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.
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
Postal Worker's Removal For Disrespecting Supervisor Overturned By Appeals Court
Karla Malloy entered employment with the USPS on October 18, 1980. At the time of the events at issue she was in the position of data collection technician at the Seattle Bulk Mail Center. In November 2005 Ms. June D. Hamilton became Ms. Malloy’s immediate supervisor. Because Ms. Malloy and Ms. Hamilton usually worked on different shifts, they communicated primarily by email. The email evidence and other records before the Board show severe tensions and sharp exchanges, relating primarily to Ms. Malloy’s requests for medical and dental leave, but also concerning the quality or timeliness of Ms. Malloy’s work.
The record contains excerpts from Ms. Hamilton’s electronic work journal, emails, and notes. For example, on February 2, 2006 (Thursday) Ms. Malloy submitted leave slips requesting LWOP (leave-without-pay) for the following week, February 5 to February 9. Ms. Hamilton denied the request on February 6, 2006 (Monday) and charged Ms. Malloy with AWOL on each requested day.
The situation led to an Investigative Interview held on May 8, 2006. Ms. Malloy left the interview shortly after it began, citing stress. Another Investigative Interview was held on June 7, 2006.
On August 29, 2006 USPS issued Ms. Malloy a Notice of Proposed Removal, charging her with disrespectful communication to a supervisor and failure to follow instructions. The notice listed seven specifications for the charge of disrespectful communication, all of which are emails or notes sent by Ms. Malloy to Ms. Hamilton, including those quoted ante. The charge of failure to follow instructions listed two specifications, including an April 3, 2006 email from Ms. Malloy refusing to follow Ms. Hamilton’s instruction concerning PS Form 1767 (entitled “Report of Hazard, Unsafe Condition or Practice”).
In response to the proposed removal, Ms. Malloy and her union representative met with Plant Manager Mr. Vendetti, and then provided a twenty-nine-page written response to Mr. Vendetti. The written response states, in part, that Ms. Malloy has been under medical care and that she has supporting medical documentation. Mr. Vendetti issued a letter of removal, stating that upon careful consideration of all the evidence in the record, including the mitigating factors argued by Ms. Malloy, he decided to remove Ms. Malloy for the following reasons: “your behavior at our meeting and the tone and content of your written response to me further defines and delineates the very problem that forms the basis of your removal — that being lack of common courtesy and a blatant disrespect for others.” The letter mentions medical concerns:
Her removal from employment was effective on October 6, 2006.
Ms. Malloy appealed to the MSPB. She did not dispute that her communications to Ms. Hamilton contain inappropriate language, but argued at the hearing that mental impairment caused her to sometimes act inappropriately.
Thus the record shows that Ms. Malloy was seen by mental health professionals and physicians on multiple occasions from 2006 to 2007, before, during, and after her removal. The record shows many patient visit notes and medical opinions. The record also contains lay evidence that Ms. Malloy was perceived by colleagues as having mental impairment, including Mr. Merlino’s Investigative Interview notes shown ante, describing Ms. Malloy as “extremely hyper” and “not mentally well.”
The AJ found that Ms. Malloy’s written communications were disrespectful and unprofessional, and sustained the removal. The AJ’s opinion states that Ms. Malloy stated that “she was under stress, depressed, could not think straight, concentrate or perform simple tasks.” The AJ found “the appellant’s assertions in this regard not credible and unsupported by the record.” The AJ did not mention any of the medical documents, although she stated that she had “reviewed her submissions.”
The record before us does not show what consideration or argument may have been given to the medical evidence by the AJ, or on appeal to the full Board. The AJ stated only that the evidence was not submitted until the day of the hearing, and had been “reviewed.” Mental impairment is recognized as a mitigating factor, and even if this submission were tardy (the AJ did not so state) Douglas and other precedent counsel toleration of less than optimum responses by a petitioner who may be mentally impaired. (“We hold that it is patently unreasonable and fundamentally unfair to require or allow an incompetent to act as advocate in such a setting where even a sane attorney would be confronted with a difficult task.”).
Accordingly, we vacate the decision of the Board and remand for consideration of Ms. Malloy’s evidence of mental impairment, and reapplication of the Douglas factors in light of this evidence.
see Malloy vs USPS
Editorial: MSPB Finds Limited Duty Offer Was Proper
Heidel vs USPS, 2009 MSPB 152, August 5, 2009 by Don Cheney
The Merit Systems Protection Board found that the appellant was not entitled to the limited duty position he wanted. The Postal Service needed only to assign him to a position for which he is qualified. The USPS restructured the appellant’s current position by instructing him not to perform the duties normally associated with the position that exceed his medical restrictions. Thus, in the Board’s view, the appellant was assigned duties that were within his medical restrictions and, therefore, a position for which he is qualified.
The Board was not persuaded by the appellant’s contention that he is not able to determine whether a task violates his restrictions because he is not a medical expert. In the Board’s view, the appellant’s medical restrictions were such that they do not require medical expertise to understand. In fact, because the restrictions were not specific and definite but rather, call for the appellant to avoid certain acts “on a frequent basis,” and to “decrease” other activities, there was no one better able than the appellant to understand whether a particular task on a particular day is within his restrictions.
Comment: OWCP and MSPB mainly care if the limited duty position being offered is within the person’s medical restrictions. The right to challenge a tour change comes from ELM 546 and must be pursued in the grievance procedure as appropriate. If this person is not careful, he could be facing removal for inability to perform the essential functions of his position (an administrative action rather than a disciplinary one). Has he not heard of the “National Reassessment Process?”
Obama Nominates Two Union Attorneys To Lead The Merit Systems Protection Board
President Barack Obama has chosen two attorneys with extensive experience representing government employees to lead the Merit Systems Protection Board, which rules on disputes between federal agencies (including the Postal Service) and their employees.
Here are the bios as posted on the White House website: Susan Tsui Grundmann, Nominee for Chairman, Merit Systems Protection Board
Since 2002, Susan Tsui Grundmann has served as General Counsel to the National Federation of Federal Employees (NFFE), which represents 100,000 federal workers nationwide and is affiliated with the International Association of Machinist and Aerospace Workers (IAMAW). At NFFE, she has successfully litigated cases in the U.S. District Court for the District of Columbia and the U.S. Court of Appeals for the District of Columbia. In 2004, Ms. Grundmann represented NFFE and other labor unions in the statutory “meet and confer” process with officials from the Department of Homeland Security (DHS) and the Office of Personnel Management (OPM), which sought agreement on how to proceed with new DHS personnel regulations. She currently represents NFFE and the United Department of Defense Workers Coalition, consisting of 36 labor unions, and has served on the Coalition’s litigation team in a coordinated response to the proposed personnel changes at Department of Defense (DoD). In addition to DoD employees, Ms. Grundmann represents employees in the Forest Service, Department of Agriculture, Passport Services, Veterans Administration, General Services Administration, and some 25 additional federal agencies. Since 2003, she has been a regular instructor on federal sector law at the William W. Winpisinger Education Center in Placid Harbor, Maryland. Prior to joining NFFE, she served as General Counsel to the National Air Traffic Controllers Association (NATCA). She earned her undergraduate degree at American University and her law degree at Georgetown University Law Center.
Anne M. Wagner, Nominee for Member of the Merit Systems Protection Board, with the Designation of Vice Chair
Anne Wagner is currently the General Counsel of the Personnel Appeals Board of the U.S. Government Accountability Office. As General Counsel, she has vigorously prosecuted prohibited personnel practices and other violations of federal employment law. Prior to that, she served a five year statutory term as an adjudicating Member of the Personnel Appeals Board having been appointed to that position by the Comptroller General of the United States. Ms. Wagner began her career as a staff attorney in the Office of the General Counsel for the General Services Administration, where she primarily handled labor and employment issues. From there, she went on to become an Assistant General Counsel for the American Federation of Government Employees, AFL-CIO, the largest federal sector labor organization representing more than 600,000 federal and District government employees. In her nearly twenty years with AFGE, she led precedent setting litigation and handled cases arising under the full array of laws governing federal employment. Ms. Wagner graduated from the University of Notre Dame and received her J.D. from the George Washington University Law School.
Postal Worker’s Removal For Unacceptable Attendance Affirmed By MSPB
Removal for Unacceptable Attendance Affirmed, 2009 MSPB 134, July 17, 2009 Curtis vs USPS
It was undisputed that over the course of about 21 months, the Austin, TX P&DC Mail Processing Clerk was absent from work 81 days, including 77 days of unscheduled leave without pay (LWOP). In his response, the appellant asserted that his absences were due to depression and post-traumatic stress disorder. The Board affirmed the appellant’s removal holding, “Although an agency’s approval of unscheduled leave generally precludes the agency from taking adverse action on the basis of those absences, an exception to the rule exists where an employee makes excessive use of unscheduled LWOP.”
Bad news can be good news: While the appellant lost his job, he appears eligible for disability retirement. He must apply within one year of the effective date of separation as shown on his last Form 50 (that’s usually not the date in the Notice of Removal). Since he gets only one chance to get it right, he should hire an attorney that specializes in that area of law. If the disability retirement is approved, he would get back pay to when his postal pay stopped and be eligible for restoration if he eventually recovers. For more information on disability retirement, see OPM’s website: http://www.opm.gov/retire/pre/fers/disability.asp.
Don Cheney
Auburn WA
Postal Worker Fired For Excessive Use Of Military Leave Wins Partial Court Victory
Richard Erickson, a distribution Clerk was removed from his position at Fort Myers Processing and Distribution Center (Fort Myers, Florida). Erickson filed an MSPB appeal under Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), asserting that he was improperly removed because of his military service and requesting that he be reinstated. The MSPB administrative judge (AJ) found that USPS violated USERRA by removing Erickson from his position but nevertheless denied him any relief. The AJ’s decision was based on the determination that Erickson subsequently waived his reemployment rights under USERRA by abandoning his civilian employment in favor of a military career.
According to the court records:
Mr. Erickson was employed by the Postal Service from 1988 until he was removed from his position in 2000. Throughout his employment with the agency, Mr. Erickson served in the Army National Guard Reserve. During that period, he was absent from his position with the Postal Service for lengthy periods of time while he was on active duty with the National Guard. Between 1991 and 1995, he was absent from his Postal Service position for a total of more than 22 months, and between 1996 and the date of his removal in 2000, he worked at the Postal Service for no more than four days. In January 2000, a labor relations specialist from the Postal Service contacted Mr. Erickson by telephone to determine whether he intended to return to his position with the agency or continue serving in the military. Mr. Erickson responded that he would not report back to work with the agency until he completed his current tour of duty in September 2001. In the course of that conversation, he stated that he preferred military service to working for the Postal Service.
Shortly thereafter, the Postal Service issued a notice proposing to remove Mr. Erickson from his position because of excessive use of military leave. The notice stated that in the course of his tenure with the agency, he had been on military leave for more than five years, excluding weekend drills and annual training. Because USERRA contains a five-year limit on the amount of military leave an employee may use while retaining employment rights, the agency advised Mr. Erickson that he was no longer entitled to occupy his position with the Postal Service. Mr. Erickson did not respond to the notice of proposed removal, and on March 31, 2000, the agency issued a final decision removing him from his position because of his absence. Mr. Erickson subsequently re-enlisted with the National Guard and remained on active military duty until December 31, 2005.
On September 28, 2006, nine months after the end of his military duty, Mr. Erickson filed an appeal with the Merit Systems Protection Board alleging that the agency had violated his USERRA rights by removing him from his position based on his military service. The administrative judge who was assigned to the appeal found that at the time of Mr. Erickson’s removal in 2000, his cumulative military leave did not exceed the five-year cap set by USERRA, because some of Mr. Erickson’s military service was statutorily exempt from the five-year service limit. See 38 U.S.C. § 4312(c). The administrative judge further concluded that the agency had violated USERRA’s nondiscrimination provision, 38 U.S.C. § 4311, when it removed Mr. Erickson for excessive use of military leave: “Because appellant was removed solely because of his military service, the evidence of record supports a finding that appellant’s military service was ‘a substantial factor’ in appellant’s termination from the Postal Service.” However, the administrative judge concluded that Mr. Erickson had waived his USERRA rights by abandoning his civilian career in favor of one in the military. The administrative judge therefore issued an initial decision denying Mr. Erickson’s USERRA appeal.
The United States Court of Appeals for the Federal Circuit affirmed in part and reversed in part MSPB’s decision. The court ruled that ..
1) MSPB erred in rejecting Erickson’s claim of unlawful discrimination based on his military service as his cumulative military absence at the time of his removal did not exceed five years and thus he retained employment rights under USERRA;
2) MSPB was correct in its ruling that Erickson failed to make a timely application for reemployment under USERRA. Therefore The Postal Service did not unlawfully refuse to reemploy him after his service; and
3) the court remanded case so that MSPB can address whether Erickson waived his USERRA rights by abandoning his civilian career to pursue one in the military.
See full decision issued 7/15/09 (PDF) Erickson vs USPS
MSPB Reverses Discipline Of Postal Supervisor And Sustains Demotion
(Georgia) The Postal Service demoted Linda Parker from the position of Supervisor, Customer Services, EAS-17, to the position of PTF Clerk, PS-05, effective October 25, 2008. The Supervisor was charged with unsatisfactory performance and failure to follow instructions with respect to two specifications. The first concerned instructions from Parker’s supervisor to “perform a full office proficiency and street count on one route weekly starting March 24, 2008.” The other concerned the Supervisor’s alleged continuing failure to “clear” clock ring errors on a daily basis. The deciding official sustained the charges, including both specifications, and found that demotion was warranted to promote the efficiency of the Postal Service, taking into account the Supervisor’s oral response and past disciplinary record. The Supervisor filed an appeal with MSPB.
An administrative judge initially sustained the Postal Service’s charges against the Supervisor but mitigated the demotion penalty to a 30-day suspension. But the Postal Service petitioned for a review of that decision. MSPB reversed the inital decision of the administrative judge and sustained the demotion.
MSPB Awards Postal Supervisor Pay For Performance Bonus in Back Pay
From Postal Reporter reader Don Cheney
“[T]he appellant has requested the Board to reconsider its determination in its previous decision that he is not entitled to pay for performance as part of the back pay to which the agency agreed. For the reasons stated below, the Board on reconsideration has determined that the appellant is entitled to pay for performance during the back pay period and finds that its payment is required for the agency to be in full compliance.”
“This case involves the enforcement of a settlement agreement’s provision awarding back pay from the date of the appellant’s demotion to a PS-05 mail processing clerk position to the date he was placed in the top step of an EAS 17 supervisor position.”
http://www.mspb.gov/netsearch/viewdocs.aspx?docnumber=419804&version=420798&application=ACROBAT
Postal Worker’s Firing Upheld For Inappropriate Conduct With Customer, Deviation From Route
Juan Cabrera worked as a mail carrier in the Hayward-Castro Valley Post Office in Castro Valley, California. On October 24, 2007, the agency issued a notice removing him from his position based on two charges: unacceptable conduct and deviation from his postal route. Mr. Cabrera appealed his removal to the Merit Systems Protection.
According to the decision handed down by the United States Court of Appeals for the Federal Circuit:
The unacceptable conduct charge contained a single specification alleging that Mr. Cabrera had engaged in inappropriate sexual contact with a postal customer. The evidence showed that on June 13, 2007, Mr. Cabrera parked his mail truck across the street from Mandy Ilmberger’s home on Lamson Road in Castro Valley. Mr. Cabrera then crossed the street, approached Ms. Ilmberger’s house, and hand-delivered the mail to Ms. Ilmberger. According to Ms. Ilmberger, Mr. Cabrera handed her the mail in the doorway of her home, then stepped into the house, grabbed her by her right arm, and pushed her behind the front door. Ms. Ilmberger testified that while Mr. Cabrera held her by the arm, he kissed her with his mouth open and “shoved his tongue down my throat.”
Ms. Ilmberger stated that after she pushed him away, Mr. Cabrera handed her a wrapped condom. Ms. Ilmberger gave the condom back to Mr. Cabrera and told him to leave. As Mr. Cabrera was walking away he stopped on the porch, turned to face Ms. Ilmberger, and said, “I’ll see you tomorrow morning.” Mr. Cabrera drove off in his delivery vehicle, but returned to Ms. Ilmberger’s house about two minutes later and told her that she was “looking good” and reiterated that he would “definitely” see her the next morning. Ms. Ilmberger’s neighbor, Kathy Christensen, testified that later that afternoon Ms. Ilmberger told her about the alleged incident involving Mr. Cabrera.
Although Mr. Cabrera admitted that he had crossed Lamson Road to deliver the mail to Ms. Ilmberger on June 13, he testified that he stood on her front lawn and handed her the mail while she was on her porch. Mr. Cabrera asserted that he did not kiss Ms. Ilmberger or enter her house, but rather talked with her briefly about a piece of misdirected mail and then proceeded along his postal route without any further contact with Ms. Ilmberger that day.
The administrative judge credited Ms. Ilmberger’s version of events. He explained that he had observed Ms. Ilmberger at the hearing and found her testimony to be convincing, specific, highly detailed, and based on personal knowledge. He added that her testimony was consistent with the statements she had made to the Sheriff’s Office, to Mr. [Dante]Datu, and to the supervisor of customer services at Hayward Post Office. In contrast, the administrative judge was “unconvinced by the appellant’s presentation” and found Mr. Cabrera’s testimony to be inconsistent with the statement he had made to the Sheriff’s Office. The administrative judge therefore sustained the agency’s unacceptable conduct charge against Mr. Cabrera.
The agency also charged Mr. Cabrera with two specifications of deviating from his postal route in connection with the alleged sexual assault on Ms. Ilmberger. The first specification alleged that Mr. Cabrera had deviated from his route on June 13, 2007, when he crossed Lamson Road to hand-deliver the mail to Ms. Ilmberger immediately before the alleged assault. To maximize efficiency, the Postal Service automatically sorts mail according to a delivery point sequence corresponding to a mail carrier’s prescribed delivery route. Typically, the delivery point sequence prearranges mail for delivery to one side of a street at a time so that mail carriers do not traverse the street in a criss-cross fashion when making their deliveries. Carriers are prohibited from deviating from their assigned route for any reason without specific managerial authorization.
Mr. Cabrera conceded that he had deviated from his route on June 13, but he argued that mail carriers routinely do so in order to hand-deliver mail to postal customers. Such deviations, Mr. Cabrera claimed, result in better customer service while adding only a negligible amount of time to the carrier’s overall route. The administrative judge explained that while he had “no reason to doubt that individual carriers believe that specific customers are better served by such deviations, it is undisputed that the appellant’s actions on June 13, 2007 with regard to 18131 Lamson involved a deviation from his known route.”
The second specification to the charge alleged that Mr. Cabrera had deviated from his assigned route on June 14, 2007. After the alleged incident with Ms. Ilmberger, Mr. Cabrera’s supervisor removed Lamson Road from his postal route, instructed him to remove any mail addressed to Lamson Road from his mail truck, and assigned those deliveries to another mail carrier. Because Lamson Road was not on Mr. Cabrera’s postal route for that day, Mr. Cabrera had no reason to be on Lamson Road. However, Ms. Christensen testified that on the morning of June 14, she observed Mr. Cabrera make repeated U-turns in front of Ms. Ilmberger’s house. Mr. Cabrera then parked his mail truck.
Mr. Cabrera did not contest that he deviated from his route on June 14. Rather, he testified that he inadvertently drove by Ms. Ilmberger’s house after becoming disoriented while attempting to deliver two letters to another address on Lamson Road.
The administrative judge therefore concluded that Mr. Cabrera deviated from his route on June 14, 2007, first when he circled in front of Ms. Ilmberger’s house, and then again when he returned to her house at the behest of her brother-in-law.
We therefore see no error in the administrative judge’s determination upholding the agency’s decision to remove Mr. Cabrera.