Did We Mention That You Aren't Welcome Back in Omaha?

By on July 17, 2007 in Current Events with 0 Comments

The Federal Circuit has joined the Merit Systems Protection Board in refusing a former Postal Service supervisor’s petition for enforcement of a settlement agreement, which, if granted, would have led to her reinstatement. (Weithoner v. United States Postal Service, C.A.F.C. No. 2007-3009 (nonprecedential), 7/10/07)

Weithoner, a supervisor in the USPS Omaha Processing & Distribution Center, was removed in 2002 for "unacceptable conduct." (Opinion p. 2)

She appealed to the Board and ended up settling with the agency on the eve of a hearing before an MSPB Administrative Judge. Among other things, the settlement resulted in undoing the removal, withdrawal of all of Weithoner’s grievances and appeals, her voluntary reassignment out of Omaha to the lower graded position of Postmaster in Waterloo, Nebraska, and the agency’s pledge to expunge her official personnel records of any mention of her removal. In case the Waterloo position was abolished within two years of Weithoner going into it, the agency agreed to put her in the "next highest vacant Post Office with salary protection for two years." (p. 2)

A little over 6 months later, Weithoner voluntary resigned her Waterloo position. Several months later, she requested reinstatement to a supervisory position back in Omaha. Her request was denied in a response memo that contained the following language: "While a supervisor, you exhibited behavior that was inconsistent with the Postal Service’s standards of conduct, after which you requested a voluntary downgrade to the Waterloo, Nebraska Postmaster position." (p. 3)

Contending that the agency had violated the settlement agreement by apparently not expunging her records of the removal action, Weithoner filed a petition for enforcement with the Board. The AJ found that the agency did not breach the agreement; however he did find that the agency had "violated the letter and spirit of its agreement…by citing [the] alleged misconduct as a reason for its failure to reemploy the appellant.," and he recommended that the agency be required to consider her for reemployment into a supervisory position. (p. 4)

The full Board rejected the AJ’s recommendation by a 2 to 1 majority. It found that the agency had not breached the settlement and denied Weithoner’s petition. The dissent voted to accept the AJ’s recommendation. However, the majority found that there was no agreement for any particular treatment of her history under the current circumstances—i.e., having resigned and later sought reinstatement. The agency had bargained to get Weithoner out of a large distribution center and into a small town. The Board felt that the agency would "lose the benefit of the settlement agreement" if it were to accept Weithoner’s argument. (p. 5)

The appeals court has sided with the Board majority: "We conclude…that an implied term of the agreement was that Ms. Weithoner would not seek to return to any Postal Service facility in Omaha….We note, however, that if [she] had applied to a Postal Service facility outside of Omaha…the Postal Service would have been prohibited by the settlement agreement from citing her alleged prior misconduct or using the settlement agreement as a bar to employment." (p. 7)

Finding no material breach of the agreement by the agency, the court affirms the Board’s decision.

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.


About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.