Appeals Court Uphold Removal of Postal Manager For Falsifying Timecard
Petitioner Jerry White (“White”) appeals from the final order of the Merit Systems Protection Board (“the Board”) upholding his removal for eight separate incidents of accepting pay for time not worked. We affirm.
BACKGROUND
White was employed by the United States Postal Service from December 11, 1993, until his removal on February 26, 2008. White was promoted to supervisor in 1998 and in 1999 to Manager of the Computer Forwarding System (“CFS”) unit within the South Suburban Processing and Distribution Center (“South Suburban P&DC”) in Bedford Park, Illinois. In mid-2006, the Postal Service’s Office of the Inspector General (“OIG”) commenced an investigation into allegations that employees at the South Suburban P&DC were entering inaccurate information into the Postal Service’s Time and Attendance Collection System (“TACS”). A review of time records from January through June 2006 led OIG to further investigate three CFS unit supervisors, including White, who had received an inordinate amount of overtime compensation due to TACS entries in excess of their daily authorized eight-hour schedule.
From August 19 to November 3, 2006, OIG agents tracked White’s arrival and departure times from the CFS unit. On eight separate days in September 2006, White was absent from the CFS unit for long periods of time while still on the clock. For example, on September 21, 2006, White accepted compensation for working approxi-mately ten hours based on TACS recording an arrival time of 11:58 a.m. and a departure time of 10:31 p.m. The surveillance records, however, show that White left the CFS unit at around 2:31 p.m. and that he did not return until 6:41 p.m. Consequently, White was away from the unit while being paid for four hours and ten minutes. Similar paid absences of between three to five hours occurred on September 22, 24, 25, 26, 27, 28, and 29.
On February 9, 2007, OIG Special Agent Ramona Parker prepared a Report of Investigation, which found, inter alia, that White had misappropriated Postal funds through the misuse of the TACS. The Report concluded that White had been paid $7,557.64 for 251.51 extra hours between August 19 and November 3, 2006, and on forty-three occasions during that period, including the eight specific dates in September listed above, White had been paid for time when he was out of the CFS unit for between two to six hours. The OIG Report was sent to Patrick Kavanaugh, White’s supervisor, who conducted a pre-disciplinary interview with White on March 2, 2007. When questioned about his whereabouts on the eight specific September 2006 dates, White could not offer any explanation. White requested access to his office to see if his personal notes could help him recall. Yet, when given the opportunity to obtain his notes on April 3, 2007, White failed to produce any information indicating his whereabouts. White then requested access to his e-mails but was told that OIG had confiscated his computer.
On September 6, 2007, Kavanaugh issued White a Notice of Proposed Removal, charging him with accepting pay for time not worked. The charge was supported by eight specifications corresponding to the eight September dates, and it identified specific sections of the Supervisor’s Guide to Scheduling and Premium Pay and the Postal Service’s Employee and Labor Relations Manual that White had violated. The Notice also informed White of his right to meet with Lolita Rice, the Manager of Post Office Operations and deciding officer, or to respond to the charge in writing.
On February 22, 2008, Rice issued a Letter of Deci-sion upholding the charge and the penalty of removal. Rice explained that the evidence showed that White was in fact absent from the CFS unit during the dates and times alleged in the Notice of Proposed Removal and that when given an opportunity to explain his whereabouts, White produced no evidence that showed he was working. As for the penalty, Rice concluded that given White’s disregard for the Postal Service’s rules and regulations, White’s misguided attempts to rationalize his actions, and his unwillingness to recognize his wrongdoing, she had no trust in White as an employee and that removal would promote the efficiency of the service. In reaching this conclusion, Rice relied on the seriousness of the offense, White’s position as a manager with duties to enforce the same policies he had violated, his lack of remorse, and his refusal to accept any kind of responsibility for his actions. Rice also considered White’s prior fifteen years with the Postal Service with no past disciplinary history but de-termined removal was still the appropriate penalty. Accordingly, Rice upheld White’s removal effective Febru-ary 26, 2008.
White appealed his removal to the Board. After dis-covery, the administrative judge (“AJ”), without apparent objection from either party, accepted into evidence all documents submitted by the parties and permitted White to call five of his ten proposed witnesses. The AJ con-ducted a hearing on July 30, 2009.
On August 3, 2009, the AJ issued an Initial Decision affirming the agency’s removal of White for accepting compensation for time not worked. The AJ, noting that White did not dispute his absences, credited Special Agent Parker’s testimony regarding White’s absences from the unit as supported by documentary evidence. The AJ then rejected as not credible White’s main defense, that he was interviewing applicants for temporary em-ployment or for the Postal Service’s Postal Automation Redirection System (“PARS”) program. Rather, the AJ credited the testimony of Kavanaugh and Rice, who stated that White was not authorized to hire temporary employees in September 2006; the testimony of White’s witness Bob Erxleben, a Customer Service Analyst, who testified that the PARS program was not run by CFS; and the testimony of Steven Schneider, White’s then supervi-sor, who testified that White had no reason to leave the CFS unit to do any PARS-related work. The AJ also relied on White’s inability to name any applicants that he interviewed or to produce any application forms.
The AJ also rejected White’s contention that if he had been allowed to review his e-mail messages he may have been able to remember what he had been doing on the dates in question. The AJ found that White had not indicated what types of e-mails would help him explain his absences and, given the significant length of his absences, White likely would have remembered what he was doing without reviewing any e-mail messages.
Having found by the preponderance of the evidence that White accepted pay for time not worked, the AJ then reviewed the agency’s penalty of removal. The AJ relied on Rice’s testimony that White’s misconduct was serious in nature, that she could no longer trust White, and that he refused to take responsibility for his conduct. The AJ also relied on evidence that White’s misconduct was notorious in nature, citing a letter addressed to Rice and seven other individuals from “CFS Clerks” dated October 26, 2006, complaining that White left work several hours each day. The AJ concluded that Rice had reasonably weighed the pertinent factors in reaching her decision to remove White, including taking into account White’s years of employment with no past disciplinary history, and thus affirmed the agency’s choice of penalty.
On October 27, 2009, the full Board denied White’s Petition for Review, making the AJ’s decision the final decision of the Board. White appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1).
see full decision whitevsusps2010
APWU To Appeal District Court Decision On Address Management System Work
Fr: Greg Bell, Director
Industrial Relations
Date: June 1, 2010
Re: Decision of Federal District Court on Address Management System Work
Enclosed you will find a copy of a recent decision of the U.S. District Court for the District of Columbia regarding the enforceability of a 2003 award by Arbitrator Snow in which
he ruled that it is a violation of the National Agreement to exclude the Address Management System Specialist (AMS) position, and the disputed work, from the APWU bargaining unit.
(Q94C-4Q-C 98117564, 4/29/2003).
The court rejected APWU’s request for an order enforcing the award’s finding that the AMS Specialists’ work falls within the APWU bargaining unit, and instead ruled that the award
was unenforceable. (Civil Action 04-01404 (HHK), 5/24/2010) The APWU will be appealing this ruling.
A short summary of this case’s history is as follows. In 2008, the U.S. Court of Appeals for the D.C. Circuit reversed a prior decision of D.C.’s lower federal court in which the judge ruled that Snow’s award only reached the issue of placement of the AMS position and not whether the work should be assigned to bargaining unit employees. (It should be noted that after Snow’s award was issued, management filed a petition with the NLRB to overturn the Snow Award. To avoid further delay, the APWU agreed to clarify that the AMS Specialist position
was excluded from the bargaining unit, and the Board issued that clarification. The Union thereafter pursued enforcement of the Snow Award which found that the work performed by
AMS employees was bargaining unit work.) In its decision, the federal appeals court found that the arbitrator clearly determined that excluding “the work” that AMS Specialists perform from the bargaining unit violated the USPS-APWU Agreement. The court then remanded the case to the district court for a ruling on whether that finding was enforceable. The appeals court indicated that “[i]t is not immediately apparent whether the transfer of AMS Specialist duties to the bargaining unit would be an unlawful accretion [addition] under [National Labor Relations] Board precedent.” (550 Fad 27, 12/23/2008)
On remand, the District Court noted first of all that the parties do not dispute the NLRB’s determination that the AMS Specialist position “is outside the bargaining unit.” Then, after
reviewing several NLRB decisions with different outcomes to determine whether transfer of the work of AMS Specialists into the APWU bargaining unit is permissible under Board precedent, the court relied on two decisions in reaching a conclusion that “because the Board has determined that the AMS Specialist position is outside the bargaining unit, the arbitrator’s finding that the work of AMS Specialists is within it is in `explicit conflict’ with `legal precedents. ”
In reaching this conclusion, the court rejected APWU’s argument that another NLRB decision specifically supported finding that placement of the work in the APWU bargaining unit did not amount to “an unlawful accretion [addition] in violation of the National Labor Relations Act.” The District Court held that the Union’s goal was to subject AMS employees to the terms of the National Agreement, which constituted an accretion. The court was wrong as a factual matter — the APWU never sought to include AMS employees in the APWU unit, but rather recover the work for the Clerk Craft. The court misapplied the NLRB precedents it cited to support its ruling. The APWU will be filing an appeal with the Court of Appeals for the D.C. Circuit.
see District Court Case via American Postal Workers Union
Former Houston Postal Employee Pleads Guilty to Unauthorized Use Of USPS Gas Credit Card
Press Release from The United States Attorney’s Office,Southern District of Texas
(HOUSTON) – A former letter carrier has pleaded guilty to stealing money from the United States Postal Service (USPS) while on duty, United States Attorney José Angel Moreno announced today.
Indicted for theft of public money on March 4, 2010, Juan DeDios Vargas, 35, of Houston, pleaded guilty to the charge today before U.S. District Court Judge Gray Miller, admitting to using his USPS-issued Voyager cards for his own personal use and financial gain. Vargas was a letter carrier with the USPS for 13 years.
The investigation, conducted by USPS-Office of Inspector General (OIG) agents, leading to the charges against Vargas began on Aug. 22, 2008, after a USPS Manager at the Eastwood station noticed several fraudulent Voyager card transactions. The USPS-OIG investigation found that from July 1, 2008, through Nov. 13, 2008, Vargas used multiple Voyager cards to make unauthorized gasoline purchases totaling $17,829.39.
When asked about the fraudulent transactions, Vargas stated that the unauthorized fuel was either purchased for his own personal use or sold at a discount to other individuals. Vargas would pump gasoline for others at the gas station using a Voyager card and his personal identification number, then take a small fee in cash from his “customers.” Video footage and photos captured Vargas unlawfully using the Voyager cards at gas stations. Vargas profited approximately $8,500 in payments from people for discounted gasoline with a total loss to the USPS of approximately $17,829.39.
Free on bond since he turned himself in to law enforcement authorities on March 19, 2010, Vargas has been permitted to remain on bond pending his sentencing. Judge Miller, who accepted Vargas’ guilty plea, has set sentencing for July 9, 2010. A conviction for theft of public money carries a maximum punishment of 10 years imprisonment and a $250,000 fine.
Assistant United States Attorney Suzanne Elmilady is prosecuting the case.
Mail Handler and Letter Carrier Charged With Mail Theft
Filed under: legal cases, letter carriers, mail handlers, postal, press releases
Press Releases from the U.S. Attorney for the Southern District of Texas :
(HOUSTON) – A mail handler for the U.S. Postal Service (USPS) has been indicted for mail theft, United States Attorney José Angel Moreno announced today.
Johnny McCoy, 49, of Spring, Texas, has been charged in a one-count indictment with theft of mail by a postal employee returned by a Houston grand jury on April 8, 2010. McCoy surrendered himself to USPS-Office of Inspector General authorities on Monday, April 12, 2010, and has been ordered released on bond pending trial of the case.
The charges are the result of an investigation into the theft of greeting card letters destined for USPS customers. McCoy is accused of stealing two $20 bills and a $10 bill from first class mail addressed to a USPS customer residing in Kemah, Texas, in July 2009.
McCoy worked as a mail handler at the North Houston Processing and Distribution Center at the time of this incident. Three days later, McCoy resigned from his position with the USPS.
Special Assistant United States Attorney Tammie Y. Moore is prosecuting the case
(HOUSTON) – A U.S. Postal Service (USPS) letter carrier has been indicted for mail theft, United States Attorney José Angel Moreno announced today.
Johnnie Harden, 46, of Houston, was charged by a Houston grand jury on April 8, 2010, with two counts of theft of mail by a postal employee. Harden surrendered himself to the U.S. Marshals Service on Monday, April 12, 2010, and has been ordered released on bond pending trial in this case.
The charges against Harden are the result of an investigation initiated by the USPS-Office of Inspector General upon receipt of customer complaints reporting non-receipt of a greeting card intended for a recipient address in Houston.
Harden is accused of having stolen a $50 Target gift card from the mail entrusted to him for delivery to a USPS customer on Sept. 23, 2009, and two $50 bills enclosed in a second article of mail on Oct. 15, 2009.
Special Assistant United States Attorney Tammie Y. Moore is prosecuting the case.
Former Postmaster Convicted of Plotting to Kill His Rural Carrier Ex-Wife Over Pension Loses Appeal
David Willis was convicted by a jury of soliciting murder using a facility of interstate commerce and promising payment, in violation of 18 U.S.C. § 373; and using a facility of interstate commerce with the intent that murder for hire be committed, in violation of 18 U.S.C. § 1958. The district court sentenced Willis to 210 months’ imprisonment, a sentence at the bottom of the Sentencing Guidelines range. Willis appeals, raising three issues: (1) the district court committed plain error by failing to instruct the jury on entrapment; (2) the district court erred by not granting Willis a new trial based on allegedly false testimony from a Government witness; and (3) the district court imposed a procedurally unreasonable sentence. We affirm. Read more
Injured Letter Carrier Fired For Failing To Report Income From Rock Band
Filed under: Injured On Duty, NALC, legal cases, letter carriers, postal
Illinois Letter Carrier fired for failing to report income earned playing bass guitar for a rock band called BANG!
Truhlar sued the Postal Service and NALC Branch.
TRUHLAR v. U.S. POSTAL SERVICE
KENNETH T. TRUHLAR, Plaintiff-Appellant,
v.
UNITED STATES POSTAL SERVICE, et al., Defendants-Appellees.
No. 09-1652.
United States Court of Appeals, Seventh Circuit.
Argued December 3, 2009.
Decided April 12, 2010.
Before EASTERBROOK, Chief Judge, and MANION and EVANS, Circuit Judges.
EVANS, Circuit Judge.
In 1998, Kenneth Truhlar was working as a letter carrier for the United States Postal Service in Westmont, Illinois, when a car rear-ended his mail truck, injuring his back and neck. Truhlar sought partial disability payments but failed to disclose in the disability compensation paperwork that he was earning money playing bass guitar for a rock band called BANG!. When the Postal Service discovered the omission, it launched an investigation to determine whether he had engaged in misconduct. It ultimately concluded that he had, and in 2005, Truhlar was fired. He sued the Postal Service and his local union, John Grace Branch #825 of the National Association of Letter Carriers, under § 301 of the Labor Management Relations Act of 1947 (LMRA), 29 U.S.C. § 185, claiming that the Service breached the collective bargaining agreement by firing him without just cause and that the union breached its duty of fair representation. Truhlar’s suit, which is a form of hybrid litigation, came to an end when the district court granted the defendants’ motion for summary judgment. Truhlar appeals that decision.
Although the parties disagree over a number of (ultimately immaterial) details, the following facts are undisputed. In order to collect partial disability payments following his injury, Truhlar periodically submitted a Department of Labor (DOL) form called the CA-7, which includes the following question: “Have you worked outside your federal job during the period(s) [for which you are claiming disability]? (Include salaried, self-employed, commissioned, volunteer, etc.).” Truhlar responded “no” to this question or failed to answer it on 24 CA-7 forms he submitted between 2000 and 2001, despite the fact that he earned between $8,775 and $11,000 performing with BANG! during that period. After a Postal Service inspector videotaped Truhlar playing with the band, another inspector interviewed him about the discrepancy. Truhlar claimed he misunderstood the question on the form. In June 2001, the Postal Service notified Truhlar that he was being placed on off-duty status for “failure to provide correct earning information on your Form CA-7.” A local union steward filed a grievance on Truhlar’s behalf, and when the grievance was denied, union representative Eric Smith appealed in accordance with the collective bargaining agreement’s (CBA) three-step grievance procedure. Read more
Appeals Court Upholds Demotion of Postal Supervisor For Unacceptable Conduct
Mr. (Eligido) Galino worked as a Supervisor, Customer Service, EAS-17 for the United States Postal Service (USPS) in Sacramento, California. On August 12, 2008, an incident occurred between Window Clerk Jeannine Teefey and Mr. Galino, her supervisor. Later that day, Ms. Teefey sought to discuss this incident with Anderson English, a manager. The three individuals met in Mr. English’s office, along with fellow Supervisor Audrey Simmons and Window Clerk Michelle Randle-Cisco. At the meeting, Mr. Galino yelled, pointed his finger at Ms. Teefey, and blocked Ms. Teefey’s attempt to leave the office. Although Mr. Galino denies that he blocked Ms. Teefey, an administrative judge (AJ) credited Ms. Teefey’s account over that of Mr. Galino.
Robbie Halverson, an Associate Supervisor seated about twenty feet from Mr. English’s office, heard the yelling and knocked on the office door. When the door opened, Ms. Simmons told Mr. Galino to leave, and Mr. Galino left the office. Again, Mr. Galino denies that he was asked to leave the office and further maintains that he immediately left the building. According to the account accepted by the AJ, however, Mr. Galino cursed and kicked the wall, and Ms. Simmons and Mr. Halverson then told Mr. Galino to go outside. Both Ms. Simmons and Mr. Galino went outside, after which others either heard or saw Mr. Galino yell and slam something. Mr. English sent Mr. Galino home for the day, and Mr. Galino was placed on administrative leave.
After conducting interviews and collecting written statements by witnesses, Mr. English proposed that Mr. Galino be demoted from Supervisor, Customer Service, to Part Time Flexible City Carrier. Mr. English based this decision on the charge of “Unacceptable Conduct / Violation of the Joint Statement on Violence and Behavior in the Workplace / Failure to Follow Instructions,” as well as violations of a Zero Tolerance Policy Statement and various provisions of the Employee Labor Manual (ELM). Mr. Galino responded orally on November 21, 2008, with the assistance of his representative, Robert Di Paolo. On December 4, 2008, Tim Padden, Postmaster, Sacramento District, sustained the proposed demotion and the charge of Unacceptable Conduct. Mr. Padden did not sustain the other charges because, according to Mr. Padden, “each of the charges in the Notice are [sic] based upon the same set of facts and I have decided that the charge of ‘unacceptable conduct’ best reflects the facts as stated in the Notice.” The demotion became effective on December 13, 2008.
In an initial decision, the AJ sustained the charge of Unacceptable Conduct because Mr. Galino “did not dispute the most significant allegations, such as yelling at Ms. Teefey, using profanity on at least one occasion, and continuing his outburst outside. As to many other allegations, [Mr. Galino] simply testified that he did not remember engaging in the misconduct.” Galino v. U.S. Postal Serv., No. SF-0752-09-0190-I-1, slip op. at 10 (M.S.P.B. June 1, 2009). In reviewing the penalty, the AJ found that a nexus exists between the charged conduct and the efficiency of the service. The AJ further found that USPS weighed the relevant factors, see Douglas v. Veterans Admin., 5 M.S.P.R. 280, 305–06 (1981), and that—in light of these factors—demotion to Part Time Flexible Carrier was reasonable. The AJ’s initial decision became final after the Board denied Mr. Galino’s petition for review. See Galino v. U.S. Postal Serv., No. SF0752-09-0190-I-1 (M.S.P.B. Aug. 21, 2009).
DISCUSSION
Mr. Galino appeals from the Board’s final decision, and we have jurisdiction under 28 U.S.C. § 1295(a)(9). We must affirm the Board’s decision unless it is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). “It is well-established that selecting the penalty for employee misconduct is left to the agency’s discretion.”
Webster v. Dep’t of the Army, 911 F.2d 679, 685 (Fed. Cir. 1990). And we “will normally defer to the administrative judgment unless the penalty exceeds the range of permissible punishments specified by statute or regulation, or unless the penalty is so harsh and unconscionably disproportionate to the offense that it amounts to an abuse of discretion.” Villela v. Dep’t of the Air Force, 727 F.2d 1574, 1576 (Fed. Cir. 1984) (internal quotation marks omitted).
On appeal, Mr. Galino argues that USPS and the Board failed to consider mitigating factors, such as past disciplinary record, whether the demotion penalty is consistent with penalties for similar conduct, and provocation. As an initial matter, we note that “[i]t is not reversible error if the Board fails expressly to discuss all of the Douglas factors. The Board need only determine that the agency considered the factors significant to the particular case.” Kumferman v. Dep’t of the Navy, 785 F.2d 286, 291 (Fed. Cir. 1986) (internal citation omitted). In this case, Mr. Padden stated that he was aware of the Douglas factors and that he “conscientiously considered all of those relevant factors which were applicable to [Mr. Galino’s] case.” Furthermore, Mr. Padden acknowledged Mr. Galino’s eleven years of service, time spent in the supervisor position, and lack of prior discipline. According to Mr. Padden, however, the demotion “is consistent with other actions taken for the same or similar offenses.” The Board also considered relevant Douglas factors, and Mr. Padden’s analysis of these factors.1 Moreover, the Board expressly rejected Mr. Galino’s claim that Ms. Teefey provoked him on August 12, 2008 and further explained that, even if Mr. Galino’s account were true, Mr. Galino’s reaction was “far out of proportion.” We also understand Mr. Galino to argue that an alleged pattern of provocation by Ms. Teefey was not considered. Such a pattern is not supported by the record though, and it is clear that the Board credited Ms. Teefey’s testimony over the testimony of Mr. Galino. In sum, we reject Mr. Galino’s argument with respect to consideration of mitigating factors.
1 We reject Mr. Galino’s assertion that the Board failed to consider whether USPS considered mitigating factors. See Galino v. U.S. Postal Serv., No. SF-0752-09-0190-I-1, slip op. at 13 (M.S.P.B. June 1, 2009) (“I see no reason to disturb Mr. Padden’s conclusions, and I find that he considered relevant Douglas factors.”).
Mr. Galino also contends that the demotion penalty was unwarranted, beyond the bounds of reasonableness, and disparate treatment in violation of the Fifth Amendment. For example, Mr. Galino maintains that two supervisors in the Sacramento District retained their positions after one allegedly hit an employee and another allegedly hit an employee and used a racial epithet. The AJ rejected Mr. Galino’s argument because “the comparative employees Mr. DiPaulo is proposing to testify about are not sufficiently similar to [Mr. Galino], and one incident occurred 8 years ago and it is not known when the other incident occurred.” Mr. Galino does not address these statements by the AJ and thus fails to demonstrate disparate treatment. Moreover, Mr. Galino does not otherwise establish that his demotion was “so harsh and unconscionably disproportionate to the offense that it amounts to an abuse of discretion.” Villela, 727 F.2d at 1576.
Lastly, Mr. Galino argues that he was denied due process. According to Mr. Galino, “the AJ considered testimony towards elements and specifications not actually listed in the charge so that [Mr. Galino] did not have meaningful notice sufficiently specific of what [Mr. Galino] needed to defend against before the hearing began.” Mr. Galino maintains that only his conduct directed at Ms. Teefey on August 12, 2008—and, for example, not his conduct after the meeting on that day—should have been considered. We reject Mr. Galino’s argument because, among other things, the Notice of Proposed Adverse Action describes Mr. Galino’s conduct both inside and outside Mr. English’s office.
CONCLUSION
For the foregoing reasons, and because we conclude that Mr. Galino’s remaining arguments are without merit, we affirm the final decision of the Board affirming Mr. Galino’s demotion.
http://www.cafc.uscourts.gov/opinions/10-3024.pdf
Postal Employee Gets 30-day Suspension for Hatch Act Violation
Mikki DeWitt is a Rural Carrier Associate in Ewen, MI 49925. The normal penalty for violation of the Hatch Act is removal.
UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
2010 MSPB 59
Docket No. CB-1216-09-0021-T-1
Special Counsel,
Petitioner,
v.
Mikki DeWitt,
Respondent.
March 30, 2010
Erica S. Hamrick, Esquire, Washington, D.C., for the petitioner.
Nicole Eldredge, Esquire, Washington, D.C., for the petitioner.
Mikki DeWitt, Trout Creek, Michigan, pro se.
BEFORE
Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mary M. Rose, Member
FINAL DECISION AND ORDER
The parties filed a Joint Settlement Agreement with the administrative law judge that was signed by the petitioner on November 12, 2009, and by the respondent on November 13, 2009. The administrative law judge recommended that the Board accept and approve the parties’ Joint Settlement Agreement and impose a 30-day suspension without pay upon the respondent rather than removal. For the reasons stated below, we ADOPT the administrative law judge’s recommendation, and APPROVE the Joint Settlement Agreement. The respondent’s employing agency is ORDERED to SUSPEND the respondent without pay for a period of 30 days.
BACKGROUND
This case is before the Board on a complaint filed by the Special Counsel against the respondent. The complaint charged the respondent with engaging in prohibited political activity in violation of the Hatch Act, specifically, 5 U.S.C. § 7323(a)(3) and 5 C.F.R. § 734.304, by being a candidate for election to a partisan political office. Complaint File
On November 13, 2009, the parties filed a Joint Motion for Approval of Settlement and Settlement Agreement. CF, Tab 18. In the Settlement Agreement, the parties agreed that, at all relevant times, the respondent was an employee of the U.S. Postal Service and was covered by the Hatch Act, and a factual basis exists for the Board to find a violation of 5 U.S.C. § 7323(a)(3) because, in 2008, the respondent ran for Township Clerk in Michigan as a Democratic Party candidate in both the primary and general elections and was elected. Id. The parties also agreed that, as mitigating factors, the respondent was the only candidate in the 2008 election for Township Clerk, had a passive candidacy in 2008 for Township Clerk, resigned from elected office once notified by Special Counsel that it was investigating allegations that her candidacy violated the Hatch Act, and has an unblemished record during her over 10 years of service with the Postal Service. The parties agreed that the appropriate penalty is a suspension without pay for 30 consecutive calendar days.
In a Recommended Decision, Administrative Law Judge Arthur J. Amchan, pursuant to 5 C.F.R. §§ 1201.125(c)(1) and 1201.126(c),* found that the Board * 5 C.F.R. § 1201.125(c)(1) provides that “[i]n a Special Counsel complaint seeking disciplinary action against a Federal . . . government employee for a violation of 5 U.S.C. § 7323 . . ., where the administrative law judge finds that the violation does not warrant removal, the administrative law judge will issue a recommended decision to the Board in accordance with 5 U.S.C. § 557.” Emphasis supplied. Similarly, 5 C.F.R. has jurisdiction over this case under 5 U.S.C. §§ 1215 and 1216, that the agreement was freely entered into by the parties, and that it was lawful on its face. CF, Tab 19. He further found that the stipulated mitigating factors warranted a penalty less than removal, specifically, a 30-day suspension. Id. He thus recommended that the Board grant the parties’ joint motion, impose a 30-day suspension, and accept the settlement agreement into the record for enforcement purposes. Id. Neither party has filed exceptions to the Recommended Decision.
ANALYSIS
The Board has jurisdiction over this case under 5 U.S.C. §§ 1215(a) and 1216(a)(1). Under 5 U.S.C. § 7323(a)(3), a federal employee may not “run . . . as a candidate for election to a partisan political office.” The Board must order the removal of an employee found to have violated section 7323, unless it finds by unanimous vote that the violation does not warrant removal. 5 U.S.C. § 7326. In the latter case, the Board must order a “suspension without pay” for “not less than 30 days.”
We ADOPT the administrative law judge’s Recommended Decision, including specifically his findings that strong mitigating factors exist here and that the parties understood the terms of the agreement, the agreement is lawful on its face, and the parties freely entered into it. As noted, the administrative law judge found that the following stipulated facts were mitigating circumstances, i.e., that respondent was the only candidate in the 2008 election for Township Clerk, she had a passive candidacy in 2008 for Township Clerk, she resigned from elected office once notified by Special Counsel that it was investigating allegations that her candidacy violated the Hatch Act, and she has an unblemished record during her over 10 years of service with the Postal Service. See Brown v. § 1201.126(c) provides that “[i]f the administrative law judge finds a violation of 5 U.S.C. § 7323 . . . and determines that removal is not warranted, the judge will issue a recommended decision . . . .” Emphasis supplied.
Office of Personnel Management, 112 M.S.P.R. 621, ¶¶ 3-4 (2009) (acceptance of settlement agreement into the record for enforcement purposes was appropriate, where agreement was lawful on its face, parties freely entered into it, and subject matter of the appeal was within the Board’s jurisdiction under jurisdictional statute and regulation); Special Counsel v. Purnell, 37 M.S.P.R. 184, 200 (1988) (in considering whether removal is warranted, the Board looks to the seriousness of the violation, considering all aggravating and mitigating factors that bear upon the seriousness of the violation; these factors include: (1) the nature of the offense and the extent of the employee’s participation; (2) the employee’s motive and intent; (3) whether the employee had received the advice of counsel regarding the activities at issue; (4) whether the employee ceased the activities at issue; (5) the employee’s past employment record; and (6) the political coloring of the employee’s activities), aff’d sub nom. Fela v. Merit Systems Protection Board, 730 F. Supp 779 (N.D. Ohio 1989).
We find that the agreed to and admitted facts in the settlement establish that the appellant violated 5 U.S.C. § 7323. CF, Tab 18; see 5 C.F.R. § 1201.126(c). We also find unanimously that the penalty of removal is not warranted in this case and that a 30-day suspension without pay is appropriate. See Special Counsel v. Walker, 67 M.S.P.R. 271, 272 (1995); Special Counsel v. Harkins, 60 M.S.P.R. 646, 648 (1994); Special Counsel v. Smith, 60 M.S.P.R. 176, 177 (1993); cf. Special Counsel v. Baker, 69 M.S.P.R. 36, 39-40 (1995) (the Board refused to accept the parties’ settlement agreement providing for a 90-day suspension for the respondent’s violation of the Hatch Act in 1993, where there were no stipulations regarding any mitigating factors other than her “unblemished” employment record since 1992); Special Counsel v. Bradford, 62 M.S.P.R. 239, 240-41 (1994) (the Board refused to accept the parties’ settlement agreement providing for a 90-day suspension where the agreement would allow the respondent to retain both her federal government job and her elected partisan office), modified on recons. on other grounds, 69 M.S.P.R. 247 (1995). Thus, we find that dismissal of the petitioner’s complaint for disciplinary action with prejudice to refiling is appropriate under these circumstances, and we accept the settlement agreement into the record for enforcement purposes.
ORDER
Accordingly, we ORDER the U.S. Postal Service to suspend the respondent without pay for 30 consecutive calendar days. We ORDER the Office of Special Counsel to notify the Board within 30 days of this Opinion and Order whether the respondent has been suspended as ordered. This is the final decision of the Merit Systems Protection Board in this matter. Title 5 of the Code of Federal Regulations, sections 1201.125(c)(5) and 1201.126(c).
http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=487824&version=489176&application=ACROBAT
Court:NALC Retirement Trust Fund Was Improperly Amended
Halline Overby, an annuitant in a retirement trust fund operated by National Association of Letter Carriers (NALC), and his wife Paulette Overby brought suit in district court seeking a declaration that a purported amendment to the trust plan which would have rendered Paulette Overby ineligible to receive benefits under the plan as a surviving spouse was not properly adopted and is therefore inoperative. The district court found that the trustees of the plan had not submitted the amendment to the fund’s actuaries for an evaluation and estimate of its cost, as required by the governing provisions of the plan, and therefore held that the amendment was not properly adopted. NALC appeals, arguing that the district court erred both in its findings of fact and in its conclusions of law. Upon review, for the reasons more fully set forth below, we hold that the district court committed no reversible error in either its factual determinations or in its conclusions of law. We therefore affirm the judgment of the district court.
U. S. Court of Appeals for the D.C. Circuit
February 26, 2010
Halline Overby v. Natl Assn of Letter Carriers
South Dakota Contract Carrier Sentenced In Mail Theft Case
Press Release from the United States Attorney’s Office for the District of South Dakota:
February 2, 2010
Rapid City, SD
United States Attorney Brendan V. Johnson announced that a Lemmon man charged with Theft of Mail Matter was sentenced on February 2, 2010, by Chief US District Judge Karen E. Schreier. Claude Haugen, age 44, was sentenced to 2 months home confinement, 3 years probation, a $100 special assessment, and $866 restitution. Haugen was indicted by a federal grand jury on September 22, 2009. In February 2009, Haugen, a contract carrier for the U.S. Postal Service, stole a package from an individual on his route. On November 2, 2009, he pled guilty to the charge. This case was investigated by the USPS-OIG. Assistant US Attorney Carolyn G. Olson prosecuted the case