USPS May Discipline Employees For Non-Compliance With New Social Media Policy
Filed under: postal, postal news, removals, usps, USPS News Link
USPS Reminds Employees They Can Be Fired For Non-Compliance With New Social Media Policy
USPS SOCIAL MEDIA POLICY – NAVIGATING A NEW FRONTIER
It began in earnest this past summer, when the Postal Service previewed its schedule of 2012 commemorative stamps on Facebook and Twitter (Link, 7/18). Before that, USPS had established a YouTube channel in 2007, maintained Facebook and LinkedIn pages for recruiting, and there were podcasts that provided online news to employees and customers. The Postal Customer Council and National Postal Forum programs also had Twitter accounts going back to 2009.
Building on initial groundwork that was laid nearly 18 months ago during a cross-functional Social Media Summit, the Postal Service now has established a corporate social media policy and is set to more extensively use social media to reach customers and market its brand.
USPS has revised its Administrative Support Manual (ASM), adding a new “Part 363” that outlines USPS policy concerning social media. The new policy defines “social media” as any form of online publishing or discussion, including but not limited to: blogs, wikis, YouTube, podcasts, social networking sites — such as Facebook, MySpace, and LinkedIn ― Twitter/Microblogs and Web 2.0.
Whether employees choose to participate in social media on their own time is their decision. However, when using social media in a personal capacity, employees may not speak for or act on behalf of the Postal Service. All uses of social media related to official USPS business require management consent.
USPS employees who use social media in their official capacity to communicate with the public or other postal employees must follow the specific rules and regulations outlined in the ASM revision. This revision is available in the Postal Bulletin 22322 (10-20-2011) and online at the Postal Service Policy Net website.
Employees should be aware that the Web is not anonymous. External content is accessible to anyone with a browser and isn’t as secure as content on the Postal Service’s intranet.
All USPS employees are responsible for complying with this policy. The new policy states that failure to do so may result in corrective action up to and including dismissal from the Postal Service.
source: USPS News Link
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.
MSPB Overturns Demotion of Postal Supervisor For Misuse Of USPS Credit Card
Filed under: legal cases, mspb, postal, postal supervisors, removals, usps
The following is a modified version of the MSPB case:
Based on the results of an investigation, USPS removed the appellant from his position as EAS-17 Supervisor, Distribution Operations, on a charge of failure to follow instructions – unauthorized purchases on his government credit card. USPS listed three specifications: (1) using his assigned government credit card for personal reasons; (2) unacceptable conduct – receiving night differential to which he was not entitled; and (3) unacceptable conduct – falsification of PS Form 1261 (non-transactor report). On review, the deciding USPS official found that the “charges” were sustained but that removal was too severe, and he mitigated the penalty to a reduction in grade and pay to the position of Mailhandler, Level 4.
On appeal, the Supervisor challenged the action and alleged that it was in retaliation for his protected equal employment opportunity (EEO) activity. During adjudication, the MSPB administrative judge notified the parties that she construed the proposal notice as consisting of three separate charges with one specification under each charge, and neither party noted any objection.
Following a hearing, the MSPB administrative judge issued an initial decision in which she found charge (1) sustained. Although she found that the Supervisor’s use of his government credit card to buy pizzas for his subordinates was appropriate, she found that his other uses (twelve cash advances, seven gasoline purchases, and two car rentals over a 5-month period, all personal expenses) were not. The MSPB administrative judge further found that charges (2) and (3) were not sustained. She found that discipline for the sustained charge promoted the efficiency of the service, and that the Supervisor did not support his claim that the action was taken in retaliation for his prior protected EEO activity. Based on the single sustained charge, the administrative judge found that the reduction in grade and pay was within the limits of reasonableness. Read more
MSPB: USPS Zero Tolerance Policy Violation Is Not Automatic Grounds For Removal
A Postal Employee appealed USPS’ decision to remove him based on a charge of Improper Conduct/Violation of Zero Tolerance Policy after the employee engaged in a physical altercation with a co-worker. The MSPB sustained the removal, but the Federal Circuit Court reversed the penalty determination and remanded the case. The MSPB found that a 30-day suspension was the maximum reasonable penalty, and therefore, ordered USPS to cancel the removal. Cunningham v. U.S. Postal Service. PR note: Now this does not mean employees can hit their co-workers without fear of getting fired. It only points out getting fired for violating the zero tolerance policy should not be a blanket policy.
MSPB in explaining its decision wrote:
When an agency imposes removal under a zero tolerance policy without giving bona fide consideration to the appropriate Douglas factors, its penalty determination is not entitled to deference. In such a case, the Board will independently weigh the relevant Douglas factors to evaluate the reasonableness of the penalty.
Here, the administrative judge found that the deciding official imposed the penalty of removal because he believed that the agency’s zero tolerance policy requires removal for a sustained charge of violence in the workplace.
The court found that “the [administrative judge]’s determination must stand.” Therefore, we must independently weigh the relevant Douglas factors to evaluate the reasonableness of the penalty.
When the Board sustains all of the agency’s charges, but finds the agency penalty too severe, the Board may only mitigate the penalty to the maximum reasonable penalty. Here, the appellant has at least ten years of satisfactory service and the agency did not cite any prior disciplinary record in its notice of proposed removal or removal decision notice. Further, the court found that the physical altercation resulted in no serious injury, no weapons were used, and there was “an element of provocation.” As the administrative judge found, the appellant had the opportunity to avoid the altercation by going back into the building and informing the Postal police following Mr. Allmond’s initial push. Therefore, in accordance with the court’s instruction that the administrative judge’s credibility determinations must stand, we find that a thirty-day suspension is the maximum reasonable penalty.
Cunningham vs. U.S. Postal Service
Related link: Appeals Court Overturns MSPB Decision To Uphold Postal Workers Removal - Federal Circuit Court decision
Postal Worker's Removal For Disrespecting Supervisor Overturned By Appeals Court
Karla Malloy entered employment with the USPS on October 18, 1980. At the time of the events at issue she was in the position of data collection technician at the Seattle Bulk Mail Center. In November 2005 Ms. June D. Hamilton became Ms. Malloy’s immediate supervisor. Because Ms. Malloy and Ms. Hamilton usually worked on different shifts, they communicated primarily by email. The email evidence and other records before the Board show severe tensions and sharp exchanges, relating primarily to Ms. Malloy’s requests for medical and dental leave, but also concerning the quality or timeliness of Ms. Malloy’s work.
The record contains excerpts from Ms. Hamilton’s electronic work journal, emails, and notes. For example, on February 2, 2006 (Thursday) Ms. Malloy submitted leave slips requesting LWOP (leave-without-pay) for the following week, February 5 to February 9. Ms. Hamilton denied the request on February 6, 2006 (Monday) and charged Ms. Malloy with AWOL on each requested day.
The situation led to an Investigative Interview held on May 8, 2006. Ms. Malloy left the interview shortly after it began, citing stress. Another Investigative Interview was held on June 7, 2006.
On August 29, 2006 USPS issued Ms. Malloy a Notice of Proposed Removal, charging her with disrespectful communication to a supervisor and failure to follow instructions. The notice listed seven specifications for the charge of disrespectful communication, all of which are emails or notes sent by Ms. Malloy to Ms. Hamilton, including those quoted ante. The charge of failure to follow instructions listed two specifications, including an April 3, 2006 email from Ms. Malloy refusing to follow Ms. Hamilton’s instruction concerning PS Form 1767 (entitled “Report of Hazard, Unsafe Condition or Practice”).
In response to the proposed removal, Ms. Malloy and her union representative met with Plant Manager Mr. Vendetti, and then provided a twenty-nine-page written response to Mr. Vendetti. The written response states, in part, that Ms. Malloy has been under medical care and that she has supporting medical documentation. Mr. Vendetti issued a letter of removal, stating that upon careful consideration of all the evidence in the record, including the mitigating factors argued by Ms. Malloy, he decided to remove Ms. Malloy for the following reasons: “your behavior at our meeting and the tone and content of your written response to me further defines and delineates the very problem that forms the basis of your removal — that being lack of common courtesy and a blatant disrespect for others.” The letter mentions medical concerns:
Her removal from employment was effective on October 6, 2006.
Ms. Malloy appealed to the MSPB. She did not dispute that her communications to Ms. Hamilton contain inappropriate language, but argued at the hearing that mental impairment caused her to sometimes act inappropriately.
Thus the record shows that Ms. Malloy was seen by mental health professionals and physicians on multiple occasions from 2006 to 2007, before, during, and after her removal. The record shows many patient visit notes and medical opinions. The record also contains lay evidence that Ms. Malloy was perceived by colleagues as having mental impairment, including Mr. Merlino’s Investigative Interview notes shown ante, describing Ms. Malloy as “extremely hyper” and “not mentally well.”
The AJ found that Ms. Malloy’s written communications were disrespectful and unprofessional, and sustained the removal. The AJ’s opinion states that Ms. Malloy stated that “she was under stress, depressed, could not think straight, concentrate or perform simple tasks.” The AJ found “the appellant’s assertions in this regard not credible and unsupported by the record.” The AJ did not mention any of the medical documents, although she stated that she had “reviewed her submissions.”
The record before us does not show what consideration or argument may have been given to the medical evidence by the AJ, or on appeal to the full Board. The AJ stated only that the evidence was not submitted until the day of the hearing, and had been “reviewed.” Mental impairment is recognized as a mitigating factor, and even if this submission were tardy (the AJ did not so state) Douglas and other precedent counsel toleration of less than optimum responses by a petitioner who may be mentally impaired. (“We hold that it is patently unreasonable and fundamentally unfair to require or allow an incompetent to act as advocate in such a setting where even a sane attorney would be confronted with a difficult task.”).
Accordingly, we vacate the decision of the Board and remand for consideration of Ms. Malloy’s evidence of mental impairment, and reapplication of the Douglas factors in light of this evidence.
see Malloy vs USPS
Postal Worker’s Removal For Unacceptable Attendance Affirmed By MSPB
Removal for Unacceptable Attendance Affirmed, 2009 MSPB 134, July 17, 2009 Curtis vs USPS
It was undisputed that over the course of about 21 months, the Austin, TX P&DC Mail Processing Clerk was absent from work 81 days, including 77 days of unscheduled leave without pay (LWOP). In his response, the appellant asserted that his absences were due to depression and post-traumatic stress disorder. The Board affirmed the appellant’s removal holding, “Although an agency’s approval of unscheduled leave generally precludes the agency from taking adverse action on the basis of those absences, an exception to the rule exists where an employee makes excessive use of unscheduled LWOP.”
Bad news can be good news: While the appellant lost his job, he appears eligible for disability retirement. He must apply within one year of the effective date of separation as shown on his last Form 50 (that’s usually not the date in the Notice of Removal). Since he gets only one chance to get it right, he should hire an attorney that specializes in that area of law. If the disability retirement is approved, he would get back pay to when his postal pay stopped and be eligible for restoration if he eventually recovers. For more information on disability retirement, see OPM’s website: http://www.opm.gov/retire/pre/fers/disability.asp.
Don Cheney
Auburn WA
Appeals Court Overturns MSPB Decision To Uphold Postal Worker’s Removal
Could the tide be turning in MSPB cases?
Here is the (non-precedential) decision from the Court of Appeals For the Federal Circuit
Anthony D. Cunningham appeals from a decision of the Merit Systems Protection Board (“Board”), Cunningham v. United States Postal Service, 109 M.S.P.R. 402 (2008), sustaining his removal from the Postal Service. Because the Board erred in overturning a demeanor-based credibility finding by the Administrative Judge (“AJ”), we reverse and remand.
BACKGROUND
Mr. Cunningham served as a Mail Handler at the Processing and Distribution Center in Cleveland, Ohio. On February 11, 2007, Mr. Cunningham and another Postal Service worker, Mr. Melvin Allmond, were involved in a physical altercation on postal property after work. Neither Mr. Cunningham nor Mr. Allmond sought medical treatment that night for their injuries. After an investigation, Mr. Cunningham was issued a Notice of Proposed Removal based on charges of Improper Conduct/Violation of Zero Tolerance Policy. Mr. James Hostetler (“Deciding Official”) issued Mr. Cunningham a Letter of Decision, sustaining the charge and removing him from the Postal Service effective June 16, 2007. Mr. Cunningham appealed the decision to the Board, which assigned the case to an AJ.
The AJ found that the Deciding Official had not considered mitigating factors in his decision to remove Mr. Cunningham, contrary to the requirement of Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981). The AJ mitigated the removal penalty to a 30-day suspension without pay, finding, inter alia, that Mr. Allmond was the primary aggressor and that Mr. Cunningham had acted in self-defense. The Postal Service filed a petition for review with the Board. The full Board reversed the decision of the AJ and sustained Mr. Cunningham’s removal, finding that the Deciding Official had considered the Douglas factors such that the Deciding Official’s penalty decision deserved deference. Mr. Cunningham timely filed this appeal. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
Decisions of the Board must be affirmed unless the decision 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 settled that a penalty’s reasonableness should be assessed under the twelve factors set forth in Douglas. See, e.g., Webster v. Dep’t of the Army, 911 F.2d 679, 686 (Fed. Cir. 1990). One of the factors is “mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter.” We have held that a failure to consider significant mitigating circumstances constitutes an abuse of discretion. . In addition, the Board has held that an agency may establish a zero tolerance policy that results in automatic removal if the agency has effectively communicated the policy of removing all employees who engage in the prohibited conduct, and if the agency has consistently followed the policy. Because neither party contends that the policy in the present case has met these requirements, we find that Mr. Cunningham’s penalty must be analyzed according to the Douglas factors.
Mr. Cunningham argues that the Board erred in overturning the AJ’s finding that the Deciding Official had not considered the mitigating circumstances Douglas factor. We agree. The Board is not “free to overturn an administrative judge’s demeanor based credibility findings merely because it disagrees with those findings.” A Board decision does not survive substantial evidence review if its reasons for overturning demeanor-based credibility determinations are not “sufficiently sound.” The Deciding Official testified before the AJ that he was aware of and considered the Douglas factors in his decision to remove Mr. Cunningham. However, he later admitted that in his view, the agency’s zero tolerance policy requires removal for a sustained charge of violence in the workplace. Therefore, the AJ found that the Deciding Official claimed that he applied and considered the Douglas factors, but his testimony in this regard lacked credibility, because he applied the Zero Tolerance Policy, a per se rule requiring removal. The Board overturned the AJ’s finding, citing the Deciding Official’s testimony that he had considered the Douglas factors. Because the Board gives no reason for overturning the AJ’s credibility finding relative to the application of the Douglas factors, the AJ’s determination must stand. The Board thus abused its discretion by granting deference to the Deciding Official’s decision, which, per the AJ’s findings, was not properly based on the Douglas factors.
Finally, we note that the Board’s decision in this case deviates from its standard practice of finding suspension the appropriate penalty in cases such as the present case. The Board has found mitigation of a removal to a suspension appropriate in a charge of physical assault on a co-worker where (1) no serious injury results; (2) no weapons are used; (3) the employee has a history of satisfactory performance; (4) the agency does not rely upon a prior disciplinary record in selecting the penalty; and (5) there is an element of provocation present. Faucher v. U.S. Postal Serv., 41 M.S.P.R. 336, 339 (1989) (finding a 60-day suspension the maximum reasonable penalty when all five of these circumstances were present); see also Quinata v. U.S. Postal Serv., 51 M.S.P.R. 76 (1991) (removal mitigated to a 120-day suspension when the appellant was not the primary aggressor); Lindsey v. Dep’t of the Navy, 9 M.S.P.R. 468, 471 (1982) (removal mitigated to a 60-day suspension); and Grandison v. Dep’t of the Navy, 7 M.S.P.R. 301, 304 (1981) (removal mitigated to a 60-day suspension). It appears from the record that all five of these circumstances are present in this case, and the Board has not held otherwise.
Therefore, the decision of the Board is reversed, and the case is remanded for an appropriate remedy in favor of Mr. Cunningham consistent with this opinion.
Costs shall be awarded to Mr. Cunningham.
MSPB Affirms Firing Of Postal Worker With No Prior Discipline For Irregular Attendance
Filed under: legal cases, mail handlers, mspb, postal, removals
From PostalReporter reader: “Employees should choose their venue for discipline wisely. At MSPB removal is an appropriate penalty for minor offenses like irregular attendance [PR note: Postal Management uses the term "Irregular Attendance" when issuing discipline to employees] despite no prior discipline. That is not the case in the grievance-arbitration procedure due to Article 16.” – Don Cheney
Here is the case from The Merit Systems Protection Board:
The appellant has petitioned for review of an initial decision that affirmed his removal for unacceptable attendance. We GRANT the petition and REOPEN the appeal in order to consider the effect of an arbitration decision vacating the appellant’s prior 14-day suspension. For the reasons set forth below, we AFFIRM the initial decision AS MODIFIED by this Opinion and Order. The appellant’s removal is AFFIRMED.
BACKGROUND
On May 7, 2008, the agency proposed the appellant’s removal from his position as a Mail Handler, based on a charge of unacceptable attendance. The agency cited 11 instances of unscheduled absences between January 16 and April 18, 2008. The agency also noted that the appellant had received a 14-day suspension on August 29, 2007, for unacceptable attendance. On May 27, 2008, after the appellant had an opportunity to respond to the proposed removal, the agency issued a decision letter removing him effective June 10, 2008.
On May 30, 2008, the appellant filed a Board appeal challenging his removal. He requested a hearing. After holding the appellant’s requested hearing, the administrative judge issued an initial decision affirming the removal. She found that the agency proved its charge, and that the penalty of removal was reasonable and promoted the efficiency of the service,. In her analysis of the penalty, the administrative judge referred to testimony from the deciding official that she had considered the appellant’s 14-day suspension in making her penalty determination. The administrative judge found that the deciding official’s consideration of the appellant’s prior disciplinary record was consistent with Bolling v. Department of the Air Force, 9 M.S.P.R. 335, 339-40 (1981).
The appellant filed a timely petition for review of the initial decision. On petition for review, he argues that he has new evidence. He has attached to his petition for review an arbitration decision issued on September 10, 2008. In that decision, the arbitrator vacated the appellant’s 14-day suspension for unacceptable attendance dated August 29, 2007.The appellant also argues that the administrative judge erred by failing to admit into evidence a handwritten note from the appellant’s union Branch President indicating that the appellant had a live grievance concerning the suspension while this matter was pending. The appellant further contends that the agency violated the National Agreement with the union and that the arbitration decision rendered the removal action moot.
The agency has responded in opposition to the petition for review. The agency argues that the arbitration decision was erroneous and that the suspension should not have been vacated. PFR File, Tab 3 at 12-13. The agency also argues that the fact that the suspension was vacated is not a basis for reversing the removal. Finally, the agency argues that the administrative judge properly excluded the handwritten note from the appellant’s union Branch President.
The agency’s response was filed the day after the filing deadline. The agency moved for leave to file late on the grounds that the responsible attorney inadvertently “calendared the deadline for filing a response to the PFR . . . on the wrong date.” The Board generally will not consider an untimely filing absent a showing of good cause. 5 C.F.R. § 1201.114(f). To establish good cause for an untimely filing, a party must show that he “exercised due diligence or ordinary prudence under the particular circumstances of the case.” Schroeder v. Office of Personnel Management, 106 M.S.P.R. 125, 127 (2007). A transposition error in calendaring a deadline does not constitute the exercise of due diligence or ordinary prudence. See, e.g., Roush v. Department of the Interior, 59 M.S.P.R. 113, 116 (1993) (“An error by the agency’s clerical staff does not constitute good cause.”); Lapedis v. Department of Health and Human Services, 47 M.S.P.R. 337, 340, aff’d, 949 F.2d 403 (1991) (Table) (“The mere fact that the agency miscalculated the time for filing its response . . . does not establish good cause for the untimely response.”); Gaff v. Department of Transportation, 45 M.S.P.R. 387, 390 n. 2 (1990) (“miscalculation of the filing deadline does not constitute good cause”); cf. Jaramillo v. Department of the Air Force, 106 M.S.P.R. 244, ¶¶ 5-8 (2007) (finding that the error of the appellant’s representative in recording a refiling deadline did not establish good cause for the delay in refiling, but waiving the deadline on other grounds in the interest of justice). We have therefore not considered the agency’s response in reaching our decision.
?
ANALYSIS
The appellant argues that the removal action is arbitrary in light of the arbitration decision vacating his earlier suspension. However, we find that the cancellation of the suspension does not warrant an outcome different from the one reached in the initial decision.
We note that, at the time she issued the initial decision, the administrative judge was unaware that the arbitrator had vacated the appellant’s 14-day suspension. Therefore, the administrative judge was correct to apply Bolling to consider the appellant’s prior discipline. Under Bolling, the Board’s review of a prior disciplinary action is limited to determining whether that action is clearly erroneous, if the employee was informed of the action in writing, the action is a matter of record, and the employee was permitted to dispute the charges before a higher level of authority than the one that imposed the discipline. Bolling, 9 M.S.P.R. at 339-40. However, the Board has a policy of not considering prior discipline that has been overturned in grievance proceedings at the time of Board review. See U.S. Postal Service v. Gregory, 534 U.S. 1, 10 (2001) (citing Jones v. Department of the Air Force, 24 M.S.P.R. 429, 431 (1984)). We must therefore evaluate the agency’s penalty determination without consideration of the vacated 14-day suspension as prior discipline.
The arbitration decision was issued 2 days before the initial decision was issued. However, there is no indication in the record that either party notified the administrative judge of the existence of the arbitration decision. It is entirely possible that neither party had received the arbitration decision at the time the initial decision was issued.
To the extent that the appellant is arguing that the arbitration decision invalidates the entire removal action, we are not aware of any support for that position. The suspension that was the subject of the arbitration decision was not directly connected to the charge in this removal action. It is relevant only to the appropriate penalty. Nevertheless, we have reviewed the record and have found no error by the administrative judge in sustaining the charge.
The Board will review an agency-imposed penalty only to determine if the agency considered all the relevant factors and exercised management discretion within tolerable limits of reasonableness. Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981). In her decision letter removing the appellant, the deciding official enumerated the Douglas factors she had considered in determining the appropriate penalty. Among the factors she cited were the nature of the charge, the appellant’s length of service, the consistency of the penalty with penalties given in similar circumstances, and the appellant’s potential for rehabilitation. We find that the deciding official considered the relevant Douglas factors and that the penalty of removal is within the tolerable limits of reasonableness for the charged misconduct, even in the absence of any prior discipline. With regard to the 14-day suspension, neither the proposal letter nor the decision letter cites the 14-day suspension as an aggravating factor in imposing the removal penalty. Nor does the hearing testimony of the deciding official indicate it was so considered. There is therefore no evidence that the agency impermissibly relied upon the 14-day suspension. See Jinks v. Department of Veterans Affairs, 106 M.S.P.R. 627, 636 (2007). On the other hand, the agency permissibly relied upon the suspension as evidence that the appellant had previously been warned about the conduct and was aware that additional violations would result in discipline. His continued unscheduled absences despite such notice justify his removal.
Because we have considered the reasonableness of the agency’s selected penalty without consideration of the appellant’s 14-day suspension, we need not address the appellant’s argument concerning the administrative judge’s decision to exclude a handwritten note referencing the existence of a grievance relating to that suspension.
We have also not considered the appellant’s argument on petition for review that the agency violated the National Agreement. Although the appellant alleged harmful error below, at the prehearing conference, he was unable to identify a rule, regulation or National Agreement provision that the agency allegedly violated. Therefore, the administrative judge did not include harmful error as an issue to be resolved in the summary of the prehearing conference, which stated that “additional issues are Fleming v. U.S. Postal Service, 30 M.S.P.R. 302, 308-10 (1986) (the Postal Service may properly remove an employee for using unscheduled leave when the leave was not requested in accordance with the agency’s leave-requesting procedures and when the employee was on clear notice that such unscheduled absences could result in discipline).
source: Jones vs USPS (PDF)