UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

SHERRY G. LUCAS,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

CH-0752-16-0448-I-1

DATE: June 29, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Glenn L. Smith, Esquire, Grand Rapids, Michigan, for the appellant.

Deborah W. Carlson, Esquire, and Samuel D. Brooks, Esquire, Chicago, 

Illinois, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

sustained her removal. Generally, we grant petitions such as this one only in the 

following circumstances: the initial decision contains erroneous findings of 

material fact; the initial decision is based on an erroneous interpretation of statute 

 

1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2

or regulation or the erroneous application of the law to the facts of the case; the 

administrative judge’s rulings during either the course of the appeal or the initia l 

decision were not consistent with required procedures or involved an abuse of 

discretion, and the resulting error affected the outcome of the case; or new and 

material evidence or legal argument is available that, despite the petitioner’s due 

diligence, was not available when the record closed. Title 5 of the Code of 

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully 

considering the filings in this appeal, we conclude that the petitioner has not 

established any basis under section 1201.115 for granting the petition for review. 

Therefore, we DENY the petition for review and AFFIRM the initial decision, 

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 

BACKGROUND

¶2 The appellant was formerly employed by the agency as a Manager of 

Customer Service at the Gary, Indiana, Post Office. Initial Appeal File (IAF), 

Tab 1 at 1. On December 22, 2015, the agency proposed her removal based on a 

charge of Unacceptable Conduct-Insubordination. Id. at 11-16. The charge was 

based on the appellant’s repeated refusal to make a public apology to letter 

carriers in accordance with a prearbitration settlement agreement, an arbitration 

decision, and the repeated instructions of postal management. Id. On May 16, 

2016, the agency sustained the charge and removed the appellant, effective 

May 27, 2016. Id. at 6-10.

¶3 The appellant filed a Board appeal, disputing the charge. IAF, Tab 1. After 

holding the appellant’s requested hearing, the administrative judge issued an 

initial decision, sustaining the appellant’s removal. IAF, Tab 25, Initial Decision 

(ID). The administrative judge found that the agency proved its charge of 

insubordination. ID at 4-9. In particular, she found that the appellant’s repeated 

refusal to follow multiple direct orders to issue the apology was willful and 

intentional. ID at 5-6. She further found that the relevant officials were 
3

authorized to instruct the appellant to comply with the arbitrator’s decision. ID 

at 7-9. She also found that there was a nexus between the sustained charge and 

the efficiency of the service and that the penalty of removal was within the 

tolerable limits of reasonableness. ID at 9-14. 

¶4 The appellant has filed a petition for review. Petition for Review (PFR) 

File, Tab 4. The agency has opposed the appellant’s petition, and the appellant 

has filed a reply.2 PFR File, Tabs 6-8.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge correctly found that the agency proved its 

insubordination charge.

¶5 The undisputed facts that formed the basis of the agency’s charge, as set 

forth by the administrative judge, are as follows. In March 2013, the National 

Association of Letter Carriers (NALC) filed a class action grievance alleging that,

as a result of the appellant’s conduct, the agency had violated provisions of the 

NALC National Agreement (NA), the Joint Statement on Violence and Behavior 

in the Workplace, and sections of the Employee Labor Manual. ID at 2. On 

February 12, 2014, the parties entered into a prearbitration settlement agreement,

resolving the class action grievance. Id. One of the terms of the agreement 

provided that the appellant would “make a public apology to letter carriers in the 

Gary office acknowledging her behavior is not acceptable and a pledge to change 

her approach in treatment of fellow human beings.” Id. 

¶6 Following the settlement agreement’s execution, the appellant issued a 

statement, which the letter carriers did not believe constituted an apology in 

 

2 With its response to the appellant’s petition for review, the agency has submitted 

numerous documents, some of which are part of the record below. PFR File, Tab 6

at 19-173, Tab 7 at 4-106. Because we find no basis for granting the appellant’s 

petition for review, we need not determine whether any of the agency’s documents 

constitute new and material evidence. See Banks v. Department of the Air Force, 

4 M.S.P.R. 268, 271 (1980); Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 

(1980); 5 C.F.R. § 1201.115(d). 
4

accordance with the requirements of the prearbitration agreement. IAF, Tab 7 

at 97. As a result, NALC filed a grievance to protest various contractual 

violations by the agency, including the appellant’s failure to apologize. ID at 2-3. 

After a 4-day arbitration hearing on the grievance was held, the arbitrator issued a 

written award finding that the appellant failed to comply with the prearbitration 

settlement agreement because she did not issue an apology. ID at 3. The 

arbitration award directed the appellant to issue a public apology to letter carriers 

at the Gary Post Office within 30 days, in the form of a prewritten statement 

prepared by the arbitrator. ID at 3. Following the arbitration award, the 

appellant was instructed to deliver the apology in compliance with the arbitration 

award on five separate instances, but she refused to comply.3 ID at 3, 6 n.1. 

Thereafter, the agency removed the appellant based on her failure to obey 

multiple direct orders to issue the apology in compliance with the binding 

arbitration award. IAF, Tab 1 at 6-10.

¶7 As discussed above, the administrative judge found that this charge was 

based on insubordination. ID at 5. The initial decision properly stated that 

insubordination is the willful and intentional refusal to obey an authorized order 

of a superior officer which the officer is entitled to have obeyed. Id.; see

Alvarado v. Department of the Air Force, 103 M.S.P.R. 1, ¶ (2006), aff'd, 

626 F. Supp. 2d 1140 (D.N.M. 2009), aff'd, 490 F. App’x 932 (10th Cir. 2012). 

Here, in finding that the agency proved its charge, the administrative judge 

anchored this finding in credibility determinations, relying on the Board’s 

decision in Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987). 

Considering the record as a whole, including testimonial evidence, the 

administrative judge found that the appellant’s refusal to follow the multiple 

direct orders was willful and intentional. ID at 6-7. The appellant does not 

 

3 Although the appellant testified that she was only ordered to apologize two times, the 

administrative judge found that such testimony was contradicted by the documentary 

evidence and joint stipulations of the parties. ID at 6 n.1.
5

explicitly dispute these findings on review, and we discern no basis for disturbing 

them. See Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). 

¶8 Rather, the appellant asserts that the administrative judge erred in 

sustaining the charge for several reasons. First, she argues that the prearbitration 

agreement was invalid because she was improperly denied the right to respond to 

NALC’s allegations prior to the entry of the prearbitration agreement. PFR File, 

Tab 4 at 9-10. She contends that the agency representative was not authorized to 

settle the grievance while she was out on leave and without ever interviewing her

concerning the allegations made against her. Id. at 10. For the first time on 

review, she submits a December 14, 2016 letter from agency management 

addressing the handling of grievances, which states that “[a]ccused management 

employees should receive full opportunity to respond to allegations against 

them.” Id. at 21. Even if such allegations are true, the Board has no authority to 

invalidate a settlement agreement reached in another forum. See, e.g., Johnson v. 

U.S. Postal Service, 108 M.S.P.R. 502, ¶ 8 n.5 (2008), aff’d, 315 F. App’x 274 

(Fed. Cir. 2009); Goodwin v. Department of the Treasury, 52 M.S.P.R. 136, 139 

n.2 (1991), aff’d, 983 F.2d 226 (Fed. Cir. 1992); Danelishen v. U.S. Postal 

Service, 43 M.S.P.R. 376, 379-80 (1990). To the extent the appellant believes 

that she should not be bound by the prearbitration settlement agreement, she may

bring a direct proceeding to invalidate the agreement in the proper forum.

¶9 Next, the appellant argues that the NA did not apply to her, and thus,

management had no authority to order her to apologize. PFR File, Tab 4 at 14-17. 

In support of her argument, she points to Article I of the NA, which she contends 

excluded management from the provisions of the NA. Id. at 14. The 

administrative judge addressed the appellant’s argument concerning the alleged 

inapplicability of the NA to management and found that such an argument was 

misplaced. ID at 7. She found that Article I was a standard collective bargaining 

provision that did not exclude management from the provisions of the NA but 

rather merely identified classifications of employees, such as those included in 
6

management and those included in the craft. Id. She further found that various

agency directives demonstrated that adherence to collective bargaining 

agreements by all employees, including management, was a longstanding and 

well-established policy. ID at 8. On review, the appellant offers no evidence or 

argument to dispute these findings and, thus, has not provided a basis for 

reversal.

¶10 Similarly, the appellant argues that the arbitrator did not have the authority 

to discipline her, order her to issue an apology, or compel her to do anything

personally because she was not a party to the grievance, which was between

NALC and the agency. PFR File, Tab 4 at 16-17. In essence, she argues that the 

arbitrator could only order the agency, not a specific management official, to 

issue an apology. Id. We find such arguments unavailing. As the administrative 

judge found, the arbitrator merely enforced a valid and binding settlement 

agreement between the parties. ID at 8-9. The appellant also argues that no 

apology should have been mandated because the arbitrator found that NALC did 

not prove that she engaged in a continual pattern of behavior in violation of the 

NA or the Joint Statement on Violence and Behavior in the Workplace. PFR File, 

Tab 4 at 15-16. Such an argument is, however, misplaced. The arbitrator found

that, although the appellant did not engage in any unacceptable conduct following 

settlement that amounted to a continued violation of the NA, she failed to comply 

with the terms of the prearbitration settlement because she failed to properly 

apologize. IAF, Tab 1 at 12, Tab 7 at 97.

¶11 Finally, the appellant argues that the arbitration decision and management’s 

orders that she apologize to the letter carriers violated her First Amendment 

rights because she could not be compelled to issue an apology that violated her 

religious belief against lying. PFR File, Tab 4 at 11-14. However, such an 

argument was not raised below. Thus, she may not raise it for the first time on 

review. See Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980) 

(declining to consider the appellant’s harmful error claim submitted for the first 
7

time on review when the appellant presented no new evidence that was not 

available when the record closed to justify consideration of the issue). 

The administrative judge properly found that the agency proved that the penalty 

of removal was reasonable.

¶12 The administrative judge found that the deciding official properly 

considered the penalty assessment factors set forth in Douglas v. Veterans 

Administration, 5 M.S.P.R. 280, 305-06 (1981), and exercised his discretion 

within the tolerable limits of reasonableness in deciding to remove the appellant. 

ID at 13-14. On review, the appellant argues that the penalty of removal exceeds 

the bounds of reasonableness and it should be mitigated to a 30- or 60-day 

suspension. PFR File, Tab 4 at 17-20. In support of her argument, she asserts 

that she did not apologize, despite being instructed to do so several times, based 

on religious grounds, and thus, there is no basis to conclude that she cannot be 

rehabilitated or will not follow lawful instructions in the future. Id. at 17. 

However, the appellant did not raise an affirmative defense of discrimination 

based on religion. IAF, Tab 8. She also argues that her lack of ability to respond 

to the union’s grievance allegations prior to the prearbitration settlement warrants 

mitigation. PFR File, Tab 4 at 18. However, as discussed, the propriety of the 

agency’s action in settling the grievance and the validity of the settlement 

agreement reached in a different forum are not issues before the Board. 

Regardless, we find that such an argument does not outweigh the seriousness of 

her repeated and intentional offenses. Finally, the appellant points to her 

17 years of service and positive work record. Id. The administrative judge, 

however, found that the deciding official considered such factors but found they 

were outweighed by the severity of the appellant’s offense, given its impact on 

the agency’s mission and the agency’s requirement to honor its obligations and 

responsibilities in the collective bargaining process. ID at 12-13.

¶13 Accordingly, we affirm the initial decision, sustaining the appellant’s 

removal.
8

NOTICE OF APPEAL RIGHTS4

You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By 

statute, the nature of your claims determines the time limit for seeking such 

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b). 

Although we offer the following summary of available appeal rights, the Merit 

Systems Protection Board does not provide legal advice on which option is most 

appropriate for your situation and the rights described below do not represent a 

statement of how courts will rule regarding which cases fall within their 

jurisdiction. If you wish to seek review of this final decision, you should 

immediately review the law applicable to your claims and carefully follow all 

filing time limits and requirements. Failure to file within the applicable time 

limit may result in the dismissal of your case by your chosen forum. 

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, yo u 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

 

4

Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
9

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on 

race, color, religion, sex, national origin, or a disabling condition, you may be 

entitled to representation by a court-appointed lawyer and to waiver of any 
10

requirement of prepayment of fees, costs, or other security. See 42 U.S.C. 

§ 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the 

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or 

by a method requiring a signature, it must be addressed to: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

131 M Street, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s
11

disposition of allegations of a prohibited personnel practice described in section 

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i), 

(B), (C), or (D),” then you may file a petition for judicial review either with the 

U.S. Court of Appeals for the Federal Circuit or any court of appeals of 

competent jurisdiction.5The court of appeals must receive your petition for 

review within 60 days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular 

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is 

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

 

5

The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction ex pired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195, 

132 Stat. 1510. 
12

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD:

Washington, D.C.

/s/ for

Jennifer Everling

Acting Clerk of the Board