Court: NALC Must Go To Arbitration To Enforce Grievance Settlements With USPS
The problem of USPS ignoring their settlement agreements is a big one. Courts, like the one below, are mandating that unions take their disputes to arbitration before asking for enforcement in court, even when the dispute has already been settled multiple times! Unions have to take their disputes all the way to arbitration or the courts won’t enforce them. The NLRB has taken the same position. More and more of the grievances I see being filed are asking for enforcement of a previous grievance settlement, such as payment of back pay. It is getting ridiculous as resolutions drag out to a year or more. Extreme cases are taking three years! Employees are growing impatient and angry and union leaders are feeling the heat.
In the case below, NALC Branch #155 (Illinois) filed a lawsuit claiming USPS had continously..
…..failed and refused to provide information requested by Branch 155 in a timely manner so that it may adequately represent its members as required by the National Labor Relations Act of 1935 (“NLRA”).
As a result of Defendant’s continuous and on-going usurpations of the National Agreement, Branch 155 has been forced to file multiple grievances in accordance with
the National Agreement’s grievance procedure as well as repeated unfair labor practice charges with the National Labor Relations Board, Region 14 (“NLRB”) against the Defendant. These unfair labor practice charges filed with the NLRB have been filed as far back as 2002, 2003, 2004, 2006, and 2010 for violating the collective bargaining
agreement by failing to timely provide requested information.
As a result of Defendant’s continued refusal to abide by the terms and conditions of the National Agreement, not only as against this Plaintiff herein but as against multiple other local unions affiliated with the National Letter Carriers Association across the United States, the General Counsel of the National Labor Relations Board in Washington, D.C., issued Memorandum M 03-18 recognizing the Defendant’s continued refusal to provide information and stated that in the wake of the number of reoccurring cases against the Defendant for failure to provide requested information, “all information requests should receive prompt and responsive replies…”
As a result of the Defendant’s continued refusal to abide by the terms and conditions of Articles 17.3 and 31 of the National Agreement, the memorandums of Vice President of
Labor Relations, John E. Potter and Chief Operating Officer and Executive Vice President (1998) , Patrick R. Donahoe (2002), as well as the covenants agreed to in Memorandum M 03-
18, Plaintiff’s members continues to suffer irreparable harm.
But the court was not persuaded by NALC’s arguments. The court ruled:
Federal Rule of Civil Procedure 12(c) permits a party to move for judgment after the complaint and answer have been filed by the parties. See FED. R. CIV. P. 12(c); Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009). After reviewing the pleadings, the Court finds that Plaintiff has failed to satisfy a condition precedent to filing this action -specifically, it failed to exhaust the grievance and arbitration procedures established in the applicable collective bargaining agreement.1 Plaintiff did not pursue its grievances through to arbitration as required under the agreement, and the Court does not read an implied claim for into the statute governing judicial enforcement, 29 U.S.C. § 185. Plaintiff asks the Court to read the terms of the agreement and consider whether they are reasonable in light of directives issued by Defendant’s officials and manuals promulgated by the parties. But this Court cannot rewrite the parties’ agreement, and under the agreement, Plaintiff is required to arbitrate Defendant’s failure to comply with the settlement agreements.
While the Court does have subject matter jurisdiction over an action seeking judicial enforcement of a contract between the Postal Service and a labor organization, see 39 U.S.C. § 1208, once this Court determines that an issue is arbitrable and, as here, that arbitration procedures were not exhausted, it can go no farther in reviewing the dispute. See generally Niro v. Fearn Int’l Inc., 827 F.2d 173, 175-76 (7th Cir. 1987). Accordingly, Defendant’s motion for judgment on the pleadings (Doc. 30) is GRANTED, and this action is DISMISSED without prejudice to Plaintiff pursuing its claims through the grievance process.
National Association Of Letter Carriers vs United States Postal Service, decided February 8, 2011
USPS Memos On Compliance With Arbitration Awards
New York Postal Worker Indicted On Workers Comp Fraud
SYRACUSE, New York — A former U.S. Postal Service employee from Prospect was indicted Wednesday on federal worker’s compensation charges, the U.S. Attorney’s Office in Syracuse said.
Kimberly Morris, 36, allegedly falsely claimed that a work-related injury prevented her from performing any duties with the Postal Service between April 4 and June 3, 2010, when she knew she was capable of working. As a result, she allegedly received more than $17,362 in undeserved worker’s compensation benefits for a sprained ankle, a news release stated.
According to the U.S. Attorney’s Office, federal agents videotaped Morris shopping, climbing stairs and driving while she was claiming to be unable to work. The case was investigated by the U.S. Postal Service Office of Inspector General and the U.S. Department of Labor Office of the Inspector General, the release stated.
Former postal worker indicted for worker’s comp fraud | The Observer-Dispatch, Utica, New York
Kentucky Letter Carriers Branch President Charged With Embezzlement
Max Edwin Messamore, who was indicted by a grand jury in U.S. District Court in London in late January for allegedly stealing more than $2,000 from a U.S. Postal Service labor organization (Somerset, KY), is slated to stand trial in the case on April 25, according to electronic court records accessed by the Commonwealth Journal.
Messamore pleaded not guilty to the embezzlement charge during his arraignment on March 1, according to the electronic records.
According to the indictment, between “… Feb. 28, 2006 to Dec. 24, 2007, Messamore, while serving as president of the National Association of Letter Carriers, Branch 2039, … a labor organization engaged in an industry affecting commerce, did embezzle, steal, and unlawfully and willfully abstract and convert to his own use the moneys and funds of said labor organization in the approximate amount of $2,293.77.”
That’s in violation of 29 U.S.C. 501(c), which prohibits the embezzlement and theft of property from a labor organization covered by the Labor-Management Reporting and Disclosure Act (LMRDA).
If he’s found guilty of the embezzlement charge, Messamore faces up to five years in prison and a fine of up to $10,000, according to the indictment, which was handed down on Thursday, Jan. 27.
full story from Commonwealth Journal
Postal Worker Fired For Excessive Use Of Military Leave Wins Partial Court Victory…AGAIN!
Sidenote: Richard Erickson has “served in the military for over two decades, during which time he achieved the highest rank possible for a non-commissioned officer [Sergeant Major], and was awarded the Silver Star and the Army Commendation Medal for Valor.” source: Erickson v. U.S. Postal Service, MSPB Docket No. AT-3443-07-0016-I-2 (Initial Decision, Sept. 26, 2007).
Richard Erickson, a distribution Clerk was removed from his position at Fort Myers Processing and Distribution Center (Fort Myers, Florida). Erickson filed an MSPB appeal under Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), asserting that he was improperly removed because of his military service and requesting that he be reinstated. The MSPB administrative judge (AJ) found that USPS violated USERRA by removing Erickson from his position but nevertheless denied him any relief. The AJ’s decision was based on the determination that Erickson subsequently waived his reemployment rights under USERRA by abandoning his civilian employment in favor of a military career. MSPB denied Erickson’s appeal TWICE and the Court of Appeals has remanded this case back to MSPB TWICE. Read on…. Read more
Former Maryland Letter Carrier Convicted Of Destroying Mail
Filed under: legal cases, postal, postal news, press releases, usdoj
The following is a press release from U.S. Attorney’s Office, Maryland
Greenbelt, Maryland – A federal jury convicted Warren Christopher Bradford, age 41, of Upper Marlboro, Maryland, late yesterday of destroying mail he was entrusted to deliver as a Postal Service letter carrier.
The conviction was announced by United States Attorney for the District of Maryland Rod J. Rosenstein; Special Agent in Charge Joanne Yarbrough of the U.S. Postal Service, Office of Inspector General; and Interim Chief Mark Magaw of the Prince George’s County Police Department.
According to Joanne Yarbrough, Special Agent in Charge of the Postal Service’s Office of Inspector General, “The overwhelming majority of postal employees work very conscientiously to move the nation’s mail – approximately 171 billion pieces of mail each year – to its proper destination. It is a responsibility they take very seriously. Unfortunately, there are a few postal employees, very few, who abuse the public trust placed in them, but successful prosecutions are a significant victory against offenders. I appreciate the work and partnership of the U.S. Attorney’s Office with these investigations. The American public should remain confident that the majority of the employees of the Postal Service are hard-working and continue to maintain the trust and integrity of the Postal Service.”
According to evidence presented during the three day trial, Bradford was a 15-year employee of the U.S. Postal Service assigned as a letter carrier to the Capitol Heights Post Office in Prince George’s County, Maryland. The evidence showed that beginning in June 2009, customers living along Bradford’s postal route began reporting that they were not receiving mail for days at a time. On September 21, 2009, a citizen called 911 after witnessing a Postal Service employee unloading several trays full of mail from a Postal Service vehicle and discarding them at a secluded location in Capitol Heights. The Prince George’s County Police Officer who responded to the call discovered the three trays of undelivered mail the caller had seen the carrier unload as well as a large amount of burned mail spread across the wooded lot. That officer notified a local Post Office, whose supervisory employees responded to the scene along with agents of the U.S. Postal Service’s Office of Inspector General. There, postal officials recovered mail from Bradford’s route bearing postmarks dating back to June 2009. Postal officials located Bradford at approximately 3:00 p.m. when he returned to the burn site in his postal truck, which still carried nearly all of his route’s mail for that day.
Bradford faces a maximum penalty of 5 years in prison. U.S. District Judge Alexander Williams, Jr., has scheduled sentencing for May 25, 2011 at 9 a.m.
United States Attorney Rod J. Rosenstein commended U.S. Postal Service, Office of Inspector General and the Prince George’s County Police Department for their work in the investigation. Mr. Rosenstein thanked Assistant United States Attorney Adam K. Ake, who is prosecuting the case
Class Action EEO Pending For USPS Improperly Requiring “Forensic Psychiatric Evaluations”
Postal Employees: “Were You Mandated to Submit to a “Forensic Psychiatric Evaluation” Before USPS Allowed You Back To Work?”
The EEOC has pending before it a Petition for Class Certification over the Postal Service’s:
(1) refusal to properly train their medical unit and management personnel regarding obligations under the Rehabilitation Act; as instructed to do so in EEOC Appeal No. 0720080044, (See, Grayson v. USPS, dated 1/6/2009..see brief below)
2) By mandating that certain employees submit to “Forensic Psychiatric Evaluations” (before allowing these employee’s to return to work).
“Complainant’s contentions are that these Forensic Psychiatric Evaluations are not shown to be job-related and consistent with the business necessity of the Agency, thus such evaluations are improper. Complainant submits this complaint as a “Class Action Complaint”, which is ongoing.”
I am looking for other employees who were mandated to submit to a “Forensic Psychiatric Evaluations” If any postal employee would like to be included into this class action complaint, please contact me G. Mojarro by 2/28/11 via e-mail ; foochiememo [at] aol.com
The class agent specifically identifies the Postal Service’s actions as adversely affecting complainants in six, maybe seven, categories:
1. Fails to reasonably accommodate employees
2. Targets disabled employees
3. Creates a hostile work environment
4. Wrongfully discloses medical information
5. Is used as retaliation for EEO investigation
6. Has an adverse impact on disabled employees, and
7. Repeatedly provides copies of Forensic Psychiatric Evaluations to the Agency’s Office of Inspector General.
Overview Of Willard Grayson v. U.S. Postal Service, EEOC Appeal No. 0720080044 (January 6, 2009) (added by PostalReporter.com)
Improper Medical Inquiry and Denial of Work
Complainant worked for the agency as a Custodial Laborer. He noticed a strong odor while mopping the floor, and subsequently reported to his supervisor that he felt sick to his stomach and had a headache. Complainant completed a workers’ compensation form, and the agency sent him for a medical evaluation. The examining physician determined that complainant was able to return to full duty; however, he noted that complainant believed he was being retaliated against and possibly poisoned. Several days later, complainant was given a letter by his supervisor advising him to provide medical documentation from his doctor clearing him to return to work. The letter did not specify any medical condition or injury. After complainant submitted a letter from a Licensed Physician Assistant releasing him to return to work, he stated that he was told he needed documentation from a psychiatrist stating that he was not a danger to himself or others before he would be allowed to return to work. Complainant ultimately saw a psychologist, who concluded that he did not appear to be a danger to himself or others. The agency’s Medical Unit Director then called the psychologist, and asked complainant to sign a release form so that the report from the initial examining physician could be sent to him. Complainant refused to sign the release, and was given a Notice to Submit Medical Documentation as well as a Notice of Deferred Seven-Day Suspension for failure to follow instructions and being absent without leave. Complainant was ultimately referred for a psychiatric fitness for duty examination.
On appeal, the Commission found that the agency violated the Rehabilitation Act by making a disability-related inquiry and not allowing complainant to return to work. While the Commission noted that it was proper for the agency to initially send complainant for a medical evaluation after he filed a workers’ compensation form, the Commission found that the agency had no basis to keep him out of work once the examining physician concluded he was able to return to duty. The Commission noted that there was no evidence that complainant had any problems performing his work or interacting with his co-workers. Further, the agency’s response to the physician’s comments about complainant’s mental state was extreme and the demands made on him overly burdensome given the circumstances of the situation. The record contained no evidence that complainant engaged in any action that would have led the agency to reasonably believe that he posed a direct threat or could not perform the essential functions of his position. Finally, the agency’s Threat Assessment Team itself found that complainant was not a threat. The Commission further found that complainant decided to retire solely because the agency kept him out of work, issued progressive discipline, and considered terminating him. The agency was ordered to offer complainant reinstatement to his prior position, with back pay and appropriate benefits. source: EEOC
note: Information may not be re-printed without permission from G. Mojarro or PostalReporter.com
Postal Workers Class Action EEOC Cases Against USPS
Filed under: eeo, legal cases, postal, postal employees, usps
The following are summaries of some class action EEOC cases pending and/or settled against USPS.
John Cyncar vs USPS
In the first class action case, complainant John Cyncar on April 30, 2001 filed a formal EEO complaint alleging that he was discriminated against in violation of Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq., (Rehabilitation Act). Cyncar then moved to have portions of his complaint certified as a class action. He alleged, on behalf of the class, that the Postal Service’s Western Area Region violated the Rehabilitation Act when it treated qualified individuals with disabilities between January 1, 1998, and December 31, 2002 differently and less favorably than non-disabled individuals with respect to benefits provided by the Family Medical Leave Act (FMLA) and that the Postal Service’s treatment of disabled employees with respect to the FMLA resulted in failure to accommodate their disabilities and the discriminatory issuance of disability related absences. An EEOC Administrative Judge certified the class and letters were sent out to 49,000 potential class members . The USPS denied that it violated the Rehabilitation Act, FMLA, or that it did anything wrong. Regardless, the parties agreed to settle this Case on Dec 22, 2010. The parties decided to settled this case due to in part that Phases of the litigation would possibly take up to 5 or 6 more years (the case was already 8 years old). Cyncar v. United States Postal Service.
The settlement provided that USPS will pay, in full settlement of all claims in this Case:
The total sum of three-million-eight-hundred-fifty-thousand-dollars ($3,850,000)
This sum is comprised of: (1) a Class Fund of two-million-seven-hundred-thousand-dollars ($2,700,000); (2) two-hundred-thousand-dollars ($200,000) as a Reserve, as described in Section 7.3 of the Global Settlement Agreement; and (3) payment of attorneys’ fees and costs to Class Counsel in the amount of nine-hundred-fifty-thousand-dollars ($950,000).
From the Class Fund of $2,700,000.00, the following amounts are allocated as follows:
a) $20,000.00 to Class Agent Cyncar for his efforts throughout the course of the litigation;
b) $3,500.00 per person for each of the eight members of the Cyncar Settlement Committee; and
c) The payment of $9,783.54 as reimbursement for costs contributed by Class members
A provision that unclaimed funds would be divided equally between the USPS and the Wounded Warriors Fund.
All amounts remaining in the Reserve after payment of all Administrative Costs would be divided among eligible class members on apro rata basis.
Next case
Diana Pevoteaux v. United States Postal Service
The proposed class complaint alleges that the agency discriminated against class members when medical information was posted in the eRMS and made available to all personnel with access to the system in violation of the Rehabilitation Act. Specifically, it is alleged that the Postal Service is violating the Rehabilitation Act restrictions on the storage of confidential medical information by entering medical conditions and histories, including symptoms, diagnoses, or conditions, in the case comments section of FMLA Data Reports maintained in eRMS (Enterprise Resource Management System). It also alleged that the Postal Service is violating the Rehabilitation Act by disclosing this stored medical conditions and histories through eRMS to managers and supervisors who do not need the information to provide accommodations or to ensure medical restrictions are followed. This case is still pending.
Sandra McConnell vs USPS
A class action complaint for injured on duty postal employees was certified by an EEOC Administrative Judge (AJ) on May 30,2008.
In the case of (Read article from February 17, 2009) Sandra McConnell, et al. v. United States Postal Service an AJ decision certified the following class:
All permanent rehabilitation employees and limited duty employees at the U.S. Postal Service who have been subjected to the National Reassessment Process (NRP) from May 5, 2006 to present, allegedly in violation of the Rehabilitation Act of 1973. The AJ certification decision recited evidence that the goal of NRP was to assign work to employees who had an approved compensable injury as determined by the Department of Labor.
Class members argued one or more of the following complaints:
1. NRP is a systemic attempt to abolish reasonable accommodations agency wide.
2. The agency’s alleged facially non-discriminatory policy is being applied in a discriminatory manner.
3. The process constitutes denial(s) of reasonable accommodation.
4. The process constitutes discrimination based on disability (physical/mental).
5. The process constitutes unlawful harassment and hostile work environment based on disability (physical/mental).
6. The agency unlawfully modified or terminated each person’s approved disability accommodations without cause.
7. The agency made its reassignment decisions improperly by, inter alia, failing to engage in the interactive process.
8. The agency applied the program discriminatorily both with regard to each individual and how the process was applied.
9. The agency’s actions are retaliatory for the individual’s protected conduct, in reporting injuries, filing worker’s compensation, and/or prior EEO activity.
10. The agency’s conduct violated its procedures and OWCP’s regulations and blatant failure to follow the agency’s own regulations is presumed to be motivated by retaliation and/or discrimination. This case is still pending.
Edmund Walker vs USPS
Edmond C. Walker, the class agent in the Walker class action, filed a complaint on August 19, 2002. Walker alleged that, since April 2000, the Postal Service discriminated against individuals with disabilities by:
1. Placing disabled individuals in permanent rehabilitation positions without engaging in the interactive process as required by law;
2. Restricting disabled individuals who are placed in permanent rehabilitation [sic] to limited work hours without any medical justification and without consulting the individual with a disability;
3. Fail[ing] to allow individuals with a disability, who have been placed in permanent rehabilitation positions, to work the number of hours determined appropriate by the individual and his/her physician and which are available; and
4. Fail[ing] to allow individuals with a disability, who have been placed in permanent rehabilitation positions, to use assistive devices in the workplace to accommodate their disabilities, including but not limited to, electric scooters, notwithstanding that said assistive devices pose no threat to safety or inconvenient [sic] in the workplace.
This claim has been analyzed to include denial of overtime.
On December 12, 2003, an EEOC Administrative Judge issued a decision concerning the Walker class complaint. The Administrative Judge ordered the Postal Service to “identify all those pending complaints that raise the same issue as the Walker class complaint during the time frame encompassed by the Walker class complaint, January 1, 2000, to the present.” Unsure of status of this case.
There are several more EEOC class actions cases filed by Postal Workers which I will post at a later time.
Three New York Postal Employees Charged With Stealing Money
Filed under: legal cases, postal, postal clerks, postal news, press releases, usps
Three Postal Employees from the Post Office in Locust Valley, New York have been arrested and charged with stealing money while on the job.
According to the press release:
MINEOLA, NY – Nassau County District Attorney Kathleen Rice said that three United States Postal employees from the Locust Valley Post Office have been arrested and charged with stealing money while on the job.
John D. Klick, 52, of Greenvale; Roberto Bardales, 35, of Whitestone; and Warren Wojciechowski, 56, of Glen Cove, were arrested on January 20 and charged with one count each of Falsifying Business Records in the First Degree and Petit Larceny. All three defendants face up to four years in prison. Klick is due back in court on March 2 and Bardales and Wojciechowski are due back on March 3.
The arrests were made with the assistance of the United States Postal Service Office of Inspector General.
Rice said that the defendants stole money by ringing up customer purchase amounts that were less than the actual purchase price, also called “short-ringing.” The defendants sometimes made no entry at all for a purchase and pocketed the cash.
Klick is alleged to have taken $166.80; Bardales is alleged to have taken $456.74 and Wojciechowski is alleged to have taken a total of $818.06 in cash.
Deputy Chief William Wallace of the Government & Consumer Frauds Bureau is prosecuting the cases for the DA’s Office. John D. Klick is represented by Robert Schalk, Esq.; Roberto Bardales by Danielle Papa; and Warren Wojciechowski by Paul Berko, Esq
Postal Workers Firing For Unauthorized Possession Of Mail Upheld By Appeals Court
Filed under: legal cases, NPMHU, postal, postal news, removals, usps
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.
Postal Worker Loses Lawsuit Claiming USPS Violated Privacy Act And Fraud On the Court
Filed under: legal cases, postal, postal news, privacy, usps
The following is PostalReporter’s summary of several cases related to the same issue:
Darrell Coburn sued the United States Postal Service claiming that the Privacy Act, 5 U.S.C. § 552a, was violated when records from the file on his administrative complaint of discrimination were disclosed internally to several management employees. USPS was seeking evidence of a management employee representing a craft employee which is against postal policy. After a bench trial the district court found that the Postal Service did not make any unauthorized disclosure and entered judgment against Coburn. Coburn appealed to the Court of Appeals which upheld the District Court’s decision. Coburn filed again arguing that the Postal Service committed fraud by submitting an alleged “bogus” document to the court. The court ruled that Coburn was untimely and therefore the Court of Appeals decision stands.
This legal saga started when Darrell Coburn a 19-year Forest Park, IL letter carrier was placed on Emergency Off-Duty status on January 27, 2004.
On February 9, 2004, Coburn was issued a Letter Of Warning for conduct unbecoming of a postal employee which occurred on January 27, 2004.
On February 11, 2004 Coburn filed National Labor Charges against the Postal Service and Former Forest Park Postmaster Migna Sanchez for unfair labor practices and whistle-blowing activity..
On February 12, 2004, Coburn was issued a 14-day suspension for “Failure to Properly Secure A Postal Vehicle.”
On February 19, 2004, Coburn was told that on February 23, 2004, he was being sent for letter carrier re-training at another Post Office.
In 2005, Coburn filed an administrative complaint alleging employment discrimination. Coburn was told that he could select another employee to represent him during the administrative process. However, Postal Service policy precludes management employees from representing craft employees like Coburn, a letter carrier. In spite of the policy, Coburn enlisted his friend Cecil Watson, a management employee, who knew about the policy from his supervisor. When the supervisor later heard that Watson had served a summons on the United States Attorney in a lawsuit filed by Coburn against the Postal Service, he asked a postal official to investigate whether Watson was violating the policy against representing craft employees.
The postal official contacted the personnel employee with custody over the file from Coburn’s administrative complaint, who turned the file over to the postal official. From that file the postal official culled six documents referring to Watson as Coburn’s personal representative.
The postal official turned those documents over to Watson’s supervisor, who cited them in a proposal to his supervisor that Watson be fired. It is these disclosures that Coburn alleged USPS violated the Privacy Act.
In September 2008, after a bench trial on Coburn’s claims, the district court granted judgment for the Postal Service. It found that the employees lawfully viewed Coburn’s records under an exception to the Privacy Act that permits access when employees have a “need for the record[s] in the performance of their duties.”
The Privacy Act generally precludes an agency from disclosing records pertaining to an individual who has not consented in writing to the disclosure. 5 U.S.C. § 552a(b). But several categories of disclosures are explicitly authorized in the statute, including disclosures “to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties.” The district court found that the disclosures here fit this exception.
Coburn countered that his records were disclosed to persons who did not maintain them, and thus the disclosures fell outside the “need to know” exception. But the court said that Coburn misread subsection (b)(I). It is enough that the persons to whom disclosure is made are employees of the agency that maintains the records and that those employees have a need for access; disclosure under this subsection is not limited to the employees responsible for maintaining the records.
Coburn also argued that the Postal Service employees who obtained his records did not need to access those records in the course of their duties. To show this, he cites a vacancy announcement for the position held by the postal official, who obtained the file from the personnel employee and passed along six documents to Watson’s supervisor after first clearing that action with agency counsel. Coburn correctly notes that the vacancy announcement does not mention as a job duty investigating allegations of employment discrimination. But a vacancy announcement would not be comprehensive, and, regardless, the employees to whom the records were disclosed testified that their duties did include investigating alleged misconduct by management employees. The district court believed them, and our job on appeal is not to reweigh the credibility of trial witnesses. Coburn does not otherwise fault the scope or manner of the disclosures, so our analysis may end here.
In February 2010, nearly 17 months after the district court entered its judgment, Coburn filed a motion to vacate in light of new evidence suggesting that the Postal Service and its counsel engaged in fraud on the court. The Postal Service committed fraud, Coburn argued, by using a misleading memo at his bench trial to justify accessing his file. The memo explains that Postal-Service policy bars management employees (such as Watson) from representing craft workers (such as Coburn) in administrative proceedings against the Postal Service. But such memos, Coburn contended, are informational only and should not be treated as official policy of the Postal Service, and in support he pointed to a 1989 employee manual that he characterizes as newly discovered evidence. He also cited a 1996 employee handbook listing five conflicts of interest for employee representation, none of which stated that management employees could not represent craft employees. Therefore, he concluded, Watson did not engage in wrongdoing by assisting him with his complaint, and Postal-Service employees had no need to access his administrative file. The district court denied Coburn’s motion, determining that the one-year statute of limitations under Rule 60(b)(3) had passed and that Coburn did not allege the egregious fraud on the court necessary to succeed under Rule 60(d)(3).
Coburn does not challenge the district court’s finding that his motion under Rule 60(b)(3) was time-barred. Such motions must be brought within one year of the judgment the party seeks to vacate, and Coburn was untimely in waiting almost 17 months after the judgment to file his motion.
Coburn argues that the district court erred in finding that the Postal Service did not defraud the court because, he contends, it overlooked the Postal Service’s “bogus document”—the memo regarding Postal-Service policy. Fraud on the court, which is not subject to the one-year statute of limitations, may include inserting fraudulent documents into the record, but Coburn has not pointed to any evidence to suggest that the memo itself—or the way the Postal Service used it at trial—was fraudulent. Nor has he explained how the mere existence of the 1989 manual undermines the memo’s authenticity.
Coburn also asserts for the first time on appeal that counsel for the Postal Service engaged in fraud by allowing witnesses to perjure themselves through testimony about the memo. But he waived that argument when he did not present it to the district court. And even if he had not, his argument would still fail because here too he does not point to anything in the record to support his claim. Because the purported fraud was not “conduct that might be thought to corrupt the judicial process itself,” the district court properly denied the motion.
We add, however, that a plaintiff can win a Privacy Act suit for damages only if he demonstrates that the violation was intentional or willful. See 5 U.S.C. 552a(g)(4); Jacobs v. Nat’l Drug Intelligence Ctr., 423 F.3d 512, 522 (10th Cir. 2005); Moskiewicz v. U.S. Dep’t of Agric., 791 F.2d 561, 564 (7th Cir. 1986). Even if the disclosures had been unauthorized, the employees who were involved reasonably believed that they were allowed access to Coburn’s file as necessary to investigate possible misconduct by Watson. The district court,in its findings of fact, made clear that it believed there was no intent to violate the Privacy Act, and that finding is not clearly erroneous. See Remapp Int’l Corp. v. Comfort Keyboard Co.,No. 08 3282, 2009 WL 750222, at *3 (7th Cir. Mar. 24, 2009). Accordingly, even if there had been a technical violation, Coburn still would not recover.