Buckner v. USPS , 554 F. App'x 906 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JANICE BUCKNER,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
______________________
2013-3144
______________________
Petition for review of the Merit Systems Protection
Board in No. CH0752120230-I-1.
______________________
Decided: December 11, 2013
JANICE BUCKNER, of Chicago, Illinois, pro se.
VERONICA N. ONYEMA, Trail Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
her on the brief were STUART F. DELERY, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and KIRK T.
MANHARDT, Assistant Director. Of counsel was MICHELLE
WINDMUELLER, Appellate Attorney, United States Postal
Services, of Washington, DC.
______________________
2 BUCKNER v. USPS
Before NEWMAN, DYK, and TARANTO, Circuit Judges.
PER CURIAM.
Petitioner Janice Buckner appeals the decision of the
Merit Systems Protection Board (“Board”) sustaining her
removal as a U.S. Postal Service information technology
manager in Milwaukee, Wisconsin. 1 Because the Board’s
decision is supported by substantial evidence, and is not
arbitrary, capricious, contrary to law, or an abuse of
discretion, we affirm.
BACKGROUND
The factual background is set forth in the findings
and rulings of the administrative judge and the Board,
based on documentary and testimonial evidence, summa-
rized as follows: Petitioner had been employed by the U.S.
Postal Service since October 30, 1993. At the time of the
action here appealed, she was serving as an information
technology systems manager for the Lakeland District of
the Postal Service in Milwaukee, Wisconsin. Petitioner
commuted each day from Chicago, Illinois, typically by
Amtrak but occasionally by car. During the relevant
period, Petitioner was supervised by Anthony Drew and
for a brief period by acting supervisor Sally Soderland.
Petitioner’s assigned schedule was Monday through
Friday from 8:00 a.m. to 5:00 p.m., with a one-hour lunch
break.
On October 19, 2010, Mr. Drew told employees under
his supervision, including Petitioner, that “they were
expected to work eight hours a day and that any absence
over one hour had to be approved by a leave-request form
(SF-2971).” On November 2 and 24 and December 2 of
2010, Petitioner was personally given instructions on
1Janice Buckner v. United States Postal Service,
MSPB Docket No. CH-0752-12-0230-I-1 (May 6, 2013).
BUCKNER v. USPS 3
obtaining approval for absences of over one hour by
submitting the leave-request form.
In following up on an incident in late December, 2010
where Petitioner was locked out of her office after arriving
late, Mr. Drew learned from Ms. Soderland that Petition-
er had been irregularly attending to her assigned office
hours. Mr. Drew requested details from Robert Andrews,
an information systems specialist whose office was in
Petitioner’s area. Mr. Andrews sent Mr. Drew a list of
seventeen days, beginning in August 2010, when Peti-
tioner appeared to have been absent during business
hours. Mr. Drew also personally investigated Petitioner’s
attendance, using train schedules, badge access records,
and observations from colleagues. These findings would
later be used to develop the specifications supporting
Petitioner’s removal.
On January 19, 2011 Mr. Drew met with Petitioner to
give her an opportunity to explain her actions. At that
meeting Petitioner did not offer any explanation. Another
meeting was held on April 12, 2011, and Petitioner again
offered no explanation. At that point, Petitioner was
placed on “emergency placement” pending completion of
an investigation of her alleged attendance discrepancies.
At an interview on June 7, 2011 Mr. Drew gave Peti-
tioner the documentation from the investigation, and
Petitioner and a union representative made some general
comments. Mr. Drew informed Petitioner that discipline
for the offense could include removal, and also that the
Postal Service was offering her a level 19 IT Specialist job
that was currently open in Chicago, where Petitioner
lived, thus avoiding the commute to Milwaukee. Petition-
er stated that she would not accept this “downgrade.”
On July 27, 2011, Mr. Drew issued a Notice of Pro-
posed Adverse Action – Removal (“Notice”). The Notice
stated that “there were serious discrepancies in your
timekeeping/leave recording versus your assigned work
4 BUCKNER v. USPS
schedule,” which is “Monday through Friday from 8:00
a.m. to 5:00 p.m. with a one (1) hour assigned lunch
break.” The Notice set forth nine specifications identify-
ing days that Petitioner did not work the required total of
eight hours, and stated that on each of these days, no
request was submitted for personal leave. The specifica-
tions as set out in the Notice are summarized below.
Specification Date Hours worked,
taking into account
one-hour assigned
lunch
1 October 8, 2010 6:00
2 October 13, 2010 2:10
3 October 28, 2010 5:56
4 October 29, 2010 6:00
5 December 13, 2010 5:57
6 December 14, 2010 3:10
7 December 23, 2010 2:03
8 December 27, 2010 6:00
9 December 30, 2010 6:00
Notice of Proposed Adverse Action – Removal (July 27,
2011). The Notice provided two options for Petitioner to
pursue: (1) elect mediation or (2) submit evidence contra-
ry to the specifications directly to a Postal Service human
BUCKNER v. USPS 5
resources manager. Petitioner did not respond. On
December 22, 2011 a human resources manager notified
Petitioner that she would be removed, effective December
27, 2011.
Petitioner appealed to the Board. On June 19, 2012
an administrative judge for the Board issued an initial
decision affirming all nine specifications as tabulated
above, and supporting Petitioner’s removal. Petitioner
filed a petition for review by the full Board.
On May 3, 2013 the full Board issued a decision sus-
taining six of the nine specifications and affirming the
removal. The Board did not sustain the second, third and
fifth specifications because it determined that the admin-
istrative judge did not resolve conflicting evidence or
make credibility assessments as to those charges. How-
ever, the Board held that even if these three specifications
were resolved in favor of Petitioner, removal based on the
six sustained specifications was within the bounds of
reasonableness. This appeal followed.
DISCUSSION
This court “must affirm the Board’s decision unless it
is arbitrary, capricious, an abuse of discretion or other-
wise not in accordance with law, obtained without proce-
dures required by rule, law, or regulation, or unsupported
by substantial evidence.” Addison v. Dep’t of Health &
Human Servs., 945 F.2d 1184, 1186 (Fed. Cir. 1991); see 5
U.S.C. § 7703(c) (2012).
Petitioner challenges each of the six specifications
forming the basis for her removal, questioning the weight
given by the Board to evidence and factual findings.
Petitioner also contends that she did not receive a copy of
the Notice in time to reply to the specifications, resulting
in harmful procedural error. Finally, Petitioner argues
that the deciding official and the Board did not properly
6 BUCKNER v. USPS
consider the Douglas factors in choosing the penalty of
removal.
I. Required Hours per Day
Petitioner’s challenges to the first, fourth, eighth and
ninth specifications are premised on her assertion that
she was required to work 7.5 hours per day, rather than 8
hours. Petitioner relies on the testimony of Sally Soder-
land, a Financial Analyst for the Postal Service, to sup-
port the argument that the normal hours for managers
were 8:00 a.m. to 4:30 p.m., i.e., 7.5 hours per day plus a
one-hour lunch break.
The Board found that the requirement was 8 hours
per day, citing testimony from two managers, Mr. An-
drews and Mr. Drew. Additionally, the Postal Service
Employee and Labor Relations Manual refers only to an
8-hour workday. Substantial evidence supports the
Board’s finding that Petitioner was required to work 8
hours per day.
II. Facility Access Data
Postal Service employees use digital badges for access
to parking garages and office facilities. Petitioner argues
that the Board improperly relied on digital badge access
records because employees are not required to record their
presence using their badges, and because employees may
use the badges of other employees to enter work areas.
The government responds that the Board did not consider
such records in isolation, but also considered train sched-
ules, witness testimony, and lack of explanation from
Petitioner.
The Board did not rely on the badge evidence alone,
but as corroboration of other evidence, including testimo-
ny from Petitioner and witnesses. See J.C. Equip. Corp.
v. England, 360 F.3d 1311, 1315 (Fed. Cir. 2004) (“The
trier of fact’s responsibility is to determine the weight (if
any) to be given all of the evidence, whatever its charac-
BUCKNER v. USPS 7
ter.”). No error has been shown in the presentation of
digital badge evidence.
III. Other Challenges
For the first, fourth, eighth and ninth specifications,
the evidence was that Petitioner worked for 6.5 hours or
less with a one-hour lunch break. Petitioner argues that
these were full work days of 7.5 hours because she did not
take a lunch break. The Board found that Petitioner did
not testify at the hearing that she worked through lunch.
Instead, Petitioner testified that she arrived late on the
day of the first specification, and left early on the dates of
the fourth and ninth specifications.
As to the first, fourth, sixth and eighth specifications,
Petitioner testified that it was her practice to notify Mr.
Drew’s secretary via email or indicate on her calendar if
appointments would prevent her from working a total of
eight hours. For example, Petitioner testified that she
told Mr. Drew that she needed to take her mother to an
appointment on the date of the sixth specification, and
additionally darkened that date on her calendar. Peti-
tioner argues that the Board improperly gave no weight to
this testimony.
We discern no error on the part of the Board with re-
spect to this testimony. It was not shown that Petitioner
obtained approval before her absences, as required by the
Employee and Labor Relations Manual. This require-
ment is posted at the workplace and was made known to
Petitioner on several occasions.
Regarding the seventh specification, Petitioner states
in her brief that she arrived on time on the day in ques-
tion. This contradicts Mr. Andrew’s testimony that she
arrived late and notified her co-worker Ms. Soderland of
her late arrival. Petitioner disputes this testimony,
arguing that the location of her office made it difficult to
determine if she was present. The administrative judge
8 BUCKNER v. USPS
found that, contrary to Petitioner’s argument about the
visibility of her office, Ms. Soderland testified that Peti-
tioner’s office was locked and the lights were off at 2:00
pm. The Board credited Ms. Soderland’s testimony over
that of Petitioner, and found that the seventh specifica-
tion was supported by evidence in the form of digital
access data and witness testimony. This court may not
reevaluate the credibility of the witnesses. See Long v.
U.S. Postal Serv., 968 F.2d 1226, 1229 (Fed. Cir. 1992)
(“[T]his court will not ‘second-guess a presiding official’s
credibility determination, based as it was on demeanor . .
. .’”) (internal citations omitted).
With respect to the ninth specification, Petitioner tes-
tified that she arrived at work around 7:40 a.m. and was
intending to depart at 3:00 pm; however, when Petitioner
learned that her train was delayed until 4:00 pm, she
emailed Mr. Andrews telling him that she would depart
later. We agree with the Postal Service that even if this
specification were resolved in favor of Petitioner, the
remaining supported specifications are sufficient to sus-
tain removal. See Riser v. Dep’t of Treasury, 309 F. App’x
402, 404 (Fed. Cir. 2009) (affirming charge notwithstand-
ing administrative judge’s finding that four out of six
specifications of that charge were not supported by a
preponderance of the evidence).
IV. Notice
Petitioner states that she did not receive a copy of the
Notice in time to reply to the specifications. The Postal
Service argues that Petitioner failed to rebut the pre-
sumption that the Notice was delivered, and in all events
that any error was harmless.
Mr. Drew testified that the Notice was sent to Peti-
tioner by both first class and priority mail, and that the
letters were not returned. The Board found that this
testimony supported a rebuttable presumption that a
letter containing the Notice was delivered to Petitioner,
BUCKNER v. USPS 9
citing Foust v. Department of Treasury, 80 M.S.P.R. 447,
479-80 (1998) (“[E]vidence that a letter was sealed,
properly addressed, and deposited in the mail with post-
age prepaid gives rise to a rebuttable presumption that
the letter reached the addressee in due course of the
mails.”). The Board found that Petitioner failed to rebut
this presumption.
Petitioner argues that she offered testimony showing
that the first class and priority mail letters were not
delivered in time for her to respond to the Notice. Peti-
tioner refers to her pre-hearing submissions, including a
statement from her union representative that contained a
handwritten note stating that the Notice was not deliv-
ered. The Board did not discuss this evidence. The Postal
Service argues that these statements were not sworn, and
are not competent evidence. See Jordan v. Dep’t of Jus-
tice, 54 M.S.R.P. 609, 611 (1992) (“Sworn statements that
are not rebutted are competent evidence of the matters
asserted therein. . . . A mere statement (unsworn) by the
appellant that his petition was timely filed is not suffi-
cient to meet his burden of proof on timeliness.”) (internal
citations omitted). We conclude that substantial evidence
supports the finding that the mailed Notice was received
in time for response.
V. The Douglas Factors
In Douglas v. Veterans Administration, the MSPB
identified a dozen nonexclusive factors that should be
considered for disciplinary penalties. Petitioner asserts
that these factors were not given appropriate weight in
the Board’s decision. For example, the first Douglas
factor is:
The nature and seriousness of the offense, and its
relation to the employee’s duties, position, and re-
sponsibility, including whether the offense was in-
tentional or technical or inadvertent, or was
10 BUCKNER v. USPS
committed maliciously or for gain, or was fre-
quently repeated;
5 M.S.P.B. 313, 332 (1981). The Board found that Peti-
tioner’s “misconduct was repetitive in nature and occurred
after she was specifically warned she was required to
submit a leave-request form any time she was absent
from duty.” Janice Buckner v. United States Postal Ser-
vice, MSPB Docket No. CH-0752-12-0230-I-1, 11 (June 19,
2012). Mr. Drew testified that morale problems are
created when managers who supervise other employees do
not themselves obey time and attendance rules.
The fourth Douglas factor is “the employee’s past
work record, including length of service, performance on
the job, ability to get along with fellow workers, and
dependability.” Douglas, 5 M.S.P.B. at 332. Petitioner
stresses that she had been employed for nineteen years
with no disciplinary history and had received numerous
employment awards, including one nomination for “em-
ployee of the year.” In his letter of decision, Mr. Odell
stated that he considered Petitioner’s length of service but
determined that the seriousness of Petitioner’s conduct
outweighed any mitigating factors.
The fifth Douglas factor is “the effect of the offense
upon the employee’s ability to perform at a satisfactory
level and its effect upon supervisors’ confidence in the
employee’s ability to perform assigned duties.” Douglas, 5
M.S.P.B. at 332. Mr. O’Dell, the deciding official, testified
that dishonesty in reporting time and attendance is a
removable offense, particularly for a manager. He testi-
fied that Petitioner had access to security systems within
the agency and that he had to be able to trust her. Peti-
tioner asserts that there was no evidence that she was
dishonest in reporting her time and attendance. The
Board found that the specifications document several
instances where Petitioner was present for significantly
BUCKNER v. USPS 11
less than 8 hours, and did not honestly report her time
and attendance.
With respect to the tenth Douglas factor, the “poten-
tial for the employee’s rehabilitation,” Mr. O’Dell testified
that his belief in Petitioner’s integrity was broken by her
actions and that she had no rehabilitative potential.
The Board considered Petitioner’s past work record,
supervisory role, job responsibilities, potential for rehabil-
itation, notice of the rules that were violated, and the
seriousness of her misconduct, and found that the agen-
cy’s removal action should be sustained. Substantial
evidence supported the Board’s findings, and Petitioner
has not shown that this conclusion was “arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accord-
ance with law . . . .” 5 U.S.C. § 7703(c).
The decision of the Board is affirmed.
AFFIRMED
COSTS
No costs.