Love v. United States Postal Service , 162 F. App'x 994 ( 2006 )

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3317
RHADELLE L. LOVE,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
__________________________
DECIDED: February 8, 2006
__________________________
Before MICHEL, Chief Judge, LOURIE, and LINN, Circuit Judges.
PER CURIAM.
Rhadelle L. Love (“Love”) appeals a decision of the Merit Systems Protection
Board (“Board”) sustaining a charge of “failure to conduct her duties and responsibilities
as a supervisor in a manner ‘conducive of leadership necessary to enable success in
[Love’s] operations’ and that the manner in which she conducted herself as a supervisor
‘negatively impact(ed) the employer/employee relationship,’” and affirming her demotion
from a supervisory position to the highest available non-supervisory position within the
United States Postal Service (“Postal Service”). Love v. United States Postal Serv., No.
CH-0752-04-0411-I-3 (M.S.P.B. Aug. 3, 2005) (“Final Order”). Because the Board’s
decision sustaining the charge and the demotion is supported by substantial evidence,
is not an abuse of discretion, and does not otherwise contain reversible error, we affirm.
BACKGROUND
Love had been employed by the Postal Service for approximately thirty-eight
years at the time of her demotion from the position of Supervisor of Maintenance
Operations. The charge against Love was primarily based on complaints raised during
the summer of 2003. In August of 2003, the Postal Service attempted to provide Love
with a “notice of [job] expectations,” which Love refused to accept. The Postal Service
initiated an investigation and notified Love of the allegations against her, yet Love
declined to comment on them. On March 8, 2004, relying on the investigative report,
the Postal Service issued an advance notice proposing Love’s demotion (the “Notice”).
After receiving the Notice, Love’s representative at the time, Mr. Bunch, wrote e-mails to
the Postal Service, indicating that he wished to arrange a meeting to review the
documentation supporting the demotion. However, he failed to schedule such a
meeting. Love’s demotion was effected twenty-six days after issuance of the Notice, on
April 3, 2004.
Love appealed to the Board, which affirmed the agency’s decision. See Love v.
United States Postal Serv., No. CH-0752-04-0411-I-3 (M.S.P.B. Feb. 2, 2005) (“Initial
Decision”). The administrative judge found that Love conceded or did not respond to
certain of the allegations against her, and that Love’s testimony disputing several of the
allegations was less credible than contrary testimony from multiple other agency
employees. Id. at 3-7. Weighing all the evidence, the administrative judge sustained
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four of the seven specifications asserted by the Postal Service. Id. at 8. Moreover, the
administrative judge held that the affirmative defenses Love raised did not warrant a
reversal of the action taken by the Postal Service and found that the penalty of
demotion was reasonable. Id. at 9-14. The administrative judge’s decision became the
final decision of the Board after the Board denied Love’s petition for review. See Final
Order, slip op. at 2. Love timely appealed. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
A. Standard of Review
Pursuant to 5 U.S.C. § 7703(c), this court must affirm the Board’s decision unless
it is: (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. Chase-Baker v. Dep’t of
Justice, 198 F.3d 843, 845 (Fed. Cir. 1999). The petitioner bears the burden of
establishing reversible error in reviewing a decision of an administrative agency such as
the Board. Harris v. Dep’t of Veterans Affairs, 142 F.3d 1463, 1467 (Fed. Cir. 1998).
B. Analysis
To succeed in an adverse action against an employee, an agency must establish
that the conduct occurred, that there is a nexus between the conduct and the efficiency
of the service, and that the penalty imposed by the agency was reasonable. Bryant v.
Nat’l Sci. Found., 105 F.3d 1414, 1416 (Fed. Cir. 1997). 5 C.F.R. § 1201.56(b)
requires, among other things, that the Board overturn the action of the agency if the
employee shows harmful error in the application of the agency’s procedures in arriving
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at its decision, or shows that the decision was not in accordance with law. See 5 C.F.R.
§ 1201.56(b). Harmful error is defined as “[e]rror by the agency in the application of its
procedures that is likely to have caused the agency to reach a conclusion different from
the one it would have reached in the absence or cure of the error.” Id. § 1201.56(c)(3).
Love does not contest the Board’s analysis of the second of the factors noted in Bryant,
so we will confine our analysis to the first and third factors.
1. Conduct
The Board affirmed the single charge against Love, finding that the Postal
Service proved, by preponderant evidence, four of the seven specifications supporting
the charge. Initial Decision, slip op. at 8. Regarding the first specification, the
administrative judge found that the testimony and investigative interviews of multiple
employees supported the conclusion that Love moved maintenance parts in violation of
a collective bargaining agreement with the American Postal Workers Union, in which it
is undisputed that Love was not authorized to move maintenance parts. Id. at 2-4. As
to the second specification, the administrative judge found that, based on statements of
multiple witnesses that contradicted Love’s testimony, Love left confidential documents
in open view and thus failed to safeguard the confidentiality of employee records. Id. at
4-5. On the third specification, the administrative judge affirmed the specification that
Love engaged in loud and unprofessional conversations, noting that Love did not
respond to or rebut the statements from multiple employees that Love engaged in
shouting matches and spoke loudly regarding private matters. Id. at 5. Finally, the
administrative judge affirmed the specification that Love discarded and shipped parts
05-3317 4
without documentation, crediting statements by multiple witnesses over Love’s contrary
testimony. Id. at 6-7.
On appeal from the conduct determination, Love argues that these specifications
cannot be sustained because the Board was not provided with all of the facts due to
error by the agency in the application of its procedures. Love also argues that the
Board erred in crediting the statements of multiple employees over her contradictory
statements, apparently contending that the testimony of certain unspecified individuals
is not credible on the grounds that they were promoted at some unknown time
subsequent to testifying at the hearing. Love indicates, in her informal brief, that she
will move to submit a formal brief challenging the Board’s application of law. However,
she has not filed any further brief, and we address only the arguments she has
presented in her informal brief. Love’s arguments regarding the sufficiency of the
evidence are unpersuasive.
Love contends that the Board improperly decided the case with less than all of
the facts, arguing: (1) that the Postal Service committed procedural error in failing to
provide “information from the MS-63;” (2) that she “was not in a Position to assist [her]
council [sic] prior [to] the hearing” because of a lack of documents and a shortened
notice period; (3) that “official documentation was not available;” and (4) that “[t]here are
employees and information now available.”
Love first argues that she should have been provided documents supporting the
charges against her such as “information from the MS-63.” Although she does not
make clear what she is referring to as “the MS-63,” the only document from the file
relied upon by the Postal Service in preparing the proposed action was the investigative
05-3317 5
report. Id. at 10. Nothing in the record indicates that the Postal Service precluded
Love’s review or in any way prevented her from access to the investigative report.
Moreover, the Board found that Love’s legal representative knew he and Love were
entitled to review the investigative report, yet did not attempt to schedule a meeting to
do so. Id. Thus, she cannot fault the Postal Service for the lack of her own diligence.
Love next argues that she was not in a position to assist her counsel, first
because of a lack of documents and second because of a shortened notice period. As
for the lack of documents, the Board found that this was due to Love’s failure to review
her own records, her failure to schedule an appointment to review those records relied
upon by the Postal Service, and her failure to take advantage of the opportunity given to
her by the Board to provide facts to the Board during her appeal. Id. at 10-11. As for
the shortened notice period, Love argues that she was not in a position to assist her
counsel because the Postal Service did not properly apply the thirty-day notice
requirement of 5 U.S.C. § 7513(b)(1) by effecting her demotion within twenty-seven
days after issuance of the Notice. Although the Board found that the Postal Service
technically violated the thirty-day notice provision, the Board concluded that Love’s right
to respond to and review documents supporting the Notice was not harmed by the four-
day premature action. Id. The record before us supports the Board’s conclusion that
any procedural error present here was harmless. Simply put, Love has not shown that,
if the demotion would have been effected four days later, a different outcome might
have been reached. See 5 C.F.R. § 1201.56(c)(3).; Smith v. United States Postal Serv.,
789 F.2d 1540, 1546 (Fed. Cir. 1986) (finding no harmful error even where petitioner
was given only 18, rather than statutorily required 30 days notice of proposed removal);
05-3317 6
see also Devine v. Brisco, 733 F.2d 867, 872-73 (Fed. Cir. 1984) (“a mere conjectural
possibility of prejudice cannot suffice as a basis for inferring actual prejudice”).
Love’s third and fourth arguments, contending that that “official documentation
was not available” and that “[t]here are employees and information now available,” are
based on evidence not present in the record and not considered by the administrative
judge. Our precedent is clear that facts not before the Board cannot be considered on
appeal. “Our precedent clearly establishes the impropriety of seeking a reversal of the
[B]oard’s decision on the basis of assertions never presented to the presiding official or
to the [B]oard.” Rockwell v. Dep’t of Transp., 789 F.2d 908, 913 (Fed. Cir. 1986); see
Oshiver v. Office of Pers. Mgmt., 896 F.2d 540, 542 (Fed. Cir. 1990) (holding that this
court will not consider new evidence that was not presented to the Board); Rockwell,
789 F.2d at 913 (explaining that Congress limited this court’s appellate review “to final
orders and decisions of the Board on the record”).
Finally, and in addition to the foregoing, Love challenges the sufficiency of the
evidence based upon the Board’s credibility determinations. Because the administrative
judge is in the best position to evaluate credibility, his credibility determinations are
“virtually unreviewable” on appeal, see Hambsch v. Dep’t of the Treasury, 796 F.2d 430,
436 (Fed. Cir. 1986), and will not be disturbed unless inherently improbable, discredited
by undisputed evidence, or contrary to physical facts, Hanratty v. Dep’t of Transp., 819
F.2d 286, 288 (Fed. Cir. 1987). Love’s allegations that certain unspecified individuals
who testified against her were promoted at some unknown time subsequent to testifying
at the hearing do not meet the high burden required to disturb the administrative judge’s
credibility determinations.
05-3317 7
Love has not identified any reversible error in the Board’s decision to sustain the
charge.
2. Penalty
Love also challenges the penalty, asking this court for a reassignment to a
different position where she can use more of her skills. The “[d]etermination of an
appropriate penalty is a matter committed primarily to the sound discretion of the
employing agency.” Brook v. Corrado, 999 F.2d 523, 528 (Fed. Cir. 1993) (quoting
Beard v. Gen. Servs. Admin., 801 F.2d 1318, 1322 (Fed. Cir. 1986)). Accordingly, “we
will not disturb a penalty unless it exceeds the range of permissible punishment or is ‘so
harsh and unconscionably disproportionate to the offense that it amounts to an abuse of
discretion.’” Gonzales v. Def. Logistics Agency, 772 F.2d 887, 889 (Fed. Cir. 1985)
(quoting Villela v. Dep’t of Air Force, 727 F.2d 1574, 1576 (Fed. Cir. 1984)).
Love’s arguments do not demonstrate an abuse of discretion by the Postal
Service. Citing Douglas v. Veterans Admin., 5 M.S.P.R. 280, 305-06 (1981), the
administrative judge reviewed the relevant Douglas factors and determined that, due to
Love’s inability to supervise subordinate employees, the demotion to the highest level
non-supervisory position was an appropriate penalty. Initial Decision, slip op. at 13-14.
Although we appreciate Love’s desire to exploit the skills she developed while in a
supervisory position, Love points to no error in the Board’s determination that the
penalty was appropriate, and we find none.
05-3317 8
CONCLUSION
For the foregoing reasons, we conclude that the Board’s decision sustaining the
charge of failure to conduct duties and responsibilities as a supervisor in a manner
conducive of leadership, and affirming the penalty of demotion is supported by
substantial evidence, is not an abuse of discretion, and does not otherwise contain
reversible error. Accordingly, we affirm the Board’s decision.
05-3317 9