# Petition for Writ of Certiorari — Turks v. United States Postal Service > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0516%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1989 - **Citation:** 488 U.S. 1031 ## Text : 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? ‘es : L ait ih seit s ——— - ~ s< An C rs ey. ‘ 4 '« . . . . . . . . . . . . ee a ‘ . . . . . . ‘* . . . . . . d . . . ’ . . ~ , : Son +5 AMO waariacioyrn mare "t2- te | : > - ’ * . . . maw? ~ = c (‘2 ‘ 7 / . . . . . . . . . > ~~ > ih 2 ae ae) el Y . a ie | i . . . . . . = . AY . . . . . . . . . . . . . . 5. Aa F ‘ -~rsr c 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0516%3A1. Public record. Not legal advice.