The following is a santitized version of the a case from the United States Court of Appeals for the Federal Circuit, Tompkins vs U.S. Postal Service
Kenneth Tompkins was employed at the Postal Service’s Atlanta Processing and Distribution Center in Atlanta, Georgia. He was removed from his position based upon the charge of “improper conduct: unauthorized opening, obstruction, and possession of the mail.” The charge grew out of an incident in which, the Postal Service alleged, Mr. Tompkins removed a camcorder from the mail, possessed it without authorization, and converted it to his own use.
Mr. Tompkins timely appealed his removal to the Merit System Protection Board. Before the Board, the parties stipulated that Mr. Tompkins had obstructed the mail and that he had engaged in the unauthorized possession of the mail when he removed the camcorder from the postal facility and took possession of it for his own use. Following a hearing, the administrative judge (“AJ”) sustained the removal.
The AJ viewed the charge against Mr. Tompkins as consisting of three distinct acts or specifications, one of which described an alleged unauthorized opening of the mail, the second of which described an alleged obstruction of the mail, and the third of which described an alleged unauthorized possession of the mail. The AJ stated that, under these circumstances, proof of any one of the acts or specifications was enough to sustain the charge of improper conduct. Although the AJ found that the Postal Service had failed to meet its burden of proving the unauthorized opening of the mail, he determined that, based upon the parties’ stipulation, the specifications of obstruction of the mail and unauthorized possession of the mail were sustained. After rejecting Mr. Tompkins’s charge of harmful procedural error by the Postal Service, he also determined that the Postal Service had not abused its discretion in imposing the penalty of removal.
Mr. Tompkins’s first argument is that the AJ erred as a matter of law in viewing the charge of improper conduct as consisting of three separate acts or specifications, rather than as one allegation with three elements. Mr. Tompkins argues that, if the AJ had correctly viewed the charge as a single allegation with three elements, the Postal Service would have had to prove each element in order for the charge to be sustained. As noted, the AJ found that the Postal Service had failed to prove that Mr. Tompkins had opened the package containing the camcorder. Therefore, Mr. Tompkins reasons, the Board erred in sustaining the charge against him because one of three elements of the charge was not established.
However, where a single charge consists of three separate acts or specifications of misconduct “that are not dependent upon each other and that do not comprise a single, separable event,” each act or specification constitutes a separate charge. In such a case, the agency need only prove one of the specifications in order to have the charge sustained. (“‘[W]here more than one event or factual allegation is set out to support a single charge . . . , proof of one or more, but not all, of the supporting specifications is sufficient to sustain the charge.’”)
We see no error in the AJ’s ruling with respect to the charge against Mr. Tompkins. Each of the three acts which the Postal Service alleged against Mr. Tompkins involved separate and distinct activity which could be undertaken without performing either of the other two acts. On a related matter, we also see no error in the AJ’s declining to rule on the issue of the agency’s charge prior to the hearing. An AJ is given broad discretion in procedural matters. There was no abuse of that discretion here. In any event, in view of the parties’ stipulation that Mr. Tompkins obstructed the mail and possessed the camcorder without authorization for his own personal use, it is most difficult to discern how any error on the part of the AJ in this regard could have affected the outcome of the case.
Mr. Tompkins’s second argument is that the Postal Service committed harmful procedural error in the removal process. Specifically, he contends that the Postal Service improperly failed to issue him an emergency placement letter prior to his being interviewed by investigators from the Office of Inspector General (“OIG”). According to Mr. Tompkins, had he been issued such a letter before his interview, he would have been in a better position to defend himself against the Postal Service’s charge. The AJ rejected this argument on two grounds. First, he found that Mr. Tompkins had failed to demonstrate that the Postal Service was required to issue an emergency placement letter. Second, he found that, even assuming the Postal Service did violate its procedures, Mr. Tompkins had failed to show that the error was harmful.
We agree with the AJ that Mr. Tompkins failed to demonstrate harmful procedural error in the removal process. Harmful error is error by the Postal Service in the application of its procedures that is likely to have caused the Postal Service to reach a conclusion different from the one it would have reached in the absence of the error or different from the one that it would have reached if the error had been cured. The appellant has the burden of proving that a given error was harmful.
The provision to which Mr. Tompkins points, Article 16.7 of the Interpretation Manual for the Contract between the Postal Service and the National Postal Mail Handlers Union states in relevant part that “an employee placed on emergency off-duty status is entitled to written notice of the reasons within a reasonable period of time.” Mr. Tompkins, however, has not directed us to any language stating that the Postal Service was required to issue an emergency placement letter (with a notice of charges) before the OIG investigators talked to him. Indeed, it strikes us as illogical to impose such a requirement because there are, no doubt, many instances in which charges are not brought against an employee until after he or she is interviewed by agency investigators. Moreover, Mr. Tompkins failed to come forward with any evidence suggesting that the Postal Service would not have pursued the removal action if it had issued an emergency placement letter.
Excerpt from the USPS – NPMHU Contract Interpretation Manual
Section 16.7 Emergency Procedure
Written Notice: Management is not required to provide advance written notice prior to taking such emergency action. However, an employee placed on emergency off-duty status is entitled to written notice of the reasons within a reasonable period of time. Arbitrator Mittenthal wrote as follows regarding this issue:
The fact that no “advance written notice” is required does not mean that Management has no notice obligation whatever. The employee suspended pursuant to Section 7 has the right to grieve his suspension.
He cannot effectively grieve unless he is formally made aware of the charge against him, the reason why the Management has invoked Section 7. He surely is entitled to such notice within a reasonable period of time following the date of his displacement. To deny him such notice is to deny him his right under the grievance procedure to mount a credible challenge against Management’s action.
Source: National Arbitration Award H4N-3U-C 58637/59518, dated August 3, 1990.
Mr. Tompkins’s final argument is that, in imposing the penalty of removal, the Postal Service abused its discretion. He contends that Vanessa Bailey, the Postal Service’s deciding official, failed to consider his potential for rehabilitation or the adequacy and effectiveness of alternative sanctions, two of the twelve so-called Douglas factors. See Douglas v. Veterans Admin., 5 M.S.P.R. 280 (1981).
We do not think the Postal Service abused its discretion in removing Mr. Tompkins from his position. Having reviewed the record, we are satisfied that Ms. Bailey in fact considered the possibility of rehabilitation but rejected it given the seriousness of Mr. Tompkins’s offenses. We also are satisfied that the penalty of removal was entirely reasonable in this case. It is undisputed that Mr. Tompkins obstructed the mail, that he possessed the camcorder without authorization, and that he converted the camcorder to his own use. It goes without saying that Mr. Tompkins’s actions, which amounted to theft from the mail, were most serious. They frustrated the mission of the Postal Service and also had a direct impact on the trust that customers of the Postal Service are entitled to have in the agency.
For the foregoing reasons, the final decision of the Board is affirmed.