Petition for Writ of Certiorari — Turks v. United States Postal Service

: 88-908 (soe

IN THE apr 9 1988

SUPREME COURT OF THE UNITED STAT

October Term, 1988

RAY TURKS, JR.

Petitioner,

V.

United States Postal Service

Respondent,

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

PS sTWABS 4 oR:

St. Louis, Missouri 63107

A/C314=241-1054

QUESTIONS PRESENTED

The question are:

1. Was the evidence adduced against petitioner

good enough to sustain a judgement beyond a

resonable doubt?

2. Was Petitioner deprived of a fair trial and

due process of law and his First and Fifth Adm-

endment Right's to compulsory process by the

U. S. Court of Appeals for the Federal Circuit

decision not to permit petitioner to testify?

3. Was the Petitioner deprived of a fair triai

and due process of law by the U. S. Court of

Appeals for the Federal Circuit being unable to

secure transcript from the outset due to pauper

status?

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IN THE 7

SUPREME COURT of the UNITED States

October Term, 1988

RAY TURKS, JR.

Petitioner,

Vv.

United States Postal Service,

Respondent,

PETTION FOR WRIT OF CERTIORARI TO THE UNITED

COURT OF APPEALS FOR THE FEDERAL CIRCUIT .

The petitioner, Ray Turks, Jr., respect-

fully prays that a writ of certiotari issue

to review the judgement of the United States

court of Appeals for the Federal Circuit on

12 January 1988.

OPINIONS BELOW

The Court of Appeals entered its Memoran-

jum decision affirming the Merit Systems Prot-

ection Board, Docket No. SL0O7528710028 on

12 January 1988.

The Court denied petitioner's request to

appear as to statement of defense.

Said request was ignored by the United

States Court of Appeals for the Federal Cir-

cuit.

JURISDICTION

United States Courts of Appeals for the

Federal Circuit 5 U.S.C. &7703.

The judgement of the United States Court

of Appeals for the Federal -Circuit entered on

January 12, 1988. The jurisdiction of this

Court is invoked under 5 U.S.C. & 7703 {c)

(1982). (Appendix E)

CONSTITUTIONAL PROVISION INVOLVED

The statues involved are set forth in

pertinent part in Appendix F. They are:

The First and Fifth Amendments to the Con-

stitution of the United States.

STATEMENT OF THE CASE

On 12 January 1988, a panel of the United

States Court for the Federal Circuit affirned

the Appeal from the MSPB 1/. :

There findings were based on ...1/

5 U.S.C. 7703 (c) (1982) cited on page 3 of

Judgement dated 12 January 1988.

1. 1/ Merit Sysystems Protection

Board Case No. SL07528710028.

2. 1/ The government asserts that because

Mr. Turks has not provided this

court with a transcript of the

hearing , “he cannot now challe-

nge the presiding official's

findings of fact and the pres-

iding official's for (sic) fac-

tual determinations should be

accorded finality. "No author-

ity is cited for this restraint

on an appellant. Mr. Turks'

statutory burden may be harder

to meet without a transcript,

but his right to challenge the

factual determinations is esta-

blised by law.

REASONS FOR GRANTING THE WRIT

Where petitioner from the outset lack of

funds and knowledge did not receive his full

rights to direct appeallate review, due pr-

ocess demands that his judgement be vacated.

Arthur Whitmore, Jr. V. US Postal Service

CHO7528410265 April 6, 1984 -Arbitration ruling

favorable to appellant in that removal to be

too harsh a penalty.

Douglas V. Veterans Administration, MSPB

Order No. ATO75299006 (April 10, 1981) the Board

tee

hy

set forth its authority to modify what

it finds to be unreasonable penalties imposed

by the agencies.

Greorio Natividad V. Department of Agr-

iculture (Docket No. SF075299070) April 22,

1981 = favorable to appellant's that the rec-

ord did not support the charges upon which

appellant's removal was based by a preponde-

rance of the evidence.

Petitioner’ cited the above-mentioned from its

inception but it fail to a deaf hear.

CONCLUSION

For the foregoing reasons, petitioner Ray

Turks, Jr., respectfully requests that writ

of certiorari issue to review the judgement

of the United States Court of Anneals for the

Federal Circuit.

Respectfully submitted this 26th day of

Aan TURKS, JR. a

Petitioner

1123 Angelica

St. Louis, Missouri 63107

A/C 314-241-1054

November 1988.

> Fr

|

ee es Be

—

CERTIFICATE OF SERVIC=

I, Ray Turks, Jr., say that on this

date Wi - BG , 1988, that I have

Lf

denosited in the United States Mail Service,

located at St. Louis, “issouri one (1) true

conies of the entire contents of all of the

foreroing booklets, addressed to:

The Solicitor General Office (1)

Washington, DC 20541

The Counsel U.S. P°stal Service (3)

Washington, DC 20500

in a duly franked envelope.

SE —— a

RAY TURKS, JR...

Petitioner

APPENDICES: Page

Appendix A A- 1

Constitution of the United

States of America - Amendment 1

Constitution of the United

of America - Amendment - 5 A=-2

Appendix B R-1

United States Court of Appeals

for the Federal Circuit

Appendix C C-c 4

Decision of the United States

Court of Appeals for the Federal

Circuit.

Apnendix D D=-D4

Brief of Petitioner/Issue of

United States Court of Appeals

for the Federal Circuit of 12

January 1988.

Apnendix = Bee2

United States of America Merit

Systems Protection Board -Board's

Decision, Washington, DC.

Appendix F F-F2

Appellant Petition For

Review Before the U.S. Merit

Systems Protection Board, Wash-

ington, DC -Addendum.

Appendix G G-G-11

Appellant's Petition For

Review Before the U.S. Merit

Systems Protection Board, Washing-

ton, DéE.

Appendix H H-H23

Initial Decision of the “Merit

Systems Protection Board.

APPENDICES:

Appendix I

Notice of Charges - Removal

From U. S. Postal Service.

Appendix J

Letter of Decision from the

U. S. Postal Service.

JoJ 2

APPENDIX A

CONSTITUTION

of the

UNITED STATES OF AMERICA

AMENDMENT 2

Congress shall make no law respecting an

| establishment of religion, or probhibiting

the free exercise thereof; or abridging the

freedom of speech, or of the press; or the

right of the people peaceably to assemble, and

to petition the Government for a redress of

grievances.

A=-2

AMENDMENT 5

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a prese-

ntment or indictment of a Grand Jury, except in

cases arising in the land or naval forces, or

in the Militia, when in actual service in time

of War or public danger; nor shall any person be

subject for the same offence to be twice put

in jeopardy of life or limb; nor hsall be com-

pelled in any criminal case to be a witness

against himself, nor be deprived of life,

liberty, or property, without due process of

law; nor shall private property be taken for

public use, without just compensation.

APPENDIX B

United States Court of Appeals for the Federal

Circuit

87-3536

RAY TURKS, JR.,

Petitioner,

V.

UNITED STATES POSTAL SERVICE,

Respondent,

Judgment

ON APPEAL from the Merit Systems Protection

Board

in CASE NO (S) $L07528710028

This CAUSE having been heard and considered, it is

ORDERED and ADJUDGED: AFFIRMED

ENTERED BY ORDER OF THE COURT

DATED JAN 12 1988 FRANCIS X. GINDHART, Clerk /s/

Francis X. Gindhart, Cler

ISSUED AS A MANDATE: FEB 3 1988

APPENDIX C

Note: This opinion has not bee prepared for

publication in a printed volume because it does

not add significantly to the body of law and it

not of widespread legal interest. It is a public

record. It is not citable as precedent. The

decision will appear in tables published perio-

dically.

United States Court of Appeals for the Federal

Circuit

87-3536

RAY TURKS, JR.,

Petitioner,

V.

UNITED STATES POSTAL SERVICE,

Respondent,

DECIDED: January 12, 1988

Before NEWMAN, ARCHER, and MAYER, Circuit Judges.

PER CURIAM.

DECISION

The decision of the Merit Systems Protec-

tion Board, Docket No. SL07528710028, affirming

the decision of the United States Postal Service,

is affirmed.

ve

ON

APPENDIX C=-2

OPINION

Mr. Turks held the position of Postal

service Tractor Trailer Operator. He was

lischarged on the grounds that he had failed

to operate his vehicle in a safe and proper

nanner, and had submitted a false accident

report.

The administrative judge heard testimony of

the Postal Service personnel who visited the s -

sene shortly after the incident was reported and

yho had taken photographs, a nurse who saw Mr.

furks after the incident, and Mr. Turks himself.

fhe administraive judge found that Mr. Turks

irove his vehicle in an unesafe manner; that he

vas in a single-vehicle accident as charged;

that he was under the influence of alchol when

1e returned to the Post Office; and that he in-

tentinally falsified the accident report.

The administrative judge found Mr. Turks’

rersion of the accident, i.e., that his vehicle

vas struck by stones that were dropped from

i highway overpass, “to be virtually devoid of

>videntiary support, somewhat tainted by his

APPENDIX C=-3

imissions, and, most significantly, not very

srsuasive,”" and described the testimony of the

stal Service witnesses as "straight-foward".

redibility determinations are the province of

ie presiding official, Kumbferman v Department

* the Navy , 785 F. 2d 286, 290 (Fed. Cir. 1986),

id must be sustained unless clearly unsupported.

The board held that Mr. Turks’ misconduct

‘fected the efficiency of the service and that

1e@ penalty of removal was reasonable in view

* the seriousness of the offense. We have

viewed the submissions of the parties, and

mnclude that the decision of the board is not

‘bitrary, capricious, an abuse of diseretion,

- otherwise not in accordance with law; or

tained without procedures required by law,

lle, or regulation beaving been followed; or

S/S U.4.8.

isuppoted by substantial evidence.

03 (c) (1982).

—

‘The government asserts that because Mr. Turks

is not provided this court with a transcript of the

aring, "he cannot now challenge official's for

sic/ factual determination should be accorded

nality".

APPENDIX C-4

No authority is cited for this restraint on an

appellant. Mr. Turks‘'statutory burden may be

harder to meet without a transcript, but his

right to challenge the factual determinations is

established by law.

APPENDIX D

BRIEF of

Ray Turks, Jr.,

87-3536

6 April 1988

Petitioner

Vv.

United States Postal Service

Respondent

ae ee Se See See Se See Set See Sere Sel

BEFORE

Supreme Court of the United States

1 First Street, N. W.

Washington, D.C. 20543

ISSUE

Was the decision by the United States Court of

Appeals for the Federal Circuit of 12 January

1988 proper.

I think not.

APPENDIX De2

FACTS _

Under opinion on page 2 of the United States

Court of Appeals for the Federal Circuit paragr-

aph 1 citing "he was under the influence of

alcohol when he returned to the post office"

was a gross err.

The initial decison of the MSPB dated 6 Feb

1987 on page 11 paragraph 2 and page 12 paragr-

aph 2 & 3 5.U.S.C. 7701 (c) (1) (B) and 5 U.S.C.

7701 {C) (2) (B) whereas the agency could not

support"inluence of Alcohol" in that record of

sobriety rest being given petitioner.

Mitigating circumstance prevail from the

outset in that the agency did not enter in as

evidence Sobriety Test Report; Missouri Work

Report, Emergency Room Report; past disciplinary

Record of petitioner. Article 35 Alcohol And

Drug Recove Programs Agreement between

nited States Postal Service 21 Jul 1984-20 Jyl

1982 And Article 16 Discipline Procedure Section

16.1 Statement of Principle -Agreement between

nited States Postal Service 21 Jyl 1984-20 Jul

1987.

APPENDIX D-3

Petitioner retired from the U. S. Army

after 20 years believe that his rights were

violated under the First and Fifth Amendment

of the Constitution of the United States of

America. Garfield Cade,Jr. v United States

Postal Service (Docket No. SF07528010370)

November 24, 1981; Arthur Whitmore, Jr. V.

U.S. Postal Service CH07528410265 April 6,1984 ,

Gregorio Natividad V. Department of Agriculture

(Docket No. SFO75299070) April 22,1981, Aaron

M. Farris V. U.S. Postal Service (Docket No.

AT0752811012 February 22, 1983, Albert V. Chafee

571 F. 2d 1063, 1068 (9th Cir. 1978), Jacobowitz

V. United States 424 F 2d 555, 563 (CT Cl 1970).

Footnote 1/ 5 U.S.C. 7703 (c) (1982) on

page 3 of the United States Court of Appeals

for the Federal Circuit not take in account

haa em

that due to migtigating circumstance surrounding

petitioner’ from the outset were that he was ina

eo

(Non-Pay Status) but remain on the roll until

| disposition of the case has been either by sett-

lement or throught exhaustion of his MSPB appeal.

/ Being in (Pauper Status)petitioner was

APPENDIX D=4

unable to compensate the MSPB Contract Court

Reporting Service for copy of the transcript

needed to appeal the MSPB Administrative Judge

initial Decision of 6 February 1987. 5 C.F.R.

731 202 (c) 3; Howard v. United States Mo. Civ.

LV-77219 RDF (D. Nev. J,,1 3 1980): (Mem Order

AT 10); Masino v. United states, 589 F 2a 1048,

1055-56 (CT. Cl 1978).

Petitioner pray that the Supreme Court

of the United States vacant the Decision by the

United States Court of Appeals for the Federal

Circuit.

RAY TURKS, JR., /s/

Petitioner

1123 Anglica

St. Louis, Missouri 63107

APPENDIX E

United States of America

Merit Systems Protection Board

a

Agency

)

RAY TURKS, JR., ) DOCKET NU™“BER

Appellant, ) $LO7528710028

)

v. )

US. POSTAL SERVICE, ) DAT AUG O4 1987

)

)

Robert H. Quinones, St. Lous, Missouri, for the

Appellant,

Donald L. Baker, St. Louis, Missouri for the agency,

BEFORE

Daniel R. Levinson, Chairman

Maria L. Johnson, Vice Chairman

Dennis M. Devaney, Member

ORDER

After full consideration, the Board DENIES

hey

the appellant's petition for review of the

initial decision issued for review set forth

at 5 C.F.R. 1201.115. The initial decision in

this appeal is now final. 5 C.F.R. 1201.113 (b).

APPENDIX E=2

NOTICE TO APPELLANT

You may petition the United States Court

f Appeals for the Federal Circuit to review

he Board's decision in your appeal if the court

as jurisdiction. 5 U.S.C. 7703. The address

f the court is 717 Madison Place, N. W. Washi-

eton, D.C. 20439. The court must receive the

etition no later than thirty days after you

r your representative receives this order.

ROBERT E. TAYLOR /s/

Clerk of the Board

|

APPENDIX F

ADDENDUM

RAY TURKS, JR.,

Appellant Docket Number

SL07528710028

we Date: 2 April 1987

U.S. POSTAL SERVICE

Agency

ee a a a er er er

PETITION FOR REVIEW

BEFORE

UNITED STATES OF AMERICA MERIT SYSTEMS PROCTECTION

BOARD

Appellant believe that certain inequites

(See 5 C.F.R. 1201.151(b)) existed during the

MSPB hearing prior to the initial decision of

6 Feb. 1987.

Appellant had made motion for two (2) witne-

sses on his behalf (Lewis and Victor Kirkpatrick)

whereas Lewis Lee allowed to give testimony thus

witness Victor Kirkpatrick testimony excluded.

See Certify document dtd 27 Feb 87.

RPpellant believe that this certify document

is paramount to the Appeal whereas Chapter and

SP ee ee

APPENDIX Fe-2

and Verse of the MSPB 5 C.F.R 1201 not adhere

to. See 5 C.F.R. 1201.73; 5 C.F.R. 1201.57,

5 C.F.R. 1201.62, 5 C.P.R. 1201.56, 5 G.Fh,

1201.73, 5 C.F.R. 1201.114, 5 C.F.R. 1201.115 (bd)

and Albert v. Chafee 571 F. 2d 1063, 1068 (9th Cir.

1978), Jacobowitz v. United States, 424 F. 2d 555,

563 (CT Cl. 1970).

Appellant pray that this Addendum Petition

for review 5 G.F.R. 1201.114 be given considera-

tion as to the Appeal dated 25 March 1987. See

Exec. Order 9830 of Feb 24, 1987 01.2(d), 3 C.F.R.

608 (1943-1948 Comp.).

FOR THE APPELLANT:

Encl: Certify Document dtd 25 Feb 87

ROBERT H. QUINONES/s/

Appellant's Representative

2225 Lindsay Lane

St. Louis, Missouri 63031-5626

APPENDIX G

RAY TURKS, JR., Docket Number

Appellant, $L07528710028

wa

US.S. POSTAL SERVICE .

Agency Date: 25 March 1987

=

PETITION FOR REVIEW

BEFORE

UNITED STATES OF AMERICA MERIT SYSTEMS PROTEC-

TION BOARD

Pursuant to 5 C.F.R. 1201.114 objections to

the MSPB Initial Decision of February 6, 1987

hereto noted: Appellant believe removalby the

agency to harsh a penalty for the situation/

circumstance.

Mitigating circumstances are the fact that

the agency from the outset cited that appellant

was under the influence of alcohol whereas this

matter was never proven.

APPENDIX G=2

No sobriety test given appellant to ascert-

ain this. While under due stress appellant made

out PS Form 91 (Accident Report).

Appellant (I0D) Injury on Duty not cited

in Agency Response Tabbed File dated 10 Nov 86.

Not allowed to initially select a physician

or hospital.

SF-46 suspended and revoked prior to Fact

Finding Report Recommendation.

Remained on duty while injured and visited

hospital for treatment after tour ended.

Picture's of accident site identification

questioned.

Appellant's first set of iterrogatories

dated 25 Nov 86 as to agency interrogatories

dated 12 Dec 86 changed or failed to answer

fully. See 5 C.F.R. 1201.73

Prior to removal appellant had no past

disciplinary action. Douglas v. Veterans

Administration 5 MSPB 280 (1981). On page 14

Initial Decision citing four past disciplinary

action used in selecting the appropriate penalty

thus appellant had none believe this to be in

APPENDIX G=3

See 5 C.F.R. 1201.56 (c) (3); See Garfield Cade

Jr. v. United States Postal Service (Docket

No. SFO7528100370) November 24, 1981,Arthur

Whitmore, Jr., v. U. S. Postal Service CH075284-

10265 April 6, 1984, Rufus M. Combs v. U. S.

Postal Service Docket No. DA075209178; Gregorio

Natividad v. Department of Agriculture (Docket

No. SFO75299070) April 22, 1981, Arrow M. Farris

v. U. S. Postal Service Docket No. AT 0752811012,

Edmund A. Relthmaier v. Department of The Air

Force (Docket N,. DA075299021) May 5, 1981,

Phillip T. Riggin v. Department of Health And

Human Services, Social Security Adminidtration

(Docket NO. PHO7528010273) May 4, 1981, Oscar

L. Bowers v. U. S. Postal Service Docket No.

AT075209258, JOseph Person v. United States

Department of Agriculture (Docket No. CH075209116)

February 10, 1981,Chalres R. Johnson v. Government

Printing Office (Docket No. DC075209003) April

15, 1981, and Byrd v. Campbell, 591 F.2d 326,

331-32 (5th Cir. 1979), Boyce v. United States

543 F.2d 1290 (CT. Cl 1976).

APPENDIX G- 4

Paragraph 2 page 12 of Initial Decision

"I find that the Agency's Charge is Supported

by the Preponderance of the evidence and it is

sustained. 5 U.S.C. 7701(c) (1)(b)" Appellant

finds this to be be in err. See 5 C.F.R 1201.

56 (c)(3).

Paragraph 3 page 10 of Initial Decision

Nurse Williams testimony "Appellant had a

strong smell of alcohol on his breath, his eyes

wits red, and that he appeared to be under the

influence of alcohol" Appeallant finds this to

be in err. ‘©: See 5 C. F. R. 1201.56 (c)(3)

and Oscar L. Bowers, v. U. S. Postal (Docket

No. AT0O75209258).

COLLECTIVE BARGAINING AGREEMENT

ARTICLE 35

ALCOHOL AND DRUG RECOVERY PROGRAMS

SECTION 35.1 PROGRAMS

The employer and the Unions espress strong

support for programs of self-help. The Employer

shall provide and maintain a program which shall

encompass the education identification, referral,

guidance and follow-up of those employees affli-

ected by the disease of Alcoholism. When an employ-

ee is referred to PAR by the Employer, the PAR

Counsellor will have a reasonable period of time

to evaluate the emplployee's progress in the

APPENDIX G=5

program. “= The parties will meet at the national

at least once every six months to discuss existing

and new programs. This program of labor-management

cooperation shall support the continuation of the

PAR Program at the current level. In addition, the

Employer will give full consideration to expan-

sion of the PAR Program where warranted.

An employee's voluntary participation in

such programs will be considered favorbly in

jisciplinary action proceedings.

Statement of Nurse Brenda Williams in Agency

Tabbed File #10 shows no date to Tony Hospkins

MVO Dept. MPO"He appeared to be under the inf-

luence of Alcohol, Drug, or on need of psychiatric

care" Appellant view these remarks as arbitrary

and capricious and is in err. See 5 C.F.R 1201.

56 (c) (3). See Arthur Whitmore, Jr., _v. U.S.

Postal _CHO7528410265 April 6, 1984.

Nurse Williams stated " He had small part-

icles on his arms which he stated was glass &

nad an abrasion on his rt elbow stated there was

zlass within. Appellant had sustained a job

related injury and nurse Williams was aware of

same. See 5 C.F.R. 1201.56 (c) (3).

Statement of Supervisor Reginald Speed dtd

ll Jul 86 in Agency Tabbed File #12 "At 2:30 PM,

“tr. Turks arrived at the Main Post Office and

came to me. He had glass on him and requested

APPENDIX G-6

to go to the First Aid Unit. I Sent him to the

First Aid Unit. At Approximately 2:45 PM, the

First Air Unit called me back and stated that

Mr. Turks had no injuries, but they going to

send him to the hospital". This is in err. See

5 C.F.R. 1201.56 (c) (3).

vupervisor Speed acknowledge that Appellant

had sustained a Job Related Injury by signing

U.S. Department of Labor (CA-1) See Attached

CA-1 dtd 5 Jul 86.

Supervisor Speed checked Box 36 that appellant

injury was not caused by willful misconduct nor

intoxication or intent toinjure self or another

also he checked Box 41 that support appellant

injury of 5 Jul 86. See 5 C. F. R. 1201.56 (c)(1).

Immediate Supervisor Speed made no mention th-

at appellant under the influence of alcohol.

Attached forms-VA Form 10-2577d, VA Form

10-1000a, Federal Personnel Manual 810-17 Sub-

chapter 5-1 Medical Care a (3). Lutheran Medical

Center of St. Louis, Main Post Office Appointment

Card, USPS/Health Unit dtd 7/7/86.

APPENDIX G- 7

USPS/Health Unit dtd 6/5/86/.

By Letter dtd 9 Jul 86 Agency Tabbed File

#11 Superintendent Vehicle Operations Unit Jesse

D. Martin temporarily suspended appellant SF-H6.

By Letter dtd 16 Jul 86 Agency Tabbed File

#15 Superintendent Vehicle Operations Unit

Jesse D. Martin revoked appellant SF-46.

O_O

This action by Superintendent Jesse D.

Martin is improper and procedure defective in

that the Fact Finding Report in Agency Tabbed

OP EOE CES A KOM

File #16 was not finalize till Z1 Jul 86. App-

ellant believe this to be in err. See 5 C.F.R.

| 1201.56 (c) (3).

Te Matted he ree

Collective Bargaining Agreement

(Memo 193)

1. The safety and health of employees is

of significant concern to the parties signatory

in this Memorandum of Understanding, According,

the parties further agree that the following is

not intended to provide driving privileges to

an employee when such privilege would place the

safety of the public or the employee at risk.

2. The mere fact that an employee was in-

voloved in a vehicle accident is not sufficient to

warrant automatic suspension or revocation of

driving privileges or the authomatic application

of discipline.

3. When an employee's SF-46 is temporarily

APPENDIX G-8

suspended as a result of a vehicle accident, a

full review of the accident will be made as soon

as possible, but not later than fourteen (14)

days, and the employee's SF-46 and driving

privileges must either be reinstated, suspended,

or revoked as warranted, if the decision is to

suspend or revoke the employee's SF-46, the

employee will be provided, in writing, the

reason (s) for such action.

4, This Memorandum of Understanding is not

intended to define the conditions or circumstances

_for which an employeets SF=-46 may be suspended or

reovked.

Date: October 17, 1984; incorporated into

December 14, 1984.

Appellant documents as to the Medical State-

ment dated 5 Jul 86 were omitted from Agency Res-

ponse Tabbed File dated 10 No 86 thus Initial

Decision page 12 paragraph 2 cited that "I

find that the Agency's charge is supported by

the preponderance of the evidence and it is sus-

tained". Appeallant believe this to be untrue

and is in err. See 5 C.F.R. 1201.56 (c)(2)(3).

Further Deloch and Dewit in Initial Decision

page 11 paragraph 2 citing appellant under the

influence of alcohol along with nurse Williams

was not supported by a sobrierty test. This is

inerr. See 5 C.F.R. 1201.56 (b)(1)(c) (1) (2) (3).

APPENDIX G-9

Fact Finding Report #192/86 dated 21 Jul

86 in Agency Tabbed File #16 under INJURIES/

failed to include the appropriate medical

statement's whereas said report was not fully

develope as to the imjury to the appellant.

this is in err for proper procedure not followed

as to Chapter and Verse of Memo 193 and Article

29. See 5 C.F.R. 1201.56 (b) (1) (3) (ce) (3).

Since Mr. Moselle Deloch, Supervisor,

Vebicle Dispatching participated in appellant

accident report then the question is where is

his tatement? Appellant believe this is in

err. See 5 C. F. R. 1201.56 (b) (1) (ce) (1) (2) (3).

Statements' Nurse Williams, Supervisor Speed,

and Notice of Charge-Removal, Letter of Decision

all cited influence of alcohol but none cited

appellant injury clearly constitute discrimin-

atory employment practice and disparity to

appellant.

Also this type of action by the Agency clea-

rly shows inconsistencies in the Agency Response

Tabbed File dtd 10 Nov 86.

Under these particular circumstance in this

APPENDIX G-10

case I find that the Agency has not carried

its burden of demonstrating that removal

was reasonable.

The following named employees all falsified

and were allowed to remain in employment.

Mr. R. Moentman, W/M Mail Handler STIL MPO

(1981)

Mr. N. Barnes, B/M Mail Handler STL MPO

(1981)

“Mr. D. Jones, W/M Supervisor TT (1973)

Intoxicated.

Interrogatiories dtd 12 Dec 86 of Agency

Tractor Trailer Operator allowed to change to

non-driving due to accidents' effective 27 Oct 81

this not allowed to appellant is disparate treat-

ment. (Julius A. Carter, Jr.).

Rufus Williams, Jr. Tractor Trailer Operator

allowed tochange to non-driving this not allowed

to appellant is disparate treatment.

The agency did not give consideration to all

factors involved in deciding what penalty was

appropriate, including not only the gravity of

the offense but other matter as mitigating cir-

cumstsnces.

APPENDIX G-11

FOR THE APPELLANT:

Encls:

ROBERT H. QUINONES/s/_

ppellant's Representative

2225 Lindsay Lane

St. Louis, Missouri 63031-5626

A/C 314-921-6337

US Dept. Labor (CA-1 dtd 5 Jul 86).

. VA Form 10-2577d dtd 5 Jul 86 (Pres-

cription Form).

VA Form 10-1000a dtd 5 Jul 86 (Abbre-

viated Medical Record).

Medical Unit Appointment Card no

dtd STL/MPO.

STL/Health Unit USPS dtd 6/5/86.

st/Nealth Unit USPS dtd 7 Jul 86.

Lutheran Medical Center of St.

Louis.

Federal Personnel Manual 810-Sub-

Chapter 5.

a a be

APPENDIX H

RAY TURKS, JR.,

Appellant, DOCKET NUVBER

SL07528710028

LF

U.S. POSTAL SERVICE, DATE:FEB 6 1987

Agency,

Cewewwwwewww

Stanford Richardson, Jr., Esquire, St. Louis,

for the appellant Missouri

Donald L. Baker, for the agency.

BEFORE

Dupree P. Heard

Administrative Judge

INITIAL DECISION

By petition timely filed, appellant appeal-

ed the action of the agency removing him from the

position of Tractor Trailer Operator, effective

September 29, 1986. As a preference eligible

in the U. S. Postal Service with more than one

year of current continous service in the same

or similar position, appellant is entitled to

APPENDIX H-2

to appeal his separation to the Merit Systems

Protection Board (the Board). 5 U.S.C. 7511 (a)

(1) (B),7701.

For the reasons set forth below, the agency's

removal action is AFFIRMED.

ANALYSIS AND FINDING’:

The agency charged appellant with submitting

a false accident report and failing to operate his

vehicle in a safe and proper manner on July 5, 1986.

Appeal File (AF), Tab 6, Subtab 22. The agency

claimed that appellant's Operator's Report of

Motor Vehicle Accident (SF 91) dated July 5, 1986,

is false. The report reads as follows:

I left AMF (Air Mail Facility) app. (sic)

1230 hrs traveling East on I-70. Return-

ing to the Main Post Office at the overpass

at West Florissant, someone droped (sic)

some stone from the overpass causing dam-

age to the vehicle which I was driving,

upon impact I swerved to the right and hit

a road marker.

AF. Tab 6. Subtab 8. During the Board hear-

ing, the agency produced supervisor Mozelle Deloch

and Vehicle Operations Analyst Randy W. Dewit, as

witnesses.

APPENDIX H=3

See testimony of Mozelle Deloch and Randy W.

DeWit, tapes 3, 4 and 5, sides 1 and 2. Del-

och and DeWit testified that during their

ivestigations on July 5, 1986, they determined

that appellant had a single-vehicle accident

at the North Hanley Road exit and Interstate

70. Deloch and DeWit stated that their inves-

tigations did not show that an accident had

occurred at the West Florissant or Taylor over-

passes and Interstate 70 as alleged by appellant.

Deloch and DeWitstated that they found no rocks

or stones in the area that were large enough to

cause the extensive amount of damage that had

occurred to the Postal Service vehicle. Del-

och and Dewit related that a fourteen-foot

high and six-foot wide steel road sign had

been knocked down at the North Hanley Road

exit and that the available evidence supported

their conclusion that appellant had a single-

vehicle accident at that exit. Deloch and DewWit

also related that they did not see a damaged

road marker at the West Florissant or Taylor

overpasses.

LS

APPENDIX H-4

DeWit stated that appellant advised him that

Donald Nisters had observed the accident. AF,

Tab 6, Subtab 16. DeWit also related that he

talked to Donald Nieters and was advised that

while he (Nieters) was changing a flat tire on

his automobile at the Aidelaide exit and Inster-

state 70, appellant parked a Postal Service

vehicle behind him. DeWit further related with-

out dispute that Nieters told him that he had

not seen any stones dropped on appellant's

vehicle.

In his supplementary report dated July 7,

1986, appellant stated in part as follows:

I arrived at the AMF at app. (sic) 1215 hrs.

I was hot and feeling weak. I went into the

bathroom and wash (sic) my face and was feel-

ing fine. I departed about 1230 hours about

five minutes after I left I began to feel

dizzy andtired for about 2-3 minutes. I

can't recall what I did. I pass (sic) out

and hit something or something hit me. I

don't know where it happen (sic) I think

it was somewhere East on I-70. Before reg-

aining full conscious (sic) of what I

was doing or where I was at I though (sic)

I was seeing people, flying glass and fly-

ing stones when I became fully aware of what

I was doing. I was ng ee the Flori-

ssant or Taylor overpass (sic) my tractor

was headed for a guard rail, I straighted (si

APPENDIX H=5

it back out on the highway and came to a stop

just East of the overpass while looking at the

damage to my tractor, Mr. Donald Nieters came

up. While talking to him, I understood him to

say he saw items falling off the overpass. In

my earlier confuss (sic) state of mind, that

was the only thing that I could think of,

that could havr happen (sic).

AF, Tab 6 Subtab 9. Appellant's testimony

was very confusing and vague.Specifically, app-

ellant testified that someone dropped some six-

inch diameter stones on his vehicle from either

the West Florissant or Taylor overpasses and he

swerved to the right and hit a road marker. Howe

ever, On cross-examination, appellant stated that

he was "semi conscious". when the accident occurred

and that he did not actually know ehat happened

to his vehicle. See testimony of appellant, tapes

l1 and 2, sides 1 and 2. Appellant stated that

when he came to his "senses" he parked his veh-

icle behind Mr. Nieter's vehicle at the Aidelaide

exit, about one mile from the West Florissant over-

pass. Further, appellant stated that he did not

gO back to look at the stones at the West Floris-

sant overpass. Moreover, appellant stated that

he really did not know if any stones had actually

hit his vehicle. Appeallant stated that he

APPENDIX H-6

claimed that stones were dropped from the West

Florissant or Taylor overpasses because Nieters

had told him that “maybe" someone had dropped

stones onto his vehicle. Neveretheless, on

cross-examination, appellant conceded that

Nieters had never told him that he had seen any-

one drop stones on his Postal Service vehicle.

Based on the testimony from DeWit and appellant,

I find that Nieters did not observe anyone drop-

ping stones on appellant's vehicle and he never

told appellant that stones actually caused the

damage to his vehicle.

In support of his case, appellant procduced

Lewis Lee, Tractor Trailer Operator, as a witness.

See testimony of Lewis Lee, tape 5, sides 1 and2.

Lee testifed that the day after the accident, he

and appellant went out to the West Florissant

and Taylor overpasses and Interstate 70. Lee

stated that there was debris, i.e., small rocks,

glass, etc., in the areas. Lee also stated that

there was a small road marker, measuring six

inches by eight inches, laying off from the left

side of the road under the West Florissant over-

pass.

APPENDIX H-7

However, Lee conceded that he had no idea where

the road marker and the debris came from or how

long the debris and other trash had been on the

road. Lee further stated that he and appellant

looked at the North Hanley Road exit area, but

did not see any signs of an accident.

Deloch and DeWit testified that they saw

and took photographs of the North Hanley Road

exit area and they concluded from their personal

obserbations that appellant's accident had occ-

urred at that location. Agency's Hearing Exhi-

bits 2 and 3. Deloch and DeWit explained that

where the exit ramp separates from Interstate 70,

it forms a "V" shape or penninsula until it

reaches the crest of a hill at the North Hanley

Road overpass. They also explained that the

North Hanley Road sign, which was fourteen feet

in height and six feet in width had been placed

in the penninsula and anchored in concrete. They

further explained that the steel legs which sup-

ported the North Hanley Road exit sign, measured

fourt-and-three-quarter inches in width and that

these steel legs had been broken off at ground

level and were bent and twisted. Deloch and DeWit

APPENDIX H-8

related that tire marks were in the grass penn-

insula area which measured twenty-four inches

in width and that the width of the tires on

appellant's trailer was twenty-four inches in

width. They also related that the road sign was

found to be in several pieces. Agency's Hearing

Exhibit 2. They further related that photographs

were taken of thewWest Florissant and Taylor areas,

and stated that no signs of an accident were foun-

d, no large stones were found, and no six-inch by

eight-inch road marker was found. Based on the

photographs showing the extensive damage to

appellant's tractor and trailer, I find that a

small six-inch by eight-inch road marker could

not have caused such-damage, even if appellant

did hit the road marker as claimed. Agency's

Hearing Exhibit 2.

Supervisors Reginald Speed, Sterling A.

Hopkins, Mozelle Deloch and Vehicle Operations

Analysts Donald D. Taylor and Randy W. DeWit,

testified without dispute that the tractor-

trailer vehicle driven by appellant on July 5,

1986, had the following damage:

APPENDIX H-9

The postal vehicle sustained adented bumper

on the left side of the tractor. The bumper

was pushed back to a point where the bumper

and the step below the passenger door meet.

This dent or imprint extends from the bottom

of the bumper and is clearly visible up-

ward to the top of the cab. The imprint

on the bumper and on the cab by thefront

grill both measure 4 3/4 inches. Mhe

windsheild on the passenger side was smashed

inward. The top of the cab, along the line

of the imprint, was pushed in and down.

As a result of the impact on the left wind-

shield, the right windshield buckled and

cracked. The largest portion of fragmented

glass is directly in line with the imprint

on the cab and bumper. On rither side of

the line, the fragmentation is less severe.

The rain channel on the rear of the cab is

torn and dented. This tear is directly

behind the damage on the front of the cab.

-. On the passenger side of the trailer,

a few feet back from the nose, was a hole

approximately the size of a baseball.

There were two gashes on the roof the nose

of the trailer, approximately 18 inches

apart. These were situated appeoximately

in the middle. There were also long thin

scratches behind the cab on the trailer

(and)...at several damaged locations on the

trailer, there was evidence of green paint.

AF, Tab 6, Subta 22. All of the supervisors

and the Vehicle Operations Analysts stated that

the extensive damage to appellant's vehicle

could not have been made by stones being dropped

on it. Concerning Louis Lee's statement that

he did not see any signs of an accident at the

North Hanley Road exit area the day after the

APPENDIX H-10

accident, supervisorHopkins testified without

dispute that the Missouri Highway Department

informed him that one of many maintenance crews

had cleared away the property damage at the North

Hanley Road exit. Accordingly, I find that prior

to appellant and Lee going out to the North Hanley

Road exit, a maintenance crew from the Missouri

Highway Department had cleaned up the area.

Accordingly, I find that this is the reason why

appellant and Lee did not find the extensive

wreckage from the accident as plainly revealed in

the photographs taken on the day of the accident.

Agency's Hearing Exhibit 2.

Based on the probative evidence of record, I

find that accident that appellant had on July 5, 1

986, occurred at the North Hanley Road Exit area.

I find that the undisputed documertary evidence,

expecially the photographs taken on July 5, 1986,

and the testimonial evidence from Deloch and

DeWit show that the same paint scrapings made

from the North Hanleu Road exit sign, which was

rereen in color, were found on appellant's trailer

and tractor. I also find that the size and the

APPENDIX H-11

wide imprint in the front of appellant's tractor

was the same size, i.e« fourt-and-three-quarter

inches. I further find that tire imprints in the

grass penninsula area at the North Hanley Road

exit area measured twenty-four inches in width

and that the width of the rear tires on appellant

trailer was elso twenty-four inches in width.

I note that the height of the North Hanley

Road sign was fourteen feet and that the height

and size of the North Hanley Road sign would

account for the damage to the top rear of the

tractor and the roof of the trailer, which was

eleven feet, six inches in height. I aiso note

that taken from the legs of the Hanley Road exit

sign were two pieces of blue and white plastic,

which matched the postal decal stripes on the

front of the tractor. I further rote that there

were tire scuff marks found on the curbing at the

Hanley road exit and that there were scuff marks

on the rear tires of appellant's vehicle. However

I find that the record evidence fails to show

that there were scuff marks or tire traaoks at

either the West Florissant or Taylor areas.

Further, I find that even if someone dropped some

APPENDIX H-12

stones on appellant's vehicle, as alleged, this

would not have caused the extensive damage to his

tractor and trailer,i.e., the damage to the front

bumper of the tractor and the four-and-three-

quarter inch wide imprint in the front of the

tractor.

Based on the record as a whole, I find that

it is more probably true than not true that on

July 5, 1986, appellant left the road at Intersta

70 and the North Hanley Roadexit and jumped the c

where he continued east, hitting the Hanley Road

exit sign. I also find that as a result of this

impact, the sign bent toward the tractor. I

further find that one of the steel legs which

supported the sign, caused an imprint from the

front of the bumper of the tractor to the top of

the tractor, causing damage to the nose of the

tractor. Furthermore, I find that another part

of the sign hit the roof of the trailer and cause

a baseball size hole in it. Based upon the recor

evidence, I conclude that appelant misrepresented

his version of the accident and that he was solel

responsible for the damage to his Postal Service

APPENDIX H-13

vehicle.

In addition, appellant testified that he had

several alcoholic drinks six hours before arriving

at work. Appellant subsequently changed his

testimony and stated that he had alcoholic bever-

ages eleven hours before reporting for work.

Nevertheless, appellant asserted that he was not

under the influence of alcohol on July 5.

Brenda Williams, Registered Nurse, testified

that on the day in issue, appellant had a strong

smell of alcohol on his breath, his eyes were red,

and that he appeared to be under the influence of

alcohol. See Brenda Williams, tape 2, sides 1 and

2; AF, Tab 6 Subtab 10. Williams stated that dcuri-

ng the entire time that she attempted to assist

appellant, he demonstrated hostility or made sexual

advances toward her. Williams stated that she told

appellant that if his improper behavior did not

stop, Postal Service Security Officers would be

summoned.

In light of the conflicting testimony from

appellant and Williams, I must assess and weigh the

probative value of each witnesses testimony. See

|

.

APPENDIX H-14

Borninkhof V. Department of Justice, 5 .S.P.R.

77 (1981). First, I find that the record evidence

contains substantial evidence which tends to corr-

oborate Williams* version. Specifically, supervisor

Deloch and Vehicle Operations Analyst DeWwit stated

that they smelled alcohol on appellant's breath.

Deloch and DeWit indicated that they were a few

inches away from appellant while talking to hin.

They also indicated that appellant appeared to be

under the influence of alcohol, and that he was

loud and argumentative. Based on the record

evidence, I find that Deloch and DeWit had reason-

able opportunities for making a determination as

to whether appellant was under the influence of

alcohol.

Lewis Leee testified that he didnot smell!

any alcohol on appellant's breath. However, Lee

did not offer an opinion concerning appellant was

under the influence of alcohol. Lee stated that

during most of the time that he was talking to

appellant, he was eight or nine feet away, except

APPENDIX H=-15

for a few seconds when he brused some glass off

of him. Accordingly, based on Lee's statements,

I find that he did not have a reasonable opportun-

ity to make a determination concerning whether a-

ppellant was under the influence of alcohol.

Further, I find Willisms' testimony to have

been clear, straight-forward, detailed and consist-

ent with her prior contemporaneous written stateme-

nt, concerning appellant's lack of sobriety. I

also find that the statements from Deloch and

DeWit corroborate Williams testimony. On the

other hand, I find appellant's version and Lee's

statement to some extent, to be vague and lacking

in detail. I also find that appellant's version

to be virtually devoid of evidentiary support,

somewhat tainted by his admissions, and, most

significantly, not very persuasive.

Accordingly, I find appellant deliberately and

intentionally falsified his accident report, and

that he failed to drive his vehicle in a safe and

proper manner. Based on the record as a whole, I

find that the agency's charge is supported by the

preponderance of the evidence, and it is sustained.

5 U.S.C. 7701 (c)(1)(B).

APPENDIX H-16

Under 5 U.S.C. 7701 (c)(2)(B), nothwith-

standing the fact that the agency met its evid-

entiary burden on the charge, its decision may

not be sustained if appellant demonstrates that

the action was taken because of prohibited dis-

crimination. In his petition for appeal, appe-

llant stated that:

I was prejude (sic)removed from Postal

Service two times for the same charges and

now I'm being labeled as being unfir to

work for the Post Office with my work re-

cord and education (sic) background I

believe that no one have (sic) the rights

(sic) to put that type of label on me because

of the way I think.

AF, Tab 1. Appellant bears the burden of

proving an affirmative defense by a preponder-

ance of the evidence. See Pinto v. Department

of Labor, 11 M.S.P.R. 442 (1982). While apne-

llant has generally clsimed that the action was

affected by prohibited discrimination, he nenver

indicated the basis, i.e., race, sex, religion, etc.

» for such discrimination. Accordingly, I find

that appellant has not not made a valid claim

of discrimination. See Meehan v. U. S. Postal

Service, 718 F.2d 1069 (Fed Cir. 1983).

APPENDIX H-17

The agency's adverse action must also be

"for such cause as will promote the efficiency

of the service’ 5 U.S.C. 7513(a). Here, I

find that appellant's action of causing a

single-vehicle accident and falsifying an acc-

ident report concerning the cause and location

of his accident plainly constitutes such cause

as effects the efficiency of the service. See

Phillips v. Bergland, 586 F.2d 1007 (4th Cir.

1978).

1 In Meehan, 718 F.2d, at 1073, the court held

that:

In view of the full panpoly of procedures

and protection ... which are conferred

upon an employee. .. the basis for asser-

ting discrimination should be expressly and

unequivocally stated, and not be so worded

as to require the Presiding Official to

strain to‘suppy it.

The remaining issue is whether the action

taken by the agency, removal, is within the

parameters of reasonableness under all the

facts and circumstances present. See Douglas

v. Veterans Administration, 5 MS.P.R. 280

(1981). in the instant case, I find that

appellant's falsification of his accident

APPENDIX H-18

report to be especially egregious in light of

the position he held. In addition, supervisors He-

nry C. Voss and Starling A. Hopkins testified that

as a result of appellant's serious misconduct, the-

y had lost confidence in his ability to properly

performs his duties. See tapes 2, 3 and 4, sides

land 2. They indicated that the agency is res-

ponsible for the safe and efficient delivery of

mail to its customers and that appellant must be

held to a high standard of trustworthinless and

intergrity. I find that the seriousness of app-

ellant's offense and the effect on the employer-

employee relationship is significent. The charge

against appellant in the instant case relates

directly to his "reliability, veracity, trust-

worthinless (and) ethical conduct. ..." See

Embry v. Hampton, 470 F.2d 146, 147 (4&th Cir.

1972).

Appellant further cited his three years of

federal service and claimed that his removal

demonstrate disparate penalty with respect to

the discipline given to four other employees.

The record evidence indicates that Rufus Williams,

.

APPENDIX H-19

Anthony White, Julius A. Carter and Walter k,

Paker, were disciplined, aa Wi, issued remova]

letters, demoted or Suspended, for speeding and

failing to properly operate their vehicles, AF,

Tab 11. Notwithstanding appellant's claim of

disparate penalty, I find that all of the com.

ing that any of the comparison employees fabrj-

cated stories concerning a Single-vehicle acci-

dent or made misstatements concerning the 10ca-

tion of an accident. Accordingly, I fine that the

comnarison employees used by appellant do not show

disparate treatment.

After a careful balancing Of the relevant

penalty factors, I find that the mitigating fac.

tors presented by appellant are Plainly insuff-

al imposed by the agency. Accordordingly, I find

hat the arency action, removal, was not unreason-

ble under a1} the facts and Circumstances present,

| eter

APPENDIX H=20

See Book v. U. S. Postal Service, 675 F.2d 158,

(8th Cir. 1982).

DECISION

The agency's action removing appellant is

herey AFFIRMED.

REV IcwW RIGHTS

This initial decision of the Merit Systems

Protection Board will become a final decision of

the Board on March 13, 1987, unless a petition for

review is filed by that date or the Board reponens

the case on its own motion. 51 Fed. R@g. 25157,

251159, (1986) (to be codified at 5 C. F. R. 1201.

113 and .117).% Any party or the Office of Pers-

onnel Management may seek to have it reviewed by

the Board by filing a petition for review with:

Officeof the Clerk

Merit Systems Protection Board

1120 Vermont Ave., N.W.

Washington, D. C. 20419

in accordance with 5 C. F. R. 1201.114 of the

Board's regulations. The parties should note

that they are required to serve any petition for

review and any subsequent pleading on all parties.

Ses

APPENDIX H-21

For additional information, see5 C.F. R. 1201.

114. The petition for review must be filed

on or before March 13, 1987, and must set

forth objections to the initial decision, su-

pported by reference to applicable laws, regula-

tions, and the record.

—

2 On July 10, 1986, the Board republished its

entire rules of practice and procedure in the

Federal Register. For ease of reference, cit-

ations will be to the Board's regulations at

5 Cc. F. R. Part 1201. However, parties should

refer to 51 Fed. Reg. 25146-72 (1986) for the

text of all references to this part.

Any appellant adversely affected or apgrr-

ieved by a final decision of the Board may file

a petition with the United States Court of Apneals

for the Federal Circuit, if the Court has jurisd-

iction. 5 U. S. C. 7703. A petition may not be

filed while the case is pending before the Board.

To be timely, the petition for judicial review

must be recieved by the Court within thrity days

after the Board's decision becomes final. Pet-

itions must sent to:

U. S. Court of Appeals for the Federal

Circuit

APPENDIX He22 -

717 Madison Place, N.W.

Washington, D. C. 20439

THE BOARD: DUPREE P. HEARD /s/

Administrative Judee

APPENDIX H-23

URKS V. U.S. POSTAL SERVICE

ISPB DOCKET NO. SL0O7528710028

CERTIFICATE OF SERVICE

I hereby certiify that copy of the foreroing

nitial Decision was sent this date, by regular

ail to the following parties;

Mr. Ray Turks, Jr.

1123 Angelica

St. Louis, Missouri 63107

Nr. Stanford Richardson, Jr.

Attorney at Law

2616 N. Kingshighway

St. Louis, Missouri 63113

“Yr. Donald L. Baker

U. S. Postal Service

1720 Market Street, Room 2073

St. Louis, vYissouri 63155-9401

Office of Personnel Manarenent

ATTN: Appellate Policies Brsnch

1900 E. street, N. W. = Room 7635

Washington, D. C. 20415

ebruary 6, 1987 KIMBERLY PETERYEY2R /s/

(date) Legal Clerk

APPENDIX I

(2) RSpeed :436-4419;92-A15

July 25, 1986

SUBJECT: Notice of Charges - Removal

To: Ray Turks, Jr. SSN 429-48-9366

Tractor Trailer Operator

1123 Angelica

St. Louis, Mo. 63107

Certified Mail #P240314301

Return Receipt Requested

This is advance written notice that is is prosped

to remove you from the Postal Service effective

no sooner than thirty (30) days from your receipt

of this notice. The reasons for this proposed

action are:

You are a Tractor Trailer Operator assigned

to duties at the Vehicle Maintenance Facil-

ity, St. Louis, Mo. Anessential requirement

of your position is the safe and proper oper-

ation of assigned vehicles and the proper and

accurate reporting of accidents. You are also

reauired to be alert and physically ready

to perform your duties.

You reported, on PS Form 91, and verbally to

me, that you left the AMF at approxinately

: 12:30, on July 5, 1986, and headed east on

I-70. You reported that at the West Floris-

sant overpass someone dropped some stones

from the overpass causing damage to the veh-

icle. On July 6,1986, when I questioned you

about the damage to the bumper, the front and

top of the truck you stated that stone were

dropped from the West Florissant overpass and

that was all you knew.

On July 7, 1986, at approximately 12:30,

Supervisor S. A. Hopkins and Vehicle Opera-

tions Analyst Donald Taylor accompained you

APPENDIX I-2

to the alleged accident location. You

could not pinpoint where the accident had

happened. You then changed your story cl-

iming that the accident occurred at the

Taylor Avenue overpass. There was no

sign of an accident having happened at

that location.

Mr. Hopkins and Mr. Taylor did find evi-

dence of an accident that matched the fact

circumstances of the damage caused to your

vehicle. This accident was at I-70 and

Hanley. You denied having had an accident

at that location. After being advised of

the unlikelihood of your account of the ac-

cident, you submitted a written statement

dated Jyly 7, 1986, changing youraccout of

the accident. In your written statement, you

stated something or sonething hit you.

You further stated that you did not know

where it happened. You said you thought

you were somewhere on Highway I-70.

When Ms Brenda Williams, RN, of the Main

Post Office Medical Unit examined you on

July 5, 1986, (the day of the accident)

you were hostile and you smelled of alcohol.

The evidence at the accident location and

the damage to your postal vehicle, is

overwhelmingly convincing that you did

run over the sign by the Hanley exit with

your postal vehicle and that the report

submitted by you is false. Your misconduct,

that of having an accident that should have

been prevented and your submission of a

false report is ve:y serious misconduct and

is a violation of your duties and respons-

ibilities as apostal employee as well as a

violation of the code of Ethical Conduct

and the provisions of the M-52 Handbook.

As a preference eligible employee you have the

following rights:

PRET RENT ORE

APPENDIX I-3

You and/or your representative may review

the material relied On tO support these rea-

Monday through Friday. If you do not under-

stand the reason for this notice, contact the

undersigned for further information. You

may answer this notice personally and in

writing, or both, to Mr. Henry Voss, Vanarer,

Fleet Operations, Room 210G, Main Office

Garage, St. Louis, MO, 63155-2620 telephone

number 436-4312 between the hours Of 9:00

AM and 3:00 pm Monday through Friday and you

may submit affidavits in Support of your

answer. If you are Otherwise on Official

secure affidavits and prepare an answer to

this notice. yoy will be allowed ten (10)

answer (s) is receive » Or after the expir-

ation of the 10-day limit, if you do not

answer, you will be fiven a written decision.

You have the right to file a &rievance under

he Grievance-Arbitration Procedure set forth

in Article 15, Section 2, of the National

Agreement within fourteen (14) days of your

receipt of this notice,

REGINALD SPEED /s/ STANLEY A. HOPKINS /s/

Slgnature of Supervisor Reviewing Authority

bee: Decision Maker named herein (send entire

file).

Labor Relations (Room 2073)

Personnel (Room 2073)

ATAL (ail Processing)

Tour Manager (

Mail Processing)

APPENDIX I-4

PSDS

General Accounting

File

Foot Note: "WAS MAILED TO HIS HOME

ON AUGUST 7, 1986 SH /s/

APPENDIX J

(1) HVOSS: 436-4312:12-C30

September 12, 1986

SUBJECT: Letter of Decision

TO: Ray Turks, Jr.

1123 Angelica

St. Louis, Mo. 63107

Certified P312396563

On August 7, 1986, you were issued a notice

proposing to remove you from the U. S. Postal

Service based on the charge (s) outlined in the

notice.

I have given consideration to your personal ans-

wer of August 26, 1986 and all other evidence of

record. Aften listening to you and questioning

you, I find that there are too many inconsistenc-

ies in your story. You did not know the location

that you had your accident. You misquoted a

private citizen, saying that he observed the acc-

ident. Investigation revealed the private party

did not see the accident, which he stated to the

analyst investigating the accident. It is with-

out a doubt that it was not stones that broke

the windshield of the vehicle. The nurse who

saw you in the Medical Unit stated that you anpp-

eared to be under the influence of alcohol.

Two days after the accident, you could not remen-

ber the accident, but you could remember being

tired and dizzy. I find, however, that the charre-

(s), as stated in the notice of Charres-Renoval

dated July 25, 1986 and mailed to you on Aurust

7, 1986, are fully supported by the evidence and

warrant your removal. The action will be effect-

ive September 29, 1286.

As a preference eligible, you have the right to

lappeal this decision in writing to Mr. Earl

| Witten, Regional Director, Merit Systems Prot-

| ection Board, St. Louis Regional Office, 1520

Market Street, Room 1740, St. Louis, 0 63103,

within 20 days from September 29, 1986.

APPENDIX J=-2

If you appeal to the Merit Systems Protection

Board, you should state whether you do or do

not wish a hearing and you should furnish me

a copy of your appeal. For further information

on appeals procedure, contact the undersigned

Henry C. Voss, Telephone 436-4312.

Attached for your reference are a copy of the

Merit Systems Protection Board regulations snd

a copy of the appeal form.

If you appeal to the Merit Systems Protection

Board you thereby waive access to any procedures

under the National Agreement beyond Step 3 of

the Grievance-Arbitation Procedure. If you ap-

peal to the lierit Systems Protection Board, pl-

ease provide me with copy of your appeal.

You are entitled to a representative of your

own choosing throughout your appeal. You and

your representative, if he or she is aU. S.

Postal Service employee, shall be afforded a

reasonable amount of official time for prepara-

tion of your case if you and/or your represent-

ative are otherwise in a in a duty status.

HENRY C. VOSS [s/

Manager, Fleet Operations

St. Louis, Mo. 63155-9721

Name of Higher Level Official (Printed)

Attachments: MSPB Rules and Regulations

MSPB Appeals Form