UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ANTHONY S. HUNTLEY,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

CH-0752-13-0602-I-1

DATE: August 25, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

William Brown, Tinton Falls, New Jersey, for the appellant.

Deborah W. Carlson, Chicago, Illinois, 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 

sustained his removal based on a charge of inappropriate conduct. 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 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

interpretation of statute or regulation or the 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). 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant held the position of Manager, Customer Services at the 

agency’s Weathers Station in St. Louis, Missouri. Initial Appeal File (IAF), 

Tab 8 at 83 of 153. It is undisputed that in early 2012 the agency appointed the 

appellant as Officer in Charge of the St. Charles Post Office in St. Charles, 

Missouri. On June 15, 2012, the agency placed the appellant in an off-duty 

without pay status based on an assessment that his continued presence at work 

might disrupt day-to-day agency operations. See id. at 79 of 153. Also on June 

15, 2012, the acting Area Manager Post Office Operations requested the Office of 

the Inspector General (OIG) to conduct an investigation into whether the 

appellant engaged in inappropriate communications with two female agency 

employees. IAF, Tab 8 at 48 of 119. During the investigation, OIG identified

and interviewed additional individuals who alleged the appellant also made 

inappropriate comments to them. Id. Based on the information from OIG’s 

investigation, the agency proposed to remove the appellant based on a charge of 

inappropriate conduct. Id. at 35 of 119. The charge included four specifications 
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of making inappropriate comments to four female employees and one 

specification of making inappropriate comments and text messages to another 

female employee. Id. at 35-39 of 119. The deciding official met with the 

appellant and subsequently sustained the charge and directed the appellant’s 

removal. Id. at 32-33 of 119.

¶3 The appellant initiated a Board appeal challenging his removal. IAF, Tab 1 

at 1, 5. The appellant waived any affirmative defenses during the prehearing 

conference. IAF, Tab 17 at 1-3. The administrative judge conducted a hearing 

and issued an initial decision that affirmed the agency’s removal action. IAF, 

Tab 19, Initial Decision (ID) at 1. The administrative judge found the testimony 

of the agency’s witnesses to be more credible than the appellant’s testimony. ID 

at 8, 10. The administrative judge found the agency proved all five specifications 

of its charge of inappropriate conduct. ID at 10-11. Finally, the administrative 

judge found the deciding official properly considered the relevant Douglas 

factors, and the penalty of removal was reasonable. ID at 12-14 (citing Douglas 

v. Veterans Administration, 5 M.S.P.R. 280 (1981)).

¶4 The appellant has filed a timely petition for review. Petition for Review 

(PFR) File, Tab 1. The agency has responded in opposition to the petition for 

review. PFR File, Tab 3.

The record supports the administrative judge’s credibility determinations.

¶5 In his petition for review, the appellant makes unsupported allegations 

regarding two of the agency’s witnesses, T.J. and D.T., attempting to challenge 

the credibility of their statements and hearing testimony. PFR File, Tab 1 at 8. 

The administrative judge found these witnesses’ testimony to be more credible 

than the appellant’s during the hearing. ID at 10. The Board must give deference 

to an administrative judge’s credibility determinations when they are based, 

explicitly or implicitly, on the observation of the demeanor of witnesses 

testifying at a hearing; the Board may overturn such determinations only when it 
4

has “sufficiently sound” reasons for doing so. Haebe v. Department of 

Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Sufficiently sound reasons to 

overturn an administrative judge’s demeanor-based credibility determinations 

include circumstances when the judge’s findings are incomplete, inconsistent with 

the weight of the evidence, and do not reflect the record as a whole. Brough v. 

Department of Commerce, 119 M.S.P.R. 118, ¶ 6 (2013). We find that the record 

supports the administrative judge’s demeanor-based credibility determinations, 

and the appellant has failed to demonstrate sufficiently sound reasons for the 

Board to overturn the administrative judge’s findings.

¶6 The administrative judge analyzed the Hillen factors in making her 

credibility determinations among witnesses. ID at 8 (citing Hillen v. Department 

of the Army, 35 M.S.P.R. 453 (1987)). She expressly found the demeanor of 

many of the agency’s witnesses to be influential in her credibility determinations. 

ID at 8-9. The appellant previously alleged that the agency’s witnesses were 

“problems” and “up for discipline” and continues to do so in his petition for 

review; however, he has provided no evidence to support his allegations. ID at 9; 

PFR File, Tab 1 at 8. We find that the appellant’s unsupported allegations are 

insufficient to warrant reversing the administrative judge’s demeanor-based 

credibility determinations.

The agency proved the charge of inappropriate conduct.

¶7 The appellant argues on review that the agency failed to prove the charge 

and any of its specifications. PFR File, Tab 1 at 10-11. He argues that the 

agency relied on hearsay and failed to present convincing evidence that he 

intended to send the text messages to an agency employee. Id. at 8. The 

appellant does not identify the hearsay evidence that was allegedly presented and 

relied upon in the initial decision. The administrative judge relied heavily on 

each witness’s hearing testimony in determining that the agency proved its 

charge, and the decision contains no reference to the administrative judge’s
5

consideration of any hearsay evidence. ID at 3-11. We note that hearsay 

evidence is admissible in Board proceedings, and the assessment of the probative 

value of hearsay evidence necessarily depends on the circumstances of each case. 

Shannon v. Department of Veterans Affairs, 121 M.S.P.R. 221, ¶ 15 (2014) (citing 

Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 83-87 (1981)). Given that

the appellant has not identified any specific hearsay statements and that the 

administrative judge heavily relied on live witness testimony for her decision, we 

find no evidence of improper hearsay evidence to disturb the initial decision. 

¶8 The appellant argues that the agency’s charge is not supported by the 

evidence, restating much of the same information included with his initial appeal. 

PFR File, Tab 1 at 10-11; IAF, Tab 1 at 5-7. Each of the five women who made 

complaints about the appellant was interviewed by OIG, and OIG made a written 

record of each interview. IAF, Tab 8 at 59-72 of 119. The administrative judge 

noted in her initial decision that each woman testified at the hearing consistent 

with the record evidence and the identical pattern of conduct by the appellant. ID 

at 10. None of the women retracted their statements. The administrative judge 

also noted that the women at each location testified that they did not know the 

women at the other work location. ID at 9. The appellant submits no new 

evidence on review that supports his denial of the charged interactions with each 

employee. Therefore, we affirm the administrative judge’s finding that the 

agency proved its charge.

¶9 The appellant alleges that the agency was required to prove his misconduct 

by substantial evidence. PFR File, Tab 1 at 8. The legal standard of proof for the 

agency to prove its action is by a preponderance of the evidence, which is defined 

as the degree of relevant evidence that a reasonable person, considering the 

record as a whole, would accept as sufficient to find that a contested fact is more 

likely to be true than untrue. 5 C.F.R. § 1201.56(a)(1)(ii), (c)(2). The 

administrative judge found the agency proved its charge under this standard and 
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not the lower standard of substantial evidence as alleged by the appellant. ID 

at 11; 5 C.F.R. § 1201.56(c)(1).

¶10 The appellant argues that the deciding official based her removal decision 

on the documentation from the OIG investigation and the response meeting with 

the appellant. PFR File, Tab 1 at 9. The appellant alleges that the deciding 

official did not interview any of the witnesses involved in the charge against him. 

Id. The appellant cites to no law, rule, or regulation that requires the deciding 

official to independently interview the witnesses and not rely on the agency’s 

OIG, which is charged with conducting investigations such as the one involved in 

the present appeal. An agency is obligated to make reasonable inquiries into 

exonerating facts brought to its attention by an appellant before removing him. 

Uske v. U.S. Postal Service, 60 M.S.P.R. 544, 550 (1994), aff’d, 56 F.3d 1375

(Fed. Cir. 1995). The agency’s OIG did investigate exonerating facts such as 

interviewing the woman who was alleged to be the intended recipient of the text 

messages. IAF, Tab 8 at 101 of 119. In addition, the appellant’s written reply to 

the deciding official does not appear to contain any new facts that she needed to 

investigate prior to making her decision. IAF, Tab 15 at 6-9. We find that the 

deciding official was not required to conduct her own investigation and 

interviews over and above those conducted as part of the OIG investigation 

because the appellant did not provide any additional potentially exonerating facts 

that had not been investigated.

The penalty of removal was within the range of reasonableness for the charge.

¶11 The appellant appears to raise a disparate penalty claim on review that was 

not raised below in his claim that management has been inconsistent in the 

application of the Douglas factors and arbitrary and capricious in what constitutes 

a removable offense. PFR File, Tab 1 at 11. The Board generally 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 
7

despite the party’s due diligence. Banks v. Department of the Air 

Force, 4 M.S.P.R. 268, 271 (1980). Even if we were to consider the appellant’s 

argument, he has not alleged that a similarly-situated individual was treated 

differently. 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 does not have hard and fast rules regarding 

the “outcome determinative” nature of these factors. Boucher v. U.S. Postal 

Service, 118 M.S.P.R. 640, ¶ 20 (2012). The appellant has not provided evidence 

of any similarly-situated employee being treated differently than he was;

therefore, the appellant’s disparate penalty claim must fail.

¶12 Where, as here, all of the agency’s charges have been sustained, the Board 

will review an agency-imposed penalty only to determine if the agency 

considered all the relevant factors and exercised management discretion within 

tolerable limits of reasonableness. See Douglas, 5 M.S.P.R. at 306. The Board’s 

function in this regard is not to displace management’s responsibility but to 

assure that managerial judgment has been properly exercised. Id. at 302. In 

evaluating a penalty, the Board will consider, first and foremost, the nature and 

seriousness of the misconduct and its relationship to the employee’s duties, 

position, and responsibilities. Gaines v. Department of the Air 

Force, 94 M.S.P.R. 527, ¶ 9 (2003). An agency may hold a supervisor to a higher 

standard of conduct than other employees. Cisneros v. Department of 

Defense, 83 M.S.P.R. 390, ¶ 19 (1999), aff’d, 243 F.3d 562 (Fed. Cir. 2000) 

(Table). In addition, the appellant had taken multiple training courses on sexual 

harassment and communicating with employees, as reflected in his training record 

and the agency’s decision letter, to know that his conduct was inappropriate; yet 

he still engaged in this activity. IAF, Tab 8 at 28-32 of 119. We find no reason 

to modify the administrative judge’s review of the agency’s penalty 

determination. ID at 13-14. We agree with the administrative judge’s and the 
8

agency’s conclusion that the seriousness of the appellant’s repeated conduct 

warranted removal, particularly in light of his supervisory status. 2

 See Alberto v. 

Department of Veterans Affairs, 98 M.S.P.R. 50, ¶ 12 (2004), aff’d, No. 05-3090, 

2005 WL 1368150 (Fed. Cir. June 10, 2005).

The appellant’s procedural claims do not warrant reversal of the initial decision.

¶13 The appellant alleges that the administrative judge made several procedural 

errors. PFR File, Tab 1 at 8-9. The appellant alleges: (1) he was denied 

statements and notes taken from meetings; (2) he was unable to question the 

manager who suspended him because she did not testify; (3) he was denied the 

opportunity to call character witnesses; and (4) the agency used evidence of prior 

proposed discipline in violation of a prior settlement agreement. Id. We note 

that the appellant did not raise any of these issues prior to his petition for review. 

Even if we were to consider each of the arguments raised by the appellant, each 

argument must fail based on the record. 

¶14 The appellant alleges in his petition for review that he was denied a

“[r]equest for information to include written statements, notes taken written or 

typed, court order or warrants to retrieve information.” PFR File, Tab 1 at 8. 

The appellant does not identify the specific items sought that were denied and 

provides no record of ever making any such requests to the agency. In addition, 

the record below is silent on the appellant’s ever seeking an order to compel 

during discovery for these items. The only order issued by the administrative 

judge relating to discovery directed the appellant to respond to the agency’s 

discovery requests. IAF, Tab 12. Because the record contains no evidence that 

 2 The appellant raises allegations regarding the agency’s handling of two other 

management employees, a Supervisor of Customer Service and a Manager of Customer 

Service. PFR File, Tab 1 at 8. Both of these allegations appear directed at the 

appellant’s placement on an unpaid suspension while the OIG investigation occurred 

based on his comments about the disruption of day-to-day operations. Id. However, the 

appellant’s appeal of his removal is before us and not his unpaid suspension. 

Therefore, these arguments are not germane to this appeal.
9

the appellant initiated the discovery requests or filed a motion to compel 

discovery, the appellant did not exercise due diligence in pursuing discovery and 

is responsible for the absence of the evidence to support his claims. See Head v. 

Office of Personnel Management, 53 M.S.P.R. 421, 422 (1992).

¶15 The appellant argues that he was unable to question the acting Area 

Manager Post Office Operations who suspended him because she did not testify at 

the hearing. PFR File, Tab 1 at 9. The appellant requested the witness, and the 

administrative judge approved her as a witness. IAF, Tab 15 at 11, Tab 17 at 4. 

The appellant, who was represented below, did not request a subpoena for the 

witness, and he failed to make a timely request for a continuance to obtain the 

witness’s presence or show that such request was denied. See Lohr v. Department 

of the Air Force, 24 M.S.P.R. 383, 386 (1984). The appellant has not 

demonstrated how his failure to obtain the testimony of this witness denied him a 

fair hearing, impaired the proceedings, or prejudiced his substantive rights so as 

to require reversal of the initial decision. See Dubiel v. U.S. Postal 

Service, 54 M.S.P.R. 428, 432 (1992). 

¶16 The appellant also alleges that he was denied the opportunity to call 

character witnesses. PFR File, Tab 1 at 9. The sole witness requested by the 

appellant on this issue was denied by the administrative judge based on relevance

and because other approved witnesses could provide the same testimony. IAF, 

Tab 17 at 4, Tab 15 at 11. The appellant did not object to the denial of this sole 

witness request, and there is no evidence that the appellant sought to call 

additional character witnesses. IAF, Tab 15 at 11. The appellant’s failure to 

timely object to rulings on witnesses precludes his doing so on petition for 

review. See Tarpley v. U.S. Postal Service, 37 M.S.P.R. 579, 581 (1988). 

¶17 Finally, the appellant argues that the agency violated a settlement 

agreement by using evidence that was withdrawn as part of the agreement. PFR 

File, Tab 1 at 9. The only evidence of the settlement agreement was in a 

proposed agency exhibit that the administrative judge rejected for admission and 
10

was not included in the record. IAF, Tab 17 at 5. The appellant provided no 

evidence or allegation below or on review that the agency considered the 

discipline resolved with the settlement agreement as part of its removal 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

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 
11

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