Filed: Apr. 15, 2016
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ROGER GRESHAM, DOCKET NUMBER Appellant, AT-0752-15-0311-I-1 v. UNITED STATES POSTAL SERVICE, DATE: April 15, 2016 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Earline Smith-Montgomery, Esquire, Stone Mountain, Georgia, for the appellant. Earl L. Cotton, 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
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD ROGER GRESHAM, DOCKET NUMBER Appellant, AT-0752-15-0311-I-1 v. UNITED STATES POSTAL SERVICE, DATE: April 15, 2016 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Earline Smith-Montgomery, Esquire, Stone Mountain, Georgia, for the appellant. Earl L. Cotton, 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,..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROGER GRESHAM, DOCKET NUMBER
Appellant, AT-0752-15-0311-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: April 15, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Earline Smith-Montgomery, Esquire, Stone Mountain, Georgia, for
the appellant.
Earl L. Cotton, 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
sustained his 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 the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
erroneous application of the law to the facts of the case; the administrative
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, 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 incorporate the standards set out in Savage v. Department of
the Army, 122 M.S.P.R. 612 (2015), for affirmative defenses of equal
employment opportunity (EEO) reprisal and age discrimination, we AFFIRM the
initial decision.
BACKGROUND
¶2 The agency removed the appellant from the EAS-17 position of
Transportation Operations Supervisor based on the charge of improper conduct.
Initial Appeal File (IAF), Tab 5, Subtabs 4F, 4I. Specifically, the agency charged
that, on numerous occasions (at least 40), the appellant used another employee’s
Time and Attendance Control System (TACS) identification and authorization to
access the TACS and manually adjust his own clock rings to reflect that he
reported for work earlier than he actually did. Id. In proposing the penalty of
removal, the agency relied on the appellant’s past misconduct, a Notice of
Proposed Letter of Warning in Lieu of a 14-day Time-Off Suspension, for
Unacceptable Conduct. Id., Subtab 4F. The appellant appealed the agency’s
removal action alleging that his actions were based on past practices, that he had
his coworker’s permission to use his TACS identification and authorization, and
3
that the agency’s action constituted discrimination on the basis of age and
retaliation for filing EEO complaints. IAF, Tabs 1, 31.
¶3 Based on the record developed by the parties, including the testimony at the
hearing, the administrative judge found that the appellant admitted that he used a
coworker’s TACS credentials to adjust his own clock rings and that he was aware
that doing so was improper. IAF, Tab 53, Initial Decision (ID) at 9. Specifically,
the administrative judge found that the appellant had received training about the
agency’s prohibition against providing one’s TACS credentials to a coworker,
and, although the appellant’s coworker had provided the appellant with the
coworker’s TACS credentials, the coworker did not authorize the appellant to
make all of the adjustments charged in the proposed removal. 2 ID at 7, 10. The
administrative judge found further that, even if the coworker authorized the
appellant’s use of the coworker’s TACS credentials, the agency’s policy prohibits
use of another employee’s TACS credentials, and the appellant’s assertion that he
was unaware of this prohibition is not credible. ID at 10. The administrative
judge noted that the agency requires TACS adjustments to be accounted for by a
form 1260, and the appellant did not provide a single form 1260 to cover the
TACS adjustments identified in the proposed removal. ID at 11. The
administrative judge also found that the appellant failed to show that providing
TACS credentials for others’ use in his facility was commonplace. ID at 11‑12.
¶4 The administrative judge found that the appellant failed to prove his
affirmative defenses. ID at 17-22. He found that the appellant failed to submit
evidence in support of his mere assertion that other employees at his facility were
either removed or forced to retire due to their age. ID at 20. The administrative
judge also found that the appellant failed to prove that the agency removed him in
2
The agency proposed the appellant’s coworker’s removal for improper conduct on the
basis of providing unauthorized persons access to his personal TACS credentials. IAF,
Tab 6, Subtab 4G. Prior to the agency’s decision on the coworker’s proposed removal,
the coworker retired from Federal service. ID at 3 n.2.
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retaliation for filing EEO complaints. He found that, although the deciding
official knew of the appellant’s EEO activity, the appellant submitted no
meaningful evidence that the deciding official had a motive to retaliate against
him. ID at 21‑22.
¶5 Finally, the administrative judge found the removal penalty was within the
bounds of reasonableness. ID at 13-15. He found that, although the appellant
had 29 years of service and was regarded as an excellent performer, the appellant
remained steadfast in his position that he did nothing wrong and this undermines
his potential for rehabilitation. ID at 16. The administrative judge further found
that the deciding official properly considered the letter of warning as an
aggravating factor. ID at 15. The administrative judge found that in light of the
appellant’s poor potential for rehabilitation, taken in connection with the
seriousness of his misconduct, the appellant’s supervisory position, and the
attendant erosion of supervisory confidence in him that his misconduct created,
removal was not an unreasonable penalty.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 In his petition for review, 3 the appellant contends that the administrative
judge improperly denied his motion to compel. The record shows that the
appellant served a discovery request on the agency after the close of business on
the last day to timely initiate discovery. The agency refused to respond to the
appellant’s discovery request, asserting that it was untimely filed after the close
of business, and the appellant filed a motion to compel. IAF, Tabs 16‑19. The
administrative judge found that the agency’s close of business argument was
without authority or merit and granted the appellant’s motion to compel
3
The appellant generally alleges that the administrative judge was biased. To the
extent the appellant is alleging that the administrative judge was biased against him or
in favor of the agency, we find that he has failed to set forth any evidence or argument
to overcome the presumption of honesty and integrity that accompanies administrative
adjudicators. See Fox v. Department of the Army, 120 M.S.P.R. 529, ¶ 46 (2014).
5
discovery. IAF, Tab 20. Subsequently, the appellant filed a second motion to
compel, asserting that the agency failed to respond to a number of his
interrogatories and requests for production of documents. IAF, Tab 30. The
administrative judge denied the appellant’s second motion to compel, finding that
it was filed late by 6 days. IAF, Tab 38.
¶7 An administrative judge has broad discretion in ruling on discovery matters,
and, absent an abuse of discretion, the Board will not find reversible error in such
rulings. Vaughn v. Department of the Treasury, 119 M.S.P.R. 605, ¶ 15 (2013).
The administrative judge denied the appellant’s motion to compel discovery
because he failed to comply with 5 C.F.R. § 1201.73(d)(3), which provides that a
motion for an order to compel must be filed with the administrative judge within
10 days of the date of service of objections. IAF, Tabs 38, 41. We find that the
administrative judge did not abuse his discretion in denying the appellant’s
second motion to compel discovery.
¶8 In his petition for review, the appellant appears to allege that the
administrative judge erred in denying him some of the witnesses that he
requested. In his petition, he states that “any witness that I requested was crucial
to my defense and for the sake of truth should have been allowed.” Petition for
Review (PFR) File, Tab 3. The appellant requested 10 witnesses. IAF, Tab 31.
The administrative judge approved seven. He denied two of the appellant’s
requested witnesses because the appellant failed to proffer what relevant
testimony those witnesses would provide. Id. The administrative judge reserved
a ruling on one witness pending a proffer at the hearing. Id.
¶9 The appellant’s assertion on review that the administrative judge erred in
disallowing two of his witnesses does not show that their testimony would have
been relevant, material, or not repetitious. PFR File, Tab 3. Therefore, he
has not shown that the administrative judge abused his discretion in disallowing
these witnesses. See, e.g., Franco v. U.S. Postal Service, 27 M.S.P.R. 322,
325 (1985).
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¶10 Next, the appellant asserts that the agency presented no evidence of fraud.
The agency’s charge, as written, did not require the agency to prove fraud.
Rather, it simply charged the appellant with improper conduct. The Board is
bound to evaluate the charges as written and not to remake the charges into
something that could have been charged, but was not. See Reynolds v.
Department of Agriculture, 54 M.S.P.R. 111, 113 (1992).
¶11 The appellant also generally disagrees with the administrative judge’s
findings of fact. He asserts that, contrary to the administrative judge’s findings,
he used his coworker’s TACS code according to the longstanding and widespread
custom, practice, and policy in his facility. PFR File, Tab 3. We agree with the
administrative judge that the appellant failed to show that use of another
employee’s TACS code was commonplace and known to management. Further,
regardless of the fact that the log-in screen does not specifically prohibit use of a
coworker’s TACS code, as the appellant’s asserts, the agency had provided the
appellant training that included the prohibition against using a coworker’s TACS
credentials to log in. Thus, the appellant knew or should have known that using
his coworker’s TACS credentials to alter his clock rings was a violation. The
appellant’s assertion that his coworker approved the appellant’s actions of
changing his start times by signing form 1260s is wholly unsupported by the
record. As the administrative judge found, the appellant did not provide a single
form 1260 to cover the TACS adjustments identified in the proposed removal.
Accordingly, the appellant’s contentions do not provide a basis for disturbing the
administrative judge’s decision to sustain the agency’s charge. See 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 where she considered the evidence as a whole,
drew appropriate references, and made reasoned conclusions); Broughton v.
Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
¶12 After the initial decision was issued, the Board issued a decision that
clarified the evidentiary standards and burdens of proof under which the Board
7
analyzes discrimination claims. Savage, 122 M.S.P.R. 612, ¶¶ 42-43, 51. We
find that applying the analytical framework set forth in Savage would not change
the result in this case. Thus, based on the existing record, and for the reasons
contained in the initial decision, we affirm the administrative judge’s findings
that the appellant did not meet his burden of proving his affirmative defenses of
discrimination based on age and retaliation for filing EEO complaints.
¶13 Regarding nexus and the penalty, the appellant argues on review that the
agency’s action did not promote the efficiency of the service and that the deciding
official did not consider all of the Douglas factors. PFR File, Tab 3. The
appellant’s vague arguments, however, do not provide a basis for disturbing the
administrative judge’s well-reasoned findings concerning nexus and the penalty.
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.
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 U.S. 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:
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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 U.S. 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
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
