UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

STEVEN MICHAEL 

NOPPENBERGER,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

PH-0752-13-0454-I-1

DATE: September 15, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

Steven Michael Noppenberger, Westminster, Maryland, pro se.

Norma B. Hutcheson, Esquire, Landover, Maryland, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

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

affirmed his removal. Generally, we grant petitions such as this one only when: 

the initial decision contains erroneous findings of material fact; the initial 

decision is based on an erroneous interpretation of statute or regulation or the 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

erroneous application of the law to the facts of the case; the 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. See 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, and based on the following points and authorities, 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 Effective June 18, 2013, the agency removed the appellant from his position 

of Rural Letter Carrier based on one charge of unsatisfactory work performance 

and one charge of improper conduct and failure to follow instructions. Initial 

Appeal File (IAF), Tab 1 at 16. The appellant filed the instant appeal with the 

Board on June 19, 2013, to contest his removal. IAF, Tab 1.

¶3 After conducting a hearing and allowing the appellant an opportunity to 

provide additional testimony, the administrative judge issued an initial decision 

affirming the appellant’s removal. IAF, Tab 27, Initial Decision (ID) at 1. Upon 

consideration of record and testimonial evidence and making credibility 

determinations, the administrative judge found that the agency proved, by 

preponderant evidence, the six specifications listed for the charge of 

unsatisfactory work performance and the five specifications listed for the charge 

of improper conduct and failure to follow instructions. ID at 2-4. The 

administrative judge also found that the appellant failed to challenge or deny the 

specifics of the charges. ID at 3-4. In addition, the administrative judge found 

that, while reprisal for exercising a grievance is a prohibited personnel practice 

under 5 U.S.C. § 2302(b)(9), here, the appellant failed to establish a nexus 
3

between his removal and his grievance activities; the administrative judge also 

found ample support in the record for the conclusion that the agency’s action was 

based on the stated charges. ID at 5-6. As a result, the administrative judge 

found that the appellant failed to prove his affirmative defense. Finally, the 

administrative judge found that the penalty of removal was reasonable and 

promoted the efficiency of the service. ID at 7-9.

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

File, Tab 1. The agency filed a response, PFR File, Tab 3, and the appellant filed 

a reply to the agency’s response, PFR File, Tab 4. 2

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 On review, for the most part, the appellant denigrates the agency, his union, 

and the Board but does not contest the administrative judge’s findings that the 

agency proved both charges by preponderant evidence and that the penalty was 

reasonable. See PFR File, Tabs 1, 4. Because those findings are supported by the 

weight of the record evidence and applicable law, and the appellant has provided 

no reason to disturb them, we defer to the administrative judge’s well-explained 

findings regarding those issues. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 

98, 106 (1997) (finding no reason to disturb the administrative judge’s findings, 

where 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).

¶6 The appellant does challenge the administrative judge’s finding regarding

his retaliation claim. PFR File, Tab 1 at 4-5. Nonetheless, as discussed below, 

we agree with the administrative judge that the appellant failed to establish that 

 2

 The appellant filed a pleading titled “Submission of Settlement Agreement.” PFR 

File, Tab 5. However, the pleading is a settlement offer, to which the agency has not 

filed a response. Id. The Board need not consider the appellant’s settlement offer when 

reviewing the appropriateness of his removal, as the offer is entitled to no weight. See

Nettles v. Department of the Army, 52 M.S.P.R. 181, 185 (1991).
4

his removal was in retaliation for filing grievances with the National Labor 

Relations Board (NLRB). Furthermore, the appellant’s claims of judicial bias, 

see PFR File, Tab 1 at 4-5, Tab 4 at 4-5, Tab 4 at 4-5, are without merit and,

similarly, do not provide any reason for disturbing the initial decision.

We discern no basis for disturbing the administrative judge’s finding that the 

appellant failed to establish his retaliation claim.

¶7 A claim of retaliation for exercising “any appeal, complaint, or grievance 

right granted by any law, rule, or regulation” is covered under 5 U.S.C. 

§ 2302(b)(9), and can be raised as an affirmative defense to an otherwise 

appealable action. Rhee v. Department of Treasury, 117 M.S.P.R. 640, ¶ 20

(2012). For an appellant to prevail on an affirmative defense of illegal retaliation 

for activity protected under 5 U.S.C. § 2302(b)(9), he has the burden of showing 

that: (1) he engaged in an activity protected under the section; (2) the accused 

official knew of the protective activity; (3) the adverse action under review could 

have been retaliation under the circumstances; and (4) there was a genuine nexus 

between the alleged retaliation and the adverse action. Id., ¶ 21. The 

administrative judge correctly found that, while the appellant met the first three 

prongs of the test, he failed to establish a nexus between his filing of grievances 

with the NLRB and his removal.

¶8 To establish a genuine nexus between the protected activity and the adverse 

employment action, the appellant must prove that the employment action was 

taken because of the protected activity. Murray v. General Services 

Administration, 93 M.S.P.R. 560, ¶ 6 (2003). As is required, the administrative 

judge’s finding was based on a careful weighing of the intensity of the officials’ 

motive to retaliate against the gravity of the charged misconduct or the 

inadequacy of the performance of duties. See Warren v. Department of the Army, 

804 F.2d 654, 658 (Fed. Cir. 1986) (a careful scrutiny of the intensity of the

motive to retaliate is necessary under test (4) to be weighed with the gravity of 

the misconduct charged, or inadequacy of the performance of duties, so that the 
5

trier of fact can make an informed and reasoned determination whether the 

“nexus” exists); Pyun v. Social Security Administration, 111 M.S.P.R. 249, ¶ 12 

(2009) (same).

¶9 The administrative judge found that the appellant’s grievances primarily 

concerned questions about his mail route. ID at 5. However, as the 

administrative judge further found, the allotted time for the appellant’s route was 

determined by contract between the union and the agency, and the policy affected 

all rural letter carriers. ID at 5. Thus, the administrative judge correctly found 

that, even though the officials were aware of the appellant’s grievance activity, 

the officials had “little reason or motive to retaliate” against the appellant. ID 

at 6. Contrary to the appellant’s insufficiency of evidence or argument, see PFR 

File, Tab 1 at 4-5, the record and testimonial evidence fully supports the 

administrative judge’s determination that “[t]he appellant’s deliberate refusals to 

finish his mail route or other activities as directed by his supervisors clearly have 

a serious, negative impact on the agency’s ability to complete its mission,” ID 

at 6. Thus, the gravity of the misconduct charged weighs against a finding that 

the agency removed the appellant in retaliation for his grievance activity. The 

appellant’s bare statements that he was retaliated against, see PFR File, Tab 1 

at 4-5, do not rebut this finding. Therefore, because the appellant failed to 

establish that a nexus existed between his grievance activity and his removal, he

failed to prove his affirmative defense of retaliation.

The appellant has not established that the administrative judge was biased.

¶10 On review, as below, the appellant argues, among other similar claims, that 

the administrative judge “blatantly favored” the agency. Id. at 4. While the 

Board takes seriously the concerns of the parties who come before it, to establish 

bias or prejudice against an administrative judge, a party must overcome the 

presumption of honesty and integrity that accompanies administrative judges. 

Tyler v. U.S. Postal Service, 90 M.S.P.R. 545, ¶ 6 (2002). An administrative 
6

judge’s conduct during the course of a Board proceeding warrants a new 

adjudication only if the administrative judge’s 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)). Furthermore, the 

administrative judge has wide discretion in determining what should be received 

into evidence and has the authority to exclude irrelevant or overly repetitious 

testimony. See Taylor v. Department of Treasury, 34 M.S.P.R. 495, 499 (1987).

¶11 Here, the appellant’s claim of bias is based on the administrative judge’s 

refusal to allow the appellant to admit irrelevant evidence and the administrative 

judge’s well-reasoned finding that the appellant simply failed to meet his burden 

to establish his affirmative defense of retaliation. Thus, the appellant fails to 

show that the administrative judge went beyond the bounds of her discretion or 

exhibited bias or prejudice.

¶12 In sum, the appellant’s claims that his removal was in retaliation for filing 

grievances with the NLRB are unsupported by the evidence or argument that he

presents. Therefore, because the appellant’s assertions fail to show that the 

administrative judge erred in affirming the appellant’s removal, we find no reason 

to disturb the initial decision.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the United 

States Court of Appeals for the Federal Circuit. You must submit your request to 

the court at the following address:

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439
7

The court must receive your request for review no later than 60 calendar 

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 

27, 2012). If you choose to file, be very careful to file on time. The court has 

held that normally it does not have the authority to waive this statutory deadline 

and that filings that do not comply with the deadline must be dismissed. See 

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you need further information about your right to appeal this decision to 

court, you should refer to the federal law that gives you this right. It is found in 

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. 

Dec. 27, 2012). You may read this law as well as other sections of the United 

States Code, at our website, http://www.mspb.gov/appeals/uscode/htm. 

Additional information 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, and 11.

If you are interested in securing pro bono representation for your court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 

Merit Systems Protection Board appellants before the court. The Merit Systems 

Protection Board neither endorses the services provided by any attorney nor 

warrants that any attorney will accept representation in a given case.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board