Court: Postal Worker’s Vulgar Language is Sufficient Grounds for Removal
The U.S. Court of Appeals, Second Circuit, issued a startling decision on June 16, 2010, in Jeunes v. Potter. The Court upheld the removal of a postal employee who “admits that he used profanity during a verbal altercation with a co-worker on October 26, 2007, conduct clearly proscribed by the zero tolerance policy.” The Court based its decision upon Connecticut District’s version of the zero tolerance policy, which bans “any type of vulgar language which would lead to a hostile workplace.”
I respectfully disagree with the Court. The Connecticut District’s policy is an impermissively broad expansion of the Postal Service’s zero tolerance policy, originally set forth in the 1992 Joint Statement on Violence and Behavior in the Workplace. Due to a lack of consistency in the application of this policy, the Postal Service announced on May 24, 2007, in Postal Bulletin 22207, that it was “Clarifying the meaning of the Postal Service’s zero tolerance policy” in the revised Publication 108 Threat Assessment Team Guide. Vulgar language and profanity are not mentioned in either the Joint Statement or Publication 108.
Publication 108 states: “It is common for the term zero tolerance to be interpreted as resulting in a uniform and automatic response of dismissal for all reported incidents. Even though the meaning of zero tolerance is set out correctly in Postal Service policy, many employees focus on an absolutist interpretation without understanding the term in context….Discipline may be imposed, but it will be based on the nature and severity of the violation.”
Administrative Support Manual 315 prohibits subordinate organizational levels “clarifying,” supplementing (except as authorized in MI AS-310-78-3), or rewording policies or procedures from a higher level organization unless the instructions specifically direct or authorize this action. Postal districts that “clarify,” supplement or reword the national zero tolerance policy as expressed in the 1992 Joint Statement on Violence and Behavior in the Workplace should be challenged.
Don Cheney
Auburn WA
PUB 108 Threat Assessment Team Guide
1992 Joint Statement on Violence 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