                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                       2014 MSPB 89

                             Docket No. DA-0752-14-0021-I-1

                                      Eric S. Powell,
                                         Appellant,
                                              v.
                              United States Postal Service,
                                          Agency.
                                     December 18, 2014

           Duke Holden, Esquire, Oklahoma City, Oklahoma, for the appellant.

           Eric B. Fryda, Esquire, Dallas, Texas, for the agency.

                                          BEFORE

                             Susan Tsui Grundmann, Chairman
                             Anne M. Wagner, Vice Chairman
                                Mark A. Robbins, Member



                                  OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     upheld his removal for failure to follow instructions and delay of mail.
     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 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
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     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 merge the two charges into one, we AFFIRM the
     initial decision.

                                      BACKGROUND
¶2         The appellant held the position of Supervisor, Customer Service, at the
     Center City Station in Oklahoma City, Oklahoma.           Initial Appeal File (IAF),
     Tab 5 at 29. At that facility, a security service drops off packages from American
     Precious Metal Exchange (APMEX) Monday through Friday of each week for
     delivery via registered mail.    See id. at 44-45.     On March 4, 2013, 44 such
     packages were dropped off, with a total value of nearly $560,000. See id. at 35,
     41. That evening, at 6:50 p.m., the appellant performed a closeout verification,
     indicating that his unit was free of all outgoing mail and that all mail was
     dispatched on time.        See id. at 35-36 (agency’s proposal to remove),
     53 (verification report time stamp), 54 (verification report checklist of completed
     tasks). He then departed for the day sometime between 7:15 p.m. and 7:30 p.m.,
     despite knowing that the 44 APMEX packages had not yet been prepared for
     dispatch.   Id. at 44-46 (notes from the appellant’s investigative interview).
     According to the appellant, he assumed that one of the clerks would get the
     packages onto the last truck. Id. at 44, 46-47. However, the packages were not
     dispatched until the following morning, after being found during a routine sweep
     of the facility. Id. at 35-36.
¶3         The agency removed the appellant based on two charges: (1) failure to
     follow instructions, and (2) delay of mail.          Id. at 30-34 (decision letter),
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     35-40 (proposal letter). The appellant appealed his removal to the Board. 1 IAF,
     Tab 1.      After conducting a hearing, the administrative judge affirmed the
     removal. IAF, Tab 19, Initial Decision (ID). The appellant has filed a petition
     for review.     Petition for Review (PFR) File, Tab 1.      The agency has filed a
     response, PFR File, Tab 3, and the appellant has replied, PFR File, Tab 4.

                                          ANALYSIS
     The agency proved the charge of failure to follow instructions.
¶4            Generally, in an adverse action appeal, the agency must prove its charge by
     a preponderance of the evidence. 5 U.S.C. § 7701(c)(1)(B). A preponderance of
     the evidence is that degree of relevant evidence that a reasonable person,
     considering the record as a whole, would accept as sufficient to find that a
     contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).
¶5            To prove a charge of failure to follow instructions, an agency must
     establish that the employee: (1) was given proper instructions, and (2) failed to
     follow the instructions, without regard to whether the failure was intentional or
     unintentional. Hamilton v. U.S. Postal Service, 71 M.S.P.R. 547, 555-56 (1996).
     Here, the agency’s charge implicated the standing instruction to ensure that all
     outgoing mail received during the day is placed onto the last dispatch truck or
     otherwise taken to the plant, and complete a closeout verifying the same. See
     IAF, Tab 5 at 30-31, 35-36.
¶6            The local manager at the appellant’s facility testified that he had directed
     the appellant to see that mail is dispatched on the day that it is received. See ID
     at 4-5.     In addition, the appellant completed a “Verification of Activity
     Submission” on the day in question, attesting to the fact that all areas were


     1
        Among other things, the appellant initially alleged harmful procedural error,
     “violation of [equal employment opportunity] rights,” and prohibited disability
     discrimination. IAF, Tab 1 at 2. However, he later withdrew those allegations. See
     IAF, Tab 10 at 2.
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     reviewed, the unit was free of all outgoing mail, and the mail was dispatched on
     time. IAF, Tab 5 at 53-54. Moreover, the agency’s evidence includes training
     materials for a supervisor meeting that the appellant attended in April 2012. Id.
     at 77 (sign-in sheet for the training session), 78-102 (training materials). Those
     materials repeatedly discuss the importance of ensuring that all mail is dispatched
     daily.    Id. at 85, 91-92, 94-95.    It specifies that a designated Executive and
     Administrative Schedule (EAS) employee must “perform a physical walk-through
     of the facility to check for outgoing mail . . . prior to the final dispatch.” Id.
     at 92. “If a collection misses the scheduled transportation, the local manager is
     responsible for getting the mail to the [appropriate facility].” Id.
¶7            On review, the appellant does not dispute that he was given proper
     instructions, nor does he dispute that the APMEX mail was inappropriately
     delayed. Instead, he argues, as he did below, that the delay was caused by the
     clerks who generally complete the processing of the APMEX mail. PFR File,
     Tab 1 at 4. According to the appellant, the clerk assigned to that duty was still
     working when he left for the day on March 4, 2013. Id. He suggests that all
     supervisors complete the verification, attesting that the unit is free of all outgoing
     mail, even if there is still mail to be processed. Id. However, the arguments are
     unavailing.
¶8            The appellant’s argument, in essence, is that he should not be held
     responsible for the improprieties of his subordinates.        However, the appellant
     was not charged with allowing a situation to exist in which his subordinates acted
     improperly; he was charged with personally taking improper actions. 2               The
     appellant has acknowledged seeing that the APMEX mail had yet to be processed


     2
       It should be noted that even if the charge brought against the appellant was as he
     characterized it, the Board has long held that under certain conditions, a supervisor may
     be held accountable for the misconduct of his subordinates, even without specific
     knowledge of the misconduct, which is present in the instant case. Cf. Miller v.
     Department of Health & Human Services, 8 M.S.P.R. 249, 251-53 (1981) (discussing
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      when there were only minutes left to do so. See ID at 5-6. Nevertheless, he
      did not process the APMEX mail himself, direct the clerk to process it, or take
      any other action to ensure its timely dispatch. Accordingly, the appellant failed
      to follow the proper instruction to ensure that all outgoing mail received during
      the day is placed onto the last dispatch truck or otherwise taken to the plant.
      The agency’s delay of mail charge is merged with the charge of failure to follow
      instructions.
¶9          The administrative judge sustained the charge of delay of mail. ID at 6-7.
      We find that the charge should be merged with the failure to follow instructions
      charge, and modify the initial decision accordingly.
¶10         The Board will “merge” charges if they are based on the same conduct and
      proof of one charge automatically constitutes proof of the other charge. Shiflett
      v. Department of Justice, 98 M.S.P.R. 289, ¶ 5 (2005). As discussed above, the
      failure to follow instructions charge implicated the standing instruction to ensure
      that all outgoing mail received during the day is placed onto the last dispatch
      truck or otherwise taken to the plant. See IAF, Tab 5 at 30, 35. By failing to
      follow that instruction, the appellant delayed the mail. See id. at 30 (decision
      letter identifying the appellant’s failure to follow instruction as “thereby delaying
      the mail”), 44-46 (appellant’s acknowledgment that the APMEX mail was not
      dispatched until March 5, 2014). Accordingly, the delay of mail charge merges
      into the failure to follow instructions charge, and we need not consider it further,
      except to say that it is proven by virtue of the failure to follow instructions
      charge. See Jones v. Department of Justice, 98 M.S.P.R. 86, ¶ 16 (2004); see
      also Mann v. Department of Health & Human Services, 78 M.S.P.R. 1, 6 (1998)
      (merger of a duplicative charge into another charge does not mean that the
      merged charge is not sustained).


      the standard for holding a supervisor responsible for the improprieties of his or her
      subordinates).
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      The administrative judge properly found that the agency established nexus and
      that removal was reasonable.
¶11         In addition to the requirement that the agency prove its charge against the
      appellant, the agency must also prove that there is a nexus, i.e., a clear and direct
      relationship between the articulated grounds for the adverse action and either the
      appellant’s ability to accomplish his duties satisfactorily or some other legitimate
      government interest.     Ellis v. Department of Defense, 114 M.S.P.R. 407, ¶ 8
      (2010). Here, the administrative judge found that nexus was established, see ID
      at 7, and we agree. 3     The appellant has not presented any argument to the
      contrary.
¶12         Next, where all of the agency’s charges are sustained, as they are here, 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.     See Ellis, 114 M.S.P.R. 407, ¶ 11. 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.
¶13         For the first time, on review, the appellant disputes the application of the
      Douglas factors.      PFR File, Tab 1 at 4-5 (referencing Douglas v. Veterans
      Administration, 5 M.S.P.R. 280, 304-06 (1981)). He suggests that the Douglas
      factors were not applied at all. PFR File, Tab 1 at 4. Alternatively, he argues
      that the agency did not properly account for his 15 years of Postal Service


      3
       The fact that a charge has been merged into another does not mean that the appellant’s
      conduct somehow becomes less serious. Shiflett, 98 M.S.P.R. 289, ¶ 12.
                                                                                          7

      experience, including 8 as a supervisor; his 4 years of service in the Marine
      Corps, with combat experience; his suffering from post-traumatic stress disorder;
      and his having never been suspended prior to his removal, but instead given
      warnings in lieu of suspensions. Id. However, the appellant failed to raise any of
      these arguments below. See IAF, Tab 1 at 2, Tab 7 at 1-2.
¶14         The Board generally 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); see Thurmond v. U.S.
      Postal Service, 41 M.S.P.R. 227, 230 n.2 (1989) (declining to consider
      allegations of mitigating factors in a penalty analysis because they were presented
      for the first time in a petition for review). Because the appellant made no such
      showing, we will not consider his arguments regarding the reasonableness of the
      penalty.
¶15         Below, the administrative judge determined that the penalty of removal was
      within the tolerable limits of reasonableness, when considering the seriousness of
      the offense, the appellant’s prior service, and the effectiveness of prior discipline.
      ID at 7-8; see IAF, Tab 5 at 55 (April 2013 letter of warning in lieu of a 14-day
      suspension for violation of agency standards of conduct; failure to properly
      perform assigned duties; and failure to follow instructions), 71 (June 2012 letter
      of warning in lieu of a 14-day suspension for negligence and delay of mail),
      103 (February 2011 letter of warning in lieu of a 7-day suspension for failure to
      properly perform assigned duties), 107 (September 2010 letter of warning for
      failure to properly perform assigned duties); compare Bonacchi v. U.S. Postal
      Service, 40 M.S.P.R. 364, 369-70 (1989) (mitigating a supervisor’s removal to a
      demotion where his misconduct was a single instance of poor judgment, his
      performance was otherwise satisfactory, he had no prior disciplinary record, and
      the undeliverable mail he discarded was of de minimis value), with Alaniz v. U.S.
      Postal Service, 100 M.S.P.R. 105, ¶¶ 16, 19, 24 (2005) (finding removal
                                                                                                8

      appropriate for even “relatively minor” misconduct in light of multiple prior “no
      time off” suspensions). We discern no reason to disturb those findings because
      the administrative judge considered the evidence as a whole, drew appropriate
      inferences, and made reasoned conclusions. 4 See Broughton v. Department of
      Health & Human Services, 33 M.S.P.R. 357, 359 (1987).

                                               ORDER
¶16          This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).

                         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


      4
        The initial decision did contain an error as it described the appellant’s prior service as
      consisting of less than 10 years. ID at 8. However, this error was limited to the
      administrative judge’s decision. The agency properly considered his service as
      consisting of approximately 14 years of service, with 7 of those being in a supervisory
      role. IAF, Tab 5 at 33. We find that the administrative judge’s error does not affect the
      outcome of this appeal, and is therefore harmless. See Panter v. Department of the Air
      Force, 22 M.S.P.R. 281, 282 (1984) (an adjudicatory error that is not prejudicial to a
      party’s substantive rights provides no basis for reversal of an initial decision).
                                                                                  9

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
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.
