Schultz v. United States Postal Service , 323 F. App'x 912 ( 2009 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3023
LINDA V. SCHULTZ,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
Linda V. Schultz, of Houston, Texas, pro se.
Seth W. Greene, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Jeanne E. Davidson, Director, and Mark A. Melnick, Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3023
LINDA V. SCHULTZ,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
Petition for review of the Merit Systems Protection Board in
DA0752070491-I-2.
____________________________
DECIDED: April 6, 2009
____________________________
Before LOURIE, FRIEDMAN, and PROST, Circuit Judges.
PER CURIAM.
Linda V. Schultz appeals from the final decision of the Merit Systems Protection
Board (the “Board”) affirming her removal as postmaster. Schultz v. U.S. Postal
Service, DA-0752-07-0491-I-2 (M.S.P.B. Final Order Oct. 3, 2008; Initial Decision July
30, 2008). Because the United States Postal Service (“Postal Service”) reasonably
removed Schultz for intentionally submitting a fraudulent divorce decree in a Postal
Service investigation, we affirm.
BACKGROUND
Schultz was employed by the Postal Service beginning in 1983. In 1993, she
married Wavily Britten. Schultz petitioned for divorce in 1999, but her petition was
dismissed in June 2000 for want of prosecution. In June 2003, Britten received a
contract for his janitorial service, B & B Maintenance, to perform janitorial services at the
Dickenson, Texas Post Office, where Schultz was then postmaster.
In April 2006, the officer in charge of the Dickinson Post Office reported
discrepancies with the B & B Maintenance contract to the Postal Service’s Office of the
Inspector General (“OIG”), which began an investigation. During the investigation, OIG
agent Rodney Francois interviewed Schultz, who stated that she and Britten were
divorced and faxed Francois a final divorce decree, dated December 27, 2001, as proof.
Francois then discovered that the divorce decree was false, as it had not been issued
by a court but had instead been counterfeited. Francois also found out that, at the time
of the interview in May 2006, Schultz was carrying Britten and his two daughters on her
federal health insurance policy as her spouse and stepchildren.
On August 14, 2006, Schultz was informed that she would be removed from the
Postal Service for improper conduct based on issues involving the contract with B & B
Maintenance and the allegedly fraudulent divorce decree. Schultz appealed her
removal to the Board, and the Postal Service rescinded its removal decision, stating that
it intended to issue a new proposed removal. On April 23, 2007, Schultz received a
second notice of proposed removal based on improper conduct. The notice stated the
following:
1. On or about May 18, 2006, you provided a false official document/
statement, wherein during the course of an OIG investigation regarding a
contract between the [Postal Service] and Wavily Britten, you told OIG that
you were divorced in 2003 and you later provided OIG a divorce decree
dated December 27, 2001, which proved to be false.
Or, in the alternative
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2. On October 16, 2002 and on December 6, 2002 you recertified
authorization for health benefits for Wavily Britten, Wayeisha Britten and
Brean Britten. You also maintained said health benefits for Wavily Britten,
Wayeisha Britten and Brean Britten from January 10, 2004 until November
14, 2006 when they were not entitled to such benefits based on your
divorce to Wavily Britten on December 27, 2001.
Your actions are in violation of the Employee and Labor Relations Manual;
specifically, Section 665.13 Discharge of Duties “Employees are expected
to discharge their assigned duties conscientiously and effectively“ [and]
Section 665.18 Behavior and Personal Habits “Employees are expected to
conduct themselves during and outside of working hours in a manner that
reflects favorably upon the Postal Service. Although it is not the policy of
the Postal Service to interfere with the private lives of employees, it does
require that postal employees be honest, reliable, trustworthy, courteous
and of good character and reputation. . . . Employees must not engage in
criminal, dishonest, notoriously disgraceful, immoral or other conduct
prejudicial to the Postal Service.”
Schultz was sent a notice of removal on June 29, 2007, which analyzed whether the
penalty of removal was appropriate, in accordance with the factors set forth in Douglas
v. Veteran’s Administration, 5 M.S.P.R. 280 (1981). Schultz again appealed her
removal to the Board.
In an initial decision issued on July 30, 2008, the administrative judge (“AJ”)
affirmed the agency’s removal action. The AJ found that the divorce decree Schultz
had provided to Francois was false, as Schultz has admitted. The AJ also found that
Schultz had knowingly supplied false information with the intention of defrauding,
deceiving, or misleading the Postal Service. In finding such intent, the AJ found that
Schultz’s testimony lacked credibility when she claimed that she had believed that she
and Britten were divorced and that the divorce decree was valid. Also, according to the
AJ, Britten’s testimony lacked credibility when he stated that he had paid to procure a
fraudulent divorce decree and had told Schultz that it was genuine; that testimony, if
credible, might have precluded a finding of intent. The AJ instead found that “the fact
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that [Schultz] carried Wavily Britten on her health insurance policy from at least
December 2001 until November 2006, supports a finding that she knew that she and
Wavily Britten were not divorced when she provided the fraudulent Decree to Francois.”
Schultz, DA-0752-07-0491-I-2 at 13. Alternatively, the AJ found that the Postal Service
had shown that Schultz improperly maintained health benefits for Wavily Britten.
The AJ then found that the penalty of removal was reasonable and promoted the
efficiency of the service, as Schultz’s conduct was intentional and was very serious in
nature. According to the AJ, “[t]here is no doubt that a charge concerning the
falsification of documents involves serious misconduct which affects an employee’s
reliability, veracity, trustworthiness and ethical conduct and thus directly impacts on the
efficiency of the service.” Id. at 19 (quotation marks omitted). Moreover, the AJ
reasoned that, as a supervisor, Schultz was held to a higher standard of conduct than
other employees.
Finally, the AJ found that Schultz had failed to prove that the Postal Service had
discriminated against her because of her race (African-American), sex (female), and/or
color (black), reasoning that Schultz had failed to present any evidence to show that
similarly situated employees were treated differently. Schultz then petitioned for review
of the AJ’s decision. In a decision issued on October 3, 2008, the Board denied the
petition, concluding that there was no new, previously unavailable evidence and that the
AJ made no error in law or regulation that affected the outcome. Thus, the AJ’s initial
decision became final.
Schultz timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
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DISCUSSION
The scope of our review in an appeal from a Board decision is limited. We can
only set aside the Board’s decision if it was “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c) (2000); see Briggs v. Merit Sys. Prot. Bd.,
331 F.3d 1307, 1311 (Fed. Cir. 2003). Substantial evidence is “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” McEntee v.
Merit Sys. Prot. Bd., 404 F.3d 1320, 1325 (Fed. Cir. 2005) (quotation marks omitted).
Schultz argues that the Board improperly found that she intended to deceive the
Postal Service. According to Schultz, there was no evidence of intent, and the Board
simply relied on its determinations that both her testimony and Britten’s lacked
credibility. Indeed, according to Schultz, the agency withdrew its allegation of fraud,
which requires intent, in favor of an allegation of improper conduct, showing that the
agency knew that it could not prove the intent element of the fraud charge. Schultz also
argues that, regarding the Board’s alternative finding that she had improperly
maintained health benefits for Britten, the Board was not entitled to recharacterize the
agency’s charge in order to rule in the agency’s favor. Moreover, Schultz asserts that
neither of the Board’s findings of improper conduct violates § 665.13 or § 665.18 of the
Employee and Labor Relations Manual. Schultz argues that the Board failed to review
her discrimination claim, and that the agency did not follow procedures in her case that
it normally follows when removing other employees. Finally, according to Schultz,
although the notice of removal of June 29, 2007 purported to address the Douglas
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factors, it was almost identical to the first notice of removal that she had received, which
the agency had then rescinded. Thus, Schultz argues that she was not given the
benefit of established procedures.
The government responds that the Board carefully considered the testimony of
both Schultz and Britten and that the Board was entitled to make a credibility
determination on both. The government also asserts that the Board’s determination of
intent is entitled to deference. Regarding the Board’s alternative finding, the
government argues that the Postal Service’s notice of proposed removal indicated the
same alternative basis for a finding of improper conduct, so the Board’s finding was not
a recharacterization of the agency’s charge. As for Schultz’s discrimination claims, the
government asserts that we do not have jurisdiction to consider them. The government
also asserts that Schultz did not identify any procedures other than the notice of
removal, which the government notes was not defective, that the Postal Service failed to
follow. According to the government, the Board reviewed the detailed analysis of the
relevant Douglas factors and affirmed the agency’s balancing of those factors.
We agree with the government that substantial evidence supports the Board’s
determination that Schultz’s removal was reasonable. Schultz conceded that the
divorce decree that she submitted was false. Although a charge of improper conduct
does not inherently require a finding of intent, when the agency’s charge is “entirely
unspecific,” as is a charge of improper conduct, the Board may require the agency to
prove intent. See LaChance v. Merit Sys. Prot. Bd., 147 F.3d 1367, 1371-72 (Fed. Cir.
1998). In this case, substantial evidence supports the Board’s finding that Schultz
intended to deceive the Postal Service. As the Board found, Schultz’s act of keeping
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Britten and his daughters on her health plan demonstrates that she knew that she and
Britten were not divorced when she submitted the false divorce decree. Regarding the
Board’s credibility determinations, the Board’s evaluation of witness credibility is
“virtually unreviewable on appeal.” King v. Dep’t of Health & Human Servs., 133 F.3d
1450, 1453 (Fed. Cir. 1998) (quotation marks omitted). We therefore affirm the Board’s
finding that Schultz intentionally submitted a fraudulent divorce decree as being
supported by substantial evidence.
We also agree that the penalty of removal was not inappropriate, as Schultz’s
conduct was intentional and involved falsification of documents. Such conduct also
violates § 665.18 of the Employee and Labor Relations Manual, which requires Postal
Service employees to be honest.
Finally, we agree that the Postal Service did not fail to follow its established
procedures. The only specific example that Schultz provides in alleging a procedural
error is that the Postal Service sent her two virtually identical notices of removal.
However, no error was involved in sending the two notices; the Board thoroughly
reviewed the Postal Service’s reasons for removal in its second notice and affirmed the
agency’s balancing of the Douglas factors. We see no reason to disturb the Board’s
findings. As for Schultz’s discrimination claim, we do not have jurisdiction to review it.
Williams v. Dep’t of the Army, 715 F.2d 1485 (Fed. Cir. 1983) (en banc).
We have considered Schultz’s remaining arguments and find them unpersuasive.
Accordingly, we affirm the Board’s decision.
COSTS
No costs.
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