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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.

NELS T. BECK,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
Petition for review of the Merit Systems Protection Board in
CH0752070525-I-1

DECIDED: September 9, 2008

Before RADER, CLEVENGER, and DYK, Circuit Judges.
PER CURIAM.

Nels T. Beck seeks review of the final decision of the Merit Systems Protection Board (“Board”) sustaining the decision of the United States Postal Service (“agency”) to remove him from his position of Rural Carrier at the agency’s Waterloo, Iowa facility. Beck v. U.S. Postal Service, No. CH0752070525-I-1 (January 24, 2008). We affirm.

I

Mr. Beck was involved in an automobile accident on February 12, 2007, while delivering mail on his rural route. Mr. Beck ran a stop sign and hit a vehicle driving through the intersection. The driver of the other vehicle was thrown from it, and the passenger had to be pried out by the fire department. Mr. Beck was injured.

The agency proposed his removal as a result of his negligent driving which resulted in the accident. Mr. Beck did not contest the fact that he had caused the accident. He argued for mitigation of the penalty to something less than removal. The agency’s deciding official considered the Douglas factors in assessing Mr. Beck’s request for mitigation. The deciding official rejected Mr. Beck’s argument that he was not to blame for the accident, due to his driving a substitute vehicle with which he was not familiar, and the light conditions which he asserted kept him from recognizing the ice upon which he was driving. Because the offense was serious, and because Mr. Beck had previously been disciplined for unsafe driving, the agency determined that removal was the appropriate penalty. No lesser penalty would be proper, as there was no indication that some other sanction would deter such unsafe acts in the future.

II

Mr. Beck appealed his removal to the Board. The administrative judge assigned to his case held a hearing at which Mr. Beck and the deciding official testified. Mr. Beck did not deny that he failed to observe safe driving practices. He repeated his reasons for a lesser penalty. The administrative judge found convincing the testimony of the deciding official that Mr. Beck posed a distinct liability to the agency, and was not a good candidate for rehabilitation. The administrative judge reviewed the deciding official’s assessment of the Douglas factors and concluded that the agency had demonstrated that removal was appropriate.

Mr. Beck sought review of the administrative judge’s initial decision by the full Board. The full Board declined his petition for review, and Mr. Beck timely sought review in this court.

III

We must affirm the final decision of the Board unless we determine that it is arbitrary, capricious, an abuse of discretion or otherwise unlawful. 5 U.S.C. § 7703(c). When the final decision of the Board rests on findings of fact, we review those findings for substantial evidence.

In this case, there is no dispute as to the facts. Mr. Beck repeats his contention that removal was an excessive penalty, and he argues that his previous discipline for unsafe driving should not be considered in assessing the penalty for the February 2007 collision because that discipline was under grievance procedures when the deciding official proposed his removal.

On the propriety of the removal penalty, the issue boils down to whether the deciding official’s assessment of the Douglas factors amounts to reversible error. We perceive no error in the agency’s decision to remove Mr. Beck. Furthermore, we find no error in the agency’s reference to his earlier unsafe driving event. The Supreme Court has ruled that when considering the appropriate penalty for an offense, an agency may refer to other previous disciplined offenses even though they are under grievance when the agency is considering the appropriate penalty. Gregory v. U.S. Postal Serv., 534 U.S. 1 (2001).

Because the Board’s decision is not arbitrary, capricious, an abuse of discretion, or otherwise unlawful, we affirm.

JUDY C. TEXEIRA, Petitioner, V. UNITED STATES POSTAL SERVICE, Respondent.

Petition for Review from the Merit Systems Protection Board in 5F0752060072-l-2
DECIDED: February 28, 2008

Before BRYSON and MOORE, Circuit Judges, and WOLLE, Senior District Judge.* PER CURIAM.

DECISION

Judy Texeira (Texeira) appeals from the decision of the Merit Systems Protection Board (Board), Docket No. 5F0752060072-I-2, that upheld her demotion by the United States Postal Service (agency) from her position of EAS-1 7 customer services supervisor at the Modesto Main Post Office to a part-time entry level position at the Post Office in Ripon, California. Texeira contends the Board erred in two respects. First, she contends the Board should not have split a single charge against her, enabling the Board to dismiss one charge but discipline her on a second lesser charge. Second, Texeira contends the Board imposed excessive punishment for the separate charge. We conclude the Board properly considered two charges, dismissing the more serious but upholding the lesser charge of timekeeping irregularity. We vacate the penalty on the lesser charge and remand this case to the Board to impose discipline that considers only Texeira’s conduct that proved the less serious charge.

BACKGROUND

In January of 2005, Texeira was supervisor of five window clerks and several floor clerks, and she was also finance supervisor at the Modesto Main Post Office. She had been a supervisor for about seven years, a postal employee for about nineteen years, and had no prior record of misconduct. On January 26, however, Texeira incorrectly posted 160 hours of annual leave for an employee she was supervising. The employee had not yet earned the leave, never earned it, and later returned the leave pay to the agency. When the agency learned about and investigated Texeira’s incorrect timekeeping entry, the manager of customer service at the Modesto Main Post Office served her with a notice of removal from federal service. The initial charge was a simple statement that she had incorrectly posted the unearned leave for an employee she was supervising. That notice of removal was revised on August 2, 2005 with a more detailed description of the conduct involved in her incorrect posting of annual leave, including a listing of several Postal Service rules and regulations that she allegedly had violated.

The notice stated: “Charge: Unacceptable Conduct: Falsification in Recording Time/Failure to Follow Proper Timekeeping Procedures.” When Texeira protested, the agency selected as its decisionmaker on the matter Richard Sarno, Human Resources Manager of the Sacramento District. Sarno conducted his own investigation and then on September 19, 2005 issued his Letter of Decision. He found the August 2 charges “fully supported by the evidence.” In his decision on discipline, he wrote and highlighted that removal from federal service would be “too severe.” He decided instead to reduce her in grade and pay to a part-time position at the much smaller postal facility in Ripon, California.

BOARD DECISION

On September 20, 2006, an Administrative Judge (AJ) held a plenary hearing, then filed his initial decision. The Board denied Texeira’s petition for review making the AJ’s decision the final decision in the matter. The AJ considered the agency charge as two charges, one for falsification of time records and the other for failure to follow proper timekeeping procedures. The AJ found the agency did not prove falsification but did prove the lesser charge. The AJ then upheld the same substantial penalty the agency had imposed for both charges.

In his decision the AJ first addressed Texeira’s argument that the agency had asserted a single charge against her that could not be divided into a greater charge and a lesser charge. The AJ held, based on Walker v. Derartment of the Navy, 59 M.S.P.R. 309, 318 (1993), that a single act of misconduct could be read as presenting multiple charges, so long as each required different elements of proof. Noting that the agency decisionmaker Sarno testified at the Board hearing that he considered the agency’s allegation to be a single charge, the AJ nevertheless decided the agency’s charge label gave rise to both the alleged falsification of recorded earned leave, and a separate alleged failure to follow proper timekeeping procedures. The AJ wrote that proof of an intent to deceive was an element of the charge of “Falsification in Recording Time,” but that an intent element was not required to prove failure to comply with proper timekeeping procedures. He dismissed the falsification charge as unproved, but found the agency had proved the second charge.

Having found the agency proved only the charge of failure to record an entry correctly, the AJ upheld the sanction of demoting Texeira to an entry level position at a post office outside Modesto. The AJ explained that the decisionmaker Sarno gave adequate consideration to all relevant penalty factors and wrote:
[lit is apparent from the deciding official’s analysis that he considered demotion to be appropriate even if [Texeira] had not attempted to defraud or deceive the agency. He testified that he “did not find that [Texeira] intentionally tried to defraud” the agency.

This gives rise to Ms. Texeira’s second ground for appeal, excessiveness of the penalty.

DISCUSSION

We review the Board’s decision under the authority of 5 U.S.C. § 7703(c) (2000),
which provides that the agency’s action must be sustained unless it is found to be:
(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(2) obtained without procedure required by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence. See Kline v. Der’t of Transr., 808 F.2d 43, 44 (Fed.
Cir. 1986); Hayes v. Dep’t of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984). On the charge separation issue, we agree with the AJ’s analysis and conclusion.

The AJ correctly decided that the agency’s charge label gave rise to two separate charges, one falsification of recorded earned leave, and the other the failure to follow proper timekeeping procedures. Plainly the charge of “Falsification in Recording Time” required proof of an intent to deceive, an element not required to prove timekeeping or record keeping errors. Consequently, the AJ properly analyzed the two types of timekeeping offenses separately and had the authority to find the agency had proved the lesser charge but not the charge requiring intent. Moreover, the AJ carefully explained the factors considered in addressing Texeira’s credibility that was critical in deciding the intent issue. The AJ’s finding that Texeira had testified truthfully that she did not intend to defraud or deceive the agency when she posted annual leave for a fellow employee is supported by substantial evidence. The circumstances corroborated her explanation. In addition, the AJ found the agency had not proved that she “was guilty of falsification in recording time.” The AJ did, however, well document the proof that Texeira had not verified the incorrect annual leave she had posted, noting that Texeira had said she had made an error and admitted she “made a mistake.” We conclude that the AJ’s determination that the agency proved the lesser charge of failing to comply with agency timekeeping procedures is supported by substantial evidence. The description in the charging label plainly presented both a more serious charge of “falsification” and a less serious charge concerning a timekeeping violation.

We find merit in Texeira’s second contention that the penalty must be reconsidered by the agency in light of the Board’s dismissal of the falsification charge. When falsification was not proved, the original penalty was too severe. We do not lightly review agency disciplinary decisions. These are necessary to promote the efficiency of government service. Parker v. U.S. Postal Serv., 819 F.2d 1113, 1116 (Fed. Cir. 1987). We give deference to the agency’s judgment unless a penalty violates a statute or regulation or is “so harsh and unconscionably disproportionate to the offense that it amounts to an abuse of discretion.” Villelav. Dep’t of the Air Force, 727 F.2d 1574,1576 (Fed. Cir. 1984) (citing Power v. United States, 531 F.2d 505 (Ct. Cl. 1976)). The Court has written that our review of M.S.P.B. decisions must allow the Board “wide latitude in fulfilling its obligation to review agency disciplinary actions.” U.S. Postal Serv. v. Greciory, 534 U.S. 1 6-7 (2001) (“It is not for the Federal Circuit to substitute its own judgment for that of the Board.”).

But our deference to the Board’s wide latitude is not unlimited. Agencies and the Board are obligated responsibly to consider and balance relevant factors for each individual case before selecting an appropriate penalty; and the Board has listed twelve factors—so called Douglas factors—to assure that the punishment “strikes a responsible balance within tolerable limits of reasonableness.” Doucilas v. Veterans Admin., 5 M.S.P.R. 280, 305-06 (1981). Pertinent here, the Board in Douglas wrote:

Whenever the agency’s action is based on multiple charges some of which are not sustained, the presiding official should consider carefully whether the sustained charges merited the penalty imposed by the agency. In all cases in which the appropriateness of the penalty has been placed in issue, the initial decision should contain a reasoned explanation of the presiding official’s decision to sustain or modify the penalty, adequate to demonstrate that the Board itself has properly considered all relevant factors and has exercised its judgment responsibly.

Moreover, in Kline v. Department of Transportation, 808 F.2d at 45, our court addressed, as we again do here, the question whether the Board correctly upheld a penalty when only one of several charges against an employee had been proved. We vacated the penalty and remanded the case to allow the agency’s deciding official to determine an appropriate penalty for the single proved charge. We there emphasized that the deciding official made no finding about what the penalty would be if fewer than all charges were proved. We wrote: “[The] record does not demonstrate that the presiding official identified, balanced and then considered the relevant Douglas factors in determining that the sustained charge warranted the penalty imposed.” 808 F.2d at 46.

Similarly, the record here does not support the AJ’s statement that the decisionmaker Sarno “considered demotion to be appropriate even if [Texeira] had not attempted to defraud or deceive the agency.” Sarno did not so testify, neither did he write nor imply in his decision that he would have imposed the same discipline for a mere timekeeping error. Sarno testified: “I was losing trust and faith in her.” And he testified: “I believe she did it on purpose to do something for a friend and she made a huge mistake.” And he testified: “She paid somebody that didn’t deserve to get paid. I think she did it on purpose. She did it for a friend and it was wrong.”

This record demonstrates a decisionmaker imposing a severe penalty because he believed the agency had proved Texeira guilty of purposeful falsification, not just the failure to make a correct entry of vacation time. The agency has not yet articulated what less severe sentence should be imposed when it proved only a much less severe charge. The first of the twelve factors listed in the Board’s Douglas decision is “the nature and seriousness of the offense.” The agency decisionmaker gave no rational basis for
imposing a severe sentence on a less serious charge. When that factor was not properly considered, the penalty imposed was disproportionate to the proved charge and unsupported by substantial evidence. We remand for reconsideration of the penalty to be imposed on the lesser charge only.

CONCLUSION

We affirm that part of the Board’s final decision that upheld the agency’s charge that Ms. Texeira failed to follow proper timekeeping procedures, but we vacate the Board’s final decision that upheld the agency’s penalty of demotion to a part-time position on that charge. The case is remanded so an appropriate penalty can be imposed based only on the improper timekeeping charge.

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 .

Cliff Clavin may have been violating postal service rules by hanging out at the Cheers bar in is letter carrier uniform all those years, but if he’d patronized his local VFW post instead, he’d have been in the clear. That’s the gist of a Federal Appeals Court decision handed down earlier this year, and confirmed this week by the Merit Systems Protection Board.

The case involved Ohio letter carrier Gary Gose, who was terminated ”on a charge of unacceptable conduct for consuming alcoholic beverages while wearing his Postal Service uniform at the Veterans of Foreign Wars (VFW) Post 9927 in Kettering, Ohio”. The Postal Service claimed that this violated section 661.54 of the ELM, which forbids the consumption of “intoxicating beverages in a public place while in uniform”.

Gose, who was on a Last Chance Agreement (he was to have been removed for ”failure to use a satchel in the delivery of mail”), appealed his dismissal to the MSPB, which backed the Postal Service. He then took his case to the Federal Appeals Court. The Court found that the Postal Service interpreted the term “public place” to mean “every place where there is a Postal Service customer and, further, that it considered every citizen to be a Postal Service customer”. Since that would mean that even the employee’s own home was a “public place” if just one other family member was there, the Court refused to accept the USPS interpretation:

… the problem with this interpretation is that it effectively reads language out of the regulation.  If the agency had wished to promulgate a regulation that prohibited drinking in uniform while “in the presence of others,” it might have done so.  However, it did not.  Instead, it promulgated a regulation that specifically forbade such activity only “in a public place.” (emphasis added).  An agency interpretation that effectively eviscerates regulatory language is per se inconsistent with the regulation and may be accorded no deference.

The Court ordered Gose reinstated, with full back pay and benefits.