                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MICHELE GILCHRIST,                              DOCKET NUMBER
                  Appellant,                         DC-0752-13-0386-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: August 4, 2014
                   Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Michele Gilchrist, Carson, Virginia, pro se.

           Stephen W. Furgeson, Landover, Maryland, 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 her 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 issued by the administrative judge, which is now the Board’s
     final decision. 5 C.F.R. § 1201.113(b).

                     DISCUSSION OF ARGUMENTS ON REVIEW
     The appellant has not shown that the administrative judge made erroneous
     findings of material fact.
¶2         The “improper conduct” with which the appellant was charged involved an
     altercation between the appellant and an acting supervisor in which the acting
     supervisor was attempting to retrieve papers from the appellant.       The agency
     alleged that, as the acting supervisor “made a further attempt to retrieve the paper
     from you, you pivoted to face him, drew your arm back, cocked your right hand,
     and punched [the acting supervisor] in the face.”      Initial Appeal File, Tab 5,
     Subtab 4c. Following a hearing in which the appellant, the acting supervisor, and
     several witnesses testified, the administrative judge found that the proposal notice
     accurately described what happened. The judge concluded that the appellant’s
     punch was deliberate and rejected her contentions that she acted in self defense or
     reflexively: “The evidence demonstrates that [the acting supervisor] was behind
     the appellant. She turned around, clenched her fist and aimed her fist at [the
     supervisor’s] left cheek at least a foot over her head. This was not a reflexive
     action.” Initial Decision (ID) at 15.
                                                                                       3

¶3        The Board must give deference 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). We find that the
     appellant has advanced no “sufficiently sound” reasons for overturning the
     administrative judge’s credibility determinations and findings of fact in this
     regard.   To the contrary, we find the judge’s findings of fact and credibility
     determinations to be eminently reasonable as to this crucial matter.
     The appellant’s affirmative defenses and the reasonableness of the penalty

¶4        The appellant reiterates arguments she made below that she was denied due
     process of law, that the agency delayed unduly in taking its adverse action, that
     the agency discriminated against her because of her race or gender by creating a
     hostile working environment or for protected EEO activity, and that it was guilty
     of disability discrimination for failing to accommodate her disability by providing
     her with a light duty assignment. Petition for Review (PFR) File, Tabs 1-2. For
     the reasons stated in the initial decision, we find these arguments to be without
     merit. With regard to the discrimination and retaliation claims, we agree with the
     judge’s determination that, even if a prima facie case had been made, the agency
     had a legitimate nondiscriminatory reason for its action, i.e., that the appellant
     punched an acting supervisor in the face. ID at 18-23. We further agree with the
     administrative judge’s assessment that this act constituted an egregious form of
     violence at the workplace which the agency simply could not tolerate. ID at 19,
     23-24.
¶5        The appellant similarly reiterates arguments of harmful procedural error
     that she raised below, particularly with respect to the agency’s use of its
     PreDisciplinary Interview process.     See PFR File, Tab 1 at 5-13.          As the
     administrative   judge    properly   found,    harmful    error   under   5 U.S.C.
                                                                                             4

     § 7701(c)(2)(A) cannot be assumed; the appellant must show that an agency’s
     failure to follow its procedures caused the agency to reach a conclusion different
     from the one it would have reached in the absence or cure of the error. ID at 25;
     see 5 C.F.R. § 1201.56(c)(3).      Given our determination that the administrative
     judge correctly found that the appellant intentionally struck an acting supervisor
     in the face, the appellant has made no showing that any procedural error caused
     the agency to reach a different conclusion with respect to her improper conduct.
     The appellant’s arguments with respect to the length of time it took the agency to
     initiate its removal action and the length of time it took for the administrative
     judge to issue her initial decision fail for the same reason. 2
¶6         Finally, we agree with the initial decision as to the reasonableness of the
     removal penalty. ID at 29-32.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
           You have the right to request further review of this final decision.

     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:




     2
       The appellant’s contention that the administrative judge erred in refusing to approve
     the Human Resources Manager as a witness, PFR File, Tab 1 at 4, fails both because the
     appellant did not object to this ruling during the regional office proceeding, see Tarpley
     v. U.S. Postal Service, 37 M.S.P.R. 579, 581 (1988), and because she has failed to
     establish how this witness’s testimony likely would have changed the result.
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                           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
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
                                                                           6

prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e5(f) and
29 U.S.C. § 794a.




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