                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MICHAEL HOWARD KING,                            DOCKET NUMBER
                 Appellant,                          AT-0752-15-0820-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: May 27, 2016
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Harvey G. Orr, Riverdale, Georgia, for the appellant.

           Tammie Philbrick, Esquire, Atlanta, Georgia, 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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The appellant was removed from the position of Sales, Services, and
     Distribution Associate at the Webb Bridge Station of the Alpharetta Post Office
     based on misconduct. Initial Appeal File (IAF), Tab 4 at 14-17. Specifically, the
     appellant was charged with taking three pieces of mail out of the post office that
     did not belong to him, opening and going through the contents of the mail, and
     leaving the mail in his truck and returning to work. Id. at 21. The appellant
     appealed his removal to the Board, and, after holding a hearing, the
     administrative judge issued an initial decision affirming the agency’s action.
     IAF, Tab 15, Initial Decision (ID).
¶3        The appellant has filed a petition for review of the initial decision that
     primarily disputes the administrative judge’s factual findings.        Petition for
     Review (PFR) File, Tab 1.     The agency has opposed the petition.       PFR File,
     Tab 3.
¶4        The appellant argues that the agency does not have sufficient evidence to
     prove the charged misconduct.         PFR File, Tab 1 at 5-6.   The agency relies
     primarily on the statement of an investigator who was surveilling the appellant on
     the date that the misconduct took place. IAF, Tab 14. The appellant argues that,
                                                                                            3

     because this investigator did not produce photographs or videotape of him
     committing the misconduct, his testimony has no probative value.            PFR File,
     Tab 1 at 6. The appellant’s argument is unavailing. The Board has held that
     circumstantial evidence of charges allows for a strong inference of culpability if
     it is not reasonably and satisfactorily explained by the appellant.              Davis v.
     Department of the Air Force, 27 M.S.P.R. 521, 524 (1985), aff’d, 790 F.2d 92
     (Fed. Cir. 1986) (Table); see Smith v. U.S. Postal Service, 69 M.S.P.R. 420, 425
     (1996)   (explaining   that,   when   there   is   no   significant   contrary     proof,
     circumstantial evidence can constitute proof by preponderant evidence). Here, it
     is undisputed that mail not addressed to the appellant was found in his truck.
     IAF, Tab 4 at 37-38. The person who sent the mail and the intended recipient
     confirmed that they did not know the appellant. Id. at 45-46. The administrative
     judge found that the appellant failed to provide a reasonable explanation for how
     the mail got into his truck. ID at 4. In addition to this circumstantial evidence,
     the agency also relied on the testimony of the investigator who observed the
     appellant when the misconduct took place.
¶5        The investigator testified that he witnessed the appellant leaving the post
     office with mail in his hand, entering his truck, staying in his truck for
     approximately 10-15 minutes, and exiting his truck without any mail. IAF, Tab 4
     at 27-35. He also observed mail that was not addressed to the appellant in the
     appellant’s truck. Id. The administrative judge conducted a credibility analysis
     pursuant to Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987), and
     credited the investigator’s version of events over the appellant’s, ID at 4-5. The
     Board must give deference to an administrative judge’s factual findings and
     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).
                                                                                    4

¶6        The appellant argues that the investigator’s testimony has no probative
     value. PFR File, Tab 1 at 5. We do not agree. The investigator witnessed the
     appellant enter his truck with mail and subsequently witnessed mail that did not
     belong to the appellant in the appellant’s truck.    IAF, Tab 4 at 28-41.    The
     appellant also argues that the administrative judge committed harmful error by
     considering an anonymous report accusing him of taking mail on May 1, 2015,
     opening several greeting cards and removing the contents, and then discarding the
     cards and envelopes in a dumpster. PFR File, Tab 1 at 2. The record reflects that
     information concerning the anonymous report of misconduct on May 1, 2015, was
     in the investigator’s report and was included in the background section of the
     notice of proposed removal. IAF, Tab 4 at 21, 29-31. The agency did not charge
     the appellant with committing misconduct on May 1, 2015.            Id. at 21-24.
     Similarly, the initial decision does not make a finding concerning the misconduct
     that allegedly occurred on May 1, 2015.       ID at 5 (finding that the agency
     established that the appellant engaged in the conduct described in the
     specifications). We find no error in the administrative judge’s noting the events
     of May 1, 2015, merely as background in the initial decision because this event
     resulted in the appellant being placed under surveillance on May 8, 2015, when
     the charged misconduct took place. ID at 2. Likewise, the administrative judge’s
     treatment of this event as background was not improper, because she did not
     consider it as a prior disciplinary record in assessing which penalty to impose.
     See, e.g., Bolling v. Department of the Air Force, 9 M.S.P.R. 335, 339-40 (1981)
     (finding that the Board’s review of a proper disciplinary action is limited to
     determining whether that action is clearly erroneous, if the employee was
     informed of the action in writing, the action is a matter of record, and the
     employee was permitted to dispute the charges before a higher level of authority
     than the one that imposed the discipline).
¶7        The appellant alleges that the agency had him arrested on a charge of theft,
     but charged him administratively with improper conduct to lower the burden of
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     proof. PFR File, Tab 1 at 4. To the extent that, by this argument, the appellant is
     claiming that the agency could not bring both a criminal charge against him and
     remove him from service based on the same set of facts, we disagree. In addition,
     the appellant was given the option of staying the Board proceeding pending a
     decision in the criminal proceeding, but he declined to do so. IAF, Tab 6. Even
     if the appellant were correct, and the agency influenced the criminal charge in the
     parallel proceeding, the agency was not required to bring an identical charge
     against him administratively. See Owens v. U.S. Postal Service, 57 M.S.P.R. 63,
     (1993) (finding that collateral estoppel did not apply when the appellant was
     convicted of a criminal charge that was substantially similar but not identical to
     the misconduct charged by the agency and arose from the same conduct).
¶8        The initial decision notes that the appellant’s vehicle was locked and only
     the appellant had access to the keys to unlock the vehicle (and therefore only he
     could have been the person who placed the mail and ripped checks in the truck) as
     facts that made his version of events less credible. ID at 4. The appellant argues
     that these facts were not included in the notice of proposed removal and therefore
     the administrative judge should not rely upon them. PFR File, Tab 1 at 4. We
     find no error in the administrative judge’s relying on these facts as part of her
     credibility analysis under Hillen to support her finding that the appellant’s
     version of events was less credible than the investigator’s version. To the extent
     that the appellant may be arguing that the administrative judge’s consideration of
     this fact amounted to a due process violation, under the circumstances presented,
     we cannot agree.    Stone v. Federal Deposit Insurance Corporation, 179 F.3d,
     1368, 1377 (Fed. Cir. 1999) (holding that merely cumulative evidence that is not
     new and material and does not undermine objectivity does not implicate due
     process guarantee of notice).
¶9        We have thoroughly reviewed the hearing testimony and documentary
     evidence from below, and we find that the appellant has not presented sound
     reasons for us to revisit the administrative judge’s credibility determinations or
                                                                                  6

the resultant findings and no basis upon which to disturb her determination that
the agency met its burden and proved that the appellant committed the charged
misconduct.   See Yang v. U.S. Postal Service, 115 M.S.P.R. 112, ¶ 12 (2010)
(finding that mere disagreement with the administrative judge’s findings is
insufficient to disturb the initial decision); see also Broughton v. Department of
Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (stating that there is no
reason to disturb the administrative judge’s conclusions when the initial decision
reflects that she considered the evidence as a whole, drew appropriate inferences,
and made reasoned conclusions).      The appellant’s mere disagreement with the
administrative judge’s findings and credibility determinations does not warrant
reversal by the Board.    Weaver v. Department of the Navy, 2 M.S.P.R. 129,
133-34 (1980), review denied, 669 F.2d 613 (9th Cir. 1982) (per curiam).

                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
                                                                                  7

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:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
