Petition for Writ of Certiorari — Postal Service v. Gregory
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00 758 Nov 132008
OFFICE OF THE CLERK
No. ,
Jn the Supreme Court of the Gnited States
UNITED STATES POSTAL SERVICE, PETITIONER
MARIA A. GREGORY
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Assistant Attorney General
BARBARA D. UNDERWOOD
Deputy Solicitor (x veral
AUSTIN C. SCHLICK
Assistant to the Solicitor
Genera!
DAVID M. COHEN
Topp M. HUGHES
DAVID B. STINSON
MARY ANNE GIBBONS
General Counsel
Lori. DYM
STEPHAN J. BOARDMAN
Attorneys
Office of General Counsel
United States Postal
Service
Washington, D.C. 20260
Attorneys
Department of Justice
Washington, D.C. 20520-0001
(202) 514--2217
QUESTION PRESENTED
Whether a federal agency, when disciplining or re-
moving an employee for misconduct pursuant to the
Civil Service Reform Act of 1978, 5 U.S.C. 1101 et seq.,
may take account of prior disciplinary actions that are
the subject of pending grievance proceedings.
(I)
TABLE OF CONTENTS
Page
Opinions below 1
Jurisdiction 1
Statutory provisions involved ..........serereneneeeeeeeeneneneneneennees 2
Statement 2
Reasons for granting the petition ............ccssseserereerererenenenes 5
SD cerrennsentesetennnsseccencsnernsctseseenennsecnssesssnesssesssesssesnensrssennenes 18
Appendix A peaunsensnnenssssnsensenesnanasese ; la
Appendix B Ya
a 3a
Appendix D seateuntenanensnnsesnsenesensensenensssnensnenscsesesnanensenssosanessnessstee 44a
CII cxccceenncsescsnscesnnecscscznensnesscnsnznssnsscecsessesssesnessescenscssussseasees 45a
TABLE OF AUTHORITIES
Cases:
Bolling v. Department of Air Force, 8 M.S.P.B. 658
(1981) ' ~ 4,10,11,18
Bredehorst v. United States, 677 F.2d 87 (Ct. Cl.
1982) ..... suapsssssnesesensnensnessnsussecensceses 10
Bureau of Alcohol, Tobacco & Firearms v. FLRA,
as ee
Bush v. Lucas, 462 U.S. 367 (1983) ...cccccccccccscesessecseeeceeese oe 7,13
Carlucci Vv. Doe, 488 U.S. 98 (19BR) ....ccccccccccceccecceseeeeeeeesees
Carr v. Department of Air Force, 9 M.S.P.B. 714
(1982) sasususunnnnenssnsneqqsssusseussensssesesseessse 12
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 582
GEREEEEED cccescnssnnseccensscnsnssnnscscnssncssesessassssnssesnvassseenessesessensssesnescecessee 13
Coleman v. Paccar Inc., 424 U.S. 1301 (1976) «0.0.0.0... 12
Cornelius v. Nutt, 472 U.S. GAB (198) ..cccccceceeseeeeseseeeees 7
Crawford v. Department of Justice, 45 M.S.P.R.
234 (1990) sieeaeaaeaenemanennscansennnenssnameessensens 11
Department of Navy v. Egan, 484 U.S. 518
EE ee 7,10
(III)
IV
Cases—Continued: Page
Douglas v. Veterans Admin., 5 MS.P.B. 313
| 9, 10, 15
Freeman v. Department of Transp., 20 M.S.P.R.
290 (1984) 12
Hagmeyer v. Department of Treasury, 757 F.2d
1281 (Fed. Cir. 1985) i)
Holland v. Department of Defense, 83 M.S.P.R.
317 (1999) 11
Hubbard v. United States Postal Serv., 32
M.S.P.R. 505 (1987) .. 12,18
Hynes v. Grimes Packing Co., 337 US. 86 (1949) ........... 12
Jones v. Department of Air Force, 24 M.S.P.R.
GRD cnnsnme - 12,14
LaChance v. Devall, 178 F.3d 1246 (Fed. Cir.
ND scccnctaitliina iaiasiaieiaatiteelaiitiaitiaie 8,9
LaChance v. Erickson, 522 U.S. 262 (1998) ......cccccccceeeeees 7,13
Morgan vy. Department of Defense, 63 M.S.P.R.
0 suseuumnsennessssnmensennae 12
National Fed'n of Fed. Employees, Local 1309 vy.
Department of Interior, 526 U.S. 86 (1999) o.ccccceeeeeees 17
Payne v. United States Postal Serv., 69 M.S.P.R.
| 14
Swentek v. United States, 658 F.2d 791 (Ct. CL
a 10
United States v. Fausto, 484 U.S. 439 (1988) 2.0.0... 7,17
Webb v. United States, 227 Ct. CL. T77 (1981) oc. cccceeeeees 10
Statutes and regulations:
Civil Sevice Reform Act of 1978, Pub. L. No. 95-454,
92 Stat. 1111 (5 U.S.C. 1101 ef seg.) ......ccccccccccsceeeseeesenenees 2,7
5 U.S.C. 7101(b) 7
5 U.S.C, 7508 8,13
5 U.S.C, 751 May 1 Bil) &, 45a
5 U.S.C, T5111 b)&) ...... s
5 U.S.C. 7512 &, 46a
5 U.S.C, 7518
8, 13, 47a
Vv
Statutes and regulations—Continued: Page
5 US.C. 7513%(a) &, 15, 17, 47a
5 U.S.C. 7513(b) 8, 47a
5 USC. T512%e) 8, 48a
5 U.S.C. 7513(d) &, 48a
5 U.S.C. T701(c) 9, 5la
5 U.S.C. 7708 4, 6, 9, 56a
5 U.S.C. T703%(a\(1) 7, Oa
5 U.S.C. T703%(c) 9, 57a
5 U.S.C. T703%(d) 7, 57a
28 U.S.C. 1295(a)(9) (1994 & Supp. IV 1998) 4,9
39 U.S.C. 1005(a)(1) 7
5 C.F.R.:
Section 1201.115(d)(1) 14
Section 1201.118 14
Miscellaneous:
Agreement Between United States Postal Service
and National Association of Letter Carriers, AF L-
C1O (1994-1998) 16
Department of Defense Administrative Instruct.
No. 8 (Aug. 17, 1981) 16
S. Rep. No. 969, 95th Cong., 2d Sess. (1978) ... 7
In the Supreme Court of the United States
No.
UNITED STATES POSTAL SERVICE, PETITIONER
v.
MARIA A. GREGORY
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
The Solicitor General, on behalf of the United States
Postal Service, petitions for a writ of certiorari to
review the judgment of the United States Court of
Appeals for the Federal Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra, la-
8a) is reported at 212 F.3d 1296. The opinion of the
Merit Systems Protection Board (App., infra, 9a-12a) is
unpublished, but the decision is noted at 84 M.S.P.R.
619 (Table).
JURISDICTION
The judgment of the court of appeals was entered on
May 15, 2000. A petition for rehearing was denied on
July 13, 2000 (App., infra, 44a). On October 2, 2000, the
Chief Justice extended the time for filing a petition for
(1)
2
a writ of certiorari to and including November 13, 2000.
The jurisdiction of this Court is invoked under 28
U.S.C. 1254(1).
STATUTORY PROVISIONS INVOLVED
The pertinent provisions of the Civil Service Reform
Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (56 U.S.C.
1101 et seq.), are reproduced at App., infra, 45a-58a.
STATEMENT
1. Respondent worked for the United States Postal
Service (Postal Service) as a Letter Technician in
Hinesville, Georgia. App., infra, la. The Postal Service
disciplined respondent on three separate occasions
between May 1997 and August 1997. On May 13, 1997,
respondent received a letter of warning for insub-
ordination after she left work for a doctor’s appoint-
ment without first putting her day’s mail in order. /d.
at 2a, 36a. Less than a month later, on June 7, 1997,
respondent received a seven-day suspension for delay-
ing the mail and failing to follow instructions. /d. at 2a.
Two months later, on August 7, 1997, respondent re-
ceived a 14-day suspension for delaying the mail, claim-
ing unauthorized overtime, failing to follow instruc-
tions, and performing her duties in an unsatisfactory
manner. /bid. The union representing respondent filed
grievances challenging each of those three disciplinary
actions.
On September 13, 1997, respondent requested 3.5
hours of overtime (or assistance from ano’’ er letter
carrier) to prepare and deliver the mail on her route.
App., iufra, 14a. That request “seemed like a gross
overestimate” to respondent’s supervisor. /d. at 17a.
The supervisor later testified that respondent had “a
low volume of mail” on the day in question; that he
could not recall another request for so much overtime
3
during a non-holiday period; and that any request for
more than two hours of overtime “sends up a red flag.”
Ibid. After respondent reaffirmed her estimate of 3.5
hours overtime, the supervisor reassigned some of
respondent’s mail to other letter carriers and accompa-
nied respondent on her route. /d. at 17a-18a. The
supervisor observed no unusual conditions on the route.
Respondent also did not appear to suffer from any
physical impairment. /d. at 18a-19a. Based upon his
observations and the amount of time taken by respon-
dent and the other letter carriers, the supervisor
charged respondent with overestimating her time by
1.5 hours. /d. at 15a, 29a. Letter carriers are responsi-
ble for correctly estimating the amount of time they
will need to complete their work on a given day, within
a margin of error of 15 to 20 minutes. /d. at 16a.
The supervisor proposed that respondent be re-
moved from service and a personnel officer upheld that
removal. App., infra, 2a. The Postal Service dismissed
respondent effective November 26, 1997. /d. at 13a.-
2. After two days of hearings, an administrative
judge of the Merit Systems Protection Board (MSPB)
affirmed respondent’s dismissal. App., infra, 13a-43a.
The administrative judge upheld the Postal Service’s
finding that respondent had failed to perform her duties
in a satisfactory manner (id. at 14a-30a), and rejected
respondent’s affirmative defenses of discrimination. /d.
at 30a-35a.
The administrative judge also upheld the penalty of
removal from service. App., infra, 36a. In deciding to
remove respondent, the Postal Service relied upon the
nature of the charge, “the fact that there was no room
for [respondent’s overestimate] to have been a mis-
take,” and respondent’s history of similar offenses.
Ibid. The administrative judge noted that because prior
dq
disciplinary actions against respondent were in writing,
had been made a part of the record, and respondent had
an opportunity to grieve them, review of those earlier
actions was limited under MSPB precedent to
determining whether the earlier actions were clearly
erroneous. Id. at 37a (citing Bolling v. Department of
the Air Force, 8 M.S.P.B. 658, 659-661 (1981)). Respon-
dent had not argued in the removal proceeding that the
Postal Service’s earlier disciplinary actions were im-
proper. Nevertheless, the administrative judge re-
viewed the earlier actions on which the Postal Service
relied and found that they were not clearly erroneous.
Ibid. The administrative judge further found that
respondent’s removal, although seemingly harsh “[a]t
first blush” (ibid.), was “within the bounds of
reasonableness” (id. at 39a) given respondent’s “pattern
of [mis]conduct” (id. at 38a); respondent’s calculated
submission of an inflated overtime request to earn
undeserved pay or lessen her workload (ibid.); and
respondent’s own testimony indicating that she “has
little potential for rehabilitation” (id. at 39a).
3. Respondent petitioned the MSPB for review of
the administrative judge’s decision. In July 1999, while
respondent’s petition for review was pending, an
arbitrator ruled in favor of respondent with respect to
the first disciplinary action taken against her—the May
1997 letter of warning for insubordination—and or-
dered it expunged from respondent’s disciplinary
record. App., infra, 5a. The MSPB was not advised of
the arbitrator’s decision, however. It denied respon-
dent’s petition for review, in part on the ground that
respondent had not provided any “new, previously
unavailable, evidence.” Jd. at 9a-10a.
4. The United States Court of Appeals for the
Federal Circuit, exercising jurisdiction pursuant to
5
5 U.S.C. 7703 and 28 U.S.C. 1295(a)(9), affirmed in part,
vacated in part, and remanded for further proceedings.
App., infra, la-8a. Deciding the case without argument,
the court of appeals affirmed the MSPB’s determination
that respondent failed to perform her duties in a
satisfactory manner. The court of appeals also affirmed
the MSPB’s rejection of respondent’s discrimination
claims. /d. at 4a-5a. But the court of appeals reversed
the MSPB’s approval of the removal penalty. The court
took judicial notice that the arbitrator had overturned
the Postal Service’s May 7, 1997, letter of warning to
respondent, and that other challenges to respondent’s
disciplinary record were pending. /d. at 5a-6a. In light
of these facts, the court of appeals held “that, as a
matter of law, consideration may not be given to prior
disciplinary actions that are the subject of ongoing
proceedings challenging their merits.” /d. at 7a. The
court reasoned that consideration of earlier disciplinary
actions that are subject to a pending challenge “would
risk harming the legitimacy of the reasonable penalty
analysis, by allowing the use of unreliable evidence (the
ongoing prior disciplinary actions) to support an agency
action.” Ibid. The court remanded to the MSPB for a
determination whether (1) the case should be sent back
to the Postal Service, or (2) the MSPB itself should set
a new penalty. /d. at 7a-8a.
On July 13, 2000, the court of appeals denied the
Postal Service’s petition for rehearing.
REASONS FOR GRANTING THE PETITION
The court of appeals has incorrectly decided a ques-
tion of considerable importance to the federal govern-
ment and federal employees. The court of appeals’
decision finds no support in the civil service laws or in
due process. To the contrary, the longstanding admin-
6
istrative procedures overturned by the court of appeals
fully protect the statutory and constitutional rights of
federal employees and the reliability of agency deter-
minations.
The court of appeals’ decision fails to give appropri-
ate deference to the MSPB’s statutory responsibility
for reconciling the twin goals of efficiency in the civil
service and fairness to federal employees. See
generally United States v. Fausto, 484 U.S. 439, 444-447
(1988). If it is allowed to stand, the court of appeals’
decision will result in a less efficient civil service and
greater administrative costs, without any substantial
increase in fairness to employees. The court of appeals
recognized that the employee’s disciplinary history is
“an important factor when considering whether a
particular penalty [for misconduct] is reasonable.”
App., iufra, 6a. Yet, overturning decades of consistent
administrative practice, the court of appeals precluded
federal employers and the MSPB from considering
highly relevant disciplinary histories in many cases.
The court of appeals’ new rule creates a strong incen-
tive for employees who are subject to discipline to file
grievances and prolong grievance proceedings, solely to
protect against possible future discipline. At the same
time, the new rule may discourage federal agencies
from retaining and seeking to rehabilitate employees
who are subject to dismissal, because it may be impossi-
ble to discharge a recidivist employee if efforts at
rehabilitation fail. As a result of the Federal Circuit’s
exclusive jurisdiction over appeals from decisions of the
MSPB (see 5 U.S.C. 7703), the issue in this case is
unlikely to be presented to any other court of appeals.
Indeed, the issue is unlikely to arise again in the Fed-
eral Circuit, because the MSPB will appiy the ruling of
the court of appeals, and the government (unlike its
7
employees) does not have an automatic right of appeal
from adverse MSPB decisions. 5 U.S.C. 7703(a)(1);
5 U.S.C. 7703(d) (1994 & Supp. IV 1998).
Because the court of appeals’ decision threatens to do
substantial damage to the civil service and represents
an unjustifiable judicial intrusion into federal employee
discipline, further review is warranted.’
1. The Civil Service Reform Act of 1978 (Reform
Act), Pub. L. 95-454, 92 Stat. 1111, comprehensively
revised the statutory rights and obligations of federal
civil servants. Bureau of Alcohol, Tobacco & Firearms
v. FLRA, 464 U.S. at 91. Among Congress’s purposes
in enacting that reform was “preserv(ing] the ability of
federal managers to maintain ‘an effective and efficient
Government,” a goal that Congress pursued through
new provisions covering removal and discipline of
employees for unacceptable performance or misconduct.
Corneliis v. Nutt, 472 U.S. at 650-651 (quoting 5 U.S.C.
7101(b)). In particular, Congress wanted “to give
agencies greater ability to remove or discipline
expeditiously employees who engage in misconduct, or
whose work performance is unacceptable.” /d. at 662-
663 (quoting S. Rep. No. 969, 95th Cong., 2d Sess. 51
(1978)).
To achieve Congress’s goals, the Reform Act pro-
vides agencies primary discretion to take disciplinary
action that will most effectively address an employee’s
! This Court has often recognized that a possible misapplication
of the federal civil service laws by the court of appeals is suffi-
ciently important to warrant review. See, e.g., LaChance v. Erick-
son, 522 U.S. 262 (1998); Carlucci v. Doe, 488 U.S. 93 (1988);
Fausto, supra; Department of Navy v. Egan, 484 U.S. 518 (1988);
Cornelius v. Nutt, 472 U.S. 648 (1985); see also Bureau of Alcohol,
Tobacco & Firearms v. FLRA, 464 U.S. 89 (1983); Bush v. Lucas,
462 U.S. 367 (1983).
8
misconduct. Sections 7512 and 7513 of Title 5 provide
that an agency may take adverse action against a
covered employee—including removal, suspension of
more than 14 days, demotion, or a furlough—“for such
cause as will promote the efficiency of the service.”
5 U.S.C. 7513(a).- The employee, however, is entitled to
four specific procedural protections: (1) advance writ-
ten notice of the proposed employment action; (2) a
reasonable time to respond; (3) counsel or another
chosen representative; and (4) a written decision pro-
viding specific reasons for the agency’s action. 5 U.S.C.
7513(b) and (c). “Thus, on the one hand, the Reform Act
strives to enable government managers to more
effectively hire, fire, and otherwise discipline their
employees, while at the same time according employees
their requisite procedural protections.” LaChance v.
Devall, 178 F.3d 1246, 1254 (Fed. Cir. 1999).
An employee who receives a suspension of more than
14 days, or another serious sanction such as removal,
may appeal the agency’s decision to the MSPB.’
5 U.S.C. 7513(d). The MSPB must sustain the agency’s
decision if the decision is supported by a preponderance
of the evidence and the employee does not show that
the decision was infected by “harmful error in the appli-
cation of the agency’s procedures,” a specifically prohib-
ited employment practice such as discrimination, or
“ Respondent qualifies as a covered employee under 5 U.S.C.
7511(a)(1)(B)(Gii) and (b)(8). Pertinent provisions of the Reform Act
also apply to respondent pursuant to 39 U.S.C. 1005(a)(1) and (2).
* Section 7503 of Title 5 establishes procedures for suspensions
of 14 days or less. Section 7503 affords employees accused of less
serious offenses fundamentally the same procedural protections
guaranteed by Section 7513: notice, an opportunity to respond,
representation, and a written decision. The employee, however,
does not have a right of appeal.
9
another violation of law. 5 U.S.C. 7701(c). The MSPB
may alter the agency’s designated penalty if the pen-
alty exceeds the bounds of reasonableness. Devall,
supra; Douglas v. Veterans Admin., 5 M.S.P.B. 313,
314-324 (1981).
An employee aggrieved by the MSPB’s decision may
appeal to the United States Court of Appeals for the
Federal Circuit, which has exclusive jurisdiction over
such appeals. 5 U.S.C. 7703; 28 U.S.C. 1295(a)(9). The
court of appeals will reverse MSPB decisions that are:
“(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial
evidence.” 5 U.S.C. 7703(c). The court of appeals has
recognized, however, that fixing the appropriate pen-
alty for employee misconduct “is a matter committed
primarily and largely to the discretion of the agency.”
Hagmeyer v. Department of Treasury, 757 F.2d 1281,
1284 (Fed. Cir. 1985). Accordingly, the court of appeals
“will normally defer to the judgment of the agency as to
the appropriate penalty for employee misconduct unless
the severity appears totally unwarranted.” /d. at 1284-
1285.
2. The new rule announced by the court of appeals in
this case—that “consideration may not be given to prior
disciplinary actions that are the subject of ongoing
proceedings challenging their merits” (App., infra, 7a)
—contradicts two decades of consistent administrative
practice that faithfully implemented the Reform Act’s
procedures for employee discipline.
The MSPB’s decision in Douglas, supra, issued in
1981, established standards to guide the agencies’ exer-
cise of their broad discretion to select appropriate
discipline. Drawing upon judicial and administrative
10
precedent, the MSPB identified a non-exhaustive list of
twelve factors that are “generally recognized as rele-
vant” to the penalty determination. 5 M.S.P.B. at 331.
Among those factors are the employee’s disciplinary
record and potential for rehabilitation. Jd. at 332.
When setting a disciplinary penalty, the agency must
“consider the relevant factors and * * * strike a
responsible balance within tolerable limits of reason-
ableness.” /d. at 332-333.
Later in 1981, the MSPB addressed the question pre-
sented by this case: Under what circumstances may
prior disciplinary action be reopened or disregarded in
the course of later disciplinary proceedings? See
Bolling v. Department of Air Force, 8 M.S.P.B. 658
(1981). To answer that question, the MSPB looked to
regulations that formerly had governed the Civil Ser-
vice Commission.’ Adopting the pre-existing adminis-
trative rule, the MSPB held that when it reviews a
disciplinary action that is premised upon the employee’s
disciplinary record, the disciplinary record is itself a
proper subject of review.’ Id. at 658-659.
The level of review depends upon the procedural pro-
tections afforded the employee in the earlier discipli-
4 “The [MSPB] was created to assume the adjudicatory func-
tions of the old [Civil Service] Commission and, with certain excep-
tions, those functions passed unchanged from the Commission to
the [MSPB].” Department of Navy v. Egan, 484 U.S. at 531 n.6.
Among those functions inherited by the MSPB was review of
agency-imposed discipline. In Douglas, the MSPB held that it has
the same authority to review disciplinary penalties as the Civil
Service Commission possessed. 5 M.S.P.B. at 314-324.
° The Court of Claims recognized and applied that administra-
tive policy. Bredehorst v. United States, 677 F.2d 87, 90 (Ct. Cl.
19X2); Swentek v. United States, 658 F.2d 791, 794-796 (Ct. Cl.
1981); Webb v. United States, 227 Ct. Cl. 777 (1981).
11
nary action tnat the employee collaterally attacks.
Specifically, the MSPB looks for three procedural safe-
guards in the earlier action: (1) whether the employee
was informed of the action in writing; (2) whether the
employee was given an opportunity to dispute the
action before a higher authority; and (3) whether the
action is a matter of record. 8 M.S.P.B. at 659, 660-661.
If one or more of those protections is absent, then the
MSPB undertakes “a full, de novo review” of the earlier
action as part of its review of the later disciplinary
decision. /d. at 659. But, if all three safeguards are
present, then the MSPB will overturn the prior action
only if the employee can show, based upon the existing
record gathered in the earlier proceeding, that the
earlier action was clearly erroneous. /d. at 660-661.
The MSPB determined that its approach
strikes a reasonable and workable balance between
the competing interests involved * * *. On the one
hand, an appellant is not allowed to relitigate issues
that either were, or could have been thoroughly
litigated previously. On the other hand, agencies
are not able to utilize clearly erroneous prior actions
as aggravating factors so as to enhance the penalties
imposed.
Id. at 6€ The MSPB has consistently applied the rules
of decision set out in Bolling. E.g., Crawford v. Depart-
ment of Justice, 45 M.S.P.R. 234, 236 n.1 (1990) (citing
cases); Holland v. Department of Defense, 83 M.S.P.R.
317, 320-322 (1999).
Pursuant to Bolling, the MSPB reviews disciplinary
actions in the employee’s record for clear error even
when, as here, these actions are the subject of a pend-
ing arbitral grievance. An earlier agency action that
has not been overturned and was procedurally regular
12
enjoys “the presumption of honesty and integrity which
accompanies administrative adjudicators;” the action is
given effect, notwithstanding the pending grievance,
unless it is clearly erroneous or subject to de novo
review. Hubbard v. United States Postal Serv., 32
M.S.P.R. 505, 508 (1987).'
The employee, however, may introduce evidence that
the earlier disciplinary action has been overturned as a
result of the employee’s grievance. In that situation,
the reversal overcomes the presumption that the
earlier disciplinary action is valid, and precludes reli-
ance upon it. Jones v. Department of Air Force, 24
M.S.P.R. 429, 431 (1984).
3. The longstanding Bolling approach, as applied by
the MSPB in this case, is entirely consistent with the
protections afforded federal employees under the Re-
form Act, and reasonably accommodates the competing
interests of government efficiency and employee due
process. The Reform Act’s notice and hearing require-
ments establish an “elaborate, comprehensive scheme
that encompasses substantive provisions forbidding
arbitrary action by supervisors and procedures—
® See generally Hynes v. Grimes Packing Co., 337 U.S. 86, 101
(1949) (“An administrative order is presumptively valid.”);
Coleman v. Paccar Inc., 424 US. 1301, 1306 (Rehnquist, Circuit
Justice 1976) (noting “the time-honored presumption in favor of
the validity of” agency determinations).
? See also Morgan v. Department of Defense, 63 M.S.P.R. 58, 61
(1994) (“the pending grievance is considered a challenge to the
action,” which the MSPB reviews under Bolling); Freeman v.
Department of Transp., 20 M.S.P.R. 290, 292 (1984) (subject to
Bolling review, “an agency may rely on a record of past discipline
even where a prior disciplinary action is the subject of a pending
grievance”); Carr v. Department of Air Force, 9 M.S.P.B. 714, 715
(1982) (same).
13
administrative and judicial—by which improper action
may be redressed.” Bush v. Lucas, 462 U.S. at 385.
And the Bolling rule ensures that employees are not
denied the “carefully delineated rights” to notice and a
hearing that Congress afforded through this scheme.
LaChance v. Erickson, 522 U.S. at 266.
As discussed above, the Reform Act entitles em-
ployees facing adverse action to written notice of the
proposed action, an opportunity to respond, and a
written decision giving reasons for the action. 5 U.S.C.
7503, 7513; ef. Cleveland Bd. of Educ. v. Loudermill,
470 U.S. 532 (1985) (discussing due process require-
ments applicable to termination of public employee).
Bolling protects those rights. If, in a prior disciplinary
action, the employee was not afforded written notice, an
opportunity for review by a different authority, or a
record decision, then the presumption of validity does
not apply to the prior action and the employee is
entitled to de novo review. The MSPB applies a
presumption of validity to the employee’s disciplinary
record only after it determines that the employee
received those three procedural protections. Even
then, the MSPB reviews the relevant administrative
record for clear error. Bolling, 8 M.S.P.B. at 659-661;
see also Hubbard, 32 M.S.P.R. at 508-509. Accordingly,
any material aspect of the employee’s disciplinary
record that has not been developed in accordance with
the key procedural protections, is subject to de novo
review by the Board.
There will be cases, such as this one, in which a
procedurally regular agency determination that forms
part of the employee’s disciplinary record, and is relied
upon by the agency, is later reversed. But the MSPB
has accommodated those cases as well. If the employee
14
takes an appeal to the MSPB, and the prior action is
reversed before the MSPB renders its decision, then
the MSPB will strike the prior action from the em-
ployee’s disciplinary record and overturn any reliance
upon it. Jones, 24 M.S.P.R. at 431. Thus, respondent
could have brought the arbitrator’s July 1999 decision
overturning the Postal Service’s May 1997 letter of
warning to the attention of the MSPB in connection
with her petition for review of the administrative
judge’s decision. The arbitrator’s decision would have
qualified as new, previously unavailable evidence,
which would have supported granting her petition.
5 C.F.R. 1201.115(d)(1) (MSPB may grant a petition for
review when “[njew and material evidence is available
that, despite due diligence, was not available when the
record closed”).
The MSPB also has discretion to reopen its decision
in the event that the employee’s disciplinary record is
revised materially after the MSPB affirms the chal-
lenged disciplinary action. 5 C.F.R. 1201.118 (“The
Board may reopen an appeal and reconsider a decision
of a judge on its own motion at any time, regardless of
any other provisions of this part.”). The MSPB’s
discretionary power to reopen provides the employee
fair opportunity to have the agency’s sanction re-evalu-
ated when a relevant grievance is not timely resolved.
Cf. Payne v. United States Postal Serv., 69 M.S.P.R.
503, 505-508 (1996) (reopening “in the interests of jus-
tice” where employee’s criminal conviction was re-
versed after MSPB upheld employee’s removal in light
of the conviction).
4. The rule adopted by the court of appeals, if per-
mitted to stand, would do serious harm to the civil
service system, which includes more than two million
federal employees. The rule significantly limits the
15
ability of federal agencies to issue appropriate disci-
pline. In all likelihood, the rule announced by the court
of appeals works to the detriment of most affected
employees as well.
a. The rule announced by the court of appeals
seriously impairs federal agencies’ authority and discre-
tion to calibrate disciplinary action to the circumstances
presented by the employee’s record, and thereby
undermines the statutory goal of “promot[ing] the
efficiency of the service.” 5 U.S.C. 7513(a). Even when
removal or a long suspension would be reasonable, a
supervisor may deem it best for the efficiency of the
service to impose a lesser penalty, such as a short
suspension or letter of reprimand. Repetition of the
same or related infractions would lead to more severe
penalties, including removal if the employee refuses to
correct his or her conduct. When supervisors use that
approach (known in private-sector labor relations as
“progressive discipline”), employees benefit from addi-
tional notice of workplace problems and an opportunity
to correct deficiencies prior to termination. For its
part, the ageney has the flexibility to address recidi-
vism if it occurs.
That flexible approach, however, assumes review of
the employee’s disciplinary history. Indeed, the em-
ployee’s disciplinary history is one of the factors federal
agencies generally must consider when setting a
penalty. Douglas, 5 M.S.P.B. at 332. If pending griev-
ances precluded an agency from taking account of past
disciplinary actions for, say, unexcused absences, then
the agency could not punish a second, third, or tenth
absence more severely than a first absence. The most
recent charge, even if part of a pattern of similar
misconduct, would have to be considered in a vacuum.
The decision of the court of appeals would thus prevent
16
agencies from sensibly disciplining habitual offenders
whose instances of misconduct, considered in isolation,
do not warrant a serious penalty.
The problem of excluding recent disciplinary actions
from consideration is all the more acute because federal
agencies’ disciplinary guidelines commonly limit the use
of prior disciplinary actions that are stale. For exam-
ple, Department of Defense Administrative Instruction
No. 8 (Aug. 17, 1981), which anplies to employees under
the Secretary of Defense and the Joint Chiefs of Staff,
provides for consideration of past suspensions only if
they occurred within the last three years, and of past
reprimands and admonishments only if they occurred
within the last two years. Grievance proceedings,
however, may take years to resolve. By the time a
valid disciplinary action is upheld and thus rendered
cognizable by the court of appeals, it may be too old to
consider. Employees may be able to preclude any
future consideration of a disciplinary action, simply by
filing a grievance.” Thus, in practical effect, the court of
* In this case, the arbitrator overturned respondent’s May 1997
letter of warning more than two years later, in July 1999. App.,
infra, 5a. Respondent’s grievances challenging the June 1997 and
August 1997 suspensions still are pending after more than three
years. Yet, the collective bargaining agreement governing
respondent’s employment with the Postal Service provided that
“(t]he records of a disciplinary action against an employee shall not
be considered in any subsequent disciplinary action if there has
been no disciplinary action initiated against the employee for a
period of two years.” Agreement Between United States Postal
Service and National Association of Letter Carriers, AFL-CIO
(1994-1998) art. 16:10. If respondent’s misconduct during 1997
could not be considered within two years of its occurrence because
of the pending grievances, and could not be considered thereafter
under the collective bargaining agreement, then this misconduct
17
appeals’ decision is at odds with the court’s own rec-
ognition “that prior disciplinary actions are an impor-
tant factor when considering whether a particular pen-
alty is reasonable under given circumstances.” App.,
infra, 6a.
The possibility also exists that federal supervisors,
being unable to implement discipline based upon the
employee’s full record, may impose a more severe (but
nevertheless reasonable) penalty for a first offense,
rather than imposing a less severe penalty in the hope
that the employee’s conduct will improve. Such an
outcome could increase turnover and discontent among
federal employees, also compromising “the efficiency of
the service.” 5 U.S.C. 7513(a). Indeed, by establishing
an apparently unqualified rule that “as a matter of law,
consideration may not be given to prior disciplinary
actions that are the subject of ongoing proceedings
challenging their merits,” App., infra, 7a, the court of
appeals unnecessarily limited the ability of the MSPB
and federal agencies to develop procedures that ad-
dress the court of appeals’ underlying concerns, yet also
respect the needs of an efficient civil service system.
Cf. National Fed’n of Fed. Employees, Local 1309 v.
Department of Interior, 526 U.S. 86, 99-101 (1999)
(remanding to give Federal Labor Relations Authority
the opportunity to address federal labor issue in light of
Court’s statutory construction).
b. The decision of the court of appeals immunizes
employees from cumulative discipline so long as a
grievance is pending. This immunity will encourage
employees to challenge all disciplinary actions, even
relatively minor ones. It will also give employees an
might never be eligible for consideration in any disciplinary
proceeding.
18
incentive to prolong grievance proceedings. The
decision below thus will increase the administrative
burden on federal agencies and undermine processes
for the efficient resolution of disputes. The dockets of
the MSPB and, ultimately, the Federal Circuit also will
be burdened with strategic appeals brought to protect
against possible future discipline. The decision below, if
allowed to stand, will upset Congress’s plan for a
system of administrative and judicial review that
“balance|s] the legitimate interests of * * * federal
employees with the needs of sound and efficient
administration.” Fausto, 484 U.S. at 445.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Assistant Attorney General
BARBARA D. UNDERWOOD
MARY ANNE GIBBONS
General Counsel
Lori J. DYM
STEPHAN J. BOARDMAN
Attorneys
Office of General Counsel
United States Postal
Service
NOVEMBER 2000
Deputy Solicitor General
AUSTIN C. SCHLICK
Assistant to the Solicitor
General
DAVID M. COHEN
TODD M. HUGHES
DAVID B. STINSON
Attorneys
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
No. 00-3123
MARIA A. GREGORY, PETITIONER
Vv.
UNITED STATES POSTAL SERVICE, RESPONDENT
[Decided: May 15, 2000
Rehearing Denied: July 13, 2000]
Before: MAYER, Chief Judge, CLEVENGER, and
GAJARSA, Circuit Judges.
CLEVENGER, Circuit Judge.
Maria A. Gregory was fired from her position as a
Letter Technician with the United States Postal Ser-
vice (“Postal Service”) in Hinesville, Georgia, because
she allegedly overestimated the delivery time of her
route by about an hour and a half. The Merit Systems
Protection Board (“Board”) rejected Ms. Gregory’s ap-
peal, holding that the penalty of removal was justified
by Ms. Gregory’s prior disciplinary record, part of
which was the subject of then-current administrative
grievance proceedings. See Gregory v. United States
Postal Serv., No. AT075298261-I-1, slip op. at 19 (Sept.
11, 1999). Because prior disciplinary actions that are
subject to ongoing proceedings may not be used to
(la)
2a
support the reasunableness of a penalty, we affirm-in-
part, vacate-in-part and remand for further pro-
ceedings.
On September 13, 1997, Ms. Gregory requested 3.5
hours of overtime or assistance in completing her mail
route. Her supervisor, questioning whether the over-
time was required, nonetheless granted her three hours
of assistance. Indeed, Ms. Gregory’s supervisor,
William J. Cox, provided the assistance and accompa-
nied Ms. Gregory himself. Mr. Cox, keeping precise
records of Ms. Gregory’s activities that day, alleged
that Ms. Gregory overestimated the amount of time or
assistance she needed by about 1.3 hours, and under-
took disciplinary action on that basis. The Postal Ser-
vice proposed to remove Ms. Gregory for this offense
(“failure to perform duties in a satisfactory manner”)
based in part upon Ms. Gregory’s prior disciplinary
record, which (at that time) contained the following:
(1) a May 13, 1997, Letter of Warning for insubordina-
tion; (2) a June 7, 1997, seven-day suspension for delay-
ing the mail and failure to follow instructions; and (3) an
August 7, 1997, fourteen-day suspension for delaying
the mail, unauthorized overtime, failure to follow in-
structions, and failure to perform duties in a satisfac-
tory manner. The proposed removal was upheld by the
personnel officer in November 1997.
On appeal to the Board, Ms. Gregory argued that any
overestimation should be excused because she was
untrained in the practice of estimating route completion
times, was unfamiliar with the route she serviced that
day, was suffering from carpal tunnel syndrome and
bursitis, and had recently had foot surgery. In its
3a
Initial Decision, the Board rejected her arguments,
finding Ms. Gregory’s factual testimony unpersuasive.
See Gregory, No. AT0752980261-I-1, slip op. at 11-12.
Instead, the Board credited the evidence introduced by
the Postal Service, especially the testimony of Mr. Cox.
See id., slip op. at 12. Accordingly, the Board sustained
the charge. See id., slip op. at 13.
The Board also rejected Ms. Gregory’s affirmative
defenses. These included: (1) allegations that her
removal was in part based upon her disabled status (as
we noted above, Ms. Gregory suffered from carpal
tunnel syndrome, bursitis, and had recently had foot
surgery); (2) claims that her removal was based in part
upon race, sex, and age discrimination; and (3) claims
that her removal was in retaliation for filing EEO and
OSHA complaints and for engaging in union activities.
The Board found that Ms. Gregory had not produced
sufficient facts to substantiate her claims that the
disciplinary action was taken against her for any of
these reasons. See id., slip op. at 13-17.
Finally, the Board sustained the removal penalty—
finding that the Postal Service had properly applied the
factors announced in Douglas v. Veterans Admin.,
5 MSPB 313, 5 M.S.P.R. 280, 306 (1981). In doing so,
the Board’s analysis rested heavily upon Ms. Gregory’s
prior disciplinary record, stating that “it revealed a pat-
tern of conduct by [Gregory] to disregard the agency’s
and her supervisor’s expectations of her performance
and conduct.” See Gregory, No. AT0752980261-I-1, slip
op. at 19. Because of this “pattern,” the Board ruled
that the agency had chosen a penalty within the bounds
of reasonableness and affirmed the removal. See id., slip
op. at 20.
da
The initial decision became final on October 20, 1999,
see Gregory v. United States Postal Serv., 84 M.S.P.R.
619 (1999) (Final Order), precipitating Ms. Gregory’s
petition to this court. See 5 U.S.C. § 7703 (1994). We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9)
(1994).
In this court, Ms. Gregory challenges the factual
findings that underlie the Board’s holding sustaining
the charge against her and rejecting her affirmative
defenses. Our review of these factual considerations is
extremely limited. See Rosete v. Office of Personnel
Mgmt., 48 F.3d 514, 516 (Fed. Cir. 1995). We must
affirm the Board’s decision unless we find it to be:
(1) arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; (2) in violation of
required procedures; or (3) unsupported by substantial
evidence. See 5 U.S.C. § 7703(c) (1994).
Here, we cannot say that the Board’s factual findings
are unsupported by substantial evidence. The Board
evaluated the evidence presented by both Ms. Gregory
and the Postal Service, finding the latter more credible
and persuasive. Such evaluations, when based on the
testimony of witnesses, are “virtually unreviewable” by
this court. King v. Department of Health & Human
Servs., 183 F.3d 1450, 1453 (Fed. Cir. 1998). The Board
found that Ms. Gregory had indeed overestimated the
amount of overtime or assistance she required, and that
Ms. Gregory’s arguments relating to her lack of quali-
fications for making such a determination were “with-
out merit,” given Ms. Gregory’s position and experience
with the Postal Service. The Board further found that
Ms. Gregory had failed to produce evidence sufficient to
5a
make a prima facie case of discrimination or retaliation
in her defense—the Board concluded that no evidence
was introduced that indicated that the disciplinary
action was not the result of her job performance, and
that, in addition, no evidence was introduced that would
show that discrimination or retaliation played any role
in the evaluation of Ms. Gregory’s performance or
penalty. We have reviewed the record produced by the
Board and find that the Board’s factual findings are
supported by substantial evidence. Accordingly, we
affirm the Board’s decision on the charge and its
rejection of Ms. Gregory’s affirmative defenses.
Ms. Gregory also argues that the Board erred when
it rested its analysis of the reasonableness of the pen-
alty upon her three prior disciplinary actions, at least
some of which were then the subject of grievance
proceedings. We agree.
Both the Board and the Postal Service considered, as
part of their analysis, three prior disciplinary actions
taken against Ms. Gregory: (1) the May 1997 Letter of
Warning, (2) the June 1997 seven-day suspension, and
(3) the August 1997 fourteen-day suspension. It is
undisputed that at least some of these prior actions
were the subject of grievance proceedings during the
time that this case was pending before the Postal
Service and the Board. Indeed, we have taken judicial
notice of the fact that one of the actions—the May 1997
Letter of Warning—was overturned by an arbitrator in
July 1999 and ordered expunged from Ms. Gregory’s
personnel record. Our review of the record does not
indicate the status of the challenges to the remaining
disciplinary actions used to support the removal of Ms.
6a
Gregory, though we note again that the Postal Service
does not dispute that duly-raised challenges to these
actions were pending during the time that this dispute
was being considered by the Postal Service and the
Board.
The Board made clear that its determination that the
penalty of removal was reasonable under these circum-
stances was based largely on the prior disciplinary
history put forward by the Postal Service. Indeed, the
Board noted that “a removal for one instance for failure
to perform duties satisfactorily may appear unreason-
able.” Gregory, No. AT0752980261-I-1, slip op. at 19.
However, the Board stated that the prior disciplinary
history “reveals a pattern of conduct” that made the
penalty of removal reasonable. /d.
There is no doubt that prior disciplinary actions are
an important factor when considering whether a par-
ticular penalty is reasonable under given circum-
stances. See, e.g., Bryant v. National Science Found.,
105 F.3d 1414, 1417 (Fed. Cir. 1997) (sustaining penalty
in part based upon prior disciplinary record); Webster v.
Department of the Army, 911 F.2d 679, 684-85 (Fed.
Cir. 1990) (same); Davis v. Veterans Admin., 792 F.2d
1111, 1113 (Fed. Cir. 1986) (same); Douglas v. Veterans
Admin., 5 MSPB 313, 5 M.S.P.R. 280, 306 (1981) (prior
disciplinary actions relevant when assessing penalty).
But there can also be no doubt that a penalty deter-
mination cannot be supported by an earlier prior
disciplinary action that is subsequently reversed. See
Jones v. Department of the Air Force, 24 M.S.P.R. 429,
431 (1984) (“Since [employee’s] earlier ten-day suspen-
sion . . . was reversed by grievance, it was effectively
canceled and thus should not be considered in deter-
7a
mining a reasonable penalty for the current charge.”).
In this case, Ms. Gregory had challenged, via grievance
proceedings, at least part of the prior disciplinary
history that was relied upon by the Postal Service and
Board in determining the reasonableness of the penalty.
At the time of the Board decision, at least, it appears
that these challenges were pending. If the grievances
were sustained and the prior actions ordered ex-
punged—as, indeed, happened in at least one instance
in this very case—the foundation of the Board’s Doug-
las analysis would be compromised. Accordingly, we
hold that, as a matter of law, consideration may not be
given to prior disciplinary actions that are the subject
of ongoing proceedings challenging their merits. To
conclude otherwise would risk harming the legitimacy
of the reasonable penalty analysis, by allowing the use
of unreliable evidence (the ongoing prior disciplinary
actions) to support an agency action.
Here, as we noted above, the Board (and, it appears,
the Postal Service’) used Ms. Gregory’s prior discipli-
nary history as a primary factor in determining the
reasonableness of the penalty. Because those prior
actions that were the subject of ongoing grievance pro-
ceedings could not be used, the Board abused its discre-
tion in relying upon them. Accordingly, the Board’s de-
termination that the penalty of removal was reasonable
must be set aside.
Upon remand, we leave it to the Board to determine
whether: (a) the case should be immediately returned
to the Postal Service to select a penalty in light of the
' Both Ms. Gregory's immediate superior and the personnel
officer explicitly noted that Ms. Gregory's prior disciplinary record
was a significant basis for their decision to remove her.
Sa
precise status of Ms. Gregory’s prior disciplinary
record; or, (b) the Board should retain jurisdiction for
the purpose of exercising its own mitigation authority
pursuant to the framework established by LaChancee v.
Devall, 178 F.3d 1246, 1259-60 (Fed. Cir. 1999).
IV
The Board’s determination regarding the charge
against Ms. Gregory—that she failed to perform her
duties satisfactorily by overestimating the amount of
time that it would take her to complete her mail
route—is supported by substantial evidence. The
Board’s conclusion that the removal penalty was
reasonable under the circumstances was an abuse of
discretion and is vacated. The case is returned to the
Board for further proceedings not inconsistent with this
opinion.
COSTS
No costs.
AFFIRMED-IN-PART, VACATED-IN-PART AND
REMANDED
9a
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
Docket Number AT-0752-98-0261-I-1
MARIA A. GREGORY, APPELLANT
v.
UNITED STATES POSTAL SERVICE, AGENCY
[Filed: Oct. 20, 1999]
FINAL ORDER
Before: ERDREICH, Chairman, SLAVET, Vice Chair,
MARSHALL, Member
The appellant has filed a petition for review in this
case asking us to reconsider the initial decision issued
by the administrative judge. We grant petitions such
as this one only when significant new evidence is
presented to us that was not available for consideration
earlier or when the administrative judge made an error
interpreting a law or regulation. The regulation that
establishes this standard of review is found in Title 5 of
the Code of Federal Regulations, section 1201.115 (5
C.F.R. § 1201.115).
After fully considering the filings in this appeal, we
conclude that there is no new, previously unavailable,
10a
evidence and that the administrative judge made no
error in law or regulation that affects the outcome.
5 C.F.R. § 1201.115(d). Therefore, we DENY the peti-
tion for review. The initial decision of the administra-
tive judge is final. This is the Board’s final decision in
this matter. 5 C.F.R § 1201.113.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this
final decision.
You may request the Equal Employment Opportu-
nity Commission (EEOC) to review this final decision
on your discrimination claims. See Title 5 of the United
States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)).
You must send your request to EEOC at the following
address:
Equal Employment Opportunity Commission
Office of Federal Operations
P.O. Box 19848
Washington, DC 20036
You should send your request to EEOC no later than
30 calendar days after your receipt of this order. If you
have a representative in this case, and your repre-
sentative receives this order before you do, then you
must file with EEOC no later than 30 calendar days
after receipt by your representative. If you choose to
file, be very careful to file on time.
lla
If you do not request EEOC to review this final-deci-
sion on your discrimination claims, you may file a civil
action against the agency on both your discrimination
claims and your other claims in an appropriate United
States district court. See 5 U.S.C. § 7703(b)(2). You
must file your civil action with the district court no
later than 30 calendar days after your receipt of this
order. If you have a representative in this case, and
your representative receives this order before you do,
then you must file with the district court no later than
30 calendar days after receipt by your representative.
If you choose to file, be very careful to file on time. If
the action involves a claim of discrimination based on
race, color, religion , sex, national origin, or a disabling
condition, you may be entitled to representation by a
court-appointed lawyer and to waiver of any require-
ment of prepayment of fees, costs, or other security.
See 42 U.S.C. § 2000e-5(f); 29 U.S.C. § 794a.
If you do not want to request review of this final
decision concerning your discrimination claims, but you
do want to request review of the Board’s decision
without regard to your discrimination claims, you may
request the Untied States Court of Appeals for the
Federal Circuit to review this final decision on the
other issues in your appeal. You must submit your
request to the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
l2a
The court must receive your request for review no later
than 60 calendar days after your receipt of this order.
If you have a representative in this case, and your
representative receives this order before you do, then
you must file with the court no later than 60 calendar
days after receipt by your representative. If you
choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to
waive this statutory deadline and that filings that do
not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d
1544 (Fed. Cir. 1991).
If you need further information about your right to
appeal this decision to court, you should refer to the
federal law that gives you this right. It is found in 5
U.S.C. § 7703. You may read this law as well as review
other related material at our web site, www.inspb.gov.
FOR THE BOARD: Signature illegible
Robert E. Taylor
Clerk of the Board
Washington, D.C.
13a
APPENDIX C
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ATLANTA REGIONAL OFFICE
Docket No. AT-0752-98-0261-I-1
MARIA A. GREGORY, APPELLANT
v.
UNITED STATES POSTAL SERVICE, AGENCY
(Filed: Sept. 11, 1998]
INITIAL DECISION
Before: YOVINO, Administrative Judge
On December 23, 1997, the appellant filed an appeal
of her removal from the position of Letter Technician,
PS-6, with the U.S. Postal Service in Hinesville,
Georgia, effective November 26, 1997.
The Board has jurisdiction over this appeal. See 5
U.S.C. §§ 7511(a)(1)(B), 7512(1), and 7701. The hearing
requested by the appellant was held in Savannah, Geor-
gia, on March 31, and April 1, 1998. For the reasons
below, the agency’s action is AFFIRMED.'
' After the close of record, the appellant filed a Supplemental
Brief. See Appeal File, Tab 24. Because that brief was filed after
the close of record and is not a reply brief to the agency's closing
argument, I have not considered it.
~
l4a
BURDEN OF PROOF
The agency must prove: (1) its charge by preponder-
ant evidence, 5 U.S.C. § 7701(c)(1)(B); (2) the existence
of a nexus between the sustained charge and the effi-
ciency of the service, 5 U.S.C. § 7513(a); and (3) the rea-
sonableness of its penalty, Douglas v. Veterans Ad-
ministration, 5 M.S.P.R. 280, 307-308 (1981).
The appellant has the burden of proving, by pre-
ponderant evidence, her affirmative defenses of disabil-
ity, race, sex, and age discrimination and retaliation for
filing Equal Employment Opportunity (EEO) com-
plaints, Occupational Safety & Health Administration
(OSHA) complaints, and union activity.” See 5 C.F.R.
§ 1201.56(a)(2)(iii); Appeal File, Tab 14.
ANALYSIS AND FINDINGS
1. The merits
The appellant was removed based on a charge of
failure to perform her duties in a satisfactory manner.
See Agency Response, Tab 4b. The specification of the
charge involves an allegation that the appellant over-
estimated her need for overtime/auxiliary assistance on
September 13, 1997. It is undisputed that the appellant
carried the mail on City Route 04 (CR4) on September
10 through 13, 1997. On September 13, 1997, while
assigned to case and carry that route, she requested 3.5
hours of overtime/auxiliary assistance. The disputed
*~ The appellant's allegation of harmful procedural error was
rejected prior to the hearing for failure to clarify her allegations
after the prehearing conference. See Appeal File, Tab 16.
15a
factual issue on the merits of the charge concerns
whether the appellant overestimated her time by the
1.5 hours with which she was charged.
To understand the factual basis for the agency’s
charge, it is important to understand the duties of the
appellant’s position. Five mail delivery routes may be
configured in a swing route and the mail for those
routes is delivered by five letter carriers and a Letter
Technician (T-6), who replaces one of the regular
carriers on a different day of the week or when that
carrier is absent. This system allows for each of the six
employees to have a scheduled day off and still have the
five routes covered each day.
Therefore, the T-6’s job is more in-depth than that of
a regular carrier. /d. at 34. He/she must be familiar
with five routes and perform the duties of a letter
carrier (casing and delivering mail) when the regular
carrier is off work. The T-6 has other responsibilities,
including training new carriers, reporting observations
of problems on the routes, and providing assistance on
other routes as needed. As a result, the T-6 is paid a
higher salary than the regular letter carrier. The
appellant worked as a letter carrier and a T-6 for almost
all of the twelve years she worked for the U.S. Postal
Service. Transcript (Tr.) at 463.
J. T. Adams, President of Local Branch 53 in Jack-
sonville, Florida, testified generally about the duties
and responsibilities of a letter carrier and T-6, but he
testified that he was not familiar with the route at issue
in this appeal—CR4. He testified that, when the appel-
lant first arrives at work, there is mail waiting for her
to prepare for delivery. The appellant’s first respon-
sibility is to separate the mail for delivery at her case,
l6a
which was described as similar to a table with a hutch
on the back of it. Tr. at 20. That hutch contains hori-
zontal shelves with dividers to allow for the separation
of the mail. /d. The dividers have address labels (re-
ferred to as case labels) on them, and the carrier must
use memory recall to determine whether the postal
customer has moved or placed his/her mail on hold. /d.
at 20-21.
Clerks leave mail for the carriers at their case and
that mail is generally labeled in trays identifying the
route to which the mail goes. /d. at 23. The carriers
then take a hand full of mail, and, piece by piece, place it
in the designated slot. /d.
After the mail is cased, the carrier pulls the mail and
prepares to go on the street to deliver it. At that point,
the carrier withdraws the Delivery Point Sequence
(DPS) mail for her route, /.e., mail that has been sepa-
rated by computer for delivery. She loads the postal
vehicle with her cased mail, her DPS mail, and her
accountable mail (mail requiring signature or collection
of money), proceeds to her route, and delivers the mail.
She then returns to the post office.
By 9:30 a.m. each morning, the carrier is required to
turn in Postal Form 3996, entitled “Carrier-Auxiliary
Control” if he/she believes that he/she will need addi-
tional assistance to accomplish mail delivery. By com-
pleting that form, the carrier is requesting additional
assistance either through the approval of overtime or
assistance from other carriers. It is undisputed that the
carriers are held to being able to estimate their time
within 15-20 minutes of the actual time expended.
17a
On September 13, 1997, the appellant completed a
3996 requesting 3.5 hours of overtime/auxiliary assis-
tance to deliver the mail on CR4. See Appeal File, Tab
7, Exhibit 1. In Block J of that form, the appellant was
required to write the reason for her use of auxiliary
assistance and she wrote: “1/2 K-Marts,” “Heavy mail
volume,” “Heavy accountables,” and, “Heavy parcels.”
Id. She also added “new case labels.” /d.
The appellant’s supervisor, William J. Cox, Supervi-
sor of Customer Service in Hinesville, Georgia, testified
that, on September 13, 1997, the appellant’s cased vol-
ume was only 9.25 linear feet (not including DPS mail)
and that her estimate of 3.5 hours of overtime/auxiliary
assistance seemed like a gross overestimate to him for
such a low volume of mail. Tr. at 100. Mr. Cox testified
that, whenever anyone put in a request for more than 2
hours, it sends up a red flag. /d. He testified that, on
September 13, 1997, the mail volume was so light that
the carriers only put in two 3996s all day. /d. at 102.
He also testified that, except around a holiday, he did
not recall anyone requesting overtime in the amount of
3.5 hours. Tr. at 140. Thus, based upon his knowledge
of her mail volume on that day, he questioned whether
she had grossly overestimated her need for assistance.
Mr. Cox testified that she turned in the 3996 before
she finished casing her mail. After she finished casing
her mail, he observed the mail that she had and
questioned her whether delivery of the mail would take
the time she estimated. Tr. at 100-101. The appellant
responded to him that it was an estimate. /d. at 101.
He then decided to hand off some of her mail to other
carriers and to accompany her when she delivered the
remaining portion of her route.
18a
Mr. Cox pulled off that portion of the mail the
appellant had that he estimated would take about
3 hours to deliver. That mail was counted by Shawn
A. Thompson, Supervisor of Customer Service at
Hinesville, Georgia. It was then assigned to three dif-
ferent carriers who did not have 8 hours of work to
complete due to low volume: James Poppell, Shannon
Aldridge, and “KC.”
The appellant and Mr. Cox then went out to the
postal vehicle she had previously loaded with her mail
and separated out the portion that she was going to
deliver. /d. at 104. They switched delivery vehicles
because they needed a vehicle that had an extra seat on
which he could sit. /d. at 104-05. It took the appellant 3
hours to deliver her route, which she completed at 3:00
p.m. She drove back to the post office and unloaded her
vehicle, which took 22 minutes. Thus, she returned to
the post office at 3:22 and was thereafter sent out to
assist on another route. /d. at 105. She left work at the
end of her regular tour of duty, which was at 4:30 p.m.
According to Mr. Cox’s testimony, he testified
generally that he observed nothing unusual concerning
the appellant’s delivery of mail on CR4. That route is
not a walking route; the carrier pulls up to the boxes
and delivers the mail. That route has over 1,000 stops
and cluster boxes. Tr. at 202. A cluster box, for
example, contains the mail receptacles at an apartment
building and services several postal customers. The
font of the box is where postal customers retrieve
their mail by using their individual keys. The back of
the box can be opened by the carrier with one key,
giving her access to all boxes at once for the delivery of
mail.
19a
Mr. Cox testified that a carrier has to walk approxi-
mately 10 to 15 feet to a cluster box. There are two
parking loops on CR4, which require the carrier to walk
approximately 1/4 mile to deliver the mail for the whole
loop. /d. at 110.
Mr. Cox testified that he accompanied the appellant
each time she walked up to a cluster box to deliver mail.
Tr. at 116. He testified that some of the boxes had
some mail left from the day before, but that none were
too full to the point that she could not easily place mail
in the boxes. /d. In fact, he testified that he remem-
bered that one box had five small cards in it. Jd. He
testified that she did not pull mail out of cluster boxes
to bring it back to the post office. Jd. at 106.
He testified that he does not recall if she were [sic]
wearing a brace on her arm, but he does recall that,
while she had previously been on light duty, she was
not on light duty or restricted duty that week. /d. at
106-07. And, she did not indicate or act like she was
feeling less than normal concerning her physical health.
Id. at 107-08. And, he did not observe her having any
difficulty walking to and from her postal vehicle on
September 13. /d. at 118-19.
The appellant had a myriad of explanations as to how
she estimated that she would need 3.5 hours of addi-
tional assistance. Although she testified that she did
not know how to calculate the amount of additional
assistance she would need because she was not trained
in that regard, she also testified that she not only felt
that she had properly estimated her time, but that she
may have shorted herself from the time she would have
needed to deliver the route. Tr. at 556-57.
20a
In fact, the appellant testified that she considered
many, many factors, in her deliberations, which would
lead one to conclude that she had a reasoned basis for
her estimate. She testified that she considered such
factors as: (1) she was unfamiliar with the route; (2) she
would have to “clean up” mail she brought back to the
post office; (3) she estimated her DPS mail based on the
average of 1000 pieces, but she only had 871 pieces on
September 13; (4) she received an additional 1.5 feet of
mail after she turned in the 3996; (5) having considered
that she would pull mail out of customers’ boxes
regardless of the fact that she was told not to do so by
Mr. Cox; (6) her having to prepare and carry mail that
was curtailed from the day before; (7) she had approxi-
mately 20 linear feet of mail to deliver; (8) having the
case labels changed so that it would slow her down
while she re-learned where the addresses were located
on the case; (9) her impaired ability to walk because of
her foot surgery and to case and carry mail because of
her carpel tunnel syndrome and bursitis; (10) the effects
of having to deliver mail during the day and of the
sunlight hitting the pavement and after dark and the
presence of nightfall impairing her ability to see; (11)
auxiliary assistance does not have to service the route
because they deliver the mail regardless of whether the
postal customer has moved or has mail on hold; and (12)
she thought she would be leaving to deliver the mail 45
minutes to 1 hour later than she actually left because
Mr. Cox told her not to pull the mail for the hold mail at
the post office, but to do it on the street.
I found the appellant’s explanation that she was not
trained in the art of estimating to be without merit.
First, clearly, even at the hearing, she believed that she
had properly estimated, if not shorted herself with, the
2la
time she would need to deliver the mail she had on
September 13, 1997. And, she provided detailed testi-
mony as to the many variables she claims she thought-
fully considered in arriving at her estimate for auxiliary
assistance for that day. Both her belief in the correct-
ness of her estimate and her detailed thought process is
inconsistent with her claim that a lack of training was
responsible for any overestimate on her part.
As one of the T-6s, the appellant was paid more and
was expected to be able to handle more than the regu-
lar letter carriers. She had been performing that job
for several years. In fact, Mr. Cox testified that she
delivered the mail on CR4 faster than the regular car-
rier. Tr. at 138. And, it is undisputed that the carriers
are held to being able to estimate their time to within
15 to 20 minutes. Despite her disciplinary action in
August 1997 for unauthorized use of overtime, there is
no evidence that she requested training specifically on
how to complete a 3996 or otherwise asserted that she
did not know how to perform that function. In fact, Mr.
Cox testified that she never indicated that she lacked
the skills to estimate properly or that she was other-
wise not qualified to perform the duties of a T-6, Tr. at
109, 112-13.
Moreover, I found the appellant’s explanations as to
the matters she considered in arriving at her estimate
lacked merit. As for her claim that she was unfamiliar
with the route, she testified that she had carried CR4
for a total of about fifteen times and for three days
immediately preceding September 13, 1997. Thus, she
had, in my view, a reasonable amount of time in which
to familiarize herself with the route. And, I note that
22a
she did not raise this in her defense in response to the
notice of proposed removal.
As it turned out, Mr. Cox’s ability to estimate the
amount of time required to deliver mail was very
telling, in my view, particularly since he had not deliv-
ered, and was not responsible for delivering, the mail on
CR4. Carrier Poppell assisted CR 4 for .18 (hundredths
of an hour), Aldridge assisted for 1.42 (hundredths), and
KC assisted for 1.25 (hundredths). See Exhibit E. See
Tr. at 102-03. Thus, those three carriers delivered the
mail Mr. Cox pulled off from the appellant in 2.85
(hundredths) hours, making his estimate for three
hours of work short by only .15 hundredths of an hour.
I also find it difficult to believe that she considered
that she would need time to “clean up” or process the
mail that she brought back to the post office. She, her-
self, testified that, when working overtime, the carrier
is not allowed to clean up that mail. That mail must be
processed the next day. Tr. at 499.
As for the appellant’s claim that she assumed that
there wold be more DPS than there was on September
13, she assumed that she would have 1000 pieces of
DPS mail to deliver, but she only had 871 pieces. Tr. at
559. She estimated that it would have taken her about
20 minutes longer if she had the additional 129 pieces of
mail. /d. However, Mr. Cox testified, without rebuttal,
that, in filling out the 3996, every carrier is supposed to
look at the volume report for DPS mail that is posted on
the wall. Tr. at 169-70. He also testified that it would
take only a couple of minutes more to deliver 1000, as
opposed to 871, pieces of DPS mail since the mail was
already in order to be delivered. /d. at 170-71.
23a
It is not clear to me how the fact that the appellant
may have received additional mail to case and/or deliver
after she turned in the 3996 was a favorable considera-
tion to the appellant. Since she allegedly received it
after she estimated the amount of auxiliary assistance
she would need when she turned in the 3996, any such
additional mail could not have been a relevant factor in
the appellant’s act of estimating. If anything, the
appellant’s receipt of any such additional mail would
tend to show that she had overestimated her need for
auxiliary assistance by even more than that with which
she was charged.
The appellant’s argument that her estimate was
inflated, in part, because she considered that she would
pull mail out of customers’ boxes even though she was
specifically told not to do so by Mr. Cox’ is unpersua-
sive. Since Mr. Cox told her not to pull any such mail,
the appellant should not have assigned any additional
time for this task when calculating the need for assis-
tance. And, by the appellant’s own account, she would
bring such mail back to the post office little by little so
as not to have Mr. Cox detect that she continued to
disobey his instructions. Tr. at 537-40. The appellant
had been delivering that route for three days before
September 13. She did not explain how, under the
circumstances, that much mail would have accumulated
in so many boxes on her route in four days such that it
would add additional time for her to deliver the mail.
Finally, Mr. Cox testified that he did not see any boxes
* | note that, in the notice of 14-day suspension dated August 7,
1997, Mr. Cox specifically informed the appellant that she “cleaned
out cluster boxes which [he] told [her] was the responsibility of the
regular carrier and not the T-6. . . .” See Appeal File, Tab 12,
Exhibit 9, pp. 6-7.
24a
that were stuffed with mail; he specifically recalled one
box having five pieces of mail in it.
There is no evidence that the fact that the appellant
had mail curtailed from the day before ( K-Mart cir-
culars and parcels) was a factor that helped to justify
her overestimate of assistance required. The volume of
reviously-curtailed mail was taken into account by Mr.
Cox in his estimate and assignment of assistance to the
appellant. And, the mail was delivered by the appellant
and the other carriers in far less time than the appellant
estimated she would need.
In addition, the appellant argued that she had a very
heavy volume of mail—20 linear feet of mail—to de-
liver. The records show that she had 17 feet of deliv-
ered volume (including 9.5 feet of cased mail), but she
testified that she had approximately 20 feet of mail.
Tr. at 508.
In my view, it is not necessary to determine the exact
amount of the mail that the appellant had to deliver
that day. For, the fact of the matter is that Mr. Cox,
considering the same amount of mail, was able to pull
+ On September 4, 1997, the appellant requested 4.25 hours of
auxiliary assistance because of high volume following a holiday—
99 25 feet of mail (without DPS mail). See Exhibit A-1. Mr. Cox
testified that he approved 3 hours of overtime and that the appel-
lant had a great deal of justification in making her estimate—a
total of 30 feet of mail to deliver. Tr. at 141-43. And, he testified
that he cannot say that the appellant overestimated her time on
September 4 because he did not know if he curtailed some mail
that day. Jd. 141-44. In any event, the appellant testified that, in
making her estimate of the need for assistance on September 13,
she did not consider the amount of mail she had to deliver on
September 4. /d. at 511.
25a
off almost exactly 3 hours of mail to distribute to other
carriers to deliver and have them accomplish the
delivery of that mail. In addition, the appellant was
able to deliver the remaining mail in far less time than
her estimate.
The appellant’s testimony was undisputed that the
address labels on her case were changed on September
13. She testified that she considered that, as a result, it
would take her more time to case the mail that day and
she would, therefore, need that much more help to
complete her route. However, the appellant did not
explain how this consideration justified her estimate on
that day. Again, even with the case labels being
changed, delivery of the mail on CR4 was accomplished
in far less time than the appellant estimated she would
need.
I find it particularly revealing that the appellant did
not list on the 3996 on September 13 her alleged
impaired ability to walk or to case and carry the mail
due to her foot surgery, carpal tunnel and bursitis. For,
on September 8, 1997, she listed that one reason she
needed auxiliary assistance that day was because her
hand hurt. See Exhibit A-2. Thus, she clearly knew she
could list her medical condition, if it impacted her
ability to deliver her route, as a basis for justifying her
need for auxiliary assistance: And, in her affidavit
dated September 25, 1997, in response to the notice of
proposed removal, the appellant stated that she was
wearing her carpal tunnel brace, but she did not
mention any difficulty regarding her foot. See Appeal
File, Tab 1. I also note that Mr. Cox testified that he did
not recall if she were [sic] wearing a brace on her arm
on September 13. Tr. at 106.
26a
The appellant had surgery on her right foot in May
1997 to remove a neuroma and she was then on sick
leave for about 2.5 months. Tr. at 464. She returned to
work on light duty in mid-July 1997, with a restriction
of not walking more than 50 feet and carrying no more
than 20 pounds. /d. at 465-66. She continued on light-
duty status until the end of August 1997, receiving
auxiliary assistance to deliver her routes.
However, she had been released to full duty begin-
ning in September. And, I note that Mr. Cox testified
that the appellant did not indicate she was in less than
full health and did not act as if she were having any
difficulties. Tr. at 107. Specifically, he testified that she
was having no difficulty walking to and from the postal
vehicle on September 13. Tr. at 118-19. And, he testi-
fied that there was not a great deal of walking on the
appellant’s route.
The humidity and reflection from hot weather during
daylight hours are factors that might affect every
carrier and the appellant presented no evidence that
she, in particular, would be affected by such conditions.
And, the appellant’s testimony that it started to get
dark at about 6:00 p.m. on September 13 is not credible.
Actually, on September 13, 1997, the sun did not set
until 7:34 p.m. in Savannah, Georgia. See The Old
Farmer’s Almanac, www.almanac.com. Lf the appellant
had been granted the amount of overtime she re-
quested, she would have concluded at 8:00, including
her travel back to the post office and unloading the
vehicle. Thus, even assuming that the sky becomes
dark exactly at sunset, she would only have had a few
minutes of mail left to deliver based upon her estimate.
27a
As for the appellant’s statement that auxiliary
assistance does not have to service the route because
they deliver the mail regardless of whether the postal
customer has moved or has mail on hold, the appellant
did not explain how much additional time it would have
taken to deliver the route if the mail had been serviced
for people moving or placing their mail on hold. In
addition, there is no evidence that, on September 13,
there was a great deal of mail on hold or to be for-
warded. And, as noted below, I find that the appellant
was allowed to pull the hold mail at her case—at least
the mail that was triggered by memory recall. Thus, I
find that the appellant did not show that this factor
accounted in any significant way for the discrepancy
between her estimate and the actual time it took to
deliver the mail on September 13.
The appellant’s testimony that she considered that
she would be leaving the post office 45 minutes to one
hour sooner than she did on September 13 is also of no
moment. The reason, she testified, that she miscalcu-
lated her leaving time was because Mr. Cox prevented
her from completing the withdrawal of her hold mail
and told her to perform that function on the street. Tr.
at 546-48. Mr. Cox testified that the appellant verified
her hold mail and change of address at her case on that
day. Tr. at 117.
I find that Mr. Cox’s testimony was more credible
than the appellant’s. He clearly had no “ax to grind”
with the appellant. In fact, the appellant testified that
when he rode with her on September 13, they discussed
various matters of a personal nature, such as family
matters, hobbies, and his car. Tr. at 567-68. Thus, it ap-
pears that they had a rather pleasant, friendly conver-
28a
sation, during which they joked and the appellant
expressed concern for his safety. /d. at 568.
Mr. Cox's testimony was straightforward and not
dissembling. He had a vivid recollection of the events
of September 13, and I can discern no reason for him to
fabricate his testimony in this regard. It also does not
make sense that he would tell her not to pull the hold
mail after he had made the decision to pull off some of
her mail for other carriers to deliver. And, the appel-
lant, at various times throughout the hearing, vacillated
in her testimony and focused on minutia that could not
have been responsible for her estimate. Accordingly, I
find that Mr. Cox did not prevent the appellant from
performing her duties regarding hold mail at the case
on September 13.
Mr. Cox also acknowledged that she did stop her
postal vehicle to retrieve a first-class letter in the
middle of the road on the military base. Tr. at 135-37.
He testified that he did not believe that it was her
responsibility to police the base and that he considered
this act, and the fact that she seemed to be rearranging
packages in her vehicle, to be a waste of time. Tr. at
132, 136-37. He also acknowledged that she brought
back to the post office some DPS mail that could not be
delivered, but that he did not recall how much mail was
involved. Tr. at 137. Again, because she requested
auxiliary assistance, she would not have been author-
ized to work any mail with which she returned to the
post office. And, I also note that the agency did not
subtract any time she spent in relocating her mail in the
vehicle with two seats.
In her response to the notice of proposed removal,
the appellant argued that the total time she spent on
29a
CR4 on September 13 was only .6 of an hour of addi-
tional time than she had requested. See Appeal File,
Tab 1. The appellant’s calculations are incorrect. She
began her tour of duty at 8:00 a.m. and was supposed to
end at 4:30 p.m. According to her estimate of a need for
3.5 additional hours, the time spent on her route should
have concluded at 8:00 p.m. (a total of a 11.5 hour day,
excluding a half-hour for lunch). By her own accounts,
she returned to the post office at 3:22. Taking into
account the 2.85 (hundredths) hours (or 2 hours and 51
minutes) spent by the three other carriers, delivery of
mail on CR4 could have been completed at 6:13 p.m. (2
hours and 51 minutes after 3:22). Thus, it appears that
the appellant overestimated the need for auxiliary
assistance by approximately 1 hour and 45 minutes,
which exceeds the 15-20 minute allowance by approxi-
mately 1.5 hours.
I find, therefore, that the agency proved that the
appellant overestimated her need for auxiliary assis-
tance on CR4 on September 13 by 1.5 hours beyond the
permissible limits. Part of her duties include the -
requirement that she estimate the need for auxiliary
assistance so that management can decide the best way
to accomplish mail delivery by shifting workload or
approving overtime. See Appeal File, Tab 7, Exhibit 3.
Thus, I conclude that the agency proved that the appel-
lant failed to perform her duties in a satisfactorily [sic]
manner when she overestimated the need for auxiliary
assistance on CR4 on September 13. The charge is,
therefore, SUSTAINED.
30a
2. The appellant's affirmative defenses
a. Disability discriminati
To establish a prima facie case of disability dis-
crimination based on a failure to accommodate, the
appellant must show: (a) that she is a disabled person
under 29 C.F.R. § 1614.203(a) and that the action
appealed to the Board was based upon her disability;
and (b) that she is a qualified disabled person, that is,
that she can perform the essential functions of her job
with or without reasonable accommodation. See Savage
v. Department of the Navy, 36 M.S.P.R. 148, 151-53
(1988). After the appellant has established a prima
facie case, the burden shifts to the agency to demon-
strate that reasonable accommodation would impose an
undue hardship on its operations. Thereafter, the bur-
den shifts back to the appellant to show that the
agency’s reasons are a pretext for discrimination.
The appellant contends that she suffers from various
medical conditions relating to her foot, bursitis and
carpel tunnel syndrome and that her conditions limit
her ability to grip, lift and reach up with her right arm.
See Appeal File, Tab 14. She argued that she could
have done her job and estimated her time properly if
she were not disabled, i.e., if she had delivered CR4
herself, it would have taken her the amount of time she
estimated.
Assuming that the appellant is a qualified disabled
person, there is no evidence that her removal was based
on her disability. As I found above, there is no evidence
that the appellant’s medical conditions negatively
impaired her ability to deliver the mail on CR4 or that
3la
she would have taken more time if she had delivered
the route herself. On September 13, she was no longer
on light duty following her foot surgery and she did not
identify pain in her hand, arm or foot on the 3996 as a
basis for needing additional auxiliary assistance. She
was responsible for calculating the estimate at which
she arrived and, according to her testimony, she con-~
sidered many factors not relating to any alleged medical
condition. Accordingly, I find that the appellant failed
to present a prima facie case that her disability was
related to the charge for which she was removed.
b. Ra i li . . ti
The elements of a claim of discrimination on the
ground of disparate treatment are: (a) the appellant is
a member of a protected group; (b) she was similarly
situated to an individual who was not a member of the
protected group; and (c) she was treated more harshly
or disparately than the individual who was not a
member of her protected group.’ Buckler v. Federal
Retirement Thrift Investment Board, 73 M.S.P.R. 476,
497 (1997). Once the appellant has established a prima
facie case, the burden shifts to the agency to articulate
a legitimate nondiscriminatory reason for the agency’s
actions. Finally, once the agency has articulated a
legitimate nondiscriminatory reason for its actions, the
burden shifts to the appellant to show that the agency’s
proffered explanation constitutes a pretext for dis-
crimination. To do so, the appellant must establish that
the stated reason was false or not the real reason for
* Because the appellant is alleging age discrimination, she must
show that her age was the determinative factor in the action she is
appealing. See Borowski v. Department of Agriculture, 40
M.S.P.R. 372, 374 (1989).
32a
the action and that discrimination was the real reason.
Carter v. Small Business Administration, 61 M.S.P.R.
656, 665 (1994).
It is undisputed that the appellant is Hispanic, fe-
male, and over 40 years old. The basis for the appel-
lant’s claim is that there were other carriers who were
not disciplined for overestimating their workload. See
Appeal File, Tab 14. Specifically, she identified Shan-
non Aldrich, James Poppell, Casey Chipple, Art
Mathadiel, Tammie England, Eddie Johnson and John
Weatherbee. /d.
During the prehearing conference, the appellant was
advised that, for an employee to be a valid comparative
employee in a disparate treatment claim, the appellant
must prove that the employee engaged in substantially
similar misconduct, including having a prior disciplinary
record, and were disciplined more harshly. The appel-
lant introduced no evidence whatsoever that any of
these employees, except for possibly Eddie Johnson,
had a prior disciplinary record. And, there was no evi-
dence that any of those employees overestimated their
need for auxiliary assistance. Therefore, I find that the
appellant failed to prove her claim that comparative
employees (who were not in her protected groups) were
treated less harshly.
In addition, Tammie England and Shannon Aldridge
are both female and Messrs. Chipple, Johnson and
Weatherbee are over 40 years old. See Appeal File,
Tab 14. Therefore, for these additional reasons, I find
that the appellant failed to prove a prima facie case of
discrimination based upon age and sex.
33a
c. Retaliation for filing EEO and OSHA complaints
ae
To establish a prima facie case of retaliation for filing
an EEO complaint, the appellant must show that: (a)
she engaged in protected activity; (b) the accused
official knew of the protected activity; (c) the adverse
employment action under review could, under the
circumstances, have been retaliation; and (d) there was
a genuine nexus between the retaliation and the
adverse employment action. See Cloonan v. United
States Postal Service, 65 M.S.P.R. 1, 4 (1994). To estab-
lish a genuine nexus between the protected activity and
the adverse employment action, the appellant must
prove that the employment action was taken because of
the protected activity. Jd. at n.3. If the appellant
meets this burden, the agency must show that it would
have taken the action even absent the protected
activity. See Rockwell v. Department of Commerce, 39
M.S.P.R. 217, 222 (1989).
The appellant contends that both Messrs. Cox and
Tommy L. Caruthers, deciding official and Senior
Labor Relations Specialist for the South Georgia Dis-
trict, Macon, Georgia, retaliated against her for her
protected activities of filing-thirty-two EEO complaints
concerning discrimination, one OSHA complaint in
December 1997 concerning faculty equipment and fail-
ure to have a fire plan, and filing grievances on behalf of
herself and others. See Appeal File, Tab 14.
Mr. Cox testified, without rebuttal, that he was not
aware when he issued the notice of proposed removal
that the appellant had filed a series of EEO complaints.
Tr. at 118-19. He testified that he knew that she had
called OSHA into the post office about some hard trays
34a
that were defective, but he also testified, again without
rebuttal, that her doing so played no part in his decision
to propose her removal. He testified rather adamantly
that she was doing what she should have done—report
a safety hazard. Tr. at 120. He was also aware that she
filed grievances because he discussed them with her at
Step 1 in the grievance process.
Mr. Cox’s testimony was straightforward and not
dissembling. And, I note particularly that, even from
the appellant’s description of what occurred between
her and Mr. Cox while she was delivering her route on
September 13, 1997, their conversation was pleasant
and personal. I detected no animus toward her in his
testimony, other than the fact that he truly believed
that she intentionally overestimated her need for
auxiliary assistance on September 13, 1997. Accord-
ingly, I find no nexus between retaliation and his
decision to propose the appellant’s removal.
As for Mr. Caruthers, he testified that he was not
aware that the appellant had file an OSHA complaint
independently of the instant litigation. Tr. at 235.
There was no testimony establishing that he knew that
she filed grievances on behalf of herself and others at
the time he miade his decision to effect her removal. He
testified that the appellant may have mentioned during
her oral reply that she filed EEO complaints. Tr. at
233. However, there is no evidence that Mr. Caruthers
decided to remove the appellant because she filed EEO
complaints. In fact, Mr. Caruthers, testified that he
read the notice of proposed removal for the first time on
the morning of the oral reply. Tr. at 240.
The appellant’s evidence of retaliation at the hearing
focused for the most part, not on Mr. Cox and Mr.
35a
Caruthers, but primarily on William H. Davis, Post-
master of the Hinesville Post Office and Mr. Cox’s
supervisor. The undisputed testimony was that Mr.
Cox did not discuss with Mr. Davis the fact that he was
bringing the instant charge against the appellant. Tr.
at 295. Mr. Cox simply sent him the paperwork and Mr.
Davis signed the disciplinary request form, concurring
in the issuance of the notice of proposed removal. Id.
There was simply no evidence that Mr. Cox’s issuance
of the notice of proposed removal was tainted in any
way by any influence on the part of Mr. Davis.
Similarly, there was no evidence that Mr. Davis
attempted to influence Mr. Caruthers in his decision to
effect the appellant’s removal. As noted above, Mr.
Caruthers testified that he was not familar with the
case involving the appellant until the morning of the
oral reply. And, he testified that he talked briefly with
Mr. Davis after the oral reply and that he did not
discuss the matter with him after that brief discussion.
Tr. at 240-41 Mr. Caruthers was not asked at the hear-
ing to identify the substance of his conversation with
Mr. Davis. Accordingly, there is no evidence that Mr.
Davis attempted to influence Mr. Caruthers’ decision-
making concerning the appellant’s removal.
3. Nexus
It is axiomatic that there is a nexus between unsat-
isfactory rrformance and the efficiency of the service.
Cf. 5 U.S.C. § 4302 (employees may be disciplined for
performance-related matters). Thus, I find that there is
a nexus between the sustained [sic] the charge and the
efficiency of the service.
36a
4. Reasonableness of the penalty
The Board will review an agency-imposed penalty
only to determine if the agency considered all the
relevant factors and exercised management discretion
within tolerable limits of reasonableness. Douglas v.
Veterans Administration, 5 M.S.P.R. 280, 306 (1981).
For the reasons below, I find that the agency con-
scientiously considered the Douglas factors and that
the penalty of removal is within the bounds of reason-
ableness.
Mr. Caruthers testified that he considered the nature
of the charge and the fact that there was no room for it
to have been a mistake. Tr. at 230. He also considered
the fact that the appellant’s recent, prior disciplinary
actions referenced similar offenses. /d.
The appellant’s prior record consisted of: (1) a letter
of reprimand on May 13, 1997, for insubordination for
not following instructions to case her route before
leaving work because her child was ill and she needed
to obtain a doctor’s appointment; (2) a 7-day suspension
on June 7, 1997, for delaying mail and failure to follow
instructions; and, (3) a 14-day suspension on August 18,
1997, for delaying accountable mail, unauthorized
overtime/failure to follow instructions, and failure to
perform her duties in a satisfactory manner/unauthor-
ized overtime. See Appeal File, Tab 13.
Because those prior disciplinary actions were in
writing, made a matter of record, and the appellant had
® The first two disciplinary actions were issued as a 7-day and a
14-day suspension, but were subsequently reduced to a letter of
reprimand and a 7-day suspension.
37a
the opportunity to grieve them, the Board’s review of a
prior disciplinary action is limited to determining
whether that action is clearly erroneous. Bolling v.
Department of the Air Force, 9 M.S.P.R. 335, 339-40
(1981). Despite having been notified that she could
present argument concerning whether the prior actions
were clearly erroneous in her closing brief, the appel-
lant’s closing brief did not set forth any such argu-
ments. See Appeal File, Tabs 14 and 21. I have, none-
theless, reviewed the record of the prior disciplinary
actions and I do not find that I am left with a “firm and
definite conviction that a mistake has been committed.”
Bolling, 9 M.S.P.R. at 340. Accordingly, I find that the
agency properly considered the appellant’s prior dis-
ciplinary actions.
Mr. Caruthers testified that the appellant did not
present any mitigating factors to him during the oral
reply. Tr. at 231. Although she mentioned her medical
conditions, she did not prove that her removal was
taken because of any of those conditions or that they
had any impact on the sustained charge. And, while she
testified that she was under stress in the post office in
September 1997, she produced no evidence to substanti-
ate any such stress or show how stress caused her to
overestimate her time. Once an agency has presented a
prima facie case of proper penalty, the burden of going
forward with evidence of mitigating factors shifts to the
appellant. Kissner v. Office of Personnel Management,
792 F.2d 133, 134-35 (Fed. Cir. 1986).
At first blush, a removal for one instance of failure to
perform duties satisfactorily may appear unreasonable.
However, considering the appellant’s prior disciplinary
actions also involved unauthorized overtime, that one
Ra
instance takes on additional significance and tends to
reveal a pattern of conduct by the appellant to dis-
regard the agency's and her supervisor's expectations
of her performance and conduct.
Although the appellant claims that she did not know
how to estimate the amount of assistance/overtime she
would need, she argued at the hearing that she accu-
rately estimated her time and, indeed, may even have
shorted herself. I found the appellant's testimony to be
disingenuous. Because Mr. Cox could estimate the
amount of time to deliver mail so well and he never
even delivered CR4, because it was undisputed that
carriers are expected to, and that 99% of the carriers’
can, estimate the amount of time it will take them to
deliver mail, and because the appellant’s explanations
for how she accounted for her estimate were not
credible, I find that the appellant’s overestimate was
intentional and that she did it to either earn overtime
for herself or to avoid delivering some of her mail. See
Hamilton v. U.S. Postal S »rvice, 71 M.S.P.R. 547, 555-
56 (1996) (if an agency proves that the employee's mis-
conduct was intentional rather than merely negligent,
the agency is free to use that fact as an aggravating
factor in the penalty selection).
The appellant occupied a leadership position amongst
carriers and was expected to be able to carry out her
job. The agency expects carriers and T-6s to properly
complete a 3996 so that they can reassign work, as
necessary, to accomplish its mission—to deliver the
mail as promptly as possible. The agency has to be able
' See Tr. at 118-19.
39a
to rely upon the honest assessments of their carriers/T-
6s to accomplish that mission.
I have considered the testimony of Sheila J. Bolden,
who has been the Postmaster in Lafayette, Georgia,
since 1991. Prior to 1991, Ms. Bolden supervised the
appellant and she testified that the appellant was one of
the best employees she ever had. Tr. at 388. She also
testified that she would hire her to work in her post
office. Jd. There was no evidence, however, that Ms.
Bolden worked with the appellant recently or was
otherwise aware of the appellant’s past disciplinary
record. Accordingly, I find that the testimony of her
current supervisor, Mr. Cox, is entitled to greater
weight than that of Ms. Bolden.
In my view, that the appellant refuses to accept the
instructions she was given by her present supervisors
was evident from her own testimony. She testified that
Mr. Cox specifically told her not to empty cluster boxes
if they were full. Tr. at 584-40. In fact, in the notice of
14-day suspension dated August 7, 1997, Mr. Cox wrote:
“After you returned to the office, it was found that you
had taken out hold mail again and mail that you had
cleaned out of customers boxes which as previously
explained was the regular carrier's duty.” See Appeal
File, Tab 13. Nevertheless, she testified that she con-
tinues to pull this mail and even disguises the fact that
she is doing so in order to avoid detection by Mr. Cox.
Tr. at 538-40. I find that this testimony reveals the
appellant has little potential for rehabilition.
Based upon these findings and despite the appellant's
12 years of federal service, I find that the agency
properly considered the relevant factors and arrived at
a penalty that is within the bounds of reasonableness.
40a
Accordingly, I find that the appellant’s removal pro-
motes the efficiency of the service.
DECISION
The agency’s action is AFFIRMED.
FOR THE BOARD: /s/ LYNN P. YOVINO
LYNN P. YOVINO
Administrative Judge
NOTICE TO APPELLANT
This initial decision will become final on Oct. 16 1998,
unless a petition for review is filed by that date or the
Board reopens the case on its own motion. This is an
important date because it is usually the last day on
which you can file a petition for review with the Board.
However, if this initial decision is received by you more
than 5 days after the date of issuance, you may file a
petition for review within 30 days after the date you
actually receive the initial decision. The date on which
the initial decision becomes final also controls when you
can file a petition for review with the Equal Employ-
ment Opportunity Commission (EEOC) or with a
federal court. The paragraphs that follow tell you how
and when to file with the Board, the EEOC, or the
federal courts. These instructions are important
because if you wish to file a petition, you must file it
within the proper time period.
BOARD REVIEW
You may request Board review of this initial decision
by filing a petition for review. Your petition for review
must state your objections to the initial decision, sup-
4la
ported by references to applicable laws, regulations,
and the record. You must file your petition with:
The Clerk of the Board
Merit Systems Protection Board
1120 Vermont Avenue, NW., Room 806
Washington, DC 20419
If you file a petition for review, the Board will obtain
the record in your case from the administrative judge
and you should not submit anything to the Board that is
already part of the record. Your petition must be
postmarked, faxed, or hand-delivered no later than the
date that initial decision becomes final, or if this initial
decision is received by you more than 5 days after the
date of issuance, 30 days after the date you actually
receive the initial decision. If you fail to provide a
statement with your petition that you have either
mailed, faxed, or hand-delivered a copy of your petition
to the agency, your petition will be rejected and
returned to you.
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION REVIEW
If you disagree with the Board’s final decision on
discrimination, you may obtain further administrative
review by filing a petition with the EEOC no later than
30 calendar days after the date this initial decision
becomes final. The address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 19848
Washington, D.C. 20036
42a
JUDICIAL REVIEW
If you do not want to file a petition with the EEOC,
you may ask for judicial review of both discrimination
and nondiscrimination issues by filing a civil action. If
you are asserting a claim under the Civil Rights Act or
under the Rehabilitation Act, you must file your appeal
with the appropriate United States district court as
provided in 42 U.S.C. § 2000e-5. If you file a civil action
with the court, you must name the head of the agency
as the defendant. See 42 U.S.C. § 2000e-16(c). To be
timely, your civil action under the Civil Rights Act, 42
U.S.C. § 2000e-16(c) must be filed no later than 30 cal-
endar days after the date this initial decision becomes
final. If you are asserting a claim under the Age Dis-
crimination in Employment Act, your claim must be
filed with the appropriate United States district court
as provided in 29 U.S.C. § 638a(c). You may have up to
6 years to file such a civil action. See 28 U.S.C.
§$ 2401(a).
If you choose not to contest the Board’s decision on
discrimination, you may ask for judicial review of the
nondiscrimination issues by filing a petition with :
The United States Court of Appeals
for the Federal Circuit
717 Madison Place, NW
Washington, DC 20439
You may not file your petition with the court of
appeals before this decision becomes final. To be timely,
your petition must be received by the court of appeals
no later than 30 calendar days after the date this initial
decision becomes final.
43a
NOTICE TO AGENCY/INTERVENOR
The agency or intervenor may file a petition for
review of this initial decision in accordance with the
Board’s regulations.
44a
APPENDIX D
UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT
MARIA A. GREGORY, PETITIONER
.
UNITED STATES POSTAL SERVICE, RESPONDENT
(Filed: July 13, 2000]
ORDER
Before: MAYER, Chief Judge, CLEVENGER, Circuit
Judge, and GAJARSA, Circuit Judge.
A petition for rehearing having been filed by the
RESPONDENT,
UPON CONSIDERATION THEREOF, it is
ORDERED that the petition for rehearing be, and the
same hereby is, DENIED;
The mandate of the court will issue on July 20, 2000.
FOR THE COURT,
/s/ JAN HORBALY
JAN HORBALY
Clerk
Dated: July 13, 2000
45a
APPENDIX E
STATUTORY PROVISIONS
1. Section 7511(a) of Title 5 of the United States
Code states as follows:
§ 7511. Definitions; application
(a) For the purpose of this subchapter—
(1) “employee” means—
(A) an individual in the competitive service—
(i) who is not serving a probationary or
trial period under an initial appointment; or
(ii) who has completed 1 year of current
continuous service under other than a
temporary appointment limited to 1 year or
less;
(B) a preference elfgible in the excepted
service who has completed 1 year of current
continuous service in the same or similar
positions—
(i) in an Executive agency; or
(ii) in the United States Postal Service or
Postal Rate Commission; and
(C) an individual in the excepted service
(other than a preference eligible)—
(i) who is not serving a probationary or
trial period under an initial appointment
46a 47a
pending conversion to the competitive service; but does not apply to—
or (A) asuspension or removal under section 7532
(ii) who has completed 2 years of current of this title,
” oe covariates Bon Hepes MA (B) a reduction-in-force action under section
than a temporary appointment limited to 2 SOGS of le tithe,
years or less; (C) the reduction in grade of a supervisor or
manager who has not completed the probationary
period under section 3321(a)(2) of this title if such
reduction is to the grade held immediately before
(2) “suspension” has the same meaning as set
forth in section 7501(2) of this title;
(3) “grade” means a level of classification under becoming such a supervisor or manager,
a position classification system; (D) a reduction in grade or removal under
(4) “pay” means the rate of basic pay fixed by Section 4308 of this title, or
law or administrative action for the position held by (E) an action initiated under section 1215 or
an employee; and 7521 of this title.
(5) “furlough” means the placing of an employee 3. Section 7513 of Title 5 of the United States Code
in a temporary status without duties and pay be- states as follows:
cause of lack of work or funds or other nondiscipli-
nary reasons. $7513. Cause and procedure
2. Section 7512 of Title 5 of the United States Code (a) Under regulations prescribed by the Office of
states as follows: Personnel Management, an agency may take an action
covered by this subchapter against an employee only
§ 7512. Actions covered for such cause as will promote the efficiency of the
This subchapter applies to— service.
(1) aremoval; (b) An employee against whom an action is proposed
is entitled to—
(2) asuspension for more than 14 days;
‘eee ; (1) at least 30 days’ advance written notice
in grade; ‘
(3) a meee unless there is reasonable cause to believe the em-
(4) areduction in pay; and ployee has committed a crime for which a sentence
(5) a furlough of 30 days or less;
48a
of imprisonment may be imposed, stating the
specific reasons for the proposed action;
(2) a reasonable time, but not less than 7 days,
to answer orally and in writing and to furnish affida-
vits and other documentary evidence in support of
the answer;
(3) be represented by an attorney or other
representative; and
(4) a written decision and the specific reasons
therefor at the earliest practicable date.
(c) An agency may provide, by regulation, for a
hearing which may be in lieu of or in addition to the
opportunity to answer provided under subsection (b)(2)
of this section.
(d) An employee against whom an action is taken
under this section is entitled to appeal to the Merit
Systems Protection Board under section 7701 of this
title.
(e) Copies of the notice of proposed action, the
answer of the employee when written, a summary
thereof when made orally, the notice of decision and
reasons therefor, and any order effecting an action
covered by this subchapter, together with any sup-
porting material, shall be maintained by the agency and
shall be furnished to the Board upon its request and to
the employee affected upon the employee's request.
49a
4. Section 7701 of Title 5 of the United States Code
states as follows:
§ 7701. Appellate procedures
(a) An employee, or applicant for employment, may
submit an appeal to the Merit Systems Protection
Board from any action which is appealable to the Board
under any law, rule, or regulation. An appellant shall
have the right—
(1) to a hearing for which a transcript will be
kept; and
(2) to be represented by an attorney or other
representative.
Appeals shall be processed in accordance with regu-
lations prescribed by the Board.
(bX 1) The Board may hear any case appealed to it or
may refer the case to an administrative law judge
appointed under section 3105 of this title or other
employee of the Board designated by the Board to hear
such cases, except that in any case involving a removal
from the service, the case shall be heard by the Board,
an employee experienced in hearing appeals, or an
administrative law judge. The Board, administrative
law judge, or other employee (as the case may be) shall
make a decision after receipt of the written repre-
sentations of the parties to the appeal and after
opportunity for a hearing under subsection (a)(1) of this
section. A copy of the decision shall be furnished to
each party to the appeal and to the Office of Personnel
Management.
50a
(2A) If an employee or applicant for employment is
the prevailing party in an appeal under this subsection,
the employee or applicant shall be granted the relief
provided in the decision effective upon the making of
the decision, and remaining in effect pending the out-
come of any petition for review under subsection (e),
unless—
(i) the deciding official determines that the
granting of such relief is not appropriate; or
(iI) the relief granted in the decision provides
that such employee or applicant shall return or be
present at the place of employment during the
period pending the outcome of any petition for
review under subsection (e); and
(II) the employing agency, subject to the pro-
visions of subparagraph (B), determines that the
return or presence of such employee or applicant is
unduly disruptive to the work environment.
(B) If an agency makes a determination under sub-
paragraph (A)(ii)(II) that prevents the return or
presence of an employee at the place of employment,
such employee shall receive pay, compensation, and all
other benefits as terms and conditions of employment
during the period pending the outcome of any petition
for review under subsection (e).
(C) Nothing in the provisions of this paragraph
may be construed to require any award of back pay or
attorney fees be paid before the decision is final.
(3) With respect to an appeal from an adverse
action covered by subchapter V of chapter 75, authority
5la
to mitigate the personnel action involved shall be
available, subject to the same standards as would apply
in an appeal involving an action covered by subchapter
II of chapter 75 with respect to which mitigation
authority under this section exists.
(cX1) Subject to paragraph (2) of this subsection,
the decision of the agency shall be sustained under
subsection (b) only if the agency’s decision—
(A) in the case of an action based on unaccept-
able performance described in section 4303 or a
removal from the Senior Executive Service for fail-
ure to be recertified under section 3393a, is sup-
ported by substantial evidence; or
(B) in any other case, is supported by a pre-
ponderance of the evidence.
(2) Notwithstanding paragraph (1), the agency’s
decision may not be sustained under subsection (b) of
this section if the employee or applicant for em-
ployment—
(A) shows harmful error in the application of the
agency’s procedures in arriving at such decision;
(B) shows that the decision was based on any
prohibited personnel practice described in section
2302(b) of this title; or ’
(C) shows that the decision was not in
accordance with law.
(d1) In any case in which—
52a
(A) the interpretation or application of any civil
service law, rule, or regulation, under the juris-
diction of the Office of Personnel Management is at
issue in any proceeding under this section; and
(B) the Director of the Office of Personnel Man-
agement is of the opinion that an erroneous decision
would have a substantial impact on any civil service
law, rule, or regulation under the jurisdiction of the
Office;
the Director may as a matter of right intervene or
otherwise participate in that proceeding before the
Board. If the Director exercises his right to participate
in a proceeding before the Board, he shall do so as early
in the proceeding as practicable. Nothing in this title
shall be construed to permit the Office to interfere with
the independent decisionmaking of the Merit Systems
Protection Board.
(2) The Board shall promptly notify the Director
whenever the interpretation of any civil service law,
rule, or regulation under the jurisdiction of the Office is
at issue in any proceeding under this section.
(eX 1) Except as provided in section 7702 of this title,
any decision under subsection (b) of this section shall be
final unless—
(A) a party to the appeal or the Director
petitions the Board for review within 30 days after
the receipt of the decision; or
(B) the Board reopens and reconsiders a case on
its own motion.
53a
The Board, for good cause shown, may extend the 30-
day period referred to in subparagraph (A) of this
paragraph. One member of the Board may grant a
petition or otherwise direct that a decision be reviewed
by the full Board. The preceding sentence shall not
apply if, by law, a decision of an administrative law
judge is required to be acted upon by the Board.
(2) The Director may petition the Board for a
review under paragraph (1) of this subsection only if
the Director is of the opinion that the decision is
erroneous and will have a substantial impact on any
civil service law, rule, or regulation under the
jurisdiction of the Office.
(f) The Board, or an administrative law judge or
other employee of the Board designated to hear a case,
may—
(1) consolidate appeals filed by two or more
appellants, or
(2) join two or more appeals filed by the same
appellant and hear and decide them concurrently,
if the deciding official or officials hearing the cases are
of the opinion that the action could result in the appeals’
being processed more expeditiously and would not
adversely affect any party.
(gX1) Except as provided in paragraph (2) of this
subsection, the Board, or an administrative law judge
or other employee of the Board designated to hear a
case, may require payment by the agency involved of
reasonable attorney fees incurred by an employee or
applicant for employment if the empioyee or applicant
a
54a
is the prevailing party and the Board, administrative
law judge, or other employee (as the case may be)
determines that payment by the agency is warranted in
the interest of justice, including any case in which a
prohibited personnel practice was engaged in by the
agency or any case in which the agency’s action was
clearly without merit.
(2) If an employee or applicant for employment is
the prevailing party and the decision is based on a
finding of discrimination prohibited under section
2302(b)(1) of this title, the payment of attorney fees
shall be in accordance with the standards prescribed
under section 706(k) of the Civil Rights Act of 1964 (42
U.S.C. 2000e-5(k)).
(h) The Board may, by regulation, provide for one
or more alternative methods for settling matters
subject to the appellate jurisdiction of the Board which
shall be applicable at the election of an applicant for
employment or of an employee who is not in a unit for
which a labor organization is accorded exclusive rec-
ognition, and shall be in lieu of other procedures
provided for under this section. A decision under such a
method shall be final, unless the Board reopens and
reconsiders a case at the request of the Office of Per-
sonnel Management under subsection (e) of this section.
(i(1) Upon the submission of any appeal to the
Board under this section, the Board, through reference
to such categories of cases, or other means, as it deter-
mines appropriate, shall establish and announce pub-
licly the date by which it intends to complete action on
the matter. Such date shall assure expeditious con-
sideration of the appeal, consistent with the interests of
fairness and other priorities of the Board. If the Board
55a
fails to complete action on the appeal by the announced
date, and the expected delay will exceed 30 days, the
Board shall publicly announce the new date by which it
intends to complete action on the appeal.
(2) Not later than March 1 of each year, the Board
shall submit to the Congress a report describing the
number of appeals submitted to it during the preceding
fiscal year, the number of appeals on which it completed
action during that year, and the number of instances
during that year in which it failed to conclude a
proceeding by the date originally announced, together
with an explanation of the reasons therefor.
(3) The Board shall by rule indicate any other cate-
gory of significant Board action which the Board deter-
mines should be subject to the provisions of this sub-
section.
(4) It shall be the duty of the Board, an administra-
tive law judge, or employee designated by the Board to
hear any proceeding under this section to expedite to
the extent practicable that proceeding.
(j) In determining the appealability under this
section of any case involving a removal from the service
(other than the removal of a reemployed annuitant),
neither an individual’s status under any retirement
system established by or under Federal statute nor any
election made by such individual under any such system
may be taken into account.
(k) The Board may prescribe regulations to carry
out the purpose of this section.
56a
5. Section 7703 of Title 5 of the United States Code
(1994 & Supp. IV 1998) states as follows:
§ 7703. Judicial review of decisions of the Merit
Systems Protection Board
(a1) Any employee or applicant for employment
adversely affected or aggrieved by a final order or
decision of the Merit Systems Protection Board may
obtain judicial review of the order or decision.
(2) The Board shall be named respondent in any
proceeding brought pursuant to this subsection, unless
the employee or applicant for employment seeks review
of a final order or decision on the merits on the underly-
ing personnel action or on a request for attorney fees, in
which case the agency responsible for taking the per-
sonnel action shall be the respondent.
(b)(1) Except as provided in paragraph (2) of this
subsection, a petition to review a final order or final
decision of the Board shall be filed in the United States
Court of Appeals for the Federal Circuit. Notwith-
standing any other provision of law, any petition for
review must be filed within 60 days after the date the
petitioner received notice of the final order or decision
of the Board.
(2) Cases of discrimination subject to the provisions
of section 7702 of this title shall be filed under section
717(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-
16(c)), section 15(c) of the Age Discrimination in Em-
ployment Act of 1967 (29 U.S.C. 633a(c)), and section
16(b) of the Fair Labor Standards Act of 1938, as
amended (29 U.S.C. 216(b)), as applicable. Notwith-
standing any other provision of law, any such case filed
57a
under any such section must be filed within 30 days
after the date the individual filing the case received
notice of the judicially reviewable action under such
section 7702.
(c) In any case filed in the United States Court of
Appeals for the Federal Circuit, the court shall review
the record and hold unlawful and set aside any agency
action, findings, or conclusions found to be—
(1) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law;
(2) obtained without procedures required by law,
rule, or regulation having been followed; or
(3) unsupported by substantial evidence;
except that in the case of discrimination brought under
any section referred to in subsection (b)(2) of this
section, the employee or applicant shall have the right
to have the facts subject to trial de novo by the
reviewing court.
(d) The Director of the Office of Personnel Manage-
ment may obtain review of any final order or decision of
the Board by filing, within 60 days after the date the
Director received notice of the final order or decision of
the Board, a petition for judicial review in the United
States Court of Appeals for the Federal Circuit if the
Director determines, in his discretion, that the Board
erred in interpreting a civil service law, rule, or regula-
tion affecting personnel management and that the
Board’s decision will have a substantial impact on a civil
service law, rule, regulation, or policy directive. If the
Director did not intervene in a matter before the Board,
58a
the Director may not petition for review of a Board
decision under this section unless the Director first
petitions the Board for a reconsideration of its decision,
and such petition is denied. In addition to the named
respondent, the Board and all other parties to the
proceedings before the Board shall have the right to
appear in the proceeding before the Court of Appeals.
The granting of the petition for judicial review shall be
at the discretion of the Court of Appeals.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.