M.S.P.B. Full Board Review

Here is Noble's appeal to the MSPB's full board, along with the board's decision split up and paired with Noble's arguments. Half of the issues below were heard by Turbitt and half were raised for the first time in this appeal. For the issues heard by Turbitt I've included links to the relevant sections of the initial decision. The Full Board's decision is represented on this page in full with the exception of pages 1,2 and 8 which contain no reference to the arguments below. To see the documents in their original form click here for the appeal, or click here for the board's decision.
Appellant’s Petition for Review
I. Statement of Facts.
A. Background.
This case is about the removal on AWOL charges of appellant David W. Noble, Jr., who has been a city letter carrier employed by the agency for more than 36 years and who had an unblemished disciplinary record at the time of his removal. From 1979 through most of 1993 appellant took leave from his job with the agency to work on behalf of the National Association of Letter Carriers, AFL-CIO, the union that represents the agency’s city letter carriers. Appellant lost his job with the union in 1993 when he filed internal charges against the union’s entire 28-member executive council for making payments to themselves which had not been approved by the membership, and which had not been reported to the membership. In 1994 appellant filed a suit in federal court against the union’s highest ranking officers for breaching their fiduciary duty as to the secret payments. The suit is still active, back now at the district court after having been remanded by the circuit court. The suit was brought for the common benefit of the union’s membership. The most recent decision in the case is reported at Noble v. Sombrotto, 525 F.3d 1230 (D.C. Cir. 2008). Appellant’s legal standing to continue to pursue the suit depends on his membership in the union, which, in turn, depends on his employment status with the agency. Thus, at stake in this appeal is not only a 36-year career, but perhaps also the final resolution on the merits of a lawsuit that has survived numerous other efforts to kill it for more than eighteen years.
B. Constructive suspension.
In 2009 and 2010 appellant’s working conditions became so bad that he wrote letters to the agency describing his working conditions and telling the agency that his attendance was suffering as a result. Included among the bad conditions identified by appellant were: 1) blocking access to grievance procedure (federal labor law-violating misconduct for which the National Labor Relations Board twice issued complaint against the agency during this period), 2) a badly overburdened route, 3) numerous instances of baseless discipline. Appellant also orally informed his supervisor that his bad working conditions were making it difficult to be regular in
attendance. From July 2010 through January 2011 appellant’s working conditions continued to worsen. In July a new manager (Sterling Colter) tried to set appellant up for discipline on false charges of being AWOL. In September, with the arrival of a new supervisor (William French), the agency constructively cut appellant’s pay by refusing to pay him for holidays. The new supervisor ordered appellant to work overtime on his overburdened route every day, although appellant’s physician had recommended that appellant not work overtime. Appellant was thus daily placed in the position of having to choose between following his supervisor’s orders or his physician’s recommendations. Appellant did not work after January 13, 2011. When the agency wrote appellant on January 31st and directed him to return to work or provide medical documentation, appellant wrote back that he considered himself to have been constructively suspended since January 14, 2011 as a result of intolerable working conditions. The agency did not reply to the letter. The agency scheduled appellant for a pre-disciplinary interview (“PDI”) on February 23, 2011. Such interviews are standard under the collective bargaining agreement before disciplinary action is initiated. The subject of the interview was appellant’s alleged absence without leave between January 14, 2011 and February 16, 2011. Appellant left the interview a few minutes after it began. There is a dispute as to what was said during the interview. Tony Jones, the agency representative who scheduled and conducted the interview, testified that he warned appellant that he would be considered AWOL if he left the meeting. Appellant recorded the interview and included a transcript of the recording in a sworn declaration. The transcript shows that Jones did not warn appellant that he would be considered AWOL. Appellant tried to include the actual recording of the interview as an exhibit at the hearing, but the judge would not accept it. The judge credited Jones’ version without explanation, and without acknowledging the contradictory evidence. No disciplinary action was taken against appellant for the absences that were the subject of the February 23, 2011 PDI.
C. Removal.
By notice dated April 28, 2011 the agency proposed removal of the appellant for being AWOL from February 24, 2011 through April 28, 2011. The notice of proposed removal informed appellant of his right to respond to the notice in person or in writing, but did not tell appellant where to send a written response. When he received the proposed removal appellant sent a fax to the proposing and concurring officials (William French and Sterling Colter) and, inter alia, noted the omission of an address to which to send a written response. The officials did not reply. Appellant also telephoned the person designated as the deciding official (Paris Washington) and left messages asking for a return call. According to the appellant he did not receive a return call. According to the deciding official appellant did not contact him. The
judge credited the deciding official’s version. By letter dated June 11, 2011, with accompanying Form 50, the agency notified appellant that he had been placed on long-term LWOP effective January 14, 2011. Under the agency’s regulations LWOP is an approved leave status, and is distinct from AWOL, which is not an approved leave status. In the zone in which appellant worked, a letter carrier named Leonard Poe had been AWOL for significant periods of time, refused to discuss why he had been absent, had the same supervisors for at least a portion of the time, and was given lesser discipline than removal, even though he had received prior discipline for attendance. On July 5, 2011 Paris Washington issued a letter of decision upholding appellant’s removal effective July 22, 2011. The letter of decision asserted that several Douglas factors had been considered, which assertion was later contradicted by Washington’s hearing testimony. The instant appeal followed.
D. Pre-hearing processing.
1. Discovery and motions for postponements and suspension of case.
By notice dated August 18, 2011 the AJ set a hearing date of September 28, 2011. By motion dated September 19, 2011, appellant requested that the hearing be postponed, explaining that he had served discovery requests for which responses were not due until October 2nd, that he expected that he would have to file a motion to compel, that he planned to take a second round of discovery, and that he expected that he would have to file a another motion to compel as to the second round. In a conference call on September 26th the AJ postponed the hearing until October 19, 2011. The AJ’s postponement ruling was memorialized in a summary of the prehearing conference. Appellant filed objections to the summary on October 6th, expressly including an objection to the October 19th hearing date. Appellant noted that in the interim the agency had refused all of appellant’s first discovery requests. On October 11, 2011 appellant filed an unopposed motion to postpone the hearing scheduled for October 19th. On October 14, 2011 appellant filed a motion to compel discovery. On October 17th, the AJ conducted a conference call with appellant and the agency’s representative. During that call, as memorialized in an October 20, 2011 summary, the AJ re-set the hearing date for November 4, 2011, and granted in part appellant’s motion to compel discovery, setting an October 31st at 5:00 p.m. deadline for the agency to respond. On October 25, 2011 appellant filed a motion to postpone the hearing set for November 4, 2011. Appellant noted that he had served discovery requests on the agency and that the agency’s responses were not due until November 4th. Appellant also noted that the agency had informally told him that it would object to his attempt to take depositions of the agency’s witnesses. Appellant stated that he believed that it would be necessary for him to file at least one more motion to compel. On October 28, 2011 appellant filed objections to the AJ’s October 20, 2011 summary, expressly including an objection to the November 4, 2011 hearing date. On November 1, 2011 the agency filed a joint motion to suspend case processing for thirty days so that the parties could complete discovery. Also on November 1, appellant filed a motion to compel the agency to produce witnesses for depositions. By notice sent to appellant by e-file on November 2 at 10:05 a.m. – less than 48 hours before the scheduled hearing – the AJ granted appellant’s motion as to the depositions in part, but refused the parties’ request to suspend case processing, thus leaving appellant less than two days to arrange for and conduct four depositions. The AJ also ordered the agency to respond to certain of appellant’s discovery requests by noon on November 3rd. On November 3, 2011 appellant filed an unopposed motion to postpone the hearing, telling the AJ that he had been unable to take the depositions in the time allotted, and telling the AJ that the agency had not provided the discovery material that had been due on October 31st until late in the afternoon on November 1st, and that the appellant had not had enough time to finish reading it. The AJ denied the motion, and the hearing proceeded on November 4th.
2. No closing arguments. 
In an order dated October 20, 2011 the AJ ruled that no closing arguments would be allowed at the hearing. On October 28, 2011 the appellant objected to that prohibition, if it meant that no written closing arguments would be allowed after the hearing. On November 1, 2011 the AJ responded to appellant’s objection, stating that no written arguments would be permitted.
3. Motion to disqualify. 
On September 26, 2011 the AJ held a conference call with the agency’s representative and appellant. Appellant recorded the call, which lasted for about an hour. In his September 27, 2011 summary of the call, the AJ wrote: “During the prehearing conference, the appellant continually questioned my authority to narrow the list of his 19 witnesses to only those I deemed appropriate. The appellant is mistaken in his belief that I lack the authority to do this.” The AJ also wrote: “At times, I did interrupt [appellant] when he repeatedly claimed that I lacked the authority to deny any of his witnesses... .” Both statements are false. Appellant did not even once question the AJ’s authority to do anything. While the AJ interrupted appellant on numerous occasions, none of the interruptions came while appellant was making a claim that the AJ lacked the authority to deny any of his witnesses. On October 6th appellant filed objections to the AJ’s September 27, 2011 summary, and specifically objected to the AJ’s statements about appellant’s conduct during the conference. Also on October 6th appellant filed a motion to disqualify the judge. The agency did not file an opposition to appellant’s disqualification motion. The AJ conducted a conference call with the agency’s representative and appellant on October 17th. In that call he denied appellant’s motion to disqualify, and memorialized that ruling in a summary dated October 20, 2011. In his ruling the AJ wrote that his statements about appellant’s conduct had been accurate. On October 21, 2011 the appellant filed a motion to certify the issue of the AJ’s disqualification as an interlocutory appeal, to which motion he appended a copy of the transcript of the September 26th conference call. The AJ denied the motion to certify an interlocutory appeal on October 28, 2011, calling the appellant’s recording of the September 26th conference “at best, discourteous.” Neither the AJ nor the agency disputed the accuracy of the transcript. 
4. Constructive suspension, Part 2. 
By letter dated February 8, 2011 appellant wrote to the agency, notifying it that he considered himself to have been constructively suspended since January 14, 2011 because of intolerable working conditions. The agency included at least a partial copy of the letter in its disciplinary file. In the September 26, 2011 pre-hearing conference there was a discussion of the issues to be litigated. Appellant stated that one of the affirmative defenses he was raising was that the absence from work for which he was removed should be considered to have been a constructive suspension because of intolerable working conditions, rather than an unauthorized absence. During the conference the AJ stated that he rejected appellant’s claim that he was constructively suspended, but accepted appellant’s claim of intolerable working conditions. The AJ memorialized his rejection of the constructive suspension claim and his acceptance of an intolerable working conditions claim in his September 27, 2011 summary of the pre-hearing conference, giving somewhat different reasons than those stated during the conference. On October 6, 2011 appellant filed objections to the September 27th summary, and specifically addressed the AJ’s treatment of the constructive suspension issue. On October 20th the AJ addressed appellant’s objection by ruling that he would docket the constructive suspension as a separate case. On October 28th appellant objected to the constructive suspension being docketed separately, saying that the suspension and the removal were cause and effect and that it did not make sense to address them separately. (The AJ subsequently docketed the constructive suspension as a separate case, and dismissed it as untimely. The PFR for that case is due on March 20, 2012. Appellant will file a PFR on or before that date and will move to join or consolidate the constructive suspension and removal case.)

1. The ID contains numerous errors of fact. Therefore, the Board should undertake a complete review of the record.

Noble MSPB Pg 2-3
1. At page 19 of the ID it is stated: “The appellant’s supervisors all testified
credibly that they advised him repeatedly that he must return to duty or be
disciplined, and they even held off disciplining for a very long time . . . .” This
statement is false. None of the agency’s four witnesses – three of whom might
be considered to be appellant’s supervisors – testified that they advised
appellant repeatedly that he must return to duty or be disciplined, or that they held
off disciplining for any period of time.
2. At page 10 of the ID it is stated: “[A]ppellant stated that management harassed
him by . . . making him attend predisciplinary meetings in August 2010 and
November 2010 in which supervisors told him he could be subjected to discipline
if his extended absences did not stop.” This statement is false: a. Appellant did
not state that the predisciplinary meetings constituted harassment. b. There is no
evidence that at the predisciplinary meetings supervisors told
appellant that he could be subjected to discipline if his extended absences did
not stop.
3. At the top of page 12 a reference is made to appellant and the agency being
inlitigation in a court case. However, there is no evidence in the record of
appellant and the agency being involved in litigation in court. There is evidence of
appellant being involved in litigation with certain union officials.
4. At page 9 of the ID it is stated: “The appellant testified that for many months, his
supervisors began to pressure him to return to work and complete his route.”
That statement is false. Appellant did not so testify.
5. At page 8 of the ID it is stated that appellant testified that various of his
ailments “caused him great emotional distress.” That statement is false.
Appellant actually testified: “I also have an abdominal aortic aneurysm that is not
disabling per se, but is life threatening (as is its medical remedy). Given the
aneurysm, I feel great emotional distress when I am forced to work overtime, a
fact that I made known to all of my supervisors in 2009 and 2010, sometimes in
writing, often in person.49“
6. At page 18 of the ID it is stated: “At the hearing, three witnesses testified that
the appellant never tried to contact them after the notice of proposed removal was
issued. I found the agency?s version on this point to be far more credible than the
appellant?s version, based on my close observation of the witnesses’ demeanor
at the hearing and the consistency of the agency’s witnesses’ testimonies on this
matter. I found the agency's witnesses to be believable.” However, the agency
produced four witnesses. One of them, Washington, testified that appellant
did not contact him. One of them, Colter, did not testify about post-removal contact
at all. One of them, French, testified that appellant did not contact him about
coming back to work, butdid not testify that appellant did not otherwise contact
him. One of them, Jones, left the station two weeks before the notice of proposed
removal was issued, and, therefore was not available for contact. There is no
consistency at all as to the testimonies. And even assuming, arguedo, that
Washington’s version about no contact with him should be credited, appellant’s
testimony that he faxed Colter and French about the omitted address and that
they failed to reply remains unrebutted.
7. At page 14 of the ID it is stated: “The appellant, meanwhile, offered no evidence
in support of his bare assertion that he provided medical evidence to justify his
AWOLs.” However, appellant made no assertion, bare or otherwise, that he
provided medical evidence to justify the February 24 – April 28 absence for which
he was removed. Instead, as he notified Jones in his letter dated February 8,
2011, appellant considered himself to be constructively suspended.
8. At page 14 of the ID it is stated: “it seems as if the appellant’s main basis for
claiming that he provided medical documentation is located in the file at AF, Tab
35, Appellant’s Exhibit X.” As stated above, however, does not contend that he
provided medical documentation to justify the February 24 – April 28 absence for
which he was removed. The doctor’s notes to which the AJ refers were offered
only to show that appellant’s physician recommended that appellant not
work overtime, and that at least Bill French was aware of that fact.
9. At page 13 of the ID it is stated: “...the agency set forth at least four
predisciplinary sessions which were based, in part or in whole, on his deficient
attendance, and in which he was warned that his continued irregular attendance
could lead to discipline, up to and including removal.” That statement is false.
One agency witness – Jones – discussed one predisciplinary interview. Jones
alleged that he told appellant that he would be considered AWOL if he left the
interview. Jones did not testify that he warned appellant about “continued irregular
attendance.” Appellant disputes Jones’ testimony about the AWOL warning
based on a recording appellant made of the interview. No other witness testified
that s/he warned appellant about “continued irregular attendance.” Please note
that the purpose of a predisciplinary interview is to give the employee against
whom discipline is being considered an opportunity to “tell his side of the
story.” It is not used for warning employees. And there is not a shred of evidence
that appellant was ever warned about “continued irregular attendance” at any
time or in any place.
10. At page 13 of the ID it is stated: “For the first time at the hearing, the appellant
asked that I include a new issue in this appeal; namely that the agency denied
him minimum due process of law.” That statement is false. Appellant did not ask
that the AJ include as a new issue that the agency denied him minimum due
process. Instead, the appellant asked that the AJ add “an affirmative defense,
namely that the removal action was initiated by a higher-level supervisor rather
than by [appellant’s] immediate supervisor.”55 The agency had given appellant a
discovery response the day before that indicated Antonio Jones had initiated the
discipline. If that were the case, it would violate the collective bargaining
agreement.
11. At page 10 of the ID it is stated: “The appellant refused [French’s offer to
consider adjusting his route] because he did not agree with the method French
was employing... .” There is nothing in the record indicating that appellant can, or
did, refuse to have his route adjusted. (There are many other errors of fact, but
this document is getting too long, and time is getting too short.)
 In his petition for review, the appellant cites to numerous “errors of fact” in the
initial decision. Petition for Review (PFR) File, 0880, Tab 3 at 15-19. We have
reviewed these alleged errors and find that, while he challenges specific
language in the initial decision, he has not shown any impact on his substantive
rights. An adjudicatory error that is not prejudicial to a party's substantive rights
provides no basis for reversal of an initial decision. Panter v. Department of the
Air Force, 22 M.S.P.R. 281, 282 (1984). The appellant challenges the
administrative judge’s credibility determinations, but they were consistent with
Board case law on assessing credibility, see Hillen v. Department of the Army, 35
M.S.P.R. 453, 458 (1987); 0880 ID at 13-14, and the appellant’s mere
disagreement with those determinations does not provide a basis for Board
review, see Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133 (1980).

2. The AJ improperly excluded argument.

Noble MSPB Pg 3
[Administrative judges] are required to use fair procedures that afford each party
to an appeal an opportunity to respond to any other party's arguments and
evidence. See Eriksen v. Department of Energy, 20 M.S.P.R. 135, 138 (1984).
Providing an opportunity to present argument is a fundamental part of the way
courts and boards operate in our society. MSPB’s website cautions against
including too much material with the initial appeal and states: “Both parties will
have several opportunities to provide additional evidence and argument as the
appeal proceeds toward a decision.” Here, appellant was given no opportunity to
argue the merits of his or the agency’s cases. Instead, the AJ made up
arguments for appellant and knocked them down. The result was that the AJ
addressed arguments – sometimes at considerable length – appellant would
not have made, while failing to address arguments appellant wished to make.
To underscore the absurdity of the AJ’s approach, please note that the Board will
not consider an argument raised for the first time in a petition for review absent a
showing that it is based on new and material evidence not previously available
despite the party's due diligence. If the Board follows precedent here, the AJ will
have immunized himself from any review of his decision as to the merits,
because he allowed no argument on the merits.		 The appellant argues that the administrative judge improperly excluded
argument “as to the merits.” PFR File, 0880, Tab 3 at 19-20. To the extent the
appellant is suggesting that he wished to pursue his constructive suspension
claim in this appeal, he has done so and, as noted, the administrative judge also
docketed that matter as a separate appeal. Therefore, the appellant has failed to
show how he was harmed in this regard. See Panter, 22 M.S.P.R. at 282.

3. The AJ erred by failing to disqualify himself.

Noble MSPB Pg 8
In making a claim of bias against an administrative judge a party must overcome
the presumption of honesty and integrity that accompanies administrative
adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386 (1980).
An administrative judge’s conduct during the course of a Board proceeding
warrants a new adjudication only if her or his comments or actions evidence “a
deep-seated favoritism or antagonism that would make fair judgment
impossible.” Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir.
2002) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)). Here appellant
has shown that the AJ made false statements in an official summary about
appellant’s conduct during a conference call. That the AJ made false statements
is sufficient to both overcome the presumption of honesty and integrity and
evidences a deep-seated antagonism that would (and did) make fair judgment
impossible. The AJ should have disqualified himself.		 The appellant contends that the administrative judge erred by failing to disqualify
himself. PFR File, 0880, Tab 3 at 20. Despite his assertion of “deep-seated
antagonism” on the part of the administrative judge, our review of the record
reveals none, and the appellant’s claim of bias, which does not involve
extrajudicial conduct, fails to overcome the presumption of honesty that
accompanies administrative adjudicators. See Simpkins v. Office of Personnel
Management, 113 M.S.P.R. 411, ¶ 5 (2010).

4. The AJ erred by finding that the agency had proven its charges.

Noble MSPB Pg 3-5 (Turbitt Pg 13-14,18-19)
In order for an agency to prove AWOL, the agency must show that the employee
was absent, and that his absence was not authorized, or that his request for
leave was properly denied. Wesley v. U.S. Postal Service, 94 M.S.P.R. 277, ¶ 14
(2003). While there is no dispute that appellant was absent from February 24th –
April 28th the evidence shows that he had been placed in a long-term LWOP
status – authorized leave – effective January 14, 2011 and continued in that
status at least until June 11, 2011. The AJ argues at page 13 that “[t]he record
also demonstrates that the appellant failed to provide medical documentation to
support his absences, despite inquiries from Postal management,” and that it
was therefore appropriate to place appellant in an AWOL status based on
Johnson v. General Services Administration, 46 M.S.P.R. 630, aff’d 944 F.2d 913
(Fed. Cir. 1991). Johnson, however, is wholly inapposite – it involved an
employee who contended that he was absent for medical reasons, but who
failed to provide documentation. Here, appellant does not contend that he was
absent for medical reasons. Instead, he contends that he was absent because
he was constructively suspended due to intolerable working conditions. The
Board is required to review the agency's decision on an adverse action solely on
the grounds invoked by the agency; the Board may not substitute what it
considers to be a more adequate or proper basis. Gottlieb v. Veterans
Administration, 39 M.S.P.R. 606, 609 (1989). Reading the proposed removal’s
specification as well as its label it is plain that the only charge against appellant
is that he was AWOL from February 24th – April 28th. The AJ erred, therefore, by
finding appellant failed to follow leave-requesting procedures (based on
Podrazik v. U.S. Postal Service, 54 M.S.P.R. 380 (1992)) and that appellant used
excessive LWOP (based on Cook v. Department of the Army, 18 M.S.P.R. 610
(1984)). Further, the evidence in this case does not support the elements of the
rules announced in either Podrazik or Cook.		 The appellant argues that the administrative judge erred in finding the charge of
AWOL sustained and otherwise misconstrued the charge. The administrative
judge correctly found that, to sustain a charge of AWOL, the agency must show
that the employee was absent and that his absence was unauthorized, or that
his request for leave was properly denied. Little v. Department of Transportation,
112 M.S.P.R. 224, ¶ 6 (2009); 0880 ID at 13. The appellant does not dispute that
he was absent during the period in question but contends, as he did below, that
he was on long-term leave without pay (LWOP), as evidenced by a PS Form 50
showing him on LWOP beginning January 14, 2011. IAF, Tab 11, Exhibit D.2
During the proceeding below, the appellant also argued that certain of his pay
stubs showed that he was carried on LWOP. The administrative judge found that
evidence in the record supported the agency’s position that the appellant was
AWOL during the period in question. 0880 ID at 5-6; see, e.g., IAF, 0880, Tab 9,
Subtab 4c (the appellant’s time and attendance records); Hearing Transcript
(HT) at 47 (testimony of Antonio Jones, author of the return-to-duty letter, that the
code of “24” on the appellant’s time and attendance documents signifies AWOL);
HT at 79 (testimony of Sterling Colter, Service Supervisor, that, when an individual
is AWOL, the pay stub shows LWOP, signifying that the individual was not paid).
3 The PS Form 50 alone, even with the appellant’s argument, does not outweigh
the other considerable evidence of his AWOL status. We therefore agree with the
administrative judge that the agency proved the AWOL charge by preponderant
evidence. The appellant contends that the administrative judge misconstrued the
charge by also finding that he failed to follow leave-requesting procedures and
used excessive LWOP. PFR File, 0880, Tab 3 at 20-21. The administrative judge
did find that the agency proved that it took action against the appellant for
excessive approved absence, and that it was proper to do so, 0880 ID at 18-19,
and that the agency proved that he was irregular in attendance during the period
in question, id. at 14. In determining how an adverse action charge is to be
construed, the Board will examine the structure and language of the proposal
notice. Williams v. Department of the Army, 102 M.S.P.R. 280, ¶ 5 (2006). Although
the charge was “Unsatisfactory Attendance/Absence Without Official
Leave/Permission (AWOL),” IAF, 0880, Tab 9, Subtab 4b, the underlying
specification referred only to the appellant’s AWOL status since February 24,
2011, “through present.” Id. Therefore, the agency only supported the AWOL
charge, although the appellant clearly had other significant attendance-related
issues. We therefore modify the initial decision by vacating any and all
references to a charge of irregular attendance, 0880 ID at 14, or use of approved
leave, id. at 18-19.

5. The appellant proved that he was treated disparately.

Noble MSPB Pg 6-7
An appellant's allegation that the agency treated her disparately to another
employee, without a claim of prohibited discrimination, is an allegation to be
proven by the appellant and considered by the Board in determining the
reasonableness of the penalty, but it is not an affirmative defense. See Taylor v.
Department of Veterans Affairs, 112 M.S.P.R. 423, ¶ 11 (2009), modified on other
grounds, Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657, ¶ 6 (2010). To
establish disparate penalties, the appellant must show that the charges and the
surrounding circumstances are substantially similar so that a reasonable
person would conclude that the agency treated similarly-situated employees
differently. See Lewis, 113 M.S.P.R. 657, ¶ 6; see also Williams v. Social Security
Administration, 586 F.3d 1365, 1368-69 (Fed. Cir. 2009); Archuleta v. Department
of the Air Force, 16 M.S.P.R. 404, 407 (1983). If the appellant does so, the agency
must prove a legitimate reason for the difference in treatment by a
preponderance of the evidence. Lewis, 113 M.S.P.R. 657, ¶ 6. To trigger the
agency’s burden, there must be a great deal of similarity, not only between the
offenses committed by the appellant and a proposed comparator, but as to other
factors, such as whether the employees were in the same work unit, had the
same supervisor and/or deciding official, and whether the events occurred
relatively close in time. Id., ¶ 12. Through Leon Tucker,59 a former steward in
appellant’s work location, and through his own declaration testimony,60
appellant showed that a letter carrier named Leonard Poe had been AWOL for
significant periods of time, refused to discuss why he had been absent, had the
same supervisors for at least a portion of the time, and was given lesser
discipline than removal, even though he had received prior discipline for
attendance. Furthermore, by placing Poe in Zone 16 with French and Colter,
Tucker’s testimony established that the events were relatively close in time,
because Colter didn’t arrive in Zone 16 until about August 2010,61 and French
didn’t arrive until September 2010.62 These similarities were sufficient to trigger
the agency’s burden to prove a legitimate reason for the difference in treatment.
The agency, however, didn’t address the evidence about Leonard Poe, and
neither did the AJ.		 The appellant alleges that the administrative judge erred in not addressing his
claim of disparate penalties with regard to employee Leonard Poe. In fact, the
administrative judge’s penalty analysis did not include a discussion of this claim.
0880 ID at 24-26. During the hearing, the appellant testified and also presented
testimony by Leon Tucker, a former shop steward in the appellant’s work area,
regarding Leonard Poe, an alleged comparator employee who was not removed,
although he had prior discipline, was AWOL for several months, and would not
explain why he had been absent when he returned to duty or produce
documentation in support of his absence. IAF, 0880, Tab 22 at 5; HT at 218-19,
223-24. To establish disparate penalties, the appellant must show that there is
“enough similarity between both the nature of the misconduct and the other
factors to lead a reasonable person to conclude that the agency treated similarly-
situated employees differently, but the Board will not have hard and fast rules
regarding the ‘outcome determinative’ nature of these factors.” Lewisv.
Department of Veterans Affairs, 113 M.S.P.R. 657, ¶ 15 (2010). If he does so, the
agency must prove a legitimate reason for the difference in treatment by a
preponderance of the evidence before the penalty can be upheld. Id. The
agency’s burden has not been triggered here because the appellant did not
show that the charges and circumstances surrounding the charged behavior
were substantially similar. The only evidence the appellant presented was his
and Tucker’s testimony. Tucker was unsure whether Poe was AWOL or on LWOP,
HT at 222-23, and he did not indicate when the action occurred. He testified that
he thought that William French (the proposing official in the appellant’s removal)
disciplined Poe once and that other named officials disciplined him on other
occasions. Id. at 223. Tucker was not asked who the deciding official was in
Poe’s case (Paris Washington was the deciding official in the appellant’s case).
French and Washington both testified at the hearing, but the appellant did not
specifically question either about Poe. Additionally, there is no evidence that the
agency necessarily began levying a heavier penalty without notice. Moreover, the
Board has consistently held that the penalty of removal is reasonable for a
significant amount of AWOL. See Dias v. Department of Veterans Affairs, 102
M.S.P.R. 53, ¶ 16 (2006), aff’d, 223 F. App’x 986 (Fed. Cir. 2007). Thus, we find
that the appellant failed to show that the charges and the circumstances
surrounding the charged behavior of Poe are substantially similar in order to
establish his disparate penalties claim. See Thomas v. Department of Defense,
66 M.S.P.R. 546, 552 (the consistency of the penalty is only one of the factors to
be considered under Douglas in determining the reasonableness of the agency-
imposed penalty), aff’d, 64 F.3d 677 (Fed. Cir. 1995) (Table); see also Lewis, 113
M.S.P.R. 657, ¶ 6.

6. The AJ wrongly used his power to schedule to interfere with appellant’s attempts to take discovery.

Noble MSPB Pg 5
MSPB regulations provide the parties with an opportunity to take discovery.
Appellant attempted to avail himself of that opportunity. By using his power to
schedule the AJ shaped appellant’s discovery efforts so that: 1) Appellant didn’t
get any discovery material until three days before the hearing, then got so much
that he had been unable to read it all by the afternoon before the hearing. 2)
Appellant got a less than 48-hour window in which to conduct four depositions,
with no advance notice that the window would be opening. 3) Appellant got a
second pile of discovery material 21 hours before the hearing. Both parties told
the AJ that he was not allowing enough time for discovery, but he rejected their
final pleas for more time. Appellant was harmed by the AJ’s interference,
particularly by being prevented from taking the depositions of the agency’s
witnesses. That he could take no depositions meant that every question
appellant asked of the agency’s witnesses during the hearing necessarily
violated the first rule of cross-examination – that one should never ask a
question to which one does not know the witness’s answer. Furthermore, one of
the primary purposes of discovery is to prevent surprise, and appellant was
surprised by Jones’ hearing testimony about allegedly having warned appellant
that he would be considered AWOL if he left the February 23, 2011 PDI, and was
also surprised by Washington’s hearing testimony that he did not consider the
Douglas factors, which testimony contradicted Washington’s statement in the
decision letter. If appellant had had the opportunity to take their depositions he
could have prepared for Jones’ and Washington’s testimony. Instead, appellant
was ambushed.		 The appellant argues that the administrative judge interfered with his discovery
efforts by preventing him from taking depositions of witnesses Antonio Jones
and Paris Washington before the hearing. Beyond claiming surprise at one
statement that each of the two witnesses made during their testimony, the
appellant has failed to explain how his substantive rights were prejudiced by not
having deposed Jones and Washington in advance of the hearing or how any
information he sought to discover would have changed the result in this appeal.
See White v. Government Printing Office, 108 M.S.P.R. 355, ¶ 7 (2008). Therefore,
the appellant has not shown that the administrative judge abused his discretion
in this regard.

7. The AJ failed to give proper instructions as to two affirmative defenses.

Noble MSPB Pg 5
When an appellant raises an affirmative defense, the AJ must inform the
appellant of the burdens and elements of proof necessary to establish that
defense. Sarratt v. U.S. Postal Service, 90 M.S.P.R. 405, ¶ 12 (2001) (citing
Thompson v. Department of the Army, 80 M.S.P.R. 245, ¶ 6 (1998)); Clarke v.
Office of Personnel Management, 73 M.S.P.R. 435, 441 (1997). Here, the record
shows that the AJ never properly informed the appellant of what he needed to
prove to establish his claims: 1) that he had been subjected to intolerable
working conditions, and 2) that the agency had violated the collective bargaining
agreement when a second level supervisor initiated appellant’s removal..
Thus, the appellant did not receive “a fair and just adjudication” of these
affirmative defenses. Milner v. Department of Justice, 77 M.S.P.R. 37, 46 (1997).		 The appellant next alleges that the administrative judge erred in failing to give
proper instructions regarding his affirmative defense of violation of the collective
bargaining agreement (CBA). On the contrary, early on in the proceeding below,
the administrative judge set forth the definition of harmful error and explained that
the burden is on the appellant to show that he was harmed by any error. IAF,
0880, Tab 13 at 3.

8. The AJ wrongly concluded that appellant had not proven his affirmative defenses.

Noble MSPB Pg 5 (Turbitt Pg 15-19)
An appellant's removal may not be sustained if s/he can show harmful error in
the application of the agency's procedures in arriving at its decision to remove
her or him. 5 U.S.C. § 7701(c)(2)(A); Romero v. Department of Defense, 527 F.3d
1324, 1328-29 (Fed. Cir. 2008);Rothlisberger v. Department of the Army, 111
M.S.P.R. 662, ¶ 14 (2009). An appellant bears the burden of proof to show
harmful error by the agency in effecting an adverse action. Henton v. U.S. Postal
Service, 102 M.S.P.R. 572, ¶ 15 (2006); 5 C.F.R. § 1201.56(c)(3). An agency error
is harmful only where the record shows that the procedural error was 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. Stephen v. Department of the Air
Force, 47 M.S.P.R. 672, 681, 685 (1991).1. Summary removal without progressive
discipline. The AJ analyzed this affirmative defense as though appellant
contended that his summary removal violated Board case law concerning
progressive discipline. That was error, because appellant does not so contend.
Instead, appellant contends that his summary removal violated the collective
bargaining agreement’s requirement that progressive discipline be employed for
most charges. Furthermore, appellant contends that the parties to the collective
bargaining agreement agree that the charges against appellant are part of the
“most charges” that require application of principles of progressive discipline.
The best evidence of what a collective bargaining agreement means is the way
the parties to the agreement act under it. In discovery appellant asked the agency
to identify employees discharged for AWOL in a one year period, where the
employee had 1) over 30 years of service, and 2) an unblemished record at the
time of the removal. The agency identified appellant as the only employee who
matched those criteria. Appellant also asked the agency to identify employees
who had been given lesser discipline than removal for AWOL over a one year
period. The agency identified hundreds employees who had been given letters of
warning, seven-daysuspensions, and fourteen-day suspensions.63 Witness
Alton Branson corroborated the practices shown by the agency’s answers.
Taken together, these are proof that the collective bargaining agreement requires
that progressive discipline be used to address AWOL charges. And the
agency violated the collective bargaining agreement by discharging appellant
without first attempting lesser discipline. The harm to appellant of the agency’s
violation of the collective bargaining agreement is obvious: In the absence of the
violation the agency would have given appellant a letter of warning rather than
removing him. 2. No PDI. The NALC/USPS collective bargaining agreement
provides that the agency may only issue discipline to letter carriers for “just
cause.”65 NALC and the agency agree that before discipline is initiated against a
letter carrier, just cause requires that the letter carrier must be given an
opportunity to “tell his side of the story” as to the subject of the possible
discipline. The agency almost always discharges its duty to give a letter carrier
an opportunity to tell his side of the story by conducting a predisciplinary
interview. During the predisciplinary interview the agency informs the letter
carrier of the subject of the possible disciplinary action and asks for thecarrier’s
side of the story. On February 23, 2011 agency representative Antonio Jones
conducted a predisciplinary interview with appellant. The subject of the
February 23, 2011 interview was AWOL from January 14, 2011 to February 16,
2011. No discipline was ever issued to appellant for the absences that were
the subject of the February 23, 2011 interview. (Therefore, the AJ’s ruling that
appellant waived the right to an interview by allegedly storming out of it on
February 23rd is of no consequence.) By letter dated April 28, 2011 the agency
proposed to remove appellant for being AWOL from February 24, 2011 – April 28,
2011. Before issuing the April 28, 2011 Notice of Proposed Removal, the agency
did not conduct a predisciplinary interview with appellant to give appellant an
opportunity to tell his side of the story as to the absences from February 24, 2011
through April 28, 2011 that were the subject of the notice. The agency had
conducted three other predisciplinary interviews with appellant in the two years
preceding his removal. The agency did not issue discipline as to the absences
that were the subject of those interviews.The agency violated the collective
bargaining agreement by initiating discipline without first giving the appellant a
predisciplinary interview. That the violation was harmful is shown bythe history of
appellant’s PDIs: When the agency conducts PDIs with appellant, it does not
issue discipline. That history establishes a likelihood that if the agency had
conducted a PDI concerning the absence from February 24, 2011 to April 28,
2011 it would have been dissuaded from removing appellant. 3. No effort to
correct a situation. Section 115.1 of the USPS M-39 Handbook, Management of
Delivery Services, provides that “[t]he delivery manager must make every effort to
correct a situation before resorting to disciplinary measures.”75 The record
shows that the agency did not: adjust appellant’s route so that he could carry it in
eight hours, stop ordering appellant to work overtime every day in contravention
of his physician’s recommendations, pay appellant for the 64 hours of leave
approved on January 13, 2011, pay appellant for the holidays he was cheated out
of after September 2010, pay appellant for the time he missed as a result of the
bogus suspension on July 29, 2010, stop blocking appellant’s access to the
grievance procedure, or correct any of the other violations appellant noted in his
letters to Toatley76 and to Jones.77 As appellant wrote to Jones, his absence
was due to intolerable working conditions. If the agency had corrected the
intolerable conditions he would have returned to work. Had the agency done so,
it would not have had to escalate the situation to a disciplinary action. Therein
lies both the error and the harm.		 The appellant also argues that the administrative judge wrongly concluded that
he did not establish his affirmative defense of harmful error with regard to his
claimed violations of the CBA. IAF, 0880, Tab 11, Exhibit A. The administrative
judge addressed each of the appellant’s claims and analyzed them under a
harmful error standard, concluding that none of the alleged violations rose to that
level and instead went to the reasonableness of the penalty. 0880 ID at 15-18.
Beyond his mere disagreement, the appellant has not shown error in the
administrative judge’s harmful error analysis. See Hall v. Department of the Navy,
73 M.S.P.R. 251, 255 (1997).

9. Appellant proved that he was subjected to intolerable working conditions.

Noble MSPB Pg 5-6, 9-10 (Turbitt Pg 19-20)
Appellant contended that the absence for which he was removed should be
considered a constructive suspension caused by intolerable working conditions,
rather than AWOL. The AJ dismissed most of appellant’s contention in a footnote
on page 20 of the ID. The following facts, all of which are established by
appellant’s declaration at Tab 41 of the AF, together with the citations below to
case law, show that the AJ’s cursory dismissal is far outside the mainstream of
legal thought concerning the issue of intolerable working conditions: 1. A
constructive adverse action for intolerable working conditions may be found on
the basis of evidence that an employer deliberately sought to place an employee
in a position that jeopardized his or her health. See, e.g., Spence v. Maryland
Cas. Co., 995 F.2d 1147, 1156 (2d Cir. 1993); Meyer v. Brown & Root Construction
Co., 661 F.2d 369, 371-72 (5th Cir. 1981). Here, the agency has taken health
jeopardizing actions against appellant on several occasions: First, by sabotaging
his attempts to get paid for annual and sick leave, thereby preventing him
from obtaining needed cardiac medications. Second, by holding his route far out
of adjustment for more than six years and by ordering him to work overtime every
day while knowing that his physician had recommended that he not work
overtime. Third, by keeping him without health insurance for several months,
while refusing to communicate with him about the insurance, and otherwise
sabotaging and delaying his efforts to reacquire insurance. 2. A constructive
adverse action for intolerable working conditions may be found in part
on the basis of evidence that an employer suggested or encouraged an
employee to resign. Clowes v. Allegheny Valley Hospital, 991 F.2d 1159, 1161 (3d
Cir.), cert. denied, 510 U.S. 964 (1993). In his letter to appellant dated January 31,
2011 Antonio Jones included a resignationform. 3. A constructive adverse action
for intolerable working conditions may be found on the basis of evidence that an
employer reduced an employee's rate of pay with a discriminatory intent J.P.
Stevens & Co. v. NLRB, 461 F.2d 490, 494 (4th Cir. 1972). Here the agency
reduced appellant’s pay by about 4% by failing and refusing to pay him for five
holidays after September 2010 although required by the collective bargaining
agreement to make the payments, and although it made the payments to
200,000 other letter carriers. 4. A constructive adverse action for intolerable
working conditions may be found on the basis of evidence that an employer
attempted to set an employee up on a false charge. Suders v. Easton, 325 F.3d
432 (3d Cir. 2003). Here Sterling Colter and Brandon Toatley attempted to set
appellant up on a false charge of AWOL by: First, telling appellant on July 29,
2010 that he was suspended, second, by telling him on August 4, 2010 that he
had not been suspended, and, third, telling him when he returned to work that he
had been AWOL since July 29, 2010. 5. A constructive adverse action for
intolerable working conditions may be found, in part, on the basis of evidence
that an employer socially ostracized an employee. Sharp v. City of Houston, 164
F.3d 923, 934 (5th Cir. 1999). Here the agency has engaged in a long-standing
pattern of refusal to communicate with appellant. Notable examples of
management silence include, but are not limited to: Antonio Jones’ failure to
answer appellant’s February 8, 2011 letter, Steve Furgeson’s failure to comply
with the administrative judge’s order to notify appellant when the agency believed
it had restored him to the status quo ante after the 2009 suspension, Steve
Furgeson’s and Brian Fletcher’s failures to answer appellant’s April 2010
emails concerning his health benefits, Brandon Toatley’s failure to answer
appellant’s May 2009and February 2010 letters, and Bill French’s and Sterling
Colter’s failure to respond to appellant’s communications concerning the
address to which he should send his response to the April 2011 notice of
proposed removal. 6 A constructive adverse action for intolerable working
conditions may be found on the basis of evidence that an employer made a
threat of disciplinary action that the agency knows is not sustainable. Schultz v.
United States Navy, 810 F. 2d 1133, 1136 (Fed. Cir. 1987). Here, on August 12,
2010 Sterling Colter publicly threatened to fire appellant if he brought back
undelivered mail to the station. Appellant brought back undelivered mail that day,
as he had on every day since May 2010, and as he continued to do every day for
the remainder of 2010. No disciplinary action was ever taken against appellant
for bringing back undelivered mail. That is because bringing back undelivered
mail, without more, does not provide cause for disciplinary action. 7. Evidence of
a lack of recourse within an employer's organization can contribute to a case for
constructive adverse action for intolerable working conditions. Howard v. Burns
Brothers, Inc., 149 F.3d 835, 842 (8th Cir. 1998). Similarly, "[i]f an employee
[absents herself] because she reasonably believes there is no chance for fair
treatment, there has been a constructive [adverse action]." Kimzey v. Wal-Mart
Stores, Inc., 107 F.3d 568, 574 (8th Cir. 1997). Here the agency has blocked
appellant’s access to the collectively-bargained-for grievance procedure for more
than four years, and for years before that refused to honor the settlements it
entered into of grievances appellant had asked the union to pursue. For
appellant, filing grievances has been an almost completely futile endeavor.
8. The effect of a number of adverse conditions in the workplace is cumulative. A
constructive [adverse action] occurs if a reasonable person subjected to the
same conditions as the plaintiff would have felt compelled to step down.
Because a reasonable person encounters life's circumstances cumulatively and
not individually, it is error to treat the various conditions as separate and distinct
rather than additive. Chertkova v. Connecticut General Life Insurance Co.
92 F.3d 81 (2nd Cir. 1996). (Please note that the AJ wildly misstates the law
concerning voluntariness.)		 The appellant disputes the administrative judge’s finding that he did not
establish his claim of intolerable working conditions, challenging the
administrative judge’s legal reasoning. In support of his claim, the appellant
cites to numerous cases from various circuits. See, e.g., PFR File, 0880, Tab 3 at
25-28. However, those cases are not dispositive. See Garcia v. Department of
Agriculture, 110 M.S.P.R. 371, ¶ 12 (2009) (decisions of the Court of Appeals for
the Federal Circuit are controlling authority for the Board). The administrative
judge properly considered whether the intolerable working conditions alleged by
the appellant compelled him to be absent and found that, considering the totality
of the circumstances, the working conditions were not so difficult that a
reasonable person in the appellant’s situation would have felt compelled to
leave the workplace. See Peoples v. Department of the Navy, 83 M.S.P.R. 216, ¶ 5
(1999); 0880 ID at 19-20. The appellant has not shown error in these findings,
particularly in view of the fact that a number of the alleged incidents upon which
he relies occurred well before the period in question. See Gerges v. Department
of the Navy, 89 M.S.P.R. 669, ¶ 11 (2001), aff’d, 52 F. App’x 513 (Fed. Cir. 2002)...

...We need not remand this appeal, however, because, as noted, the
administrative judge provided the appellant with proper jurisdictional notice as to
his claimed constructive suspension, IAF, 0054, Tab 5 at 5-6, and the appellant
responded to the issue, id., Tab 8. Moreover, the administrative judge specifically
noted, in his initial decision dismissing the appeal as untimely, that, at the
hearing on the appellant’s removal, witnesses testified at length about the
issues related to the appellant’s constructive suspension claim. 0054 ID at 1 n.2.
The agency actions that the appellant alleged constituted intolerable working
conditions include “sabotaging” his attempts to get paid for annual and sick
leave, holding his route far out of adjustment and ordering him to work overtime
against his doctor’s recommendation, keeping him without health insurance for
several months, failing to pay him for holidays, “setting him up” on a false charge
of AWOL, refusing to communicate with him, and blocking his access to the
collectively-bargained-for grievance procedures. IAF, 0054, Tab 8 at 3-6. It seems
clear that the appellant has had a difficult relationship with Postal management
over the years, as evidenced by his having filed at least six Board appeals since
2005, a number of which addressed these very issues, IAF, 0880, Tab 13 at 4-5;
Tab 23 at 3, as well as various grievances and unfair labor practices. The
appellant has continued to recount his years of dissatisfaction with the way in
which he was treated by the agency. However, the totality of the circumstances is
examined by an objective standard, not the employee’s purely subjective
evaluation. Heining v. General Services Administration, 68 M.S.P.R. 513, 520
(1995). Based on our review of the record, we agree with the findings the
administrative judge made in the removal initial decision that the appellant has
not shown that the actions the agency took were so harassing or so severe as to
compel a reasonable person in his position to absent himself and remain
absent. 0880 ID at 19-20; see Gerges, 89 M.S.P.R. 669, ¶¶ 8-20. He therefore has
not shown that his absence constituted a constructive suspension. The initial
decision is modified accordingly to dismiss the appellant’s appeal of that action
for lack of Board jurisdiction, rather than as untimely filed.4

10. Neither the deciding official nor the AJ properly considered the Douglas factors.

Noble MSPB Pg 7-8 (Turbitt Pg 23-26)
In the decision letter Paris Washington contended that he considered some of
the Douglas factors, but did not address them in any meaningful way. At the
hearing Washington shifted his position and repeatedly testified that he based
his decision on just two factors: 1) That appellant was charged with AWOL, and
2) That appellant had not contacted him about the removal. The latter is clearly
improper. The opportunity to respond to disciplinary charges is a legal right – it
is not a legal obligation. If the agency wanted to use failure to contact the
deciding official as an aggravating factor it should have so notified appellant. The
AJ’s consideration of the Douglas factors was no more meaningful than the
deciding official’s. Particularly inexplicable was the failure of either the AJ or the
deciding official to even mention appellant’s working conditions. (As it turned out
the deciding official had not even read appellant’s February 8, 2011 constructive
suspension letter to Jones,78 although it was part of the disciplinary file. Neither
the proposing official – French – nor the concurring official – Colter – had
bothered to read the letter, either.79) Even assuming, arguendo, that appellant’s
working conditions did not rise to the level ofintolerability, holding appellant’s
route far out of adjustment, ordering appellant to work overtime every day in
contravention of his physician’s recommendations, stiffing appellant for
the 64 hours of leave approved on January 13, 2011, cheating appellant out of
holiday pay after September 2010, trying to set appellant up for false disciplinary
charges in July 2010, and blocking appellant’s access to the grievance
procedure for four years certainly qualify as “unusual job tensions” as that term is
used in Douglas, and they should have been considered by somebody in
mitigation.		 The appellant has not otherwise shown error in the agency’s or the
administrative judge’s penalty analysis. Contrary to the appellant’s claim, the
administrative judge found, and the record reflects, that the deciding official
considered the appropriate Douglas factors in determining that removal was
appropriate. 0880 ID at 24-26; IAF, 0880, Tab 9, Subtab 4a. Although the
appellant argues that no consideration was given to his allegation that he
suffered intolerable working conditions, the administrative judge considered that
claim, although in a different context, concluding that the record did not support
the appellant’s allegation. 0880 ID at 19-20. Therefore, we find that the appellant
has not established error in the administrative judge’s conclusion regarding the
reasonableness of the penalty. See Dias,
102 M.S.P.R. 53, ¶ 16.