MSPB: An Appellant Is Held Responsible For Errors By Representative
From the Merit Systems Protection Board:
The [MSPB] Board’s regulations allow parties wide discretion in choosing their representatives, subject only to disqualification for conflict of interest or position. Apart from those bases for disqualification, the appellant’s choice of representative is personal to her, and she may choose to be represented by an attorney or a non-attorney, at her discretion. Notwithstanding the choice, however, she remains responsible for the actions or inactions of her chosen representative and cannot avoid the consequences of her choice. Thus, any inexperience with legal matters and unfamiliarity with Board procedures on Szeredy’s part similarly do not warrant waiving the filing deadline. In that regard, the appellant has not asserted that she actively monitored her appeal, but that Szeredy thwarted her diligent efforts to pursue her appeal. Thus, she is responsible for any errors by [Debby] Szeredy in failing to file a timely PFR[petition for review].
Debby Szeredy is a candidate for APWU Clerk Division Director.
source: Carla I aGreca vs U.S.Postal Service
MSPB: USPS National Reassessment Process Has Procedural Flaws
John P. Sanchez v. U.S. Postal Service
Appeal Type: Restoration to Duty
Decision Number: 2010 MSPB 121
Issuance Date: June 25, 2010
The appellant is a non-preference eligible Mail Processing Clerk who sustained a work-related injury in 1992, and thereafter worked in a series of limited duty assignments. In 2009, as part of its National Reassessment Process (NRP) Program, the agency reviewed the assignments of those performing limited duty to ensure that they are consistent with employees’ medical restrictions and contain only “operationally necessary tasks.” If a limited duty assignment does not meet these criteria, and if the supervisor or manager is unable to identify operationally necessary tasks available with the employee’s work restrictions, the employee will be sent home until such work becomes available or his medical restrictions change.
In April 2009, the agency issued the appellant a letter stating that, because there was no operationally necessary work within his medical restrictions available at his workplace, he should not report again for duty unless he was informed that such work had become available. The agency later expanded its search for alternative positions beyond his tour of duty and current facility, but still found that none were available. On appeal to the Board, the appellant contended that the agency improperly denied him restoration and failed to accommodate his medical condition, and that he had been constructively suspended.
Under 5 C.F.R. § 353.301(d), agencies must make efforts to restore partially recovered employees “in the local commuting area.” The local commuting area is the geographic area in which an individual lives and can reasonably be expected to travel back and forth daily to his usual duty station. The question of what constitutes a local commuting area is one of fact, which is ordinarily determined by factors such as common practice, the availability and cost of public transportation or the convenience and adequacy of highways, and the travel time required to go to and from work. Because the agency’s search for available work was apparently limited to a single district, whether the agency searched the entire commuting area remains an unanswered question of material fact, which must be explored on remand.
In response to the administrative judge’s order on timeliness, the appellant made unrebutted allegations that he failed to timely file because the agency did not notify him of his Board appeal rights when it discontinued his limited duty assignment. The record corroborates the appellant’s allegation inasmuch as the agency’s notice to the appellant regarding the discontinuation of his limited duty assignment does not provide notice of Board appeal rights. Because the agency was required by regulation to notify the appellant of his Board appeal rights when it discontinued his limited duty assignment, the untimeliness of the appeal may be excused if the agency failed to give the appellant the required notice and the appellant acted diligently in filing his appeal after he actually learned of his appeal rights.
‘National Reassessment Process’ Must Search Entire Commuting Area
MSPB remanded three more USPS cases yesterday, because the Postal Service’s job search under the National Reassessment Process was limited to installations within a single district and failed to include the entire commuting area as required by 5 C.F.R. § 353.301(d). Each decision cited Sanchez v. USPS, 2010 MSPB 121.
Jul 01, 2010 2010 MSPB 124Patricia L. Luna U.S. Postal Service
Jul 01, 2010 2010 MSPB 125 Adelaido Vazquez U.S. Postal Service
Jul 01, 2010 2010 MSPB 126 Lydia T. Chang U.S. Postal Service
MSPB Threatens To Withhold Postal Official’s Pay Until USPS Compliance With Order
Appellant: Reginald B. Day
Agency: United States Postal Service
Decision Number: 2010 MSPB 63
Docket Number: AT-0752-09-0163-X-1
Issuance Date: April 13, 2010
Appeal Type: Adverse Action by Agency
Action Type: Constructive Adverse Action
Compliance
This case was before the Board pursuant to a recommendation of the administrative judge that the Board grant the appellant’s petition for enforcement (PFE) and enforce the terms of a final Board order. In the underlying appeal, the judge found that the agency’s placement of the appellant on enforced leave for more than 14 days constituted a constructive suspension. The judge reversed the agency action and ordered the agency to provide the appellant with back pay. The appellant later filed a PFE stating that the agency had failed to pay him back pay for the constructive suspension period. The agency argued that the appellant was not entitled to back pay for the period in question because he was not ready, willing, and able to work during the period. The administrative judge found the agency’s argument without merit and that the appellant was entitled to back pay. Accordingly, the judge recommended that the appellant’s PFE be granted, and the matter was referred to the Board. In his compliance recommendation, the judge informed the agency that, if it agreed with the recommendation, it had 15 days to submit to the Clerk of the Board evidence of its compliance, and that, if it decided not to take the actions required by the compliance recommendation, it had 30 days to file written arguments supporting its disagreement with the recommendation. The Clerk of the Board reiterated this information in an acknowledgment order. Despite the instructions of the compliance recommendation and the acknowledgment order, the agency has failed to inform the Clerk of the Board whether it agrees or disagrees with the compliance recommendation.
Holdings: The Board found the agency in noncompliance and ordered it to submit evidence and argument demonstrating compliance. The Board also identified the agency official responsible for compliance and stated that, if the agency fails to demonstrate compliance, the Board may seek the withholding of the responsible agency official’s pay until the agency demonstrates compliance.
From the full decision:
As set forth above, the agency has failed to demonstrate compliance with the Board’s final order in this matter. In the July 15, 2009 order acknowledging receipt of the appellant’s petition for enforcement, the administrative judge ordered the agency to submit the name of the official responsible for compliance with the March 12, 2009 order. CF, Tab 2 at 2. The administrative judge repeated that instruction in the November 3, 2009 compliance recommendation. CF, Tab 6 at 6. The agency has failed to identify the official responsible for compliance.
Accordingly, we have determined that Linda J Welch, Acting Vice President, Southeast Area Operations, is the agency official responsible for compliance. If the agency fails to demonstrate compliance, the Board may seek the withholding of the responsible agency official’s pay until the agency demonstrates compliance.
ORDER
The agency is ordered to file evidence and argument demonstrating compliance with the Board’s final order in this case and shall support its assertions of compliance with clear and understandable documentary evidence.
If the agency fails to demonstrate compliance, the responsible agency official may be ordered to appear before the General Counsel of the Merit Systems Protection Board to show cause why the Board should not seek the withholding of her pay pursuant to 5 U.S.C. § 1204(e)(2)(a).
Appeals Court Upholds Demotion of Postal Supervisor For Unacceptable Conduct
Mr. (Eligido) Galino worked as a Supervisor, Customer Service, EAS-17 for the United States Postal Service (USPS) in Sacramento, California. On August 12, 2008, an incident occurred between Window Clerk Jeannine Teefey and Mr. Galino, her supervisor. Later that day, Ms. Teefey sought to discuss this incident with Anderson English, a manager. The three individuals met in Mr. English’s office, along with fellow Supervisor Audrey Simmons and Window Clerk Michelle Randle-Cisco. At the meeting, Mr. Galino yelled, pointed his finger at Ms. Teefey, and blocked Ms. Teefey’s attempt to leave the office. Although Mr. Galino denies that he blocked Ms. Teefey, an administrative judge (AJ) credited Ms. Teefey’s account over that of Mr. Galino.
Robbie Halverson, an Associate Supervisor seated about twenty feet from Mr. English’s office, heard the yelling and knocked on the office door. When the door opened, Ms. Simmons told Mr. Galino to leave, and Mr. Galino left the office. Again, Mr. Galino denies that he was asked to leave the office and further maintains that he immediately left the building. According to the account accepted by the AJ, however, Mr. Galino cursed and kicked the wall, and Ms. Simmons and Mr. Halverson then told Mr. Galino to go outside. Both Ms. Simmons and Mr. Galino went outside, after which others either heard or saw Mr. Galino yell and slam something. Mr. English sent Mr. Galino home for the day, and Mr. Galino was placed on administrative leave.
After conducting interviews and collecting written statements by witnesses, Mr. English proposed that Mr. Galino be demoted from Supervisor, Customer Service, to Part Time Flexible City Carrier. Mr. English based this decision on the charge of “Unacceptable Conduct / Violation of the Joint Statement on Violence and Behavior in the Workplace / Failure to Follow Instructions,” as well as violations of a Zero Tolerance Policy Statement and various provisions of the Employee Labor Manual (ELM). Mr. Galino responded orally on November 21, 2008, with the assistance of his representative, Robert Di Paolo. On December 4, 2008, Tim Padden, Postmaster, Sacramento District, sustained the proposed demotion and the charge of Unacceptable Conduct. Mr. Padden did not sustain the other charges because, according to Mr. Padden, “each of the charges in the Notice are [sic] based upon the same set of facts and I have decided that the charge of ‘unacceptable conduct’ best reflects the facts as stated in the Notice.” The demotion became effective on December 13, 2008.
In an initial decision, the AJ sustained the charge of Unacceptable Conduct because Mr. Galino “did not dispute the most significant allegations, such as yelling at Ms. Teefey, using profanity on at least one occasion, and continuing his outburst outside. As to many other allegations, [Mr. Galino] simply testified that he did not remember engaging in the misconduct.” Galino v. U.S. Postal Serv., No. SF-0752-09-0190-I-1, slip op. at 10 (M.S.P.B. June 1, 2009). In reviewing the penalty, the AJ found that a nexus exists between the charged conduct and the efficiency of the service. The AJ further found that USPS weighed the relevant factors, see Douglas v. Veterans Admin., 5 M.S.P.R. 280, 305–06 (1981), and that—in light of these factors—demotion to Part Time Flexible Carrier was reasonable. The AJ’s initial decision became final after the Board denied Mr. Galino’s petition for review. See Galino v. U.S. Postal Serv., No. SF0752-09-0190-I-1 (M.S.P.B. Aug. 21, 2009).
DISCUSSION
Mr. Galino appeals from the Board’s final decision, and we have jurisdiction under 28 U.S.C. § 1295(a)(9). We must affirm the Board’s decision unless it is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c). “It is well-established that selecting the penalty for employee misconduct is left to the agency’s discretion.”
Webster v. Dep’t of the Army, 911 F.2d 679, 685 (Fed. Cir. 1990). And we “will normally defer to the administrative judgment unless the penalty exceeds the range of permissible punishments specified by statute or regulation, or unless the penalty is so harsh and unconscionably disproportionate to the offense that it amounts to an abuse of discretion.” Villela v. Dep’t of the Air Force, 727 F.2d 1574, 1576 (Fed. Cir. 1984) (internal quotation marks omitted).
On appeal, Mr. Galino argues that USPS and the Board failed to consider mitigating factors, such as past disciplinary record, whether the demotion penalty is consistent with penalties for similar conduct, and provocation. As an initial matter, we note that “[i]t is not reversible error if the Board fails expressly to discuss all of the Douglas factors. The Board need only determine that the agency considered the factors significant to the particular case.” Kumferman v. Dep’t of the Navy, 785 F.2d 286, 291 (Fed. Cir. 1986) (internal citation omitted). In this case, Mr. Padden stated that he was aware of the Douglas factors and that he “conscientiously considered all of those relevant factors which were applicable to [Mr. Galino’s] case.” Furthermore, Mr. Padden acknowledged Mr. Galino’s eleven years of service, time spent in the supervisor position, and lack of prior discipline. According to Mr. Padden, however, the demotion “is consistent with other actions taken for the same or similar offenses.” The Board also considered relevant Douglas factors, and Mr. Padden’s analysis of these factors.1 Moreover, the Board expressly rejected Mr. Galino’s claim that Ms. Teefey provoked him on August 12, 2008 and further explained that, even if Mr. Galino’s account were true, Mr. Galino’s reaction was “far out of proportion.” We also understand Mr. Galino to argue that an alleged pattern of provocation by Ms. Teefey was not considered. Such a pattern is not supported by the record though, and it is clear that the Board credited Ms. Teefey’s testimony over the testimony of Mr. Galino. In sum, we reject Mr. Galino’s argument with respect to consideration of mitigating factors.
1 We reject Mr. Galino’s assertion that the Board failed to consider whether USPS considered mitigating factors. See Galino v. U.S. Postal Serv., No. SF-0752-09-0190-I-1, slip op. at 13 (M.S.P.B. June 1, 2009) (“I see no reason to disturb Mr. Padden’s conclusions, and I find that he considered relevant Douglas factors.”).
Mr. Galino also contends that the demotion penalty was unwarranted, beyond the bounds of reasonableness, and disparate treatment in violation of the Fifth Amendment. For example, Mr. Galino maintains that two supervisors in the Sacramento District retained their positions after one allegedly hit an employee and another allegedly hit an employee and used a racial epithet. The AJ rejected Mr. Galino’s argument because “the comparative employees Mr. DiPaulo is proposing to testify about are not sufficiently similar to [Mr. Galino], and one incident occurred 8 years ago and it is not known when the other incident occurred.” Mr. Galino does not address these statements by the AJ and thus fails to demonstrate disparate treatment. Moreover, Mr. Galino does not otherwise establish that his demotion was “so harsh and unconscionably disproportionate to the offense that it amounts to an abuse of discretion.” Villela, 727 F.2d at 1576.
Lastly, Mr. Galino argues that he was denied due process. According to Mr. Galino, “the AJ considered testimony towards elements and specifications not actually listed in the charge so that [Mr. Galino] did not have meaningful notice sufficiently specific of what [Mr. Galino] needed to defend against before the hearing began.” Mr. Galino maintains that only his conduct directed at Ms. Teefey on August 12, 2008—and, for example, not his conduct after the meeting on that day—should have been considered. We reject Mr. Galino’s argument because, among other things, the Notice of Proposed Adverse Action describes Mr. Galino’s conduct both inside and outside Mr. English’s office.
CONCLUSION
For the foregoing reasons, and because we conclude that Mr. Galino’s remaining arguments are without merit, we affirm the final decision of the Board affirming Mr. Galino’s demotion.
http://www.cafc.uscourts.gov/opinions/10-3024.pdf
Postal Employee Gets 30-day Suspension for Hatch Act Violation
Mikki DeWitt is a Rural Carrier Associate in Ewen, MI 49925. The normal penalty for violation of the Hatch Act is removal.
UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD
2010 MSPB 59
Docket No. CB-1216-09-0021-T-1
Special Counsel,
Petitioner,
v.
Mikki DeWitt,
Respondent.
March 30, 2010
Erica S. Hamrick, Esquire, Washington, D.C., for the petitioner.
Nicole Eldredge, Esquire, Washington, D.C., for the petitioner.
Mikki DeWitt, Trout Creek, Michigan, pro se.
BEFORE
Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mary M. Rose, Member
FINAL DECISION AND ORDER
The parties filed a Joint Settlement Agreement with the administrative law judge that was signed by the petitioner on November 12, 2009, and by the respondent on November 13, 2009. The administrative law judge recommended that the Board accept and approve the parties’ Joint Settlement Agreement and impose a 30-day suspension without pay upon the respondent rather than removal. For the reasons stated below, we ADOPT the administrative law judge’s recommendation, and APPROVE the Joint Settlement Agreement. The respondent’s employing agency is ORDERED to SUSPEND the respondent without pay for a period of 30 days.
BACKGROUND
This case is before the Board on a complaint filed by the Special Counsel against the respondent. The complaint charged the respondent with engaging in prohibited political activity in violation of the Hatch Act, specifically, 5 U.S.C. § 7323(a)(3) and 5 C.F.R. § 734.304, by being a candidate for election to a partisan political office. Complaint File
On November 13, 2009, the parties filed a Joint Motion for Approval of Settlement and Settlement Agreement. CF, Tab 18. In the Settlement Agreement, the parties agreed that, at all relevant times, the respondent was an employee of the U.S. Postal Service and was covered by the Hatch Act, and a factual basis exists for the Board to find a violation of 5 U.S.C. § 7323(a)(3) because, in 2008, the respondent ran for Township Clerk in Michigan as a Democratic Party candidate in both the primary and general elections and was elected. Id. The parties also agreed that, as mitigating factors, the respondent was the only candidate in the 2008 election for Township Clerk, had a passive candidacy in 2008 for Township Clerk, resigned from elected office once notified by Special Counsel that it was investigating allegations that her candidacy violated the Hatch Act, and has an unblemished record during her over 10 years of service with the Postal Service. The parties agreed that the appropriate penalty is a suspension without pay for 30 consecutive calendar days.
In a Recommended Decision, Administrative Law Judge Arthur J. Amchan, pursuant to 5 C.F.R. §§ 1201.125(c)(1) and 1201.126(c),* found that the Board * 5 C.F.R. § 1201.125(c)(1) provides that “[i]n a Special Counsel complaint seeking disciplinary action against a Federal . . . government employee for a violation of 5 U.S.C. § 7323 . . ., where the administrative law judge finds that the violation does not warrant removal, the administrative law judge will issue a recommended decision to the Board in accordance with 5 U.S.C. § 557.” Emphasis supplied. Similarly, 5 C.F.R. has jurisdiction over this case under 5 U.S.C. §§ 1215 and 1216, that the agreement was freely entered into by the parties, and that it was lawful on its face. CF, Tab 19. He further found that the stipulated mitigating factors warranted a penalty less than removal, specifically, a 30-day suspension. Id. He thus recommended that the Board grant the parties’ joint motion, impose a 30-day suspension, and accept the settlement agreement into the record for enforcement purposes. Id. Neither party has filed exceptions to the Recommended Decision.
ANALYSIS
The Board has jurisdiction over this case under 5 U.S.C. §§ 1215(a) and 1216(a)(1). Under 5 U.S.C. § 7323(a)(3), a federal employee may not “run . . . as a candidate for election to a partisan political office.” The Board must order the removal of an employee found to have violated section 7323, unless it finds by unanimous vote that the violation does not warrant removal. 5 U.S.C. § 7326. In the latter case, the Board must order a “suspension without pay” for “not less than 30 days.”
We ADOPT the administrative law judge’s Recommended Decision, including specifically his findings that strong mitigating factors exist here and that the parties understood the terms of the agreement, the agreement is lawful on its face, and the parties freely entered into it. As noted, the administrative law judge found that the following stipulated facts were mitigating circumstances, i.e., that respondent was the only candidate in the 2008 election for Township Clerk, she had a passive candidacy in 2008 for Township Clerk, she resigned from elected office once notified by Special Counsel that it was investigating allegations that her candidacy violated the Hatch Act, and she has an unblemished record during her over 10 years of service with the Postal Service. See Brown v. § 1201.126(c) provides that “[i]f the administrative law judge finds a violation of 5 U.S.C. § 7323 . . . and determines that removal is not warranted, the judge will issue a recommended decision . . . .” Emphasis supplied.
Office of Personnel Management, 112 M.S.P.R. 621, ¶¶ 3-4 (2009) (acceptance of settlement agreement into the record for enforcement purposes was appropriate, where agreement was lawful on its face, parties freely entered into it, and subject matter of the appeal was within the Board’s jurisdiction under jurisdictional statute and regulation); Special Counsel v. Purnell, 37 M.S.P.R. 184, 200 (1988) (in considering whether removal is warranted, the Board looks to the seriousness of the violation, considering all aggravating and mitigating factors that bear upon the seriousness of the violation; these factors include: (1) the nature of the offense and the extent of the employee’s participation; (2) the employee’s motive and intent; (3) whether the employee had received the advice of counsel regarding the activities at issue; (4) whether the employee ceased the activities at issue; (5) the employee’s past employment record; and (6) the political coloring of the employee’s activities), aff’d sub nom. Fela v. Merit Systems Protection Board, 730 F. Supp 779 (N.D. Ohio 1989).
We find that the agreed to and admitted facts in the settlement establish that the appellant violated 5 U.S.C. § 7323. CF, Tab 18; see 5 C.F.R. § 1201.126(c). We also find unanimously that the penalty of removal is not warranted in this case and that a 30-day suspension without pay is appropriate. See Special Counsel v. Walker, 67 M.S.P.R. 271, 272 (1995); Special Counsel v. Harkins, 60 M.S.P.R. 646, 648 (1994); Special Counsel v. Smith, 60 M.S.P.R. 176, 177 (1993); cf. Special Counsel v. Baker, 69 M.S.P.R. 36, 39-40 (1995) (the Board refused to accept the parties’ settlement agreement providing for a 90-day suspension for the respondent’s violation of the Hatch Act in 1993, where there were no stipulations regarding any mitigating factors other than her “unblemished” employment record since 1992); Special Counsel v. Bradford, 62 M.S.P.R. 239, 240-41 (1994) (the Board refused to accept the parties’ settlement agreement providing for a 90-day suspension where the agreement would allow the respondent to retain both her federal government job and her elected partisan office), modified on recons. on other grounds, 69 M.S.P.R. 247 (1995). Thus, we find that dismissal of the petitioner’s complaint for disciplinary action with prejudice to refiling is appropriate under these circumstances, and we accept the settlement agreement into the record for enforcement purposes.
ORDER
Accordingly, we ORDER the U.S. Postal Service to suspend the respondent without pay for 30 consecutive calendar days. We ORDER the Office of Special Counsel to notify the Board within 30 days of this Opinion and Order whether the respondent has been suspended as ordered. This is the final decision of the Merit Systems Protection Board in this matter. Title 5 of the Code of Federal Regulations, sections 1201.125(c)(5) and 1201.126(c).
http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=487824&version=489176&application=ACROBAT
Postal Clerk Waived Appeal Rights So MSPB Upholds Removal
The following is a summary of the decision- click here to read the entire case.
PR note: This case illustrates why employees must be very careful when entering into Last Chance Agreements:
Appellant: Gary Donnell Rhett
Agency: United States Postal Service
Decision Number: 2010 MSPB 21
Docket Number: AT-0752-09-0408-I-1; AT-0752-09-0484-I-1
Issuance Date: January 27, 2010
Appeal Type: Adverse Action by Agency
Action Type: Removal
The appellant petitioned for review of two initial decisions that dismissed his appeals for lack of adverse action jurisdiction. Effective September 5, 2008, the agency removed the appellant from his position based on alleged attendance-related misconduct. While a grievance of that action was pending, the parties entered into a last?chance settlement agreement (LCSA), under which the appellant returned to work. The LCSA also provided that the appellant could be removed for any attendance-related misconduct for a period of 18 months, and that he waived his right to appeal to the Board for any action taken for such misconduct. During the 18-month period, the agency removed the appellant from his position for his alleged breach of the LCSA. The appellant filed appeals of both removal actions. As to the first removal, the administrative judge considered and rejected the appellant’s arguments that the LCSA was invalid, and found that the appellant could not appeal this removal because he had settled it without expressly reserving his right to file a Board appeal of the action. As to the second removal, the administrative judge again found that the LCSA was valid and enforceable, that the appellant breached the agreement when he was absent from work on 5 occasions, and that the appellant could not appeal the second removal because he had waived his appeal rights in the LCSA.
Holdings: The Board denied the appellant’s PFR, reopened the appeals on its own motion, and affirmed the initial decisions as modified, still dismissing both appeals for lack of adverse action jurisdiction. In agreeing with the administrative judge’s conclusion that the last-chance settlement agreement was valid, the Board noted that the agency had failed to inform the appellant in connection with the first removal action that, as a preference-eligible employee, he had the right to appeal his removal to the Board. The record showed, however, that the appellant knew or should have known that may have had Board appeal rights at the time he entered into the agreement.
The last-chance settlement agreement further provided:
I, [the appellant], have read and understand the conditions and restrictions set forth in the above agreement. I am mentally and physically fit so as to be able to understand this agreement in its entirety. . . . I know and understand that I have waived my appeal rights through any and all forums and avenues, including, but not limited to, the Merit Systems Protection Board, . . . for any removal action initiated against me for violation of this last chance agreement during this two-year period.
Appeals Court Upholds Demotion of California Postmaster
Robert Di Paolo appeals a decision of the Merit Systems Protection Board (“MSPB” or “Board”) sustaining his demotion from the position of Postmaster to Supervisor in the Lincoln Post Office, Sacramento District, Pacific Area. The demotion was based on four charges: (1) inappropriate stamp purchases, (2) receipt of alcohol on postal property, (3) failure to follow instructions, and (4) inappropriate use of information technology.
In his brief to this court, Mr. Di Paolo raises several challenges to each of the four charges. Although some of Mr. Di Paolo’s arguments are persuasive as to the severity of each charge individually, they do not refute the administrative judge’s ultimate conclusion that all four charges, when considered together, justify the penalty imposed. Because the penalty imposed was demotion, as opposed to removal from service, the U.S. Postal Service (“USPS”) need not show that Mr. Di Paolo was unfit to serve or supervise. The USPS need only show that the totality of the four charges establishes that Mr. Di Paolo’s performance did not comport with the exemplary level of responsibility associated with the position of Postmaster. Because the USPS met this burden, we agree that Mr. Di Paolo’s demotion promotes the efficiency of the service. We therefore affirm the decision of the MSPB.
US Court of Appeals For the Federal Circuit
Mr. Di Paolo has served in the USPS for over twenty-eight years. He acquired the position of EAS-21 Postmaster of the Lincoln Post Office in 2005. After around two years of service as Postmaster, Mr. Di Paolo was demoted to EAS-17 Supervisor of Computerized Forwarding Operations Services. Mr. Di Paolo challenged this adverse action before an administrative judge. Although the administrative judge accepted some of Mr. Di Paolo’s arguments, he sustained at least in part the four charges against Mr. Di Paolo and found that demotion was an appropriate penalty. Mr. Di Paolo then petitioned for review before the MSPB. The Board agreed with the administrative judge and affirmed the USPS action. Mr. Di Paolo now appeals to this court. We have jurisdiction over the appeals from the MSPB pursuant to 5 U.S.C. § 7703. 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