Sherry G. Lucas v. United States Postal Service

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SHERRY G. LUCAS,
Petitioner
v.
UNITED STATES POSTAL SERVICE,
Respondent
______________________
2023-2345
______________________
Petition for review of the Merit Systems Protection
Board in No. CH-0752-16-0448-I-1.
______________________
Decided: April 29, 2024
______________________
S HERRY G. L UCAS , Calumet City, IL, pro se.
MATNEY ELIZABETH ROLFE, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
BRIAN M. BOYNTON, D EBORAH ANN BYNUM , P ATRICIA M.
MCCARTHY .
______________________
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LUCAS v. USPS 2
Before REYNA and CUNNINGHAM , Circuit Judges, and
ALBRIGHT , District Judge.1
P ER CURIAM .
Ms. Sherry G. Lucas petitions for review of a Merit Sys-
tems Protection Board (“Board”) decision affirming the
United States Postal Service’s removal of Ms. Lucas from
her position as Manager of Customer Service, EAS-22, at
the Gary, Indiana Post Office for insubordination. Lucas
v. U.S. Postal Serv., No. CH-0752-16-0448-I-1, 2017 WL
1148037 (M.S.P.B. Mar. 23, 2017) (App’x 23–422); Lucas v.
U.S. Postal Serv., No. CH-0752-16-0448-I-1, 2023 WL
4274177 (M.S.P.B. June 29, 2023) (App’x 63–75). We af-
firm.
I. BACKGROUND
Ms. Lucas began her employment with the Postal Ser-
vice in 1998. App’x 11 ¶ 1. At the time of her removal, she
served as Manager of Customer Service at the Gary, Indi-
ana Post Office. App’x 11 ¶ 4–5; App’x 13 ¶ 21.
In 2013, the National Association of Letter Carriers
Union (“NALC”) filed a class action grievance alleging, in-
ter alia, that the Postal Service––through the actions of
Ms. Lucas––had violated provisions of the National Agree-
ment, the Joint Statement on Violence and Behavior in the
Workplace, and certain other policies. App’x 11 ¶ 6. On
February 12, 2014, the agency and NALC entered into a
1 Honorable Alan D Albright, District Judge, United
States District Court for the Western District of Texas, sit-
ting by designation.
2 Respondent submitted appendix pages 1 through
75 with its brief. Petitioner submitted additional appendix
pages numbered 76 through 138 with her reply brief. Be-
cause they are numbered consecutively, we refer to these
pages as a single appendix.
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LUCAS v. USPS 3
pre-arbitration settlement agreement resolving the griev-
ance. App’x 12 ¶ 8. The agreement provided that Ms. Lu-
cas would “make a public apology to letter carriers in the
Gary office . . . .” Id. (citing Agency File (“AF”), Tab 4N).
In March 2014, the NALC filed a grievance protesting
certain contractual violations by the agency, including Ms.
Lucas’s failure to comply with the settlement agreement.
App’x 12 ¶ 9. The NALC contended that a talk Ms. Lucas
gave to letter carriers in Gary did not constitute the apol-
ogy agreed upon in the settlement agreement. AF, Tab 4M
at 5. After the NALC and the agency were unable to re-
solve the grievance, they appealed to arbitration. App’x 12
¶ 10. In 2015, the arbitration award issued, and the arbi-
trator agreed with the NALC that Ms. Lucas’s talk failed
to provide the agreed-upon apology. App’x 12 ¶¶ 12–13.
The arbitrator directed Ms. Lucas to issue a public apology
to letter carriers in the Gary office and provided the specific
text for her to read. App’x 12 ¶ 12; IAF, Tab 4M at 33.
Labor Relations Specialist Mark Moore also advised
Ms. Lucas that she was required to issue the apology set
forth by the arbitrator. App’x 13 ¶ 14. She refused. App’x
13 ¶ 15. On October 28, 2015, Acting Postmaster Bobby
Goins twice ordered Ms. Lucas to issue the apology. App’x
13 ¶ 16. Similarly, Acting Manager of Post Office Opera-
tions Keith Blane told Ms. Lucas twice that she had to give
the apology by October 30. App’x 13 ¶ 17. On October 29,
Mr. Goins again directed Ms. Lucas to give the apology by
October 30 and further explained that appropriate action
would be taken if she refused. App’x 13 ¶ 18. Ms. Lucas
continued to refuse to apologize. App’x 25.
In December 2015, Mr. Goins issued Ms. Lucas a notice
of proposed removal charging her with “Unacceptable Con-
duct – Insubordination,” based on her failure to comply
with the arbitrator’s decision and subsequent orders.
App’x 101–106. Ms. Lucas responded to the notice through
her union representative. App’x 84. In this response, Ms.
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LUCAS v. USPS 4
Lucas made several arguments, including “that she did not
make the alleged statements” and that “it violated her
[r]eligious beliefs to lie,” that the agency had engaged in
religious discrimination, and that her removal “violat[ed]
[] several of the Douglas [f]actors.” App’x 84–86. In May
2016, the agency issued a letter of decision finding that the
charge was supported and that the evidence warranted her
removal. App’x 1.
Ms. Lucas appealed her removal to the Board, where
she was represented by counsel. App’x 6–9. Shortly after
filing, the administrative judge entered an order directing
Ms. Lucas to “specifically identify whether she is alleging
religious discrimination as an affirmative defense and if so
the factual bases for her claim on these matters,” as well
as to identify any other affirmative defenses with specific-
ity.3 App’x 111. Finally, the order advised Ms. Lucas on
“the burdens of proof concerning the affirmative defense al-
leged by the appellant and what is necessary for her to
prove her defense.”4 App’x 112. Ms. Lucas later confirmed
that she “is waiving any affirmative defenses.” App’x 17;
App’x 51 n.1 (“Appellant acknowledges that her original
representative represented that no affirmative defenses
would be filed . . . .”).
In March 2017, the Board issued its initial decision af-
firming the agency’s decision to remove Ms. Lucas. App’x
3 The order noted that Ms. Lucas may have been
raising “religious discrimination as an affirmative de-
fense,” explaining the “appeal form state[d] the appellant’s
religion barred her from telling a ‘lie’ and thus she could
not comply with management’s instruction for her to im-
plement an arbitrator’s decision.” App’x 111.
4 Among the defenses detailed, the order explained
that Ms. Lucas could “assert that the agency failed to ac-
commodate her religious beliefs . . . , even if the reasons for
her discharge were otherwise proper.” App’x 117.
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LUCAS v. USPS 5
23–24. The administrative judge first held that the agency
met its burden to prove insubordination, defined as “the
willful and intentional refusal to obey an authorized order
of a superior officer which the officer is entitled to have
obeyed.” App’x 27. The administrative judge rejected Ms.
Lucas’s assertions that she was not bound by the arbitra-
tion award or that the arbitrator lacked the authority to
require her to make a public apology. App’x 29–31. The
administrative judge then determined the agency estab-
lished the necessary nexus between the sustained charge
and a legitimate government interest, such as the effi-
ciency of the service. App’x 31–32. Finally, the adminis-
trative judge held that the agency properly considered the
Douglas factors to determine the appropriate penalty and
that removal did not exceed the limits of reasonableness.
App’x 36.
Ms. Lucas petitioned for review of the initial decision,
making a number of additional arguments. App’x 45. In
her petition, she argued––for the first time––that “Federal
employees cannot be compelled to say something in viola-
tion of their First Amendment Rights.” App’x 51. There-
fore, she asserted that agency management “lacked the
lawful authority to compel [Ms. Lucas] to issue an apology
in violation of her First Amendment rights . . . .” App’x 54.
She acknowledged that she had waived her religious dis-
crimination defense but argued that she does not consider
“challenging the validity of [the] order on First Amendment
grounds” to be an affirmative defense. App’x 51 n.1 (em-
phasis omitted).
In the Final Order, the Board denied the petition and
affirmed the initial decision, “conclud[ing] that the peti-
tioner has not established any basis under [5 C.F.R.
§] 1201.115 for granting the petition for review.” App’x 64.
The Board found that Ms. Lucas had not raised her First
Amendment argument below and held that “she may not
raise it for the first time on review.” App’x 68.
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LUCAS v. USPS 6
Ms. Lucas timely appeals. We have jurisdiction under
28 U.S.C. § 1295(a)(9).
II. D ISCUSSION
We set aside a Board decision if it is “(1) arbitrary, ca-
pricious, an abuse of discretion, or otherwise not in accord-
ance with law; (2) obtained without procedures required by
law, rule, or regulation having been followed; or (3) unsup-
ported by substantial evidence.” 5 U.S.C. § 7703(c); see also
Standley v. Dep’t of Energy, 26 F.4th 937, 942 (Fed. Cir.
2022), cert. denied, 142 S. Ct. 2873 (2022).
In her briefing before this court, Ms. Lucas asserts that
she “had the right to refuse to issue the ordered apology on
religious grounds” and that the Board erred by finding she
waived or forfeited the argument. Pet’r’s Br. 2. In addition,
she asserts that “[t]he punishment exceeds the bounds of
reasonableness” and “should have been mitigated under
the Douglas [f]actors.” Id.
A.
First, we address Ms. Lucas’s constitutional argument.
Ms. Lucas asserts she “had the right to refuse to issue the
apology on religious grounds under the First Amendment”
because “it was against [her] religious belief to issue a false
statement.” Pet’r’s Br. 2. She argues that “[a]n order is not
authorized if it requires an employee to give up their Con-
stitutional rights.” Id. (citing Garrity v. New Jersey, 385
U.S. 493 (1967)). Because agency “[m]anagement had no
authority to order [her] to violate [her] Constitutionally
protected religious beliefs . . ., [she] did not commit insub-
ordination.” Id.
Before addressing the merits of Ms. Lucas’s argument,
we must determine whether Ms. Lucas properly raised this
argument before the Board. See Wallace v. Dep’t of the Air
Force, 879 F.2d 829, 832 (Fed. Cir. 1989) (“Ordinarily, ap-
pellate courts refuse to consider issues not raised before an
administrative agency.”). The Board declined to address
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LUCAS v. USPS 7
Ms. Lucas’s First Amendment argument in her petition for
review, finding that she had not raised it below and “may
not raise it for the first time on review.” App’x 68. On ap-
peal, the U.S. Postal Service asserts that “the MSPB did
not err by failing to address Ms. Lucas’s religious liberties
claims” because “[t]he MSPB is under no obligation to en-
tertain arguments that were raised for the first time on ap-
peal.” Resp’t’s Br. 8. Ms. Lucas insists that “[t]he MSPB’s
holding that this issue was not raised at hearing level is
just wrong.” Pet’r’s Br. 2. As explained below, we hold that
the Board did not abuse its discretion by declining to ad-
dress Ms. Lucas’s First Amendment argument.
Ms. Lucas asserts she raised her First Amendment ar-
gument in several places: “It was in the charging letter[;]
it was set out in the response to the charging letter[; and]
it was noted . . . in the decision letter and in hearing testi-
mony.” Pet’r’s Br. 2. However, all of these instances “ei-
ther were not sufficiently explicit or were not before the
Board.” Wallace, 879 F.2d at 832. The charging letter, the
response to the charging letter, and the decision letter do
not constitute statements properly raised before the Board.
See id. (holding that a statement made to the agency in re-
sponse to its notice of proposed removal was not a state-
ment made before the Board). Moreover, the hearing
testimony confirmed that the issue was not raised “with
sufficient specificity and clarity,” and “[t]he Board cannot
be faulted for refusing to consider the issue.” Wallace, 879
F.2d at 832; see also App’x 131–133.
Ms. Lucas failed to timely raise her First Amendment
argument before the administrative judge, raising it for the
first time before the Board in her petition for review. See
Initial Appeal File (“IAF”), Tab 16 at 5–6 (pre-hearing sub-
mission presenting issues without raising First Amend-
ment argument); IAF, Tab 24 at 4–15 (closing brief
challenging orders to apologize on several bases but failing
to raise First Amendment argument); App’x 54–57 (peti-
tion for review raising this First Amendment argument).
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LUCAS v. USPS 8
Instead, her argument before the administrative judge fo-
cused on whether the National Agreement requiring com-
pliance with arbitration awards applied to Ms. Lucas. IAF,
Tab 24 at 4–15. The Board properly declined to review this
newly raised First Amendment issue. See Carson v. Dep’t
of Energy, 398 F.3d 1369, 1376 (Fed. Cir. 2005) (citing
Banks v. Dep’t of the Air Force, 4 M.S.P.R. 268, 271 (1980));
App’x 68. The Board generally does not address issues not
adjudicated by the administrative judge unless there is
“[n]ew and material evidence or legal argument . . . that,
despite the petitioner’s due diligence, was not available
when the record closed.” 5 C.F.R. § 1201.115 (listing crite-
ria for granting a petition for review). Ms. Lucas did not
contend that there was new and material evidence or argu-
ment that was not available when the record closed. See
App’x 54–57.
Ms. Lucas may not raise her First Amendment argu-
ment for the first time in this court. See Wilder v. Merit
Sys. Prot. Bd., 675 F.3d 1319, 1323 (Fed. Cir. 2012).
“Where, as here, the Board denied review of the adminis-
trative judge’s initial decision, this court will not consider
issues not raised before the administrative judge.” Elmore
v. Dep’t of Transp., 421 F.3d 1339, 1342 (Fed. Cir. 2005).
“We discern nothing in this case . . . that induces us to de-
part from the general principle and determine an issue that
was not properly raised before or decided by the Board.”
Wallace, 879 F.2d at 833.
Ms. Lucas’s argument does not fall into any of the cat-
egorical exceptions we have recognized to the general re-
quirement to raise issues below. Although Ms. Lucas
appears before us pro se, she was represented by counsel
before the Board. App’x 9. Accordingly, we do not apply
the “less demanding standard” for pro se litigants “in re-
quiring that . . . issue[s] have been raised explicitly below.”
Forshey v. Principi, 284 F.3d 1335, 1357 (Fed. Cir. 2002)
(en banc), superseded on other grounds by Pub. L. No. 107–
330, § 402(a), 116 Stat. 2820, 2832 (2002). Forfeiture may
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LUCAS v. USPS 9
not be appropriate for “structural constitutional chal-
lenges” or “constitutional challenges to statutes or other
agency-wide policies” that “fall outside the adjudicators’ ar-
eas of technical expertise” or where adjudicators “are pow-
erless to grant the relief requested.” Carr v. Saul, 593 U.S.
83, 92–93 (2021). Here, Ms. Lucas does not assert such a
structural or general challenge. Instead, the relief she
seeks is available before the Board, and her argument is
well within the Board’s expertise. See Elgin v. Dep’t of
Treasury, 567 U.S. 1, 12, 23 (2012) (noting the Board “rou-
tinely adjudicates . . . claims that an agency took adverse
employment action in violation of an employee’s First . . .
Amendment rights” and that its expertise may be brought
to bear in addressing such claims). Ms. Lucas’s argument
does not fall into one of the recognized exceptions for con-
stitutional arguments.
Ms. Lucas further argues that she “was not advised by
the Administrative Judge that asserting the order to apol-
ogize violated [her] First Amendment rights constituted an
affirmative defense” and that she therefore “never waived
this argument.” Pet’r’s Br. 3. Her argument is unpersua-
sive. The Board and administrative judge were under no
obligation to inform her that her First Amendment argu-
ment was an affirmative defense. Ms. Lucas relies on
Hulett v. Department of the Navy, 120 M.S.P.R. 54 (2013),
for her assertion. Pet’r’s Br. 2; Pet’r’s Reply Br. 1. How-
ever, Hulett does not establish that the administrative
judge must inform an appellant of all possible affirmative
defenses. Rather, Hulett establishes the Board’s obliga-
tions when an appellant properly raises an affirmative de-
fense and demonstrates no intent to waive such defenses.
Hulett, 120 M.S.P.R. at 58. Here, Ms. Lucas––represented
by counsel––failed to raise a First Amendment defense in
the first instance. Moreover, even if Ms. Lucas did not per-
sonally waive her First Amendment argument or under-
stand its nature as an affirmative defense, her attorney
waived this defense on her behalf, and Ms. Lucas is bound
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LUCAS v. USPS 10
by this action. See Rowe v. Merit Sys. Prot. Bd., 802 F.2d
434, 437 (Fed. Cir. 1986) (“It is well settled that a person is
bound by the consequences of his representative’s conduct,
which includes both his acts and omissions.”).
In sum, we hold that Ms. Lucas failed to properly raise
her First Amendment argument before the Board, and we
decline to address it on the merits here.
B.
We now address the penalty of removal. Ms. Lucas ar-
gues that––based on certain mitigating factors, the reasons
for her refusal to apologize, her 17 years of service, and
work record––“the penalty of removal should have been
mitigated under the Douglas [f]actors.” Pet’r’s Br. 2. She
also asserts that “[t]he punishment exceeds the bounds of
reasonableness.” Id. We disagree.
When reviewing a penalty, “[t]he Board is required to
determine whether the agency has responsibly balanced
the factors delineated in [Douglas v. Veterans Admin., 5
M.S.P.R. 280 (1981)].” Holmes v. U.S. Postal Serv., 987
F.3d 1042, 1047 (Fed. Cir. 2021) (internal quotation marks
and citation omitted). However, “[t]he determination of
which Douglas factors apply in a particular case and the
weight to be given the relevant factors lies primarily within
the agency’s broad discretion to determine the appropriate
penalty for a particular case.” Zingg v. Dep’t of Treasury,
IRS, 388 F.3d 839, 844 (Fed. Cir. 2004).
The agency considered several factors to determine the
appropriate penalty, including the “nature and seriousness
of [the] offense,” Ms. Lucas’s notice of the proper conduct
for postal employees, her “potential for rehabilitation” in
view of her failure to accept responsibility, her position as
a manager, her years of service with a record of no disci-
pline for performance, and her justification that apologiz-
ing “would be tantamount to lying,” which would “violate[]
[her] religious beliefs.” App’x 3–4. Although her length of
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LUCAS v. USPS 11
service and record without discipline were mitigating fac-
tors, the agency found that “a reduction of the penalty of
removal [was] unwarranted.” App’x 4. The agency further
found that “[her] removal will promote the efficiency of the
service.” Id.
The Board found that the agency “appropriately con-
sidered the relevant factors enumerated in Douglas” and
“exercised [its] discretion within the tolerable limits of rea-
sonableness in reaching the decision to remove [Ms. Lucas]
from her employment with the Postal Service.” App’x 36.
In reviewing the penalty, the Board primarily considered
testimony of Mr. Lawrence Dauby, the deciding official.
App’x 33–34. He explained that Ms. Lucas’s misconduct
was “very serious, particularly given her seniority” and
role, and “risk[ed] damaging the agency’s [crucial] relation-
ships with union partners.” App’x 34. He further testified
that Ms. Lucas willfully refused to apologize over a thirty-
day period, indicating “she had no potential for rehabilita-
tion,” and she “had taken absolutely no responsibility for
her actions.” Id. He also “testified that he considered her
17 years of service and clean disciplinary record” but that
they “were not sufficient to reduce the penalty because her
misconduct went to the exact core of management’s rela-
tionship with the unions and had the potential to create
chaos within the organization.” Id. (internal quotation
marks and citation omitted). The Board also addressed Ms.
Lucas’s argument that her penalty was inconsistent with
the penalty received by another employee for insubordina-
tion, crediting Mr. Dauby’s testimony explaining why the
situation was not comparable. App’x 35.
Ms. Lucas fails to establish any error or abuse of dis-
cretion in this analysis. First, she argues that she “issued
the first written apology as instructed.” Pet’r’s Br. 2. But
this apology is irrelevant to her removal: She was removed
for failing to comply with later orders given after this ini-
tial statement was determined to be insufficient. App’x 1.
She also asserts that a USPS policy statement issued after
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LUCAS v. USPS 12
her Board hearing provided that she “was to be provided
full opportunity to respond to the allegations against [her]
at the grievance level which was never provided.” Pet’r’s
Br. 2 (emphasis added). However, Ms. Lucas does not ex-
plain why the policy statement has any bearing on the ap-
propriateness of the removal penalty for a charge we
otherwise sustain. See Yeschick v. Dep’t of Transp., F.A.A.,
801 F.2d 383, 385 (Fed. Cir. 1986) (affirming the Board’s
decision where the petitioner failed “to state how [certain]
factors could have served to mitigate the penalty of re-
moval”). Moreover, the Board found “such an argument
does not outweigh the seriousness of her repeated and in-
tentional offenses.” App’x 69. Here, the Board did not
abuse its discretion in making this determination.
Lastly, Ms. Lucas asserts “the reasons for [her] refusal
to issue the apology” should have mitigated the penalty of
removal. Pet’r’s Br. 2. We have never required the agency
or the Board to consider the petitioner’s alleged justifica-
tion for insubordination as a mitigating factor. See, e.g.,
Nagel v. Dep’t of Health & Hum. Servs., 707 F.2d 1384,
1385–87 (Fed. Cir. 1983) (affirming decision to remove pe-
titioner for insubordination where the Board found “peti-
tioner’s belief” that an agency order was improper “did not
lessen the gravity of the offense”); Ferrone v. Dep’t of Lab.,
797 F.2d 962, 966–67 (Fed. Cir. 1986). Rather, all that is
required is that the Board “articulate[] and consider[] [the
Douglas] factors [it finds] to be relevant to [a] petitioner’s
case,” as it did here. Nagel, 707 F.2d at 1386. The Board
found her justification to be irrelevant, noting that Ms. Lu-
cas “did not raise an affirmative defense of discrimination
based on religion.”5 App’x 69. We see no error in the
5 The deciding official considered this justification
and declined to credit it because he found it to be incon-
sistent based on her willingness to give a talk that she
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LUCAS v. USPS 13
Board’s determination that her justification––regardless of
which Douglas factor it might be considered under––was
not relevant. See Nagel, 707 F.2d at 1386–87 (“We hold
that no reversible error was committed by the board in this
case when it discussed only those factors listed in the Doug-
las case it deemed relevant.”). Moreover, in light of her jus-
tification and failure to accept responsibility, there is no
indication that if Ms. Lucas were given a lesser penalty,
she would eventually comply with the directive to issue an
apology. See App’x 34; Ferrone, 797 F.2d at 966–67 (“[T]o
reinstate [petitioner], at once or after a suspension, still de-
fiant and still refusing to do what the agency ordered,
would be tantamount to a total victory for the forces of in-
subordination.”).
This “court will not disturb a penalty unless it exceeds
the range of permissible punishment or is so harsh and un-
conscionably disproportionate to the offense that it
amounts to an abuse of discretion.” Gonzales v. Def. Logis-
tics Agency, 772 F.2d 887, 889 (Fed. Cir. 1985) (internal
quotation marks and citation omitted). Considering “the
severity of [Ms. Lucas’s] offense” and “its impact on the
agency’s mission,” we conclude the penalty is within the
limits of reason. App’x 35.
III. CONCLUSION
We have considered Ms. Lucas’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm the Board’s final decision.
AFFIRMED
COSTS
No costs.
“stated was an apology to comply with the initial pre-arbi-
tration settlement.” App’x 3.
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