Amicus Curiae Brief — Postal Service v. Gregory

ee + 1).

| Supreme (8ST

“FILED

JUN 2% 20 | : ' JUN 58 2001

'

No. 00-758) gicrui wos |

In the

Supreme Court of the Gnited States

UNITED STATES POSTAL SERVICE,

_ Petitioner,

MARIA A. GREGORY,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Federal Circuit

BRIEF OF AMICUS CURIAE

NATIONAL EMPLOYMENT LAWYERS ASSOCIATION

IN SUPPORT OF RESPONDENT

PAULA A. BRANTNER EDWARD H. PASSMAN

Senior Staff Attorney Counsel of Record

NATIONAL EMPLOYMENT PASSMAN & KAPLAN, P.C.

LAWYERS ASSOCIATION 1090 Vermont Avenue, N.W.

600 Harrison Street Suite 500

Suite 535 Washington, D.C. 20005

San Francisco, CA 94107 (202) 789-0100

(415) 227-4655

Counsel for Amicus Curiae

NATIONAL EMPLOYMENT LAWYERS ASSOCIATION

Midwest Law Printing Company/Photex — Chicago — (312) 321-0220

BEST AVAILABLE COPY

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...............-2.405. ii

INTEREST OF THE AMICUS CURIAE ............. 1

SUMMARY OF THE ARGUMENT ................. 2

RGN ccc ver sccevssivecsdecevvecosenceces 3

I. THE DECISION OF THE COURT OF AP-

PEALS BELOW WAS CORRECT IN FIND-

ING THAT THE MSPB MAY NOT GIVE

CONSIDERATION TO PRIOR DISCIPLIN-

ARY ACTIONS THAT ARE THE SUBJECT

OF ONGOING PROCEEDINGS CHAL-

LENGING THEIR MERITS ...............-.. 3

II. THE COURT OF APPEALS WAS CORRECT

IN FINDING THAT THE MSPB’S PRIOR

RULE THAT AGENCIES MAY CONSIDER

AN EMPLOYEE’S DISCIPLINARY RE-

CORD WITHOUT REGARD TO PENDING

GRIEVANCES WAS ARBITRARY AND CA-

PRICIOUS, OR OTHERWISE CONTRARY

WEED sc ccccccccccccevessecereecensnes 8

ei 6 i dt Pr rrrrrrrrrrrrrerrer rrr rrr 10

ii

TABLE OF AUTHORITIES

CASES PAGE(S)

Arnett v. Kennedy, e

416 U.S. 134, 94S. Ct. 1633 (1974) ............ 8,9

Blank v. Dep’t of the Army,

247 F.3d 1225 (Fed. Cir. 2001) ..............455. 5

Bolling v. Dep’t of the Air Force,

PEED csccccocecccccces 3, 4, 5, 10

Carr v: Dep’t of the Air Force,

PE PEED coccccccccccoccccecocees 4

Gregory v. U.S. Postal Serv.,

212 F.3d 1296 (Fed. Cir. 2000) ................ 2,5

Haddle v. Garrison,

525 U.S. 121, 119 S. Ct. 489 (1998) .............. 1

Howard v. Dep’t of the Army,

CUED cc ccccccccccccccceccccecs 4

Jeffers v. Dep’t of Veterans Affairs,

BP es EE CUD ccc ccc ccccccccccccecess 4

Kolstad v. Am. Dental Ass’n,

527 U.S. 526, 119 S. Ct. 2118 (1999) ............. 1

Loudermill v. Cleveland Bd. of Ed..,

470 U.S. 532, 105 S. Ct. 1487 (1985) ............. 9

McConnell v. Dep’t of the Navy,

© M.S.P.R. 2B (1961) .... cer cccccccccccsvcess 7

iil

Pollard v. EI. du Pont de Nemours & Co.,

No. 00-763 (U.S. June 4, 2001) ................. 1

Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 120 S. Ct. 2097 (2000) ............ 1

West v. Gibson,

527 U.S. 212, 119 S. Ct. 1906 (1999) ............ 1

STATUTES & REGULATIONS

PUN PEED He vccesscccccncsescccccescceseness 6

5 U.S.C. § 2302(b10) 2... ee eee ees 7

5 U.S.C. § 7114(a5) 2... cee eee eee 8

BUS.C.§ 7121 o.oo c ccc eccceceeeeeeeeees 7,9

SG PEED ew acccccecesdnsncccnccseseeerceeen 7

IN TEED oncncccensncccnescessccesencces 4,9

PEED vavsecnnencevececcesssseceseeeces 8

DOs B VOMAENED cc ccccccecccccccccccccccccnce 4

PEED SB dececncecnesccensencsonseense 6

OTHER AUTHORITIES

Peter B. Broida, A Guide to Merit Systems

Protection Board Law & Practice (Dewey

, de 4,6

1

INTEREST OF AMICUS CURIAE'

The National Employment Lawyers Association

(“NELA”) is a voluntary membership organization of over

3,000 attorneys who regularly represent employees in

labor, employment, and civil rights disputes. NELA is one

of the largest organizations in the United States whose

members litigate and counsel individuals, employees, and

applicants for employment on claims arising out of the

workplace. NELA has participated as amicus curiae in

numerous employment cases before the state and federal

appellate courts as well as the United States Supreme

Court. Recent cases before this court include Pollard v. E_I.

du Pont de Nemours & Co., No. 00-763 (U.S. June 4, 2001);

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,

120 S. Ct. 2097 (2000); West v. Gibson, 527 U.S. 212, 119 S.

Ct. 1906 (1999); Kolstad v. Am. Dental Ass’n, 527 U.S. 526,

119 S. Ct. 2118 (1999); and Haddle v. Garrison, 525 U.S.

121, 119 S. Ct. 489 (1998). NELA has a compelling interest

in ensuring that the goals of the Civil Service Reform Act

of 1978 are fully realized. Because of the need for federal

employees to be able to effectively challenge prior disci-

pline before it can be used to enhance the penalty in

subsequent disciplinary actions, NELA submits this brief

to protect the interests of its members’ clients by ensuring

that they receive fair treatment by their employer, the

United States Government.

' Petitioner and Respondent have consented to the filing of this

brief amicus curiae. The consents have been filed with the Clerk

of this Court. No part of the attached brief has been authored by

counsel for either party. No persons other than the amicus curiae,

their members or their counsel made a monetary contribution to

the preparation and submission of this brief.

2

SUMMARY OF THE ARGUMENT

This case presents the Court with an opportunity to

clarify whether the Merit Systems Protection Board

(MSPB) can rely upon prior disciplinary actions with

pending grievances to enhance the penalty in a subsequent

case. Amicus proposes that the Court accept the position of

the Federal Circuit Court of Appeals prohibiting such

consideration of “. . . prior disciplinary actions that are the

subject of ongoing proceedings challenging their merits.”

Gregory v. United States Postal Serv., 212 F.3d 1296, 1300

(Fed. Cir. 2000). This requirement, which prohibits the

MSPB, but not federal agencies, from continuing to rely

upon challenged disciplinary actions, is in accord with the

remedial purpose Congress intended when it passed the

Civil Service Reform Act of 1978. The MSPB’s prior posi-

tion is also contrary to concepts of procedural due process

and “. . . risk{[s) 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.” Jd. at 1300.

Amicus suggests that the Court adopt the rationale

enunciated by the Federal Circuit below that the MSPB

abused its jurisdiction in relying upon prior actions that

were the subject of ongoing grievance procedures. There-

fore, the Board’s determination that the penalty of removal

was reasonable should be set aside. However, agencies can

still rely upon prior discipline when taking the next action

as long as they continue to process the prior grievances to

arbitration. In the meanwhile, the employee should be able

to hold in abeyance his appeal to the MSPB or the arbitra-

tor on the subsequent adverse action. If a final decision is

rendered in favor of the agency, it can then rely upon the

prior action to enhance the penalty rather than placing the

difficult burden on employees who have already been re-

moved, demoted, or subjected to lengthy suspensions of 15

3

days or more. If the final decision is rendered on behalf of

the employee, the agency will have a great incentive to

settle to avoid having its penalty mitigated, thus reducing

litigation. The increased burden will encourage federal

agencies to expeditiously process the prior pending cases

rather than delay the proceedings and then claim that the

former employees are no longer covered by the grievance-

arbitration procedures.

ARGUMENT

I. THE DECISION OF THE COURT OF APPEALS

BELOW WAS CORRECT IN FINDING THAT THE

MSPB MAY NOT GIVE CONSIDERATION TO

PRIOR DISCIPLINARY ACTIONS THAT ARE THE

SUBJECT OF ONGOING PROCEEDINGS CHAL-

LENGING THEIR MERITS.

The MSPB developed its theory that appellants only

have a limited right to contest prior disciplinary actions in

the case of Bolling v. Dep’t of the Air Force, 9 M.S.P.R. 335

(1981). The Board distinguished between two types of

situations. The first is where an employee was 1. previ-

ously informed of the action in writing, 2. was given an

opportunity to dispute the merits of the action to a differ-

ent authority, and 3. the action was made a matter of rec-

ord—in that case the record of the prior disciplinary action

will be reviewed and upheld “*. . . unless, upon review, the

agency or the Commission determines that the disciplinary

action was unreasonable, arbitrary, or capricious.” Jd. at

339. This does not give the employee the right to“. . . ‘hash

over the record of the past action in his hearing on the

current action.” Jd. Alternatively, if the employee does not

dispute the prior action, “. . . only the occurrence of that

action need be verified.” Jd. Thus the practice of the former

Civil Service Commission, predecessor to the Board, was

“... to give a challenged past record a full, de novo review

4

if the three criteria were not met, but a limited review of

the record if they were.” Id.

The Board decided to follow the Commission’s approach,

noting that “(t]he Reform Act effected no substantive

changes in the area of the proper review of challenged

prior disciplinary actions,” citing Howard v. Dep’t of the

Army, 6 M.S.P.R. 205, 205-07 (1981). Id. In determining

that it struck the correct balance, the Board stated that

“'.. an appellant is not allowed to relitigate issues that

either were, or could have been, thoroughly litigated pre-

viously.” Jd. at 340. However, the Board’s analysis is fun-

damentally flawed in two aspects: there is no requirement

that the employee must have the prior disciplinary action

reviewed by a different authority from the one that took

the action, 5 U.S.C. § 7513; 5 C.F.R. § 752.404(c); and the

employee is not allowed to thoroughly litigate prior dis-

ciplinary actions before they could be used as a basis to

enhance the penalty in a subsequent case. See Carr v. Dep't

of the Air Force, 10 M.S.P.R. 498, 500 (1982) (holding that

a pending grievance only entitled employee to a determina-

tion “.. . of whether that action was ‘clearly erroneous.’ ”);

accord, Jeffers v. Dep’t of Veterans Affairs, 40 M.S.P.R. 567,

570 n.4 (1989).

Moreover, “(rjare are the cases finding past discipline

clearly erroneous as opposed to, for example, time barred.”

Peter B. Broida, A Guide to Merit Systems Protection Board

Law & Practice 1540 (Dewey Publications 2001) [hereinaf-

ter A Guide]. Thus, notwithstanding the petitioner’s re-

liance on the Bolling rule governing the consideration of

prior disciplinary actions for providing adequate proce-

dural safeguards, in practice it has not worked. Brief for

the Petitioner at 29-30 [hereinafter Petitioner's Brief].

Furthermore, while employees are only entitled to limited

review of the records of prior actions where all three cri-

teria were met, the Board, in formulating its rule, still

5

referred to the fact that “. . . appellant did not grieve or

otherwise contest any of the prior disciplinary actions... .”

Bolling, 9 M.S.P.R. at 340. Nevertheless, the Board re-

jected Maria Gregory’s petition for review below, “. . .

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 proceedings.” Greg-

ory, 212 F.3d at 1298.

Therefore, the Board has been only giving lip service to

the notion that federal employees are entitled to litigate

prior disciplinary actions before that discipline could be

used to support the enhanced penalty in a subsequent

disciplinary action. The Federal Circuit properly addressed

this inherent inconsistency in holding “. . . as a matter of

law, consideration may not be given to prior disciplinary

actions that are the subject of ongoing proceedings chal-

lenging their merits.” Jd. at 1300. The court went on to

correctly note that “[tlo 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.” Jd.

However, in Blank v. Dep’t of the Army, 247 F.3d 1225

(Fed. Cir. 2001), the court held that the same principle

does not apply to collateral challenges to disciplinary

actions in discrimination cases pending before the Equal

Employment Opportunity Commission (EEOC). Citing the

need for finality, the court noted the possibility of long

time delays in obtaining final EEOC decisions. This is a

reasonable balancing of the equities between the need for

expeditious discipline of federal employees and the funda-

mental fairness inherent in waiting for an independent

determination of pending grievances before relying upon a

prior disciplinary action.

The U.S. Postal Service argues that the Federal Circuit

had no right to reverse the Board’s decision below because:

6

Both longstanding administrative practice and

common sense support the MSPB’s rule that agen-

cies may consider an employee’s disciplinary rec-

ord—without regard to pending grievances—in

calibrating the discipline for subsequent miscon-

duct.

Petitioner’s Brief at 11. Amicus concedes that there was a

“longstanding administrative practice,” but strongly dis-

agrees that it was based on “common sense.” As noted

supra, the underlying rationale for the Board’s adminis-

trative practice was fundamentally flawed. While the pe-

titioner is correct that the Board can reopen an agency

decision “after it has affirmed an agency decision relying

upon that action,” such a review is discretionary with the

Board which has no obligation to reopen such a case, es-

pecially after a long period of time has elapsed. See id. at

12 (emphasis added); 5 C.F.R. § 1201.118. “There is little

law on the effect of reversal of past discipline upon a cur-

rently sustained charge.” Peter B. Broida, A Guide 1541

(2001). As a practical matter, it is very difficult to get the

Board to grant petitions to reopen based on new evidence

of reversals of past discipline, and only sophisticated em-

ployees or those represented by experienced counsel are

likely to be even aware of such a procedure. “Compared

to the number of cases annually decided. by the Board

through PFR, there are very few cases that are reopened

under Section 1201.118.” Id. at 984.

Amicus also concedes that recent disciplinary actions

are relevant in determining the penalty for subsequent

offenses. However, even though it is not at issue in this

case, it strongly disagrees with petitioner that “[a]llowing

federal agencies to consider an employee’s disciplinary

record—without regard to pending grievances—also pro-

motes the merit system principles. 5 U.S.C. § 2301.” Pe-

titioner’s Brief at 12. Rather, it is more analogous to

punishing federal employees on the basis of conduct which

——— ee ee oe ee 6 ae

7

does not affect the performance of the employee or others,

which is a prohibited personnel practice, if the disciplinary

action were reversed by an arbitrator or the MSPB. 5

U.S.C. § 2302(b)(10). It should be noted that not only may

prior suspensions be reviewed by arbitrators, but demo-

tions or suspensions of 15 days or more may be appealed

directly to the MSPB. 5 U.S.C. § 7121(e)\(1); 5 U.S.C.

§ 7512. Likewise, as the grievance procedures offered by a

collective bargaining agreement provide “sufficient proce-

dural protection to employees suspended for 14 days or

less,” they should be allowed to run their course before the

contested action can be relied upon to enhance a subse-

quent action. McConnell v. Dep't of the Navy, 9 M.S.P.R.

22, 25 (1981).

It is also correct that “[njothing in the CSRA prevents an

agency from considering prior disciplinary actions in de-

ciding what discipline is appropriate, even when the prior

actions remain subject to grievances.” Petitioners’ Brief at

13 (emphasis added). However, the court’s decision below

does not prevent agencies from considering prior disciplin-

ary actions in assessing a penalty in a subsequent case—it

only prevents the Board from doing so when there are

outstanding grievances. While it is true some delay may

occur before the Board can decide a case where there is an

outstanding challenge to a prior disciplinary action, this is

not an unreasonable price to pay in comparison to what

happens when an employee is not allowed to complete such

a challenge. He or she is removed, demoted, or receives a

long suspension based upon prior contested actions which

may never be reviewed by an independent arbitrator.

In fact, as in the instant case, the agency is likely to take

the position that the grievant is no longer an agency em-

ployee and thus has no access to the negotiated grievance

procedure under the collective bargaining agreement. Also,

there is little incentive for a labor organization to arbitrate

the grievances of those employees who have been removed

8

and are no longer union members. The labor organiza-

tion, not the employee, determines which cases it will

take to arbitration, and it is unlikely to pursue cases lack-

ing in merit merely to protect employees from possible

subsequent, more serious disciplinary actions. 5 U.S.C.

§ 7114(a)(5).

Il. THE COURT OF APPEALS WAS CORRECT IN

FINDING THAT THE MSPB’S PRIOR RULE THAT

AGENCIES MAY CONSIDER AN EMPLOYEE’S

DISCIPLINARY RECORD WITHOUT REGARD TO

PENDING GRIEVANCES WAS ARBITRARY AND

CAPRICIOUS, OR OTHERWISE CONTRARY TO

LAW.

Amicus contends that the MSPB’s prior rule, which was

invalidated by the court below, was arbitrary and capri-

cious, or otherwise contrary to law. 5 U.S.C. § 7703(c).

Therefore, the Federal Circuit’s determination should be

upheld by this Court as within the parameters of the scope

of judicial review of MSPB decisions. In addition, the Fed-

eral Circuit’s decision, contrary to the petitioner’s claim,

was motivated by the principle of procedural due process.

In Arnett v. Kennedy, 416 U.S. 134, 94S. Ct. 1633 (1974),

both the plurality and the concurring opinions found that

it was not necessary for a federal employee to have a pre-

decision hearing on the merits of his proposed removal

before termination, as the opportunity to respond to the

charges and the post-termination procedures were ade-

quate to ensure procedural due process:

Since the purpose of the hearing in such a case is

to provide the person ‘an opportunity to clear his

name,’ a hearing afforded by the administrative

appeals procedures after the actual dismissal is a

sufficient compliance with the requirements of the

Due Process Clause.

9

Id. at 157 (post-termination hearing procedures provided

by the Civil Service Commission and the OEO adequately

protect those federal employees’ liberty interest.); id. at

170 (“[a}fter removal, the employee receives a full eviden-

tiary hearing, and is awarded backpay if reinstated.”); id.

at 178 (“[t]he past cases of this Court uniformly indicate

that some kind of hearing is required at some time before

a person is finally deprived of his property interests.”); id.

at 179-180, 184-87.

Subsequently, Arnett v. Kennedy, supra, was amplified

by this Court’s landmark decision in Loudermill v. Cleve-

land Bd. of Ed., 470 U.S. 532, 105 S. Ct. 1487 (1985). It

was specifically noted that “[oJur holding rests in part on

the provisions in Ohio law for a full post-termination hear-

ing.” Id. at 546. The Court then concluded “that all the

process that is due is provided by a pretermination oppor-

tunity to respond, coupled with post-termination adminis-

trative procedures as provided by the Ohio statute.” Jd. at

547-48. The due process afforded by the decisions in Arnett

and Loudermill should be contrasted by the lack of due

process afforded by the MSPB under its prior rule. Not

only are previous disciplinary actions considered in en-

hancing the penalty in a subsequent case prior to a due

process post-disciplinary action hearing, but in some cases,

e.g., suspensions of more than 14 days or demotions, the

actions themselves entitle the employees to a post-dis-

ciplinary action MSPB or arbitration hearing. 5 U.S.C.

§ 7513; 5 U.S.C. § 7121.

Under the prior MSPB rule, an employee’s opportunity

to obtain a hearing on her previous disciplinary action(s)

would be greatly circumscribed. Even if she were success-

ful, the most that she could hope for is for the Board to

reopen its final decision to mitigate the penalty. 5 C.F.R.

§ 1201.118. Such a truncated procedure does not comport

with procedural due process for suspensions of 15 days or

10

more or demotions and provides little procedural protection

for short suspensions and lesser disciplinary actions under

the “clearly erroneous” standard .f review mandated by the

Bolling rule. Unlike the prior MSPB rule, the Federal Cir-

cuit’s decision is not arbitrary or capricious, or contrary to

law.

CONCLUSION

For the foregoing reasons stated in this brief, Amicus

asks this Court to uphold the opinion of the lower court

forbidding the MSPB to consider prior disciplinary actions

when there are pending appeals or grievances.

Respectfully submitted,

EDWARD H. PASSMAN

Counsel of Record

PASSMAN & KAPLAN, P.C.

1090 Vermont Avenue, N.W.

Suite 500

Washington, D.C. 20005

(202) 789-0100

PAULA A. BRANTNER

Senior Staff Attorney

NATIONAL EMPLOYMENT

LAWYERS ASSOCIATION

600 Harrison Street

Suite 535

San Francisco, CA 94107

(415) 227-4655

Attorneys for Amicus Curiae

NATIONAL EMPLOYMENT

LAWYERS ASSOCIATION