertinent documents
     reasonably available prior to a Board proceeding, the Board’s rules provide for
     the issuance of orders compelling discovery by interrogatory o r deposition, and
     for the issuance of subpoenas. See Kinsey v. U.S. Postal Service, 12 M.S.P.R.
     503, 505-06 (1982).       If the appellant and his representatives failed to avail
     themselves of the Board’s discovery procedures to obtain the information
     necessary to prepare his case, then he may not now claim on review that the
     agency harmed him by refusing to assist voluntarily in his preparation for
     proceedings before the Board. See Perry v. U.S. Postal Service, 46 M.S.P.R. 425,
     431 (1990), aff’d, 937 F.2d 623 (Fed. Cir. 1991) (Table); Kinsey, 12 M.S.P.R.
     at 505-06. Although the appellant also argues that he lacked proper counseling, it


     3
       The appellant’s first attorney withdrew from the case, and the administrative judge
     granted the appellant’s request to dismiss his appeal witho ut prejudice to refiling. IAF,
     Tab 11. After the case was automatically refiled, the appellant asked the admini strative
     judge to suspend the appeal to allow him time to find representation , and the
     administrative judge granted his request. I-2 AF, Tab 3. The appellant subsequently
     found an attorney and the administrative judge again dismissed the appeal without
     prejudice, allowing the appellant’s new counsel time to become familiar with his case
     before it was automatically refiled. I-2 AF, Tab 12 at 2.
                                                                                     5

     is well settled that the appellant is responsible for the errors of his chosen
     representative.    PFR File, Tab 1 at 5; Sofio v. Internal Revenue Service,
     7 M.S.P.R. 667, 670 (1981). We therefore find that the appellant’s argument that
     he was denied the right to submit evidence and call witnesses has no merit.
¶7        On review, the appellant also argues that the administrative judge failed to
     consider that he was not in the “right frame of mind” due to an unspecified
     medical condition.    PFR File, Tab 1 at 4.     Because the appellant raised this
     argument for the first time on review and he has not shown that he based his
     argument on new and material evidence not previously available despite his due
     diligence, the Board will not consider it. Banks v. Department of the Air Force,
     4 M.S.P.R. 268, 271 (1980).       The appellant’s arguments on review present no
     reason to disturb the administrative judge’s findings concerning the charge,
     nexus, and penalty.       See generally Cisneros v. Department of Defense,
     83 M.S.P.R. 390, ¶¶ 15-20 (1999) (finding that removal was a reasonable penalty
     for a supervisor who violated the agency’s sexual harassment policy despite his
     14 years of service and very good work performance), aff’d, 243 F.3d 562 (Fed.
     Cir. 2000) (Table). We therefore deny the petition for review.

                       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
                                                                                  6

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
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.
