UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

RANDOLPH HITCHCOCKBEY,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

CH-0752-14-0855-I-3

DATE: December 28, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

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 interpretation 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1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 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 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 appellant’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. Id. at 63-66. Both employees filed equal employment opportunity

complaints, 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, Initial Decision (ID) at 17-18.2The 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. He also

allegedly sexually assaulted another woman that he supervised, on two separate 

occasions, and exposed himself to her. Id. at 65. The agency specified in the 

 

2

The appellant initially filed this case on 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. 
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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 the 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 administrative judge found, inter alia, that: (1) the testimony of the agency’s 

witnesses was more credible than the appellant’s denial that he committed the 

charged misconduct; (2) the appellant failed to prove that the accusations against 

him were fabricated; (3) preponderant evidence supported the charge; and (4) the 

agency proved nexus between the efficiency of the service and the unacceptable 

conduct. ID at 18-29. 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. Petition 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 the record 

does not support his argument. Based on the record, the administrative judge 

gave the appellant ample time and opportunity to prepare for the hearing on his 
4

appeal.3 In response to the administrative judge’s prehearing order, the 

appellant’s counsel provided prehearing submissions and amended submissions 

designating eight witnesses, all of whom were approved and appeared at the 

hearing. I-3 AF, Tabs 3, 7‐8, 10. The appellant also specified in his prehearing 

submission that he would rely on the documents in the agency file, and he did not 

identify any additional documents for use at the hearing. I-3 AF, Tabs 7‐8. 

¶6 Regarding the appellant’s argument that he was unable to submit certain 

evidence because agency human resources personnel stated that they were 

unable to find any records, we note that the Board’s acknowledgment 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 to a Board proceeding, the Board’s rules provide for 

the issuance of orders compelling discovery by interrogatory or deposition, and 

for the issuance of subpoenas. See Kinsey v. U.S. Postal Service, 12 M.S.P.R. 

503, 505-06 (1982). If 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. See 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 argues 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 without prejudice to refiling. IAF,

Tab 11. After the case was automatically refiled, the appellant asked the administrative 

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 

prejudice, 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. PFR 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 evidence 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 material evidence not previously 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). The appellant’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 years of service and very good work performance), aff’d, 243 F.3d 562 (Fed. 

Cir. 2000) (Table). We therefore deny the petition for review. 

NOTICE TO THE APPELLANT 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 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 
6

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 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 

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.

______________________________

Jennifer Everling

Acting Clerk of the Board