The United States Court of Appeals, Federal Circuit ruled against former EAS-24 Postal Manager for unacceptable conduct.
Natty joined the Postal Service in 1990. By June 2010, he served as an EAS-24 Manager of Distribution Operations (MDO), supervising a total workforce of 130 employees, including six subordinate supervisors. On June 19, 2010, the agency demoted Natty to a PS-04 Part-Time Flex Mail Handler based on a finding of unacceptable conduct. Natty appealed his demotion and the Administrative Judge (“AJ”) found that Natty’s comments about race and sex, and the intentional dropping of his pants, supported the unacceptable conduct charge. Natty v. U.S. Postal Serv., No. SF-0752-10-0847-I-1 (M.S.P.B. Oct. 29, 2010). The AJ also found the agency’s action timely and Natty’s demotion to a non-managerial position within the agency’s discretion. Id. The AJ’s decision became the final decision of the Board after the Board denied Natty’s petition for review. Natty v. U. S. Postal Serv., No. SF-0752-10-0847-I-1 (M.S.P.B. May 6, 2011). Natty timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
Natty claims the AJ erred by finding that he intentionally dropped his pants. Regarding this incident, the AJ specifically credited the testimony of Carol Miller, Shirley Rogers, Angela Johnson, and Hershel Morrow, and disbelieved Natty’s testimony that his pants accidentally slipped. Natty stresses an inconsistency in Morrow’s testimony regarding the date of the pants- dropping incident, but the AJ nonetheless credited Morrow’s testimony as a whole. We cannot say that this single inconsistency undermines the AJ’s credibility determination. At bottom, we have ample reason to conclude that the AJ’s findings of fact and credibility determinations are adequately supported by the record.
To determine a reasonable penalty for employee misconduct, an agency must consider the relevant factors from Douglas v. Veterans Administration, 5 M.S.P.B. 313, 331-32 (Apr. 10, 1981). Malloy, 578 F.3d at 1356. The reviewing Board need not discuss every Douglas factor; it need only determine that the agency considered the factors relevant to the case at hand. Kumferman v. Dep’t of Navy, 785 F.2d 286, 291 (Fed. Cir. 1986).
Here, West’s testimony indicates that he considered the relevant Douslas factors. West determined that the nature of Natty’s employment (a supervisor tasked with implementing EEO laws) aggravated the nature and seriousness of the offense (sex- and race-based remarks and conduct). West balanced this determination against Natty’s prior disciplinary record, his lengthy service, and mitigating factors in Natty’s personal life, and decided that Natty’s conduct precluded his continued employment as a supervisor.
Natty argues that a lesser penalty is warranted because he lacked notice that the conduct was inappropriate, the conduct was an isolated incident, and the penalty is more severe than penalties imposed on similarly situated employees. As detailed above, Natty’s prior EEO training put him on notice that such conduct was inappropriate. And while the pants dropping incident may have been an isolated event, the sex- and race-based comments were ongoing since 2009.
Natty cites several cases to demonstrate that his penalty is more severe than penalties imposed on other similarly situated employees. The AJ distinguished Natty from the lower level supervisors in these cases because Natty’s role as a manager carries a higher level of accountability. On appeal Natty cites additional cases in which the Board suspended but did not demote lower level supervisors. Like the cases considered by the AJ, these cases do not show that demotion of a higher level manager to a non-supervisory role is inappropriate.
The court was not swayed by Natty’s argument and affirmed the demotion.
full case from Leagle