                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ROBERT BETHUNE, JR.,                            DOCKET NUMBER
                 Appellant,                          PH-0752-13-0109-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: January 22, 2015
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Steve Newman, Esquire, New York, New York, for the appellant.

           Lori L. Markle, Esquire, Philadelphia, Pennsylvania, 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 his removal for improper conduct. 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 began working for the agency in 1994. See Initial Appeal
     File (IAF), Tab 7 at 200.     In March 2010, he was detailed to a Manager of
     Operations Programs Support (MOPS) position, at an office approximately 127
     miles from his home. IAF, Tab 5 at 57-58. That detail became permanent at the
     end of July 2011. IAF, Tab 7 at 200. Throughout his time as the MOPS, the
     appellant routinely used an agency vehicle to commute the 127 miles, each way,
     to and from work. E.g., IAF, Tab 5 at 58, Tab 7 at 192. He also used an agency
     vehicle on one occasion to drive approximately 2 hours and 45 minutes, each
     way, to visit his daughter. IAF, Tab 7 at 194. For all of this personal use of an
     agency vehicle, the appellant used an agency credit card to purchase gas. Id. at
     193-94.   In addition, between August 2010 and April 2012, the appellant
     reportedly exhibited harassing behavior towards a coworker. 2 See id. at 40-41.


     2
      Although the coworker at issue was not in the appellant’s chain of command, she was
     a lower-level employee than he. Compare IAF, Tab 7 at 200 (reflecting that the
     appellant held a position at an EAS-24 level), with id. at 40-41 (reflecting that the
     coworker held a position at an EAS-21 level that was not in the appellant’s chain of
     command).
                                                                                          3

¶3         In April 2012, the agency placed the appellant in an emergency off-duty
     status to investigate his conduct. IAF, Tab 13, Subtab 19. In June 2012, the
     agency proposed his removal for improper conduct. IAF, Tab 7 at 39-42. In
     November 2012, the agency effectuated his removal.             IAF, Tab 5 at 17-21
     (decision letter). The improper conduct charge consisted of four specifications:
     (1) improper use of an agency vehicle for the daily commute to and from work
     between August 2011 and March 2012; (2) improper use of an agency credit card
     for gas used to commute to and from work between August 2011 and March 2012;
     (3) improper use of an agency vehicle to visit his daughter in March 2012; and
     (4) harassing behavior towards an agency employee between August 2010 and
     April 2012. IAF, Tab 7 at 39-41.
¶4         The appellant appealed his removal to the Board.           IAF, Tab 1.     After
     holding the requested hearing, the administrative judge affirmed his removal.
     IAF, Tab 31, Initial Decision (ID). The judge found that the agency proved each
     of the four specifications of improper conduct, ID at 3-11, and that while the
     agency failed to properly consider his lack of prior discipline in its penalty
     determination, removal remained appropriate, ID at 12-16.          The appellant has
     filed a petition for review. 3 Petition for Review (PFR) File, Tab 1. The agency
     has filed a response. PFR File, Tab 3.

     The appellant failed to prove that the agency engaged in harmful error or
     deprived him of due process.
¶5         As he did below, the appellant argues that his removal was defective
     because the agency purportedly failed to conduct a requisite pre-disciplinary
     interview (PDI) regarding his harassment of a coworker. PFR File, Tab 1 at 8-10
     (referencing the agency’s Employee and Labor Relations Manual (ELM), sections
     650-652); see IAF, Tab 26 at 19; ID at 11 n.5. He asserts that his version of

     3
       In his petition, the appellant does not dispute the administrative judge’s conclusion
     that the agency proved its charge and established the requisite nexus. We see no reason
     to disturb those well-reasoned findings on review. See ID at 3-11, 17.
                                                                                         4

     events “was not documented prior to the [a]gency’s issuance of its notice of
     proposed removal.” 4    Id. at 10.   The appellant suggests that this amounts to
     harmful procedural error and a deprivation of minimum due process. Id. at 8-10.
     We disagree.
¶6        It is well-established that, before imposing an appealable adverse action, the
     constitutional right to minimum due process requires that an agency provide an
     employee prior notice of charges, an explanation of its evidence, and an
     opportunity to respond. See Stephen v. Department of the Air Force, 47 M.S.P.R.
     672, 680-81 (1991) (citing Cleveland Board of Education v. Loudermill, 470 U.S.
     532, 546 (1985) (holding that a public employee who can be discharged only for
     cause has these pretermination rights)). Here, the agency afforded the appellant
     those protections by notifying him of the proposed removal on June 1, 2012,
     providing him with ample time to review the materials relied upon in support of
     the proposal, and providing him with the opportunity to respond both in person
     and in writing before making a decision on the proposal. E.g., IAF, Tab 7 at
     39-42 (proposal letter); see IAF, Tab 6 at 36-203 (the appellant’s response to the
     proposed removal), Tab 7 at 3-33 (continuation of the appellant’s response to the
     proposed removal). To the extent that the appellant suggests that the agency’s
     policy of providing a PDI is another constitutional due process requirement, he is
     mistaken. See Miller v. U.S. Postal Service, 110 M.S.P.R. 550, ¶ 6 (2009) (the
     agency did not violate the appellant’s due process rights by not providing him
     with a PDI prior to proposing his removal).
¶7        Where an agency meets the minimum requirements of due process, the
     Board may still reverse an adverse action based upon harmful error for a failure
     to comply with statutory, regulatory, or agency procedures, if the error likely had


     4
       The agency did conduct an interview with the appellant regarding the harassment
     allegations on March 29, 2012, prior to the notice of proposed removal. See IAF, Tab 7
     at 176-90. However, the record is somewhat unclear as to whether this interview
     constituted a PDI.
                                                                                        5

      a harmful effect upon the outcome of the case before the agency.            Stephen,
      47 M.S.P.R. at 681, 685. However, the burden of showing harmful error lies with
      the   appellant    and    cannot   be    presumed.       Id.;    see    5    U.S.C.
      § 7701(c)(2)(A); 5 C.F.R. § 1201.56(b)(1), (c)(3).    In order to show harmful
      error, an appellant must prove 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, 47 M.S.P.R. at 685.
¶8          Here, even if the agency had a policy of providing a PDI and failed to
      provide that PDI to the appellant, he has presented no argument or evidence that
      the procedural error was harmful. See generally Miller, 110 M.S.P.R. 550, ¶ 6
      (the agency did not commit harmful error by not providing the appellant with a
      PDI prior to proposing his removal). He was able to respond to the charge after
      the proposed removal, but before its effectuation, and he has presented nothing to
      demonstrate that the outcome was likely to have been different if he had also been
      given the PDI he claims was lacking. Accordingly, even if the agency deprived
      the appellant of the right to respond to the allegations in a PDI, prior to the
      issuance of the notice of proposed removal, this was neither a due process
      violation, nor a harmful error.

      The appellant failed to establish any error in the administrative judge’s penalty
      determination.
¶9          The appellant argues that the penalty of removal is beyond the bounds of
      reasonableness. See PFR File, Tab 1 at 4-8. His argument is primarily based
      upon the assertion that specification 4 should not have been considered in
      establishing the appropriate penalty. However, as discussed in the next section,
      we will not consider that argument. To the extent that the appellant otherwise
      suggests removal is beyond the bounds of reasonableness, we disagree.
¶10         The administrative judge determined that the agency failed to consider
      properly all the relevant factors in reaching its decision as to the appropriate
      penalty. ID at 13. Specifically, she found that the deciding official should have
                                                                                             6

      considered that the appellant had no disciplinary record but instead determined
      that the appellant simply had not been caught doing previously anything
      improper.        ID at 13.   Therefore, she noted that the agency’s penalty was not
      entitled    to     deference.     ID   at   13   (citing   Portner   v.   Department   of
      Justice, 119 M.S.P.R. 365, ¶ 10 (2013)).
¶11         After determining that the agency’s penalty determination was not entitled
      to deference, the administrative judge weighed the relevant Douglas factors. ID
      at 14-16; see Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981)
      (discussing a number of factors relevant to a penalty determination). Included in
      her analysis, the administrative judge considered the appellant’s lack of prior
      discipline, his good work record, his high regard from supervisors, and the fact
      that the conduct cited in specification 3 was condoned by his supervisor. See ID
      at 15. However, the administrative judge also found the appellant’s misconduct
      very serious; he knew the relevant agency rules well, having disciplined his own
      subordinates for similar misconduct, and he did not exhibit a great deal of
      remorse.     ID at 14-16.       In addition, she found that he was held to a higher
      standard because he was a supervisor. ID at 14 (citing Portner, 119 M.S.P.R.
      365, ¶ 16). On balance, the administrative judge concluded that removal was
      within the bounds of reasonableness. ID at 16.
¶12         The appellant’s petition does not challenge the administrative judge’s
      weighing of the mitigating factors.              PFR, Tab 1 at 4-5.         Because the
      administrative judge considered the evidence as a whole, drew appropriate
      inferences, and made reasoned conclusions on issues of credibility, we discern no
      reason to disturb her penalty determination on review.                See Broughton v.
      Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987).

      The Board will not consider the appellant’s argument raised for the first time on
      review.
¶13         The appellant argues that he was put on “emergency placement” for 14 days
      between April and May 2012 and that this constituted a disciplinary suspension
                                                                                              7

      imposed for the same misconduct described in specification 4 of his November
      2012 removal. 5 PFR File, Tab 1 at 1-2; see IAF, Tab 13, Subtab 19 (emergency
      placement notification). Therefore, he asserts that he is being disciplined twice
      for the same misconduct. PFR File, Tab 1 at 1-5. For that reason, the appellant
      argues that the administrative judge erred in sustaining specification 4 and
      considering it in the penalty analysis. Id. at 1-8.
¶14         Generally, the Board will not consider an argument raised for the first time
      in a petition for review absent a showing that it is based on new and material
      evidence not previously available despite the party’s due diligence.            Banks v.
      Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). Here, the appellant did
      not argue below that he was improperly disciplined more than once for the same
      misconduct.    Compare PFR File, Tab 1 at 1-8 (the appellant’s argument on
      review), with IAF, Tabs 1, 15, 26 (the appellant’s arguments below), and IAF,
      Tab 16 at 1 (the administrative judge’s prehearing summary of the issues in
      dispute). He also failed to show that the argument is based on evidence that was
      previously unavailable. See PFR File, Tab 1 at 1-8. Accordingly, we will not
      consider the argument for the first time on review. 6

                       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:

      5
        Although the appellant argues that his emergency placement was based on the
      harassment described in specification 4, see PFR File, Tab 1 at 2, the agency’s
      notification letter advising him of that placement cites “investigation for allegations of
      improper conduct and misuse of a government passenger vehicle” as the reason, IAF,
      Tab 13, Subtab 19.
      6
        Although generally we would not consider the appellant’s argument because of its
      untimeliness, we also note that his argument improperly relied upon an initial Board
      decision for support. See PFR File, Tab 1 at 3-4. Initial decisions are not precedential.
      See 5 C.F.R. § 1201.113.
                                                                                  8

                          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.
