UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2014 MSPB 89

Docket No. DA-0752-14-0021-I-1

Eric S. Powell,

Appellant,

v.

United States Postal Service,

Agency.

December 18, 2014

Duke Holden, Esquire, Oklahoma City, Oklahoma, for the appellant. 

Eric B. Fryda, Esquire, Dallas, Texas, for the agency. 

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

OPINION AND ORDER

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

upheld his removal for failure to follow instructions and delay of mail. 

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 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 
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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. Except as expressly MODIFIED by 

this Final Order to merge the two charges into one, we AFFIRM the 

initial decision. 

BACKGROUND

¶2 The appellant held the position of Supervisor, Customer Service, at the 

Center City Station in Oklahoma City, Oklahoma. Initial Appeal File (IAF),

Tab 5 at 29. At that facility, a security service drops off packages from American 

Precious Metal Exchange (APMEX) Monday through Friday of each week for 

delivery via registered mail. See id. at 44-45. On March 4, 2013, 44 such 

packages were dropped off, with a total value of nearly $560,000. See id. at 35, 

41. That evening, at 6:50 p.m., the appellant performed a closeout verification, 

indicating that his unit was free of all outgoing mail and that all mail was 

dispatched on time. See id. at 35-36 (agency’s proposal to remove), 

53 (verification report time stamp), 54 (verification report checklist of completed 

tasks). He then departed for the day sometime between 7:15 p.m. and 7:30 p.m., 

despite knowing that the 44 APMEX packages had not yet been prepared for 

dispatch. Id. at 44-46 (notes from the appellant’s investigative interview). 

According to the appellant, he assumed that one of the clerks would get the 

packages onto the last truck. Id. at 44, 46-47. However, the packages were not 

dispatched until the following morning, after being found during a routine sweep

of the facility. Id. at 35-36. 

¶3 The agency removed the appellant based on two charges: (1) failure to 

follow instructions, and (2) delay of mail. Id. at 30-34 (decision letter), 
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35-40 (proposal letter). The appellant appealed his removal to the Board. 1 IAF,

Tab 1. After conducting a hearing, the administrative judge affirmed the 

removal. IAF, Tab 19, Initial Decision (ID). The appellant has filed a petition 

for review. Petition for Review (PFR) File, Tab 1. The agency has filed a 

response, PFR File, Tab 3, and the appellant has replied, PFR File, Tab 4. 

ANALYSIS

The agency proved the charge of failure to follow instructions. 

¶4 Generally, in an adverse action appeal, the agency must prove its charge by 

a preponderance of the evidence. 5 U.S.C. § 7701(c)(1)(B). A preponderance of 

the evidence is that 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(c)(2). 

¶5 To prove a charge of failure to follow instructions, an agency must 

establish that the employee: (1) was given proper instructions, and (2) failed to 

follow the instructions, without regard to whether the failure was intentional or 

unintentional. Hamilton v. U.S. Postal Service, 71 M.S.P.R. 547, 555-56 (1996). 

Here, the agency’s charge implicated the standing instruction to ensure that all 

outgoing mail received during the day is placed onto the last dispatch truck or 

otherwise taken to the plant, and complete a closeout verifying the same. See

IAF, Tab 5 at 30-31, 35-36. 

¶6 The local manager at the appellant’s facility testified that he had directed 

the appellant to see that mail is dispatched on the day that it is received. See ID

at 4-5. In addition, the appellant completed a “Verification of Activity 

Submission” on the day in question, attesting to the fact that all areas were 

 

1 Among other things, the appellant initially alleged harmful procedural error, 

“violation of [equal employment opportunity] rights,” and prohibited disability 

discrimination. IAF, Tab 1 at 2. However, he later withdrew those allegations. See

IAF, Tab 10 at 2. 
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reviewed, the unit was free of all outgoing mail, and the mail was dispatched on 

time. IAF, Tab 5 at 53-54. Moreover, the agency’s evidence includes training 

materials for a supervisor meeting that the appellant attended in April 2012. Id. 

at 77 (sign-in sheet for the training session), 78-102 (training materials). Those 

materials repeatedly discuss the importance of ensuring that all mail is dispatched 

daily. Id. at 85, 91-92, 94-95. It specifies that a designated Executive and 

Administrative Schedule (EAS) employee must “perform a physical walk-through 

of the facility to check for outgoing mail . . . prior to the final dispatch.” Id.

at 92. “If a collection misses the scheduled transportation, the local manager is 

responsible for getting the mail to the [appropriate facility].” Id. 

¶7 On review, the appellant does not dispute that he was given proper 

instructions, nor does he dispute that the APMEX mail was inappropriately 

delayed. Instead, he argues, as he did below, that the delay was caused by the 

clerks who generally complete the processing of the APMEX mail. PFR File,

Tab 1 at 4. According to the appellant, the clerk assigned to that duty was still 

working when he left for the day on March 4, 2013. Id. He suggests that all 

supervisors complete the verification, attesting that the unit is free of all outgoing 

mail, even if there is still mail to be processed. Id. However, the arguments are

unavailing. 

¶8 The appellant’s argument, in essence, is that he should not be held 

responsible for the improprieties of his subordinates. However, the appellant

was not charged with allowing a situation to exist in which his subordinates acted

improperly; he was charged with personally taking improper actions. 2

 The 

appellant has acknowledged seeing that the APMEX mail had yet to be processed 

 

2 It should be noted that even if the charge brought against the appellant was as he 

characterized it, the Board has long held that under certain conditions, a supervisor may 

be held accountable for the misconduct of his subordinates, even without specific 

knowledge of the misconduct, which is present in the instant case. Cf. Miller v. 

Department of Health & Human Services, 8 M.S.P.R. 249, 251-53 (1981) (discussing 
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when there were only minutes left to do so. See ID at 5-6. Nevertheless, he 

did not process the APMEX mail himself, direct the clerk to process it, or take 

any other action to ensure its timely dispatch. Accordingly, the appellant failed 

to follow the proper instruction to ensure that all outgoing mail received during 

the day is placed onto the last dispatch truck or otherwise taken to the plant. 

The agency’s delay of mail charge is merged with the charge of failure to follow 

instructions. 

¶9 The administrative judge sustained the charge of delay of mail. ID at 6-7. 

We find that the charge should be merged with the failure to follow instructions 

charge, and modify the initial decision accordingly. 

¶10 The Board will “merge” charges if they are based on the same conduct and 

proof of one charge automatically constitutes proof of the other charge. Shiflett 

v. Department of Justice, 98 M.S.P.R. 289, ¶ 5 (2005). As discussed above, the 

failure to follow instructions charge implicated the standing instruction to ensure 

that all outgoing mail received during the day is placed onto the last dispatch 

truck or otherwise taken to the plant. See IAF, Tab 5 at 30, 35. By failing to 

follow that instruction, the appellant delayed the mail. See id. at 30 (decision 

letter identifying the appellant’s failure to follow instruction as “thereby delaying 

the mail”), 44-46 (appellant’s acknowledgment that the APMEX mail was not 

dispatched until March 5, 2014). Accordingly, the delay of mail charge merges 

into the failure to follow instructions charge, and we need not consider it further, 

except to say that it is proven by virtue of the failure to follow instructions 

charge. See Jones v. Department of Justice, 98 M.S.P.R. 86, ¶ 16 (2004); see 

also Mann v. Department of Health & Human Services, 78 M.S.P.R. 1, 6 (1998) 

(merger of a duplicative charge into another charge does not mean that the 

merged charge is not sustained). 

 

the standard for holding a supervisor responsible for the improprieties of his or her

subordinates). 
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The administrative judge properly found that the agency established nexus and 

that removal was reasonable. 

¶11 In addition to the requirement that the agency prove its charge against the 

appellant, the agency must also prove that there is a nexus, i.e., a clear and direct 

relationship between the articulated grounds for the adverse action and either the 

appellant’s ability to accomplish his duties satisfactorily or some other legitimate 

government interest. Ellis v. Department of Defense, 114 M.S.P.R. 407, ¶ 8 

(2010). Here, the administrative judge found that nexus was established, see ID

at 7, and we agree. 3

 The appellant has not presented any argument to the 

contrary. 

¶12 Next, where all of the agency’s charges are sustained, as they are here, the 

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

considered all the relevant factors and exercised management discretion within 

the tolerable limits of reasonableness. See Ellis, 114 M.S.P.R. 407, ¶ 11. In 

making this determination, the Board must give due weight to the agency’s 

primary discretion in maintaining employee discipline and efficiency, recognizing 

that the Board’s function is not to displace management’s responsibility, but to 

ensure that managerial judgment has been properly exercised. Id. The Board will 

modify or mitigate an agency-imposed penalty only where it finds the agency 

failed to weigh the relevant factors or the penalty clearly exceeds the bounds of 

reasonableness. Id. 

¶13 For the first time, on review, the appellant disputes the application of the 

Douglas factors. PFR File, Tab 1 at 4-5 (referencing Douglas v. Veterans 

Administration, 5 M.S.P.R. 280, 304-06 (1981)). He suggests that the Douglas

factors were not applied at all. PFR File, Tab 1 at 4. Alternatively, he argues 

that the agency did not properly account for his 15 years of Postal Service 

 

3 The fact that a charge has been merged into another does not mean that the appellant’s 

conduct somehow becomes less serious. Shiflett, 98 M.S.P.R. 289, ¶ 12. 
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experience, including 8 as a supervisor; his 4 years of service in the Marine 

Corps, with combat experience; his suffering from post-traumatic stress disorder; 

and his having never been suspended prior to his removal, but instead given 

warnings in lieu of suspensions. Id. However, the appellant failed to raise any of 

these arguments below. See IAF, Tab 1 at 2, Tab 7 at 1-2. 

¶14 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 despite the party’s due diligence. Banks v. 

Department of the Air Force, 4 M.S.P.R. 268, 271 (1980); see Thurmond v. U.S. 

Postal Service, 41 M.S.P.R. 227, 230 n.2 (1989) (declining to consider 

allegations of mitigating factors in a penalty analysis because they were presented 

for the first time in a petition for review). Because the appellant made no such 

showing, we will not consider his arguments regarding the reasonableness of the 

penalty. 

¶15 Below, the administrative judge determined that the penalty of removal was 

within the tolerable limits of reasonableness, when considering the seriousness of 

the offense, the appellant’s prior service, and the effectiveness of prior discipline. 

ID at 7-8; see IAF, Tab 5 at 55 (April 2013 letter of warning in lieu of a 14-day 

suspension for violation of agency standards of conduct; failure to properly 

perform assigned duties; and failure to follow instructions), 71 (June 2012 letter 

of warning in lieu of a 14-day suspension for negligence and delay of mail), 

103 (February 2011 letter of warning in lieu of a 7-day suspension for failure to 

properly perform assigned duties), 107 (September 2010 letter of warning for 

failure to properly perform assigned duties); compare Bonacchi v. U.S. Postal 

Service, 40 M.S.P.R. 364, 369-70 (1989) (mitigating a supervisor’s removal to a 

demotion where his misconduct was a single instance of poor judgment, his 

performance was otherwise satisfactory, he had no prior disciplinary record, and 

the undeliverable mail he discarded was of de minimis value), with Alaniz v. U.S. 

Postal Service, 100 M.S.P.R. 105, ¶¶ 16, 19, 24 (2005) (finding removal 
8

appropriate for even “relatively minor” misconduct in light of multiple prior “no 

time off” suspensions). We discern no reason to disturb those findings because 

the administrative judge considered the evidence as a whole, drew appropriate 

inferences, and made reasoned conclusions. 4

 See Broughton v. Department of 

Health & Human Services, 33 M.S.P.R. 357, 359 (1987). 

ORDER

¶16 This is the final decision of the Merit Systems Protection Board in this 

appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R. 

§ 1201.113(c)). 

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 

 

4 The initial decision did contain an error as it described the appellant’s prior service as 

consisting of less than 10 years. ID at 8. However, this error was limited to the 

administrative judge’s decision. The agency properly considered his service as 

consisting of approximately 14 years of service, with 7 of those being in a supervisory 

role. IAF, Tab 5 at 33. We find that the administrative judge’s error does not affect the 

outcome of this appeal, and is therefore harmless. See Panter v. Department of the Air 

Force, 22 M.S.P.R. 281, 282 (1984) (an adjudicatory error that is not prejudicial to a 

party’s substantive rights provides no basis for reversal of an initial decision). 
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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:

______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.