UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

MATTHEW A. JONES,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

CH-0752-15-0610-I-2

DATE: November 16, 2022

THIS FINAL ORDER IS NONPRECEDENTIAL1

William Simpson, Esquire, Philadelphia, Pennsylvania, for the appellant.

Miriam Dole, Philadelphia, Pennsylvania, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

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

sustained his demotion from Supervisor of Customer Service to Level 5 Mail 

Handler Equipment Operator. Generally, we grant petitions such as this one only 

in the following circumstances: the initial decision contains erroneous findings 

 

1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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).
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of material fact; the initial decision is based on an erroneous interpretation of 

statute 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 initial 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). 

¶2 The following facts, as further detailed in the initial decision, are not 

disputed. The appellant was a Supervisor of Customer Service at the agency’s 

Newmarket Station in Canton, Ohio. Jones v. U.S. Postal Service, MSPB Docket 

No. CH-0752-15-0610-I-1, Initial Appeal File (IAF), Tab 1 at 1; Jones v. U.S. 

Postal Service, MSPB Docket No. CH-0752-15-0610-I-2, Appeal File, Tab 14, 

Initial Decision (ID) at 2.2 In December 2014, while off-duty, the appellant sent a 

coworker in the same position a number of text messages. ID at 2-3. Among 

other things, the appellant’s messages proposed that they have sex. Id. The 

messages persisted even after this coworker responded by stating that she was not 

interested. Id. As a result, the agency proposed the appellant’s removal for 

“improper conduct.” ID at 3-4. The appellant responded, in part alleging that he 

was under the influence of prescription medications at the time of his conduct. 

IAF, Tab 11 at 19, 25-26. The deciding official sustained the charge but reduced 

 

2 Below, the administrative judge granted the appellant’s request and dismissed the 

initial appeal without prejudice for automatic refiling at a later date, resulting in the 

two docket numbers associated with this one matter. IAF, Tab 21, Initial Decision; ID 

at 4. 
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the penalty, demoting him to a Level 5 Mail Handler Equipment Operator. Id.

at 19-22; ID at 4.

¶3 The appellant filed the instant appeal alleging, inter alia, that the demotion 

was an unreasonable penalty because he was under the influence of prescribed 

medications during the alleged misconduct. IAF, Tab 1 at 2-3. At a prehearing 

conference, he stipulated to sending the text messages and waived any affirmative 

defenses. IAF, Tab 16. The administrative judge held the requested hearing and 

sustained the demotion. ID at 11. The appellant has filed a petition for review. 

Jones v. U.S. Postal Service, MSPB Docket No. CH-0752-15-0610-I-2, Petition 

for Review (PFR) File, Tabs 1-2. The agency has filed a response. PFR File, 

Tab 4. 

¶4 In his petition, the appellant does not dispute that he sent the messages or 

that they were inappropriate. PFR File, Tab 1 at 3. Instead, he seems to reassert 

that the penalty was unreasonable because he was in a compromised mental state 

when he sent the messages. Id.; IAF, Tab 1 at 2-3. According to the appellant, 

he has spontaneous blackouts with memory loss, during which he reportedly says 

and does things but is unaware of his own words and actions. PFR File, Tab 1 

at 3. He further asserts that his previous representative erred by failing to submit 

medical records showing that he is prescribed Valium, which has side effects 

including memory loss. Id. The appellant also alleges that he is physically 

unable to perform the position to which he was demoted. Id. We find no merit to 

these arguments.

¶5 When, as here, all of the agency’s charges have been sustained, the Board 

will review an agency’s imposed penalty only to determine if the agency 

considered all of the relevant factors and exercised management discretion within 

tolerable limits of reasonableness. See Portner v. Department of Justice, 

119 M.S.P.R. 365, ¶ 10 (2013), overruled on other grounds by Singh v. U.S. 

Postal Service, 2022 MSPB 15, ¶ 17. The Board will modify a penalty only when 
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it finds that the agency failed to weigh the relevant factors or that the penalty the 

agency imposed clearly exceeded the bounds of reasonableness. Id.

¶6 The administrative judge found that the deciding official considered the 

relevant factors and the chosen demotion did not exceed the bounds of 

reasonableness. ID at 7-11. Accordingly, she declined to modify the penalty. Id. 

Among other things, the administrative judge found that the demotion was a 

reasonable penalty given the nature and seriousness of the misconduct, the 

appellant’s higher standard of conduct as a supervisor, and his limited

rehabilitation potential, as reflected by his various responses to the misconduct. 

Id. We agree. 

¶7 Throughout the agency’s investigation and the instant appeal, the appellant 

has provided a number of explanations for his grossly inappropriate text 

messages. IAF, Tab 11 at 54. The appellant has alleged that he was not 

interested in his coworker and merely sent the messages to address rumors that 

they already were engaged in a sexual relationship. Id. at 19, 25-26. The 

appellant also, at times, has suggested that he did not believe the messages were 

inappropriate or unwanted due to the existing relationship he had with the 

recipient and their prior interactions. IAF, Tab 1 at 2-3, Tab 11 at 36-37. 

However, when confronted with the messages during the agency’s investigation, 

the appellant described being “shocked and offended” by his own words. IAF, 

Tab 15 at 6. 

¶8 Alternatively, the appellant asserted that the chain of text messages 

included in the record is incomplete because, as part of the same conve rsation, he 

also sent texts that said “I am not sexually harassing you.” Id. Yet, he reportedly 

has no memory of the more explicit messages sent at the same time because he 

was in a Valium-induced blackout. IAF, Tab 1 at 2-3, Tab 15 at 6-7. As the 

administrative judge recognized, the appellant has essentially asked the Board to 

believe that he blacked out only at the times the inappropriate messages were 
5

written and sent but not when he responded with the messages he says are 

missing. ID at 9. 

¶9 Although the appellant has reasserted the alleged Valium-induced blackouts 

and memory loss on review, we agree with the administrative judge’s conclusion 

that his allegations do not warrant modifying the agency’s chosen penalty. ID 

at 8-11; see Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) 

(finding no reason to disturb the administrative judge’s findings when she 

considered the evidence as a whole, drew appropriate inferences, and made 

reasoned conclusions); Broughton v. Department of Health & Human Services, 

33 M.S.P.R. 357, 359 (1987) (same). The deciding official considered the 

appellant’s allegation that he was under the influence of prescription medications 

when she rendered her decision. IAF, Tab 11 at 19, 21. Nevertheless, she found

that this did not warrant further mitigation of the penalty, noting that the 

appellant failed to present any corroborating evidence. Id. 

¶10 The record before us is similarly devoid of any corroborating evidence, 

such as medical records, to support the appellant’s bare assertion. PFR File, 

Tab 1 at 3, Tab 2 at 3. Without any such evidence, the appellant’s claims are 

inherently improbable and inconsistent. See generally Hillen v. Department of 

the Army, 35 M.S.P.R. 453, 458 (1987) (recognizing that pertinent credibility 

factors include, inter alia, any prior inconsistent statements, the absence of 

corroborating evidence, and the inherent improbability of the witness’s version of 

events). Further, to the extent that he attributes this absence of corroborating 

evidence to his representative, it is well-settled that an appellant is responsible 

for the errors of his chosen representative. Sofio v. Internal Revenue Service, 

7 M.S.P.R. 667, 670 (1981). 

¶11 For the same reason, the appellant’s alleged medical inability to perform the 

position to which he was demoted also fails. PFR File, Tab 1 at 3; IAF, Tab 15 

at 7-8. Aside from his bare assertions, the appellant has not presented any 
6

evidence that he is medically unable to perform the duties of a Level 5 Mail 

Handler Equipment Operator. 

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

demotion.

NOTICE OF APPEAL RIGHTS3

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, you 

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). 

 

3

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.
7

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: 

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. ____ , 137 S. Ct. 1975 (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 
8

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 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 
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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 

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. 4The 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 

 

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The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired 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. 
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Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

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