Randolph Hitchcockbey v. United States Postal Service
Background
- Appellant Randolph Hitchcockbey, a Postal Service Supervisor of Customer Service, was removed effective Sept. 3, 2014 for "Unacceptable Conduct in the Workplace" based on allegations from multiple female subordinates of inappropriate texts, lewd comments, exposure, and two alleged sexual assaults.
- The agency relied on its workplace harassment policy and other internal rules (Loyalty, Discharge of Duties, Behavior and Personal Habits, Violent/Threatening Behavior) in issuing the removal.
- Two employees filed EEO complaints that resulted in paid settlements by the agency.
- An MSPB administrative judge held a hearing, found the agency witnesses more credible, sustained the charge by a preponderance of the evidence, found nexus to efficiency of the service, and affirmed removal as a reasonable penalty.
- On petition for review the Board denied relief, concluding the record showed the appellant had adequate opportunity to present evidence and witnesses, the administrative judge’s credibility and penalty findings were supported, and new arguments raised for the first time on review (e.g., a medical-state claim) were forfeited.
Issues
| Issue | Hitchcockbey's Argument | Postal Service's Argument | Held |
|---|---|---|---|
| Denial of opportunity to submit evidence and call witnesses | He was denied the right to submit evidence/witnesses; HR failed to locate records | Administrative judge provided ample time; appellant and counsel identified witnesses and documents; Board discovery remedies were available but not pursued | Denied — appellant had opportunity; his failure to use discovery procedures or counsel’s errors are his responsibility |
| Credibility and sufficiency of evidence | He denied the misconduct and argued accusations were fabricated | Agency presented witnesses and documentation supporting allegations and prior EEO settlements | Held — administrative judge found agency witnesses credible; preponderant evidence supported the charge |
| Consideration of medical/mental condition | He asserted on review he was not in the "right frame of mind" due to a medical condition | Agency/Board noted the argument was raised first on review and unsupported by new evidence | Not considered — argument forfeited for being raised initially on review without new material evidence |
| Nexus and penalty reasonableness | Implied challenge that removal was excessive or lacked nexus | Agency showed nexus to efficiency and considered mitigating/aggravating factors; loss of supervisory trust justified removal | Held — nexus proven; removal was a reasonable penalty given supervisory role and seriousness/repetition of misconduct |
Key Cases Cited
- Kinsey v. U.S. Postal Service, 12 M.S.P.R. 503 (discusses Board discovery remedies and subpoenas)
- Perry v. U.S. Postal Service, 46 M.S.P.R. 425 (appellant cannot claim agency harmed preparation when Board discovery procedures were available)
- Sofio v. Internal Revenue Service, 7 M.S.P.R. 667 (errors of chosen representative are attributable to the appellant)
- Banks v. Department of the Air Force, 4 M.S.P.R. 268 (new arguments raised on review are not considered absent new material evidence)
- Cisneros v. Department of Defense, 83 M.S.P.R. 390 (upholding removal for supervisory sexual harassment despite prior good service)
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (Federal Circuit will generally not waive statutory filing deadlines)