                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     RACHEL C. NORMAN,                               DOCKET NUMBER
                  Appellant,                         DA-0752-14-0266-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: January 20, 2015
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Samuel C. Beale, Esquire, Houston, Texas, for the appellant.

           Paul C. Wolf, Esquire, 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.     Except as
     expressly MODIFIED by this Final Order to more thoroughly analyze the
     appellant’s whistleblower defense and the issue of hearsay evidence, we AFFIRM
     the initial decision.
¶2         The agency removed the appellant on a single charge of Unacceptable
     Conduct, finding that the “immediate surgery” she had on June 4, 2013, which
     she claimed to need as the result of an alleged June 3, 2013 on-the-job injury, was
     instead elective surgery that she had scheduled for that date back in April 2013
     and for which she had insufficient leave available. Initial Appeal File (IAF), Tab
     5 at 35-42. The appellant filed a timely appeal and, after holding a hearing, the
     administrative judge found that the agency proved its charge and that the
     appellant had failed to establish her affirmative defenses of reprisal for
     whistleblowing, retaliation for prior equal employment opportunity (EEO)
     activity, and racial discrimination. IAF, Tab 17, Initial Decision (ID). In her
     timely-filed petition for review, the appellant challenges the administrative
     judge’s findings on the substantive charge and the penalty, but she does not claim
     that the administrative judge erred in rejecting her affirmative defenses. Petition
     for Review (PFR) File, Tab 1. The agency responds in opposition. PFR File, Tab
     3.
                                                                                                 3

¶3         Although, as noted above, the appellant does not specifically challenge the
     administrative judge’s findings on her affirmative defense of whistleblowing, we
     take this opportunity to supplement the administrative judge’s analysis of this
     claim. See ID at 13. In her prehearing submission, the appellant claimed that
     management improperly charged her due to her whistleblowing activity, citing
     National Labor Relations Board (NLRB) charges she filed against the agency.
     IAF, Tab 10 at 13. Specifically, the appellant claimed that the agency refused to
     allow her, in her role as the Chief Union Steward, to conduct union business
     while on the clock, instead instructing her to conduct such business before or
     after her tour of duty. 2 See IAF, Tab 12 at 27. Because it also would constitute a
     violation of 5 U.S.C. § 2302(b)(8) and, as the administrative judge found, was
     disclosed through additional channels, such a charge would qualify as a protected
     whistleblowing disclosure.         See Mitchell v. Department of the Treasury,
     68 M.S.P.R. 504, 509-10 (1995) (citing Ellison v. Merit Systems Protection
     Board, 7 F.3d 1031, 1035 (Fed. Cir. 1993)). While the appellant identified no
     specific evidence that would show that her alleged protected disclosure was a
     contributing factor in her removal, the record reflects that the appellant filed the
     NLRB charge in June 2013, just less than 6 months before the agency proposed
     her removal in November 2013. IAF, Tab 5 at 39, Tab 12 at 27. A personnel
     action begun within that amount of time after a disclosure is sufficient to satisfy
     the knowledge/timing test and to conclude that the disclosure was a contributing
     factor in the personnel action at issue.        E.g., Mudd v Department of Veterans
     Affairs, 120 M.S.P.R. 365, ¶ 10 (2013) (1 year); Ormond v. Department of
     Justice, 118 M.S.P.R. 337, ¶ 13 (2012) (6 months).                  Nevertheless, as the
     following analysis indicates, we agree with the administrative judge that the

     2
       In her initial decision, rather than cite to the specific allegation the appellant proffered
     in her prehearing submission, the administrative judge instead cited the appellant’s
     testimony that, “she constantly pointed out violations of law, rule, or regulations to
     management officials” and her claim that the Customer Service Manager at her station
     resented her for doing so. ID at 13.
                                                                                       4

     record in this matter contains overwhelming evidence that the agency would have
     removed the appellant absent her alleged protected disclosures. ID at 13.
¶4         In order to determine whether the agency proved by clear and convincing
     evidence that it would have taken the same personnel actions against the appellant
     absent her protected disclosure, the administrative judge must consider the
     following three factors: (1) the strength of the agency’s evidence in support of its
     action; (2) the existence and strength of any motive to retaliate on the part of
     agency officials involved in the decision; and (3) any evidence that the agency
     takes similar actions against employees who are not whistleblowers but are
     otherwise similarly situated.      See Carr v. Social Security Administration,
     185 F.3d 1318, 1323 (Fed. Cir. 1999).       Moreover, evidence only clearly and
     convincingly supports a conclusion when it does so in the aggregate considering
     all the pertinent evidence in the record and despite the evidence that fairly
     detracts from that conclusion. Whitmore v. Department of Labor, 680 F.3d 1353,
     1368 (Fed. Cir. 2012).       In this matter the agency’s evidence is, as the
     administrative judge amply recounted in her initial decision, overwhelming, and it
     need not be repeated here.      See ID at 2-13.   On the second Carr factor, the
     appellant fails to identify, and the record does not demonstrate, any particular
     motive to retaliate on the part of the agency officials involved in the matter.
     Similarly, regarding the third Carr factor, the record is also devoid of any
     evidence that the agency takes similar actions against employees who are not
     whistleblowers, regardless of whether they are similarly-situated to the appellant.
     Thus, we find that the agency established by clear and convincing evidence that it
     would have removed the appellant in the absence of her alleged protected
     activity.
¶5         In her petition for review, the appellant argues that the administrative judge
     erred in relying on the testimony an investigator with the agency’s Office of the
     Inspector General (OIG), because his conclusion that there was no causal
     relationship between the appellant’s alleged June 3, 2013 injury and her
                                                                                           5

     previously scheduled elective surgery on June 4, 2013, was based on hearsay,
     namely his interview with the office manager for the doctor who performed the
     elective surgery. PFR File, Tab 1 at 4-6. The appellant is correct that the office
     manager’s    statement       constitutes     hearsay   evidence,   and,   although   the
     administrative judge mentions the evidence in the initial decision, ID at 5, 9, it
     does not appear to be the sole evidence she relied upon, or even a major factor, in
     her findings on the issue.
¶6         Nevertheless, the Board evaluates the probative value of hearsay under
     factors including the availability of persons with firsthand knowledge to testify at
     the hearing, whether the out-of-court statements were sworn, whether the
     declarants were disinterested witnesses to the events and whether their statements
     were routinely made, the consistency of the out-of-court statements with other
     statements and evidence, whether there is corroboration or contradiction in the
     record, and the credibility of the out-of-court declarant. E.g., Vojas v. Office of
     Personnel Management, 115 M.S.P.R. 502, ¶ 13 (2011) (citing Borninkhof v.
     Department of Justice, 5 M.S.P.R. 77, 87 (1981)).
¶7         In this matter, the statement at issue was not sworn, the declarant has no
     interest in the proceedings, and there is no specific evidence as to whether the
     declarant routinely makes this type of statement or her credibility in doing so.
     The key factor here is the ample corroboration of this evidence in the record and
     its consistency with that record.          Indeed, as noted above, and contrary to the
     appellant’s assertions on review, the office manager’s opinion is by no means the
     only evidence indicating that the appellant’s alleged June 3, 2013 injury was
     unconnected to her previously scheduled surgery, the strongest of which was the
     appellant’s own words and actions.                For example, the appellant sought
     continuation of pay from the Office of Workers’ Compensation Programs
     (OWCP) based on documentation and treatment from Dr. Varon, who performed
     the previously scheduled, elective surgery on June 4, 2013, but she conceded that
     it was Dr. Lee, not Dr. Varon, who treated her for her June 3 rd on-the-job injury.
                                                                                           6

     ID at 11; see IAF, Tab 10 at 28-30. The appellant makes a similar concession in
     her petition for review. PFR File, Tab 1 at 6. Although the appellant reportedly
     claimed in her testimony that she was not trying to get the agency to pay her for
     the time she took off for her previously scheduled elective surgery, the fact
     remains that she explicitly requested continuation of pay, and she further testified
     that she wanted her claims for therapy and x-rays to be approved. ID at 11; see
     IAF, Tab 10 at 28-30.      Moreover, as the administrative judge noted, hearing
     testimony indicated that the appellant had not requested leave in advance of her
     previously scheduled elective surgery and that she in fact did not have enough
     leave to allow her to do so. ID at 7. Thus, the record reflects in several ways,
     apart from the hearsay evidence at issue, that the appellant’s June 3rd injury was
     unrelated to her previously scheduled June 4th surgery. The appellant also argues
     that the administrative judge erred in finding that her self-diagnosis constituted a
     false medical claim. PFR File, Tab 1 at 6. However, that is the appellant’s, not
     the administrative judge’s, 3 characterization and the appellant’s concession
     recounted above, as well as the statements she submitted to management on
     June 11 and 12, 2013, could arguably be construed as such. See IAF, Tab 5 at 50,
     58, Tab 11, Exhibit L.
¶8         The appellant does not agree with the administrative judge’s findings and
     conclusions. However, we discern no reason, other than to more fully analyze the
     whistleblowing and hearsay issues, to reweigh the evidence or substitute our
     assessment of the record evidence for that of the administrative judge.            E.g.,
     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

     3
       The administrative judge instead characterized her finding thusly: “I find it more
     likely true than not that the appellant sought to deceive the agency and be compensated
     for an elective surgery by claiming the surgery was necessitated by an on-the-job injury
     the day before.” ID at 12. For the reasons set forth in the initial decision and above,
     we agree with the administrative judge.
                                                                                            7

      reasoned conclusions); Broughton v. Department of Health & Human Services,
      33 M.S.P.R. 357, 359 (1987) (same). The Board must defer 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. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir.
      2002). Here, the administrative judge thoroughly reviewed the hearing testimony
      and specifically cited to Hillen v. Department of the Army, 35 M.S.P.R. 453, 458
      (1987), in setting forth her credibility determinations. ID at 12. On review, the
      appellant   fails   to   identify   sufficiently   sound   reasons   to   overturn   the
      administrative judge’s determinations. See PFR File, Tab 1.
¶9         Regarding the penalty, the appellant contends that the administrative judge
      improperly used her statements in response to the charges in determining the
      appropriateness of the penalty. Id. at 7-8 (citing King v. Erickson, 89 F.3d 1575,
      1577 (Fed. Cir. 1996)).       First of all, the case that the appellant cites was
      unanimously reversed in a consolidated appeal before the United States Supreme
      Court. See Lachance v. Erickson, 522 U.S. 262 (1998). Additionally, the record
      does not reflect that the administrative judge improperly used the appellant’s
      statements. ID at 12. Instead, this reflects the administrative judge’s observation
      of changes in the appellant’s story over time, and is merely one piece of evidence
      among many illustrating the appellant’s attempt “to deceive the agency and be
      compensated for an elective surgery by claiming the surgery was necessitated by
      an on-the-job injury the day before.”         ID at 12.    Again, we agree with the
      administrative judge’s assessment of the evidence.
¶10        Lastly, the appellant complains that the administrative judge granted the
      agency’s request to call any of the appellant’s witnesses but denied her similar
      request to call any of the agency’s witnesses. PFR File, Tab 1 at 8-9. The record
      shows that both parties indeed requested the ability to call each other’s witnesses.
      See IAF, Tab 10 at 14, Tab 13 at 9. Nevertheless, the record reflects that the
                                                                                        8

      administrative judge granted the parties’ proposed witnesses by name and not in
      any global manner as the parties requested. IAF, Tab 14 at 3. Importantly, the
      administrative judge informed the parties in her summary of the prehearing
      conference that they must file any objections or motions to supplement her
      memorandum by May 9, 2014. Id. at 4. Neither party did so. The appellant's
      failure to timely object to rulings on witnesses precludes her doing so on petition
      for review.    Tarpley v. U.S. Postal Service, 37 M.S.P.R. 579, 581 (1988).
      Moreover, the appellant, who was represented below, did not request a subpoena
      for the witness and she failed to make a timely request for a continuance to obtain
      the witness’s presence or show that such a request was denied.         See Lohr v.
      Department of the Air Force, 24 M.S.P.R. 383, 386 (1984).
¶11        In its response to the appellant’s petition for review, the agency asserts that
      it did not call this witness and that it announced its decision “openly” at the
      conclusion of its case because his testimony would have been repetitive of
      testimony already provided by others. PFR File, Tab 3 at 15. In her petition for
      review, the appellant claims that she “lost the ability to offer strong evidence to
      overcome the flawed circumstantial evidence of the agency” when it failed to call
      the proposing official, one of its designated witnesses, to testify. PFR File, Tab 1
      at 9. As noted above, the appellant failed to object below, and she fails on review
      to identify exactly what testimony she sought or how her failure to obtain the
      testimony of this witness denied her a fair hearing, impaired the proceedings, or
      prejudiced her substantive rights so as to require reversal of the initial decision.
      See Dubiel v. U.S. Postal Service, 54 M.S.P.R. 428, 432 (1992).

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
           The initial decision, as supplemented by this Final Order, constitutes the
      Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
      request further review of this final decision. There are several options for further
      review set forth in the paragraphs below. You may choose only one of these
                                                                                    9

options, and once you elect to pursue one of the avenues of review set forth
below, you may be precluded from pursuing any other avenue of review.

Discrimination Claims: Administrative Review
      You may request review of this final decision on your discrimination claims
by the Equal Employment Opportunity Commission (EEOC). See Title 5 of the
United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit
your request by regular U.S. mail, the address of the EEOC is:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                 P.O. Box 77960
                            Washington, D.C. 20013

If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                131 M Street, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
                                                                                 10

before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security.      See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.

Other Claims: Judicial Review
     If you do not want to request review of this final decision concerning your
discrimination claims, but you do want to request review of the Board's decision
without regard to your discrimination claims, you may request review of this final
decision on the other issues in your appeal by the United States Court of Appeals
for the Federal Circuit.
     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 want to request review of the Board’s decision concerning your
claims of prohibited personnel practices described in 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or by any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time.
                                                                                 11

     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 about the United States Court of Appeals for the Federal
Circuit 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.
Additional information about other courts of appeals can be found at their
respective       websites,     which       can         be    accessed       through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
     If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, 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 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:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
