UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

RANDOLPH HITCHCOCKBE Y,

Appellant,

v.
UNITED STATES POSTAL SERVICE,

Agency. DOCKET NUMBER CH

- 0752

- 14

- 0855

- I

- 3

DATE: December 28, 2016



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Randolph Hitchcockbey , Chicago, Illinois, pro se. Maryl R. Rosen , Esquire, Chicago, Illinois, for the agency.

BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member

FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which sustained 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 interpr etation of statute or regulation or the erroneous application of the law to the facts of the case; the administrative

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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

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, we conclude that the p etitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AF FIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 Effective September 3, 2014, the agency removed the appellant from his position as Supervisor of Customer Service based on a charge of Unacceptable Conduct in the Workplace. Hitchcockbey v. U.S. Postal Service , MSPB Docket
No. CH

- 0752

- 14

- 0855

- I

- 1, Initial Appeal File (IAF ) , Tab 4 at 52, 63

. The agency based the charge on a series of incidents involving the appellan t’s interactions with two subordinate female employees at two different locations, who alleged that he engaged in inappropriate conduct that made them feel uncomfortable in the workplace

. I d. at 63

- 66

. Both employees filed equal employment opportunity

co mplaints, which resulted in a paid settlement by the agency

. Hitchcockbey v. U.S. Postal Service , MSPB Docket No. CH

- 0752

- 14

- 0855

- I

- 3, Appeal File ( I

‐ 3 AF ), Tab 20, I nitial D ecision (ID) at 17

- 18. 2 The agency removed the appellant for alleged misconduct which included, among other things, sending inappropriate texts and making lewd comments. IAF, Tab 4 at 63

- 64. H e also allegedly sexuall y assaulted another woman that he supervised, on two separate

occ asions , and exposed himself to her. Id

. at 65

. The agency specified in the

2 The appellant initial ly filed this case o n September 23, 2014. IAF , Tab 1. The administrative judge subsequently dismissed the appellant’s appeal twice, without prejudice to refiling. IAF, Tab 11; Hitchcockbey v. U.S. Postal Service , MSPB Docket No. CH

- 0752

- 14

- 0855

- 1

- 2 (I

- 2 AF ) , Tab 12.3

charge that the appellant’s conduct violated the agency’s rules and regulations. Id

. at 67

- 68. ¶3 The deciding official for the agency concluded that the appellant’s unacceptable conduct violated the Postal Service Policy on Workplace
Harassment. Id

. at 52

- 55, 67. The deciding official also determined that the appellant’s unacceptable conduct violated t he Postal Service rules and regulations regarding Loyalty, Discharge of Duties, Behavior and Personal Habits, and Violent and/or Threatening Behavior. Id

. The appellant filed an appeal with the Board challenging the agency’s removal action. I

- 3 AF , Tab 1

. ¶4 After holding a hearing, the administrative judge issued an initial decision sustaining the charge as specified and affirming the removal penalty

. ID at 29

. The administrati ve judge found, inter alia, that: (1) the testimony of the agency’s witness es was more credible than the appellant’s denial that he committed the charged misconduct ; (2) the appellant failed to prove that the accusations a gainst him were fabricated; (3) preponderant evidenc e supported the charge; and (4) the agency proved nexus b etween the efficiency of the service and the unacceptable conduct. ID at 1 8

- 29 . The administrative judge also found that the agency considered relevant factors in making its penalty selection, and that the selected removal penalty was reasonable, considering the appellant’s supervisory position , the repeated and serious nature of his misconduct , and the agency’s loss of trust
in him

. ID at 28

‐ 29. The appellant filed a petition for review, and the agency responded in opposition to his petition. P etition for Review (PFR) File, Tabs 1, 5. ¶5 On review, the appellant states that he was denied the right to submit evidence and call witnesses

. PFR File, Tab 1 at 3

. We find that t he record does not support his argument. Based on the record, the adminis trative judge gave the appellant ample time and opportunity to prepare for the hearing on his4

appeal. 3 In respo nse to the administrative judge’ s p rehearing order, the appellant’ s counsel provided prehearing subm issions and amended submissions designating eight witnesses , all of whom were approved and appeared at the hearing

. I

- 3 AF , Tabs 3, 7

‐ 8, 10. T he appellant also specified in his prehearing
submission that he would rely on the documents in the a gency file , and he did not identify any additional docu ments for use at the hearing . I

- 3 AF , Tabs 7

‐ 8. ¶6 R egarding the appellant’s argument that he was unable to submit certain evidence because agency human resources personnel stated that they we re unable to find any records, w e note that the Board’s ac knowl edgment order informed the appellant of the Board’s discovery procedures under 5 C.F.R. § § 1201.71

‐ 1201.85 . PFR File, Tab 1 at 3; IAF, Tab 2 at 3; I

- 3 AF , Tab 2 at 1.
In the event that an agency refuses to voluntarily make pertinent documents reasonably available prior t o a Board proceeding, the Board’ s rules provide for the issuance of orders compelling discovery by interrogatory o r deposition, and for the issuance of subpoenas

. See Kinsey v. U.S. Postal Service , 12 M.S.P.R. 503 , 505

- 06 (1982). I f the appellant and his representatives failed to avail themselves of the Board’s discovery procedures to obtain the information necessary to prepare his case, then he may not now claim on review that the agency harmed him by refusing to assist voluntarily in his preparation for proceedings before the Board. S ee Perry v. U.S. Postal Service , 46 M.S.P.R. 425 , 431 (1990) , aff’d , 937 F.2d 623 (Fed. Cir. 1991) (Table) ; Kinsey , 12 M.S.P.R.

at 505

- 06. Although the appellant also argue s that he lacked proper counseling, it

3 The appellant’s first attorney withdrew from the case, and the administrative judge granted the appellant’s request to dismiss his appeal witho ut prejudice to refiling. IAF , Tab 11. After the case was automatically refiled, the appellant asked the admini strative judge to suspend the appeal to allow him time to find representation , and the administrative judge granted his request . I

- 2 AF , Tab 3. The appellant subsequently found an attorney and the administrative judge again dismissed the appeal without p rejudice , allowing the appellant’s new counsel time to become familiar with his case before it was automatically refiled

. I

- 2 AF , Tab 12 at 2

.5

is well settled that the appellant is responsible for the errors of his chosen representative

. P FR File, Tab 1 at 5 ; Sofio v. Internal Revenue Service , 7 M.S.P.R. 667 , 670 (1981). We therefore find that the appellant’s argument that he was denied the right to submit evi dence and call witnesses has no merit. ¶7 On review, the appellant also argues that the administrative judge failed to consider that he was not in the “right frame of mind” due to an unspecified medical condition. PFR File, Tab 1 at 4. Because the appellant raised this argument for the first time on review and he has not shown that he based his argument on new and materi al evidence not previou sly available despite his due diligence , the Board will not consider it

. Banks v. Department of the Air Force , 4 M.S.P.R. 268 , 271 (1980). T he appella nt’s arguments on review present no reason to disturb the administrative judge’s findings concerning the charge, nexus, and penalty. See generally Cisneros v. Department of Defense , 83 M.S.P.R. 390 , ¶ ¶ 15

- 20 (1999) (finding that removal was a reasonable penalty for a supervisor who violated the agency’s sexual harassment policy despite his
14 year s of serv ice and very good work performance), aff’d , 243 F.3d 562 (Fed. Cir. 2000) (Table). We therefore deny t he petition for review.

NOTICE TO THE APPELL ANT REGARDING YOUR FURTHER REVIEW RIGHTS You have the right to request review of this final decision by the U .S. Court of Appeals for the Federal Circuit. You must submit your request to the court at the followi ng 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 held6

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 Feder al 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.us courts.gov . Of particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained within the court’s Rules of
Pract ice , and Forms 5, 6, a nd 11. If you are interested in securing pro bono representation for an appeal to the U .S. Court of Appeals for the Federal Cir cuit, 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 Merit Systems Protec tion 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. ______________________________ Jennifer Everling Acting Clerk of the Board