Retired Postal Worker Fights To Get Job Back After 20 Years
Filed under: Injured On Duty, legal cases, postal, postal news, usps
Charles Johnson worked for the United States Postal Service from 1960 until he accepted an early retirement offer on November 20, 1992, at age 52. The following is from the Court of Appeals, Federal Circuit and the MSPB.
In March 2010, Mr. Johnson asked to be restored to employment with the Postal Service. The Postal Service denied his request on the ground that Mr. Johnson had voluntarily retired and had not been separated from his position as a result of a compensable injury. Mr. Johnson appealed that decision to the Merit Systems Protection Board. After considering evidence from Mr. Johnson on the issue of the Board’s jurisdiction over the appeal, the administrative judge who was assigned to the case held that his appeal was barred by claim preclusion and issue preclusion. Read more
Postal Manager’s Demotion for Dropping His Pants Upheld
Filed under: legal cases, postal, postal managers, postal news
The United States Court of Appeals, Federal Circuit ruled against former EAS-24 Postal Manager for unacceptable conduct.
Natty joined the Postal Service in 1990. By June 2010, he served as an EAS-24 Manager of Distribution Operations (MDO), supervising a total workforce of 130 employees, including six subordinate supervisors. On June 19, 2010, the agency demoted Natty to a PS-04 Part-Time Flex Mail Handler based on a finding of unacceptable conduct. Natty appealed his demotion and the Administrative Judge (“AJ”) found that Natty’s comments about race and sex, and the intentional dropping of his pants, supported the unacceptable conduct charge. Natty v. U.S. Postal Serv., No. SF-0752-10-0847-I-1 (M.S.P.B. Oct. 29, 2010). The AJ also found the agency’s action timely and Natty’s demotion to a non-managerial position within the agency’s discretion. Id. The AJ’s decision became the final decision of the Board after the Board denied Natty’s petition for review. Natty v. U. S. Postal Serv., No. SF-0752-10-0847-I-1 (M.S.P.B. May 6, 2011). Natty timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). Read more
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
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 Waited Too Late To Submit Doctor’s Note — Loses Job!
The Postal Service sent Taylor a directive informing him of the results of the medical assessment and ordered him to report to work or be considered absent without leave (“AWOL”) and face removal. Taylor never reported or responded to this directive. On April 8, 2008, the Postal Service issued a notice of proposed removal based on the charge of “Unsatisfactory Attendance – AWOL.” After the ten-day deadline to answer the notice, Taylor submitted a letter from his physician that stated that Taylor was still unable to work — but it was too late. The United States Court of Appeals for the Federal Circuit upheld MSPB’s decision.
Here is the case:
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
AVERY K. TAYLOR,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
2010-3090
Petition for review of the Merit Systems Protection Board in case No. DA0752090155-I-1.
Decided: September 10, 2010
AVERY K. TAYLOR, of Houston, Texas, pro se.
DAVID C. BELT, Appellate Attorney, Office of General Counsel, United States Postal Service, of Washington, DC, for respondent. With him on the brief was LORI J. DYM, Chief Counsel, Office of General Counsel, United States Postal Service, of Washington, DC, and TONY WEST, Assistant Attorney General, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC. Of counsel was SCOTT A.MACGRIFF, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC.
Before RADER, Chief Judge, FRIEDMAN and LINN, Circuit Judges.
PER CURIAM.
Avery Taylor appeals a final decision of the Merit Sys-tems Protection Board (“Board”), which affirmed his removal from his position as a letter carrier with the U.S. Postal Service (“Service”) for unexcused absences. Taylor v. U.S. Postal Serv., No. DA-0752-09-0155-I-1 (M.S.P.B. Dec. 17, 2009) (“Decision”). Because the Board’s opinion was supported by substantial evidence and was not arbi-trary, capricious, an abuse of discretion, or otherwise not in accordance with law, we affirm.
Taylor joined the Service in October 1993. In September 2005, he stopped reporting for work, claiming that he suffered from job-related stress. Between November 2005 and July 2007, the Service sent Taylor multiple letters asking that he report for duty or provide medical documentation of his condition. In response to each request, Taylor submitted letters from his doctor that described his illness, and the Service took no action to remove him. By June 2006, Taylor exhausted all of his paid leave, so the Service placed him on leave without pay (“LWOP”) status.
In September 2007, the Service sent Taylor another letter asking him to report or furnish medical documenta-tion, at the risk of losing approved leave. Taylor re-sponded in writing, saying that his medical condition had not changed since July 2007, but without providing evi-dence. In November 2007, the Service ordered Taylor to report for a fitness for duty (“FFD”) medical examination. The designated physician, Dr. Charles Covert, submitted a report, which a Service physician used to make a medi-cal assessment, deciding that Taylor was fit for duty. Taylor objected to filling out a consent form prior to the examination and claims that Covert never examined him. According to the government, Service officials received only the final assessment, not Covert’s initial FFD report. Decision at 11 n.6.
On November 21, 2007, the Service sent Taylor a directive informing him of the results of the medical as-sessment and ordering him to report on November 26, 2007 or be considered absent without leave (“AWOL”) and face removal. Taylor never reported or responded to this directive. On April 8, 2008, the Service issued a notice of proposed removal based on the charge of “Unsatisfactory Attendance – AWOL.” After the ten-day deadline to answer the notice, Taylor submitted a letter from his physician that stated that Taylor was still unable to work. On June 13, 2008, the Service removed him. On appeal, the Board affirmed the Service’s ruling. Taylor timely appealed the Board’s final decision. We have jurisdiction under 28 U.S.C. § 1295(a)(9).
We affirm a Board 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). To take an adverse action against an employee, an agency must (1) “establish by preponderant evidence that the charged conduct occurred,” (2) “show a nexus between that conduct and the efficiency of the service,” and (3) “demonstrate that the penalty imposed was rea-sonable in light of the relevant factors set forth in Doug-las v. Veterans Admin., 5 M.S.P.R. 280, 307-08 (1981).” Malloy v. U.S. Postal Serv., 578 F.3d 1351, 1356 (Fed. Cir. 2009).
“In order to prove a charge of AWOL, an agency must show by preponderant evidence that the employee was absent, and that his absence was not authorized or that his request for leave was properly denied.” Wesley v. U.S. Postal Serv., 94 M.S.P.R. 277, 283 (2003). An AWOL charge automatically satisfies the nexus requirement because “any sustained charge of AWOL is inherently connected to the efficiency of the service.” Davis v. Veter-ans Admin., 792 F.2d 1111, 1113 (Fed. Cir. 1986).
Taylor argues that the Service improperly changed his status from LWOP to AWOL because Covert never actually examined him before clearing him for duty. In response, the government claims that Covert’s report is “not directly relevant” because Service officials did not receive or rely on it, only the final medical assessment. Resp’t’s Br. 26-27. This assertion is suspect: the assess-ment cited Covert’s evaluation, and both the November 21, 2007 directive and the notice of proposed removal referred to the “medical evaluation by Dr. Charles Cov-ert.” Regardless, the Board found that Taylor never requested extra leave or provided evidence of illness for the period from November 26, 2007 to April 8, 2008. Decision at 9-10. Taylor does not dispute these facts. Under these circumstances, the Service had discretion to deny Taylor additional leave based on his failure to pro-vide requested documentation. See Washington v. Dep’t of Army, 813 F.2d 390, 393 (Fed. Cir. 1987) (affirming denial of LWOP where the employee failed to submit “material necessary to support her claim that she was incapacitated for work”). There was substantial evidence for the Board to conclude that Taylor was indeed absent without per-mission.
Taylor also claims that the Service denied him mini-mum due process because he never had an opportunity to rebut Covert’s report. To the contrary, Taylor received multiple opportunities to present documentation of con-tinuing illness both before and after the medical assess-ment. He claims that he believed that the doctor’s letter he submitted in July 2007 obviated the need for further documentation. However, the Service requested addi-tional medical evidence in September 2007 prior to order-ing the FFD examination. Taylor responded in writing (which shows that he received the letter) but never pro-vided the requested information. He also acknowledged receipt of the Service’s directive of November 21, 2007—which informed him of the medical assessment and or-dered him to report to work—but did not reply or request additional leave without pay. Taylor then attended an investigative interview with his Postmaster in February 2008 but did not offer new medical evidence. Decision at 7. Not until May 9, 2008 did Taylor supply another physician’s letter, when it was too late to respond to the notice of proposed removal.
As to the penalty of removal, the Board properly bal-anced the relevant Douglas factors. It credited Taylor’s fifteen years of service and clean disciplinary record, but noted testimony by Service officials that a letter carrier’s absence creates serious hardships, and that Taylor could not be rehabilitated. We discern no clear error in the Board’s review of the Service’s penalty. Cf. Law v. U.S. Postal Serv., 852 F.2d 1278, 1279 (Fed. Cir. 1988) (affirm-ing the Service’s removal of a mailhandler for “for irregu-lar attendance and for an instance of AWOL”).
For the foregoing reasons, the decision of the Board is affirmed.
AFFIRMED
COSTS
No costs.
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, legal cases, letter carriers, NALC, 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
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