MSPB Overturns Demotion of Postal Supervisor For Misuse Of USPS Credit Card

November 7, 2010 by
Filed under: legal cases, mspb, postal, postal supervisors, removals, usps 

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

Comments

8 Comments on MSPB Overturns Demotion of Postal Supervisor For Misuse Of USPS Credit Card

  1. ZACK on Mon, 8th Nov 2010 1:06 am
  2. Since when is “ignorance” a defence? “I thought it was frowned upon, but not illegal” Give me a break! Sadly enough, this is the very type of individual management seeks to join their club of moron’s. Maybe MSPB could clarify to the workforce what is the difference between “Regular vs. Irregular” attendance; in their infinate wisdom. I’ve yet to find anyone within management that could ever sum that up for me!

  3. Steve Geb on Mon, 8th Nov 2010 5:32 am
  4. All Credit Card expenditures are required to be submitted in writing and entered into the EBUY system for approval before making any purchase. Apparently his office wasn[t following procedure.
    The credit card says US POStAL SERVICE on the top in great big letters. So how can anyone think that they can use that card for their own expenses. So what if they re-imberse the Service.
    I have a credit card with my name on it that I use for my personel expenses. I wouldn[t use that card for the P,O,’s expenses either.
    I can’t believe he got his job back.

  5. Postman From Hell on Mon, 8th Nov 2010 6:43 am
  6. He steals and retains his job!!! Where the fuck is our society headed, oh and make it back from your route by 5pm or your out, MORONS!!!

  7. Postman From Hell on Mon, 8th Nov 2010 7:38 am
  8. There are 2 sets of laws this Country has in place. One for the Federal workforce and one for the Private sector, if you are Military or a Federal worker, retired or not, and have at least 10 years under your belt employed in the above mentioned divisions, you know for a fact the Private sector is treated by the Feds with a do as I say not as I do attitude. IE:, do not water board captives, do not kill terrorist setting off IUD’s, oh yes we are sending you to war and will supply you with weapons to kill but we will make an example of you for our good public standing, do not torture or beat POW’s yet we shall provide you prisons to maintain order amongst them, make it back by 5 from your route no excuses, don’t get hurt on your route as you will get no workers compensation to support your family and yourself, we will supply the diagnoses to our contracted Doctor, do not attempt to privately record any of the goings on in any Federal institution to satisfy yourself with proof of the deeds ordered by the same people we elect, if you get caught stealing make sure you know someone who can make a difference and save your job. Last one was in reference to article. Bottom line is that this is not going to make any precedence within the Federal Government they are the law makers, remember Nixon, in the Private sector more than definitely. Rules of the game is not fair or honest, how these people sleep at nights is a miracle. These comments are just a way to vent, no one that could change the rules reads this or will admit to reading this, and most certainly if they do read our comments, will not do a fucking thing about it. To Postal upper Management, MORONS!!!

  9. lsw on Mon, 8th Nov 2010 10:19 am
  10. This was abuse of a Government Travel Card, not a Purchase Card. ebuy approval is NOT required for a travel card, only purchase cards.
    Travel cards are repaid by the EMPLOYEE, not USPS directly. SOP is that an employee uses the travel card while traveling outside his/her normal area. Use for personal expenses, while on official travel, is explicitly ALLOWED. The employee submits a PS1012 expense reimbursement claim and USPS sends a check to the employee. The employee cashes the check and uses the money to repay the travel card. Non-reimbursable (personal) expenses charged to the card are the responsibility of the employee. If it is true that the Supervisor received no training in use of the Travel card (and USPS did not dispute that assertion in this case) it is no wonder that the Supervisor was confused. Even so, the only apparent mistake he made was confusing “official travel” (Travel card use acceptable) with just a detail change within his commuting area (Travel card use not acceptable) According to the article, he timely paid the travel card bill, so there was no theft.

  11. jafair on Mon, 8th Nov 2010 6:03 pm
  12. What a crock of BS!
    Only a Supervisor could get away with this.
    The post office is doomed…. it’s not “if”… it’s “when”… and “when” is coming sooner, rather than later.

  13. ZACK on Tue, 9th Nov 2010 5:08 am
  14. Can I borrow a stamp, and pay the USPS back on pay day? Or better yet, can I argue that I didn’t know it was illegal.

  15. flachic on Wed, 10th Nov 2010 12:57 pm
  16. need to file this one to show an arbitrator when they fire a craft employee for falsification or stealing, too severe, Huh??