South Dakota Contract Carrier Sentenced In Mail Theft Case
Press Release from the United States Attorney’s Office for the District of South Dakota:
February 2, 2010
Rapid City, SD
United States Attorney Brendan V. Johnson announced that a Lemmon man charged with Theft of Mail Matter was sentenced on February 2, 2010, by Chief US District Judge Karen E. Schreier. Claude Haugen, age 44, was sentenced to 2 months home confinement, 3 years probation, a $100 special assessment, and $866 restitution. Haugen was indicted by a federal grand jury on September 22, 2009. In February 2009, Haugen, a contract carrier for the U.S. Postal Service, stole a package from an individual on his route. On November 2, 2009, he pled guilty to the charge. This case was investigated by the USPS-OIG. Assistant US Attorney Carolyn G. Olson prosecuted the case
Postal Clerk Waived Appeal Rights So MSPB Upholds Removal
The following is a summary of the decision- click here to read the entire case.
PR note: This case illustrates why employees must be very careful when entering into Last Chance Agreements:
Appellant: Gary Donnell Rhett
Agency: United States Postal Service
Decision Number: 2010 MSPB 21
Docket Number: AT-0752-09-0408-I-1; AT-0752-09-0484-I-1
Issuance Date: January 27, 2010
Appeal Type: Adverse Action by Agency
Action Type: Removal
The appellant petitioned for review of two initial decisions that dismissed his appeals for lack of adverse action jurisdiction. Effective September 5, 2008, the agency removed the appellant from his position based on alleged attendance-related misconduct. While a grievance of that action was pending, the parties entered into a last?chance settlement agreement (LCSA), under which the appellant returned to work. The LCSA also provided that the appellant could be removed for any attendance-related misconduct for a period of 18 months, and that he waived his right to appeal to the Board for any action taken for such misconduct. During the 18-month period, the agency removed the appellant from his position for his alleged breach of the LCSA. The appellant filed appeals of both removal actions. As to the first removal, the administrative judge considered and rejected the appellant’s arguments that the LCSA was invalid, and found that the appellant could not appeal this removal because he had settled it without expressly reserving his right to file a Board appeal of the action. As to the second removal, the administrative judge again found that the LCSA was valid and enforceable, that the appellant breached the agreement when he was absent from work on 5 occasions, and that the appellant could not appeal the second removal because he had waived his appeal rights in the LCSA.
Holdings: The Board denied the appellant’s PFR, reopened the appeals on its own motion, and affirmed the initial decisions as modified, still dismissing both appeals for lack of adverse action jurisdiction. In agreeing with the administrative judge’s conclusion that the last-chance settlement agreement was valid, the Board noted that the agency had failed to inform the appellant in connection with the first removal action that, as a preference-eligible employee, he had the right to appeal his removal to the Board. The record showed, however, that the appellant knew or should have known that may have had Board appeal rights at the time he entered into the agreement.
The last-chance settlement agreement further provided:
I, [the appellant], have read and understand the conditions and restrictions set forth in the above agreement. I am mentally and physically fit so as to be able to understand this agreement in its entirety. . . . I know and understand that I have waived my appeal rights through any and all forums and avenues, including, but not limited to, the Merit Systems Protection Board, . . . for any removal action initiated against me for violation of this last chance agreement during this two-year period.
California Postal Supervisor Pleads Guilty To Embezzlement And Theft Charges
SACRAMENTO, Calif. — United States Attorney Benjamin B. Wagner announced today that AUDRY MAE SIMMONS, 57, of Sacramento, pleaded guilty today to embezzlement and theft charges before United States Magistrate Judge Dale A. Drozd.
This case is the product of an investigation by the United States Postal Service’s Office of the Inspector General.
According to Assistant United States Attorney Michelle Rodriguez, who is prosecuting the case, between November 1, 2008 and January 16, 2009, SIMMONS stole the cash reserve of the Perkins Station Post Office, located at 9500 Kiefer Blvd., in Sacramento. The cash reserve was entrusted to SIMMONS in order for her to provide change to counter postal clerks she supervised. SIMMONS incrementally stole the cash reserve, totaling $3,999.50, and then falsified documents to cover her theft and embezzlement. This morning SIMMONS admitted that from early November 2008 through January 2009 she used the U.S. currency in the cash reserve to make personal expenditures and to pay non-governmental expenses. SIMMONS had been employed by the U.S. Post Office since October 1986 and, at the time of her theft,
SIMMONS was the Customer Services Supervisor of Sacramento’s Perkins Station Post Office.
SIMMONS was convicted of one misdemeanor count of theft and one misdemeanor count of embezzlement of postal funds during the performance of her duties. She is scheduled to be sentenced on March 2, 2010. The maximum penalty for each offense is one year in prison, a one-year term of supervised release, and a fine of up to $100,000. The actual sentence, however, will be determined at the discretion of the court after consideration of the Federal Sentencing Guidelines, which take into account a number of variables and any applicable statutory sentencing factors.
source: U.S. Attorney’s Office
Connecticut District Court Dismisses Postal Clerk’s Sexual Harassment Suit
Postal Clerk failed to seek help through EEOC and submit claim to USPS Torts Claim Coordinator prior to filing lawsuit
According to the lawsuit: Guy Johnson, a postal clerk in North Stonington, CT. claims stem from a number of allegedly harassing incidents at work beginning in March 2007. In March and June of 2007, a supervisor, Kay Lautenheiser allegedly sexually harassed Johnson on the basis of his sexual orientation and gender. Johnson sought assistance from his supervisor William Boordsen, but Boordsen refused. In his complaint Johnson claims that in or about August 2007, Boordsen reprimanded Johnson when he discovered that Johnson had sought help through the Equal Employment Office (EEO). Around that same time Boordsen changed Johnson’s starting time for work and removed Johnson’s fan, even though he allegedly knew Johnson’s medical condition required a cool environment. Johnson then filed a complaint with the Connecticut Commission on Human Rights and Opportunities; however, the Commission refused to review the matter, asserting that it did not have jurisdiction.
In 2008, Boordsen and Lautenheiser allegedly continued their harassing behavior by removing items Johnson needed for work, breaking his glasses, hiding his mail, making comments about his sexuality, utilizing other offensive language, and spreading false rumors about his sexuality. These actions resulted in Johnson’s suspension from work as well as loss of leave and sick time because he was unable to work.
Also in 2008, Boordsen issued an order that required Johnson to seek medical assistance . In 2009, Boordsen and Lautenheiser allegedly made numerous statements to Johnson and others that they were going to “get rid” of Johnson or get him fired. Johnson claims that as a result of this pattern of alleged harassment and intimidation he experienced several medical issues.
On July 17, 2009, Johnson , filed a complaint against his supervisor, William Boordsen , in the Superior Court for the Judicial District of New London, alleging violations of “Title VII, the Connecticut Fair Employment Practices Act (CFEPA), tortious interference with contract, negligent and intentional infliction of emotional distress, and failure to supervise.” Boordsen removed the action to Connecticut District Courtt on July 27, 2009. Boordsen was then replaced as the defendant by John E. Potter, the Postmaster General,. The Postal Service submitted a request to dismiss the case.
The Postal Service argued that Johnson’s Title VII claim for employment discrimination should be dismissed because he failed to exhausted his administrative remedies.
Although Johnson’s complaint alleges that in August 2007 Boordsen reprimanded Johnson for seeking assistance through the EEO process, Johnson did not provide any evidence that he sought such assistance or when he sought such assistance. Additionally, in Johnson’s prior action against the Postal Service concerning discrimination by Boordsen and Lautenheiser, (which was dismissed on June 5, 2009) the District Judge found that Johnson had failed to exhaust his administrative remedies and dismissed Johnson’s Title VII claim against the Postal Service.
The Postal Service also argued that Johnson’s tort claims should be dismissed because none of the complaints were directed toward the Tort Claims Coordinator in St. Louis, as required under the regulations.
Therefore on December 17, 2009, the District Court dismissed the case.
Appeals Court Upholds Demotion of California Postmaster
Robert Di Paolo appeals a decision of the Merit Systems Protection Board (“MSPB” or “Board”) sustaining his demotion from the position of Postmaster to Supervisor in the Lincoln Post Office, Sacramento District, Pacific Area. The demotion was based on four charges: (1) inappropriate stamp purchases, (2) receipt of alcohol on postal property, (3) failure to follow instructions, and (4) inappropriate use of information technology.
In his brief to this court, Mr. Di Paolo raises several challenges to each of the four charges. Although some of Mr. Di Paolo’s arguments are persuasive as to the severity of each charge individually, they do not refute the administrative judge’s ultimate conclusion that all four charges, when considered together, justify the penalty imposed. Because the penalty imposed was demotion, as opposed to removal from service, the U.S. Postal Service (“USPS”) need not show that Mr. Di Paolo was unfit to serve or supervise. The USPS need only show that the totality of the four charges establishes that Mr. Di Paolo’s performance did not comport with the exemplary level of responsibility associated with the position of Postmaster. Because the USPS met this burden, we agree that Mr. Di Paolo’s demotion promotes the efficiency of the service. We therefore affirm the decision of the MSPB.
US Court of Appeals For the Federal Circuit
Mr. Di Paolo has served in the USPS for over twenty-eight years. He acquired the position of EAS-21 Postmaster of the Lincoln Post Office in 2005. After around two years of service as Postmaster, Mr. Di Paolo was demoted to EAS-17 Supervisor of Computerized Forwarding Operations Services. Mr. Di Paolo challenged this adverse action before an administrative judge. Although the administrative judge accepted some of Mr. Di Paolo’s arguments, he sustained at least in part the four charges against Mr. Di Paolo and found that demotion was an appropriate penalty. Mr. Di Paolo then petitioned for review before the MSPB. The Board agreed with the administrative judge and affirmed the USPS action. Mr. Di Paolo now appeals to this court. We have jurisdiction over the appeals from the MSPB pursuant to 5 U.S.C. § 7703. Read more
Appeals Court Upholds Arbitrator's Decision Assigning Bar Code Scanning To APWU
In 2001, APWU grieved the Postal Service’s assignment of bar code scanning work at the Oakland (CA) Airport Mail Facility . The Postal Service responded that the grievance was not a jurisdictional claim because the assignment was made before April 1992.
In the District Court’s decision:
Because APWU argued the merits of the grievance throughout its presentation, and NPMHU “argued the merits at some length its closing brief, I cannot quibble with the arbitrator’s decision to issue an award on the merits.There are no grounds on which to vacate the arbitrator’s award.”
This is an arbitration case:
Two unions of postal workers – the American Postal Workers Union and the National Postal Mail Handlers Union – disagreed over which union was entitled to perform certain work at a U.S. Postal Service facility in Oakland. The Postal Service assigned the tasks to NPMHU’s mail handlers. According to APWU, that assignment contravened a 1979 Postal Service directive regarding allocation of work. APWU brought the matter to arbitration and prevailed in the arbitration proceeding.
NPMHU then sued in federal court to overturn the arbitrator’s decision. NPMHU claimed, in particular, that the arbitrator erred in finding the dispute arbitrable under the parties’ contract. Applying the extremely deferential standard of review for labor arbitration decisions, the District Court upheld the arbitrator’s decision on arbitrability even though it was, in the court’s words, “probably erroneous.” 578 F. Supp. 2d 160, 162 (D.D.C. 2008). We too acknowledge that the arbitrator probably erred as a matter of contract interpretation. Yet in light of the deference courts must afford to a labor arbitrator’s contract interpretation – including an arbitrator’s decision on arbitrability where, as here, the parties agree to present that issue to the arbitrator – we agree with the District Court that we must uphold the arbitrator’s decision in this case. We therefore affirm the judgment of the District Court.
http://pacer.cadc.uscourts.gov/docs/common/opinions/200912/08-5467-1221495.pdf
District Court Dismisses Lawsuit Against USPS For Selling Employees Personal Data
This is an update on the nationwide class action court case involving Postal employees filed two years ago. Postal Employees claimed that USPS violated the Privacy Act by selling its employee master file, containing personal, private employee information, including “the complete home address database of all career and non-career, full and part-time employees.
According to lawsuit, the Postal Service’s disclosure of information is evidenced by the Postal Service’s “Strategic Business Initiatives Plan, Management Instruction – AS-333-2004-7,” a postal regulation that allows private corporations to submit competitive bids for co-branding and other types of marketing agreements using the employee master file. Postal Employees complained that all of this is done without the Postal Service employee’s approval, consent, or knowledge. They also argued that the Postal Service received more than $8.5 million in profit by selling its employee master file.
The Postal Service admitted that it engaged in direct marketing of co-branded products and services to its employees but their actions does not violate the Privacy Act. The Postal Service argued in part the lawsuit should be dismissed because (1) it is an improper challenge to a Postal Service regulation, i.e., the “Strategic Business Initiatives Plan, Management Instruction – AS-333-2004-7,” ; (2) it arises out of Postal Employees’ employment relationship with the Postal Service; and (3) there is no clearly defined independent cause of action for unjust enrichment under federal common law.
Postal Employees Can Opt Out
The Strategic Business Initiatives Plan, Management Instruction – AS-333-2004-7 states, “Employees who have questions about receiving mail under this program or their privacy, or if they would like to opt out of mailings under this program, may contact the Privacy Office at:
Privacy Office
US Postal Service
475 L’Enfant Plaza SW RM 10407
Washington, DC 20260-2200
The District Court ruled in part:
Plaintiffs next point out that the Postal Service’s regulation, i.e., the Management Instruction, enriched no one; rather, it was the unjust enrichment from the performance of the co-branding contracts that is at the heart of their complaint. (Sec. Resp. at 19.) But the Postal Service’s performance of the agreements is done pursuant to the Management Instruction, incorporated into the Postal Service regulations at 39 C.F.R. § 211.2(a)(3).
The court finds Plaintiffs’ attempt to circumvent the prohibition against challenging a Postal Service regulation by contending that they are not challenging the regulation itself, but the profits received from enacting the regulation, to amount to a distinction without a difference. The core of Plaintiffs’ claim against the Postal Services is its enactment and implementation of the Management Instruction. Accordingly, the court concludes that Plaintiffs’ claim of unjust enrichment is a direct challenge to the Postal Service’s Management Instruction – the regulation granting it authority to enter into the co-branding agreements – and therefore there is no waiver of the Postal Service’s sovereign immunity for this remaining claim. Accordingly, the court concludes that it does not have jurisdiction to adjudicate Plaintiffs’ unjust enrichment claim based on a Postal Service regulation.
For the reasons stated GRANTS the Postal Service’s motion to dismiss (Dkt. # 55). The court DISMISSES Plaintiffs’ complaint against the Postal Service.
The lawsuit now moves to the Court of Appeals.
Previous story on lawsuit: http://postalreporternews.com/2007/07/30/class-action-lawsuit-filed-against-usps-for-privacy-violations/
Former Postal Employee Gets Prison for Stealing Stamps Worth Over $682,000
Baltimore, Maryland – U.S. District Judge Catherine C. Blake sentenced former postal employee Marvin Lamont Foster, age 55, of Rosedale, Maryland, today to 30 months in prison followed by three years of supervised release for conspiracy to steal from the United States Postal Service (USPS), announced United States Attorney for the District of Maryland Rod J. Rosenstein. Judge Blake also entered an order of restitution against Foster in the amount of $305,200.
“Anyone who buys stamps at a discount should be on notice of the risk that they are purchasing stolen property,” said U.S. Attorney Rod J. Rosenstein.
According to his plea agreement, Foster was a window clerk at the Elkridge USPS office since 1998. First class postage stamps are provided by USPS to local post offices packaged in “bricks” of 2,000 stamps valued at $840 per brick and “coils” of 100 stamps valued at $42. From at least June 2008 through March 2009, Foster stole “bricks” and “coils” of stamps from the post office, which he provided to a co-conspirator and others to sell. The Elkridge USPS office has lost $682,809 as a result of the postage stamp theft scheme.
United States Attorney Rod J. Rosenstein thanked the U.S. Postal Inspection Service, the U.S. Postal Service – Office of Inspector General and U.S. Immigration and Customs Enforcement for their investigative work. Mr. Rosenstein commended Assistant United States Attorneys Sandra Wilkinson and Rachel M. Yasser, who prosecuted the case.
Former Kentucky Postal Employee charged with stealing items from the mail
LOUISVILLE, KY – U.S. Attorney Candace G. Hill of the Western District of Kentucky announced today that a federal grand jury returned an indictment against Joseph Bourg, age 44, of Louisville, Kentucky, in Jefferson County, on charges of theft of mail matter.
The Indictment alleges that between 2008 through August of 2009, Bourg rifled through the mail and stole controlled substances, trading cards, DVDs, and other items from mail letters, cards and packages. Complaints were made that several items had not reached their intended recipients. During their investigation, investigators observed Bourg take a package from the post office. A search warrant was executed on his home where investigators discovered additional packages and items which Bourg admitted to taking from the mail.
In the event of a conviction, the maximum potential penalties are 17 years’ imprisonment, a $250,000 fine, and supervised release for a period of up to 3 years.
The case is being prosecuted by Assistant United States Attorney Lettricea Jefferson-Webb, and it was investigated by the United States Postal Service, Office of the Inspector General, Veteran’s Administration Office of Inspector General and the Drug Enforcement Administration.
Bourg is scheduled to appear for arraignment before the United States Magistrate Judge on December 22, 2009, at 9:30 a.m., in Louisville, Kentucky.
The indictment of a person by a Grand Jury is an accusation only and that person is presumed innocent until and unless proven guilty.
source: U.S. Department of Justice
MSPB: USPS Zero Tolerance Policy Violation Is Not Automatic Grounds For Removal
A Postal Employee appealed USPS’ decision to remove him based on a charge of Improper Conduct/Violation of Zero Tolerance Policy after the employee engaged in a physical altercation with a co-worker. The MSPB sustained the removal, but the Federal Circuit Court reversed the penalty determination and remanded the case. The MSPB found that a 30-day suspension was the maximum reasonable penalty, and therefore, ordered USPS to cancel the removal. Cunningham v. U.S. Postal Service. PR note: Now this does not mean employees can hit their co-workers without fear of getting fired. It only points out getting fired for violating the zero tolerance policy should not be a blanket policy.
MSPB in explaining its decision wrote:
When an agency imposes removal under a zero tolerance policy without giving bona fide consideration to the appropriate Douglas factors, its penalty determination is not entitled to deference. In such a case, the Board will independently weigh the relevant Douglas factors to evaluate the reasonableness of the penalty.
Here, the administrative judge found that the deciding official imposed the penalty of removal because he believed that the agency’s zero tolerance policy requires removal for a sustained charge of violence in the workplace.
The court found that “the [administrative judge]’s determination must stand.” Therefore, we must independently weigh the relevant Douglas factors to evaluate the reasonableness of the penalty.
When the Board sustains all of the agency’s charges, but finds the agency penalty too severe, the Board may only mitigate the penalty to the maximum reasonable penalty. Here, the appellant has at least ten years of satisfactory service and the agency did not cite any prior disciplinary record in its notice of proposed removal or removal decision notice. Further, the court found that the physical altercation resulted in no serious injury, no weapons were used, and there was “an element of provocation.” As the administrative judge found, the appellant had the opportunity to avoid the altercation by going back into the building and informing the Postal police following Mr. Allmond’s initial push. Therefore, in accordance with the court’s instruction that the administrative judge’s credibility determinations must stand, we find that a thirty-day suspension is the maximum reasonable penalty.
Cunningham vs. U.S. Postal Service
Related link: Appeals Court Overturns MSPB Decision To Uphold Postal Workers Removal - Federal Circuit Court decision