postalnews blog

WASHINGTON, Dec. 10 — The Merit Systems Protection Board issued the following decision:

Lawson A. Rose,

Appellant,

v.

United States Postal Service,

Agency.

Lawson A. Rose, Westmont, Illinois, pro se.

Maryl R. Rosen, Esquire, Chicago, Illinois, for the agency.

BEFORE

Neil A. G. McPhie, Chairman

Mary M. Rose, Vice Chairman

Barbara J. Sapin, Member

OPINION AND ORDER

Para 1 The appellant has filed a petition for review (PFR) of the initial decision (ID) that affirmed his removal. We DENY the petition because it does not meet the criteria for review set forth at 5 C.F.R. Sect. 1201.115. We REOPEN this case on our own motion under 5 C.F.R. Sect. 1201.118, however, and AFFIRM the ID as MODIFIED by this Opinion and Order with respect to the merits of the charge, still SUSTAINING the appellant’s removal.

BACKGROUND

Para 2 Effective January 31, 2007, the agency removed the appellant from his position as a preference-eligible PS-4 Regular Mail Handler with the agency’s Cardiss Collins Postal Facility (Cardiss Collins) in Chicago, Illinois, based on a charge of Unacceptable Conduct/Violent and Threatening Behavior Towards Co- Workers. Initial Appeal File (IAF), Tab 7, Subtab 4 at 2, Subtab 4B at 1, 3. The agency based its charge on a November 5, 2006 incident in which the appellant went to Cardiss Collins’s attendance control office and allegedly shouted at Mail Processor Clerks Janice Dean and Roslyn Oliver, “Give me my [time] card before I blow your brains out.” Id., Subtab 4D at 1. After Ms. Dean and Ms. Oliver informed him that his card was not in the office, the appellant left the office, then returned about ten minutes later and allegedly acted as though he was “holding a machine gun/firearm and making machine gun sounds while pointing at Ms. Dean and Ms. Oliver.” Id. He then allegedly laughed and walked away. Id.

Para 3 The appellant appealed his removal to the Board and requested a hearing. IAF, Tab 1. He denied threatening anyone and argued that the agency’s action was taken in retaliation for his prior equal employment opportunity (EEO) activity. Id. at 3, Tab 12 at 3. The administrative judge (AJ) apprised the appellant of the burden and elements of proof as to his affirmative defense. IAF, Tab 12 at 3.

Para 4 After a hearing, the AJ issued an ID affirming the agency’s action. IAF, Tab 15 (ID). The AJ found that the agency proved its charge by preponderant evidence, ID at 3-14, that the action promotes the efficiency of the service, ID at 15, and that the penalty of removal is reasonable, ID at 15-18. The AJ further found that the appellant failed to prove his affirmative defense. ID at 14-15.

Para 5 The appellant has filed a PFR in which he asks the Board to consider documents that he filed in another Board appeal. Petition for Review File (PFRF), Tab 1 at 6. On review, the appellant disputes the merits of the charge and the penalty and appears to reassert his affirmative defense. PFRF, Tab 1. The agency has filed a response in opposition to the petition. PFRF, Tab 7. The appellant has filed a reply to the agency’s response. PFRF, Tab 8. We have not considered the reply because the appellant submitted it after the record closed on review and he has not shown that it contains evidence not readily available before the record closed. See 5 C.F.R. Sect. 1201.114(i); Greenough v. Department of the Army, 73 M.S.P.R. 648, 651, review dismissed, 119 F.3d 14 (Fed. Cir. 1997) (Table).

The rest of the document can be viewed at: http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=303163&version=303526&application=ACROBAT .

This document has footnotes and they may be found at the following URL: http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=303163&version=303526&application=ACROBAT .