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 National Reassessment Process Must Find Work For Injured Employees In Commuting Area
Filed under: Injured On Duty, mspb, nrp, postal, postal news, usps
More MSPB cases filed by Postal Workers were remanded during the month of October. The cases were remanded 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.
The Office of Personnel Management’s (OPM’s) regulations provide:
Agencies must make every effort to restore in the local commuting area, according to the circumstances in each case, an individual who has partially recovered from a compensable injury and who is able to return to limited duty. At a minimum, this would mean treating these employees substantially the same as other handicapped individuals under the Rehabilitation Act of 1973, as amended. 5 C.F.R. § 353.301(d).
The Board has interpreted this regulation as requiring agencies to search within the local commuting area for vacant positions to which an agency can restore a partially recovered employee and to consider her for any such vacancies. Sanchez v. U.S. Postal Service, 114 M.S.P.R. 345, ¶ 12 (2010); see Sapp v. U.S. Postal Service, 73 M.S.P.R. 189, 193-94 (1997); see also Urena v. U.S. Postal Service, 113 M.S.P.R. 6, ¶ 13 (2009) (evidence that the agency failed to search the local commuting area as required by 5 C.F.R. § 353.301(d) rendered nonfrivolous the appellant’s allegation that the agency acted arbitrarily and capriciously in denying restoration).
“For restoration rights purposes, 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.” Hicks v. U.S. Postal Service, 83 M.S.P.R. 599, ¶ 9 (1999). It includes any population center, or two or more neighboring ones, and the surrounding localities. Sapp, 73 M.S.P.R. at 193. The question of what constitutes a local commuting area is one of fact. The extent of a commuting area ordinarily is 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. Sanchez, 114 M.S.P.R. 345, ¶ 13.
Summary of MSPB cases on National Reassessment Process:
Appellant: Blanca G. Patino
Agency: United States Postal Service
Decision Number: 2010 MSPB 210
Docket Number: SF-0353-10-0183-I-1
Issuance Date: October 29, 2010
Appeal Type: Restoration to Duty
Action Type: Denial After Partial Recovery from Compensable Injury
In June 2009, the agency’s Bay-Valley District began implementation of Phase 2 of the National Reassessment Program (NRP). Under the NRP, the agency seeks to identify operationally necessary work for employees with compensable injuries. The Bay-Valley District undertook to identify operationally necessary tasks and assess employees on limited duty assignments for modified work assignments. On November 18, 2009, pursuant to the NRP, the agency provided the appellant a modified assignment as a Sales Associate for 3 hours a day. Starting December 17, 2009, the agency assigned the appellant to work 8 hours a day as a lobby host for the holiday season. *
The appellant filed an appeal alleging that the agency’s provision of only 3 hours of work was a rescission of her restoration to duty after a compensable injury and denial of reasonable accommodation. The agency filed a Motion to Dismiss the appeal for lack of jurisdiction. The administrative judge issued an initial decision granting the agency’s motion.
The appellant has filed a petition for review. Petition for Review (PFR) . She asserts that the administrative judge misstated her physical restrictions, did not consider the relevancy of the collective bargaining agreement, and erroneously found that the agency’s action was not arbitrary and capricious because she had been doing the same work since 2007. She further contends that the agency failed to search for work within a 50-mile radius and directed the offices to which it sent search requests to respond negatively
Although the initial decision states that “the agency submitted evidence that it searched for available work within the appellant’s medical restrictions in her commuting area,” it does not define the local commuting area relevant in the appellant’s restoration claim. Therefore, we are remanding the appeal for supplemental proceedings and issuance of a new initial decision. See Mubdi v. U.S. Postal Service, 114 M.S.P.R. 559, ¶ 12 (2010). On remand, the administrative judge shall oversee further development of the record by the parties on this issue, including an opportunity for discovery by the parties and a hearing. Id.; see Sanchez, 114 M.S.P.R. 345, ¶ 15; Sapp, 73 M.S.P.R. at 193-94 (remanding the appeal for further development of the record on what constituted the local commuting area and whether the agency’s job search properly encompassed that area). Read more
Postal Supervisor Must Work in a “Congenial Environment”
The MSPB denied restoration to a postal supervisor in part because he was drawing workers’ compensation. ECAB ruled he was entitled to draw workers’ compensation because the Postal Service wouldn’t restore him to duty in the local commuting area where he lived. The appellant had a psychological condition related to derogatory comments that Rochester P&DC employees had made about his fiancée. His only work restriction was that he must work in a congenial environment away from the Rochester P&DC.
Background:
The appellant was an EAS-17 Supervisor of Distribution Operations at the agency’s Rochester, New York Processing and Distribution Center (P&DC). On December 14, 2002, the appellant began suffering from a psychological condition related to derogatory comments that Rochester P&DC employees had made about his fiancée. The appellant absented himself from work, and the Office of Workers’ Compensation Programs (OWCP) ruled the condition compensable. The appellant moved to Fort Myers, Florida, in early 2004. It is undisputed that the appellant is capable of performing the full range of duties of his position in a location other than the Rochester P&DC; the only work restriction that the appellant has is that he must work in a congenial environment away from the Rochester P&DC.
On February 3, 2004, the agency offered the appellant an EAS-17 Supervisor of District Operations position at the Utica, New York P&DC. The appellant declined the job offer and OWCP terminated his benefits. The appellant appealed the decision to the Employees’ Compensation Appeals Board (ECAB), which reversed OWCP’s decision and reinstated the appellant’s benefits. The ECAB found that the agency was aware that the appellant was in the process of relocating to Fort Myers when it offered him the position in Utica, and that the agency was therefore obligated to find him suitable employment in the Fort Myers area, if possible.
We acknowledge a disparity between OPM’s restoration regulations at 5 C.F.R. § 353.301(d) and the Department of Labor’s (DOL) regulations at 20 C.F.R. § 10.508 regarding a compensably injured employee’s return to work. As explained above, 5 C.F.R. § 353.301(d) requires an agency only to attempt to restore a partially recovered individual within the former local commuting area. However, as the ECAB found in the appellant’s workers’ compensation appeal, 20 C.F.R. § 10.508 states that “[i]f possible, the employer should offer suitable reemployment in the location where the employee currently resides.”
Paul Dean vs US Postal ServiceRestoration MSPB vs OWCP2010 MSPB 187
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.
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.