The following is a modified version of the MSPB case:
Based on the results of an investigation, USPS removed the appellant from his position as EAS-17 Supervisor, Distribution Operations, on a charge of failure to follow instructions – unauthorized purchases on his government credit card. USPS listed three specifications: (1) using his assigned government credit card for personal reasons; (2) unacceptable conduct – receiving night differential to which he was not entitled; and (3) unacceptable conduct – falsification of PS Form 1261 (non-transactor report). On review, the deciding USPS official found that the “charges” were sustained but that removal was too severe, and he mitigated the penalty to a reduction in grade and pay to the position of Mailhandler, Level 4.
On appeal, the Supervisor challenged the action and alleged that it was in retaliation for his protected equal employment opportunity (EEO) activity. During adjudication, the MSPB administrative judge notified the parties that she construed the proposal notice as consisting of three separate charges with one specification under each charge, and neither party noted any objection.
Following a hearing, the MSPB administrative judge issued an initial decision in which she found charge (1) sustained. Although she found that the Supervisor’s use of his government credit card to buy pizzas for his subordinates was appropriate, she found that his other uses (twelve cash advances, seven gasoline purchases, and two car rentals over a 5-month period, all personal expenses) were not. The MSPB administrative judge further found that charges (2) and (3) were not sustained. She found that discipline for the sustained charge promoted the efficiency of the service, and that the Supervisor did not support his claim that the action was taken in retaliation for his prior protected EEO activity. Based on the single sustained charge, the administrative judge found that the reduction in grade and pay was within the limits of reasonableness.
In his petition for review, the Supervisor disputed the MSPB administrative judge’s finding that reduction in grade and pay was a reasonable penalty. USPS responded in opposition to the Supervisor’s petition for review.
The MSPB Board disagreed with the administrative judge’s statement that the deciding official did not consider the Supervisor’s financial situation. On the contrary, the USPS deciding official acknowledged in the decision letter that, during the investigation, the Supervisor stated that the purchases were due to the financial trouble he was experiencing at the time.
The MSPB Board found that the deciding official failed to properly consider the Supervisor’s claim that he was not on notice that his actions were improper. The deciding official indicated in his decision letter that he did not accept the Supervisor’s claim because, if he “believe[d] that it was appropriate to make those credit card purchases, then [he] would have continued making those purchases after the Fall of 2007,” and because “the Government credit cards issued to employees come with warnings that the use of the Government credit card should only be for authorized purchases as related to Postal employment.” At the hearing, the deciding official testified that “as far as using the personal [sic] credit card, I think it’s pretty common sense that you wouldn’t use that, you’re not to use that for your personal business.”
The Supervisor acknowledged that he thought personal use of a government credit card was frowned upon, but stated that he was unaware that it was specifically prohibited, and that he thought it was acceptable if he paid the full balance before the due date. He testified that he had limited experience with using a government travel card, and that his only previous use, when he was on travel at a conference, had not been questioned. He stated that it was his understanding that, when he was away from his home facility, he could use the card for incidental purchases and pay the bills when they came due, which is what he did. He explained that, at the time in question, he was detailed from the Logistics and Distribution Center, Rochester, New York (about three minutes from his home), to the Processing and Distribution Center, Rochester, New York (about 25 minutes from his home). He denied ever having received any instruction on the proper use of a government credit card. Instead, he testified, during his supervisory training program, the cards were simply distributed.
USPS did not challenge the Supervisor’s assertions regarding his limited experience with using a government credit card. To the extent that he might have been confused about whether his detail within the local area constituted travel for purposes of government credit card usage, his confusion was shared by other USPS employees, including the proposing official, and the then-Acting Plant Manager. Moreover, while Management Instruction FM-640-2004-1, Government-Issued Individually Billed Travel Charge Cards, provides that such cards may be used for official travel expenses only, and not for personal expenses, it also instructs that, if the card has been used to get a cash advance at an ATM or to pay for non-reimbursable expenses while on travel, those amounts should be paid by the user directly to the bank. The proposing official testified that the Supervisor should have known that his use of the credit card was improper because, when he was in supervisory training, an individual in his class was not allowed to “graduate” based on her having allowed her boyfriend to use her government credit card. The two types of credit card misuse, however, are considerably different, and the agency has not shown that knowledge of one would necessarily establish knowledge of the other. After considering the evidence on this matter, we find that it does not support the deciding official’s conclusion that the Supervisor was on notice that his actions were improper.
The MSPB Board agreed with sustaining the charge of misuse of a government travel card. However, they found that the Supervisor’s misunderstanding of the rules surrounding the use of government credit cards rendered him unaware that his actions were improper and constituted a mitigating factor warranting consideration.
The deciding official also indicated that he believed that the reduction in grade and pay penalty he imposed was consistent with that imposed on others for misconduct similar to that engaged in by the Supervisor. At the hearing, however, when asked to address the issue of comparator employees, the deciding official mentioned two whose misconduct involved falsification, not misuse of a government credit card. He also testified that he considered the notoriety of the situation, but, when queried further, he explained that he was referring only to the degree to which the Supervisor’s fellow employees were aware of the misconduct, and that he considered the public’s awareness only to the extent that “[i]f we allow employees to, you know, violate . . . trust, it would violate the reputation of the postal service,” The deciding official did consider certain mitigating factors, including the supervisor’s 8 years of discipline-free service. .. and he also acknowledged that the Supervisor had timely paid the credit card bills and had no outstanding balance.
The most important factor in assessing whether USPS’s chosen penalty is within the tolerable bounds of reasonableness is the nature and seriousness of the misconduct and its relation to the employee’s duties, position, and responsibilities. There is no question that the Supervisor’s offense was serious. The deciding official indicated that he had lost confidence in the Supervisor because of his failure to follow the rules. In addition, agencies are entitled to hold supervisors like the Supervisor to a higher standard than non-supervisors because they occupy positions of trust and responsibility. The deciding official explicitly testified that he deemed the Supervisor’s misconduct unacceptable and that it was inappropriate to retain him in a supervisory position.
The MSPB Board found it significant that USPS failed to weigh the relevant mitigating factor that the Supervisor was not on notice that his use of the government credit card was wrong.
For that reason, and others as set forth below, despite the serious nature of the appellant’s misconduct, we find that mitigation to a less severe penalty than the substantial demotion that the agency imposed is warranted.
We first note that the deciding official did not indicate in his final decision that he would have imposed a penalty less severe than a reduction in grade and pay on fewer charges. However, when asked at the hearing what his decision would have been if he had only sustained the charge of misusing the credit card, the deciding official speculated that he would have considered “maybe reducing to the craft or possibly a long term suspension.” As to the demotion, the deciding official testified that he assumed and intended that, when demoted, the appellant would be placed in a full-time craft position, but that he later learned that the agency’s collective bargaining agreements require a demoted supervisor to start over at the bottom of the craft in a part-time position. In fact, after the appellant was demoted, and after he filed his appeal, the agency notified him that, due to administrative error, he would be retroactively reassigned as a part-time flexible Mailhandler instead of the full-time Mailhandler position to which he was originally demoted. Thus, the actual demotion turned out to be more severe than the deciding official intended. As to the length of the “long term suspension” that the deciding official testified he also might have imposed had he sustained only the charge of misusing the credit card, he speculated that it “could be thirty days, sixty day[s], I don’t know,” before he ultimately stated that he “would have conferred with the legal department and labor department as to what would be appropriate.”
We find that the deciding official’s apparent misunderstanding as to the actual severity of the demotion, and his testimony regarding the possibility that he might have imposed a long suspension if he had sustained only the charge that we have sustained, constitute strong evidence that the penalty imposed by the agency is excessive and that the agency would have imposed a lesser penalty, if the deciding official had been better informed. Thus, while we consider the sustained misconduct serious, in consideration of the deciding official’s misunderstanding regarding the extent of the demotion and weighing the other factors described above, we find that a 60-day suspension is the maximum reasonable penalty under the particular circumstances of this case. In mitigating the demotion despite the fact that the appellant was a supervisor, as we have done, we particularly note that the fact that the Postal Service contracts require extreme demotions such as the one imposed here distinguishes this case from other cases where a one-grade demotion to a nonsupervisory position is possible.
Ruling: The Board granted the Supervisor’s petition for review and affirmed the initial decision as modified, mitigating the penalty to a 60-day suspension:
MSPB also ordered USPS to cancel the reduction in grade and pay action and substitute a 60-day suspension, and to restore the Supervisor effective January 30, 2009; pay the Supervisor the correct amount of back pay, interest on back pay, and other benefits under the Back Pay Act and/or Postal Service Regulations.
Cyril L. Edwards v. United States Postal Service