Harinder Singh v. United States Postal Service
2022 MSPB 15
MSPB2022Background
- Harinder Singh, Manager Transportation/Networks (EAS-23) at the Los Angeles P&DC, was investigated by USPS OIG after a subordinate alleged Singh physically threatened him; OIG expanded the probe to other misconduct.
- USPS issued a Notice of Proposed Removal (Apr 29, 2014); initial Letter of Decision removed Singh (Sept 9, 2014), later rescinded and replaced with a demotion to Network Operations Specialist (EAS-19) effective Nov 29, 2014.
- Singh appealed; the administrative judge joined the removal and demotion appeals, sustained misuse of position and three specifications of improper conduct but not the acceptance-of-gifts charge, and affirmed the demotion as a reasonable penalty.
- On review Singh challenged credibility findings, denial of discovery for comparator penalty data (disparate-penalty claim), alleged due-process violations from an ex parte contact by the deciding official, and asserted the demotion decision was made by someone else (ultra vires).
- The Board reinstated its pre-2010, more restrictive disparate-penalty standard (emphasizing close similarity and the Facer knowledge element), upheld the AJ’s discovery ruling, found the ex parte contact merely clarified existing record information (no due-process violation), and affirmed the demotion as within tolerable limits of reasonableness.
Issues
| Issue | Singh's Argument | USPS Argument | Held |
|---|---|---|---|
| Disparate-penalty / discovery | Agency-wide comparator records would show similarly situated employees got lesser sanctions; denial of discovery prejudiced him | Request was overbroad; agency provided regional comparator data; nationwide data unlikely to show knowingly unjustified disparate treatment | Board reinstated stricter comparator standard; denied discovery abuse claim and found Singh’s speculation unsupported; no mitigation required |
| Ex parte communication / due process | Deciding official contacted HQ about contract-change spec without notifying Singh; that was new material information depriving him of due process | Contact only confirmed information already in record and did not introduce material new facts | Contact merely clarified/confirmed existing record; no due-process violation under Stone/Ward factors |
| Ultra vires / who decided penalty | Decision was actually made by another official, not the named deciding official; action thus invalid | Deciding official testified he made the decision; no evidence he lacked authority | Singh failed to show decision was made by someone else or that deciding official lacked authority; not ultra vires |
| Credibility and penalty reasonableness (Douglas factors) | Key agency witness was charged with misconduct and biased; AJ erred in crediting testimony and in Douglas analysis (insufficient consideration of alternatives, training) | AJ properly applied Hillen credibility factors; deciding official considered Douglas factors and alternatives; demotion fits within tolerable range | Board deferred to AJ credibility findings, found Douglas analysis adequate, and affirmed demotion as reasonable |
Key Cases Cited
- Williams v. Social Security Administration, 586 F.3d 1365 (Fed. Cir. 2009) (comparator need not share chain of command in all cases; close factual connection may require agency explanation)
- Facer v. Department of the Air Force, 836 F.2d 535 (Fed. Cir. 1988) (disparate-treatment inquiry requires showing agency knowingly treated employees differently for reasons other than efficiency)
- Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981) (nonexhaustive list of factors for assessing penalty)
- Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368 (Fed. Cir. 1999) (factors for assessing whether ex parte information is new and material for due-process purposes)
- Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 2011) (deciding-official reliance on new material ex parte information can violate due process)
- Hillen v. Department of the Army, 35 M.S.P.R. 453 (1987) (factors administrative judge must consider when resolving credibility)
- Blank v. Department of the Army, 247 F.3d 1225 (Fed. Cir. 2001) (ex parte communications that only confirm record information do not violate due process)
- Haebe v. Department of Justice, 288 F.3d 1288 (Fed. Cir. 2002) (Board defers to AJ credibility findings based on demeanor)