Court Sends Case Back to MSPB For Penalty Review

In a case challenging the demotion of an EAS-17 customer services supervisor to a part-time entry-level position, the court of appeals has handed the Postal Service and the Merit Systems Protection Board a setback. (Texeira v. United States Postal Service, C.A.F.C. No. 2007-3171 (nonprecedential), 2/28/08)

Texeira, a 19-year postal employee with no prior misconduct, worked at the Modesto Main Post Office where she supervised clerks and served as the finance supervisor. She incorrectly posted 160 hours of annual leave for an employee who had not earned the leave and later ended up reimbursing the agency for the leave pay. The agency proposed to remove Texeira, charging her with "Unacceptable Conduct: Falsification in Recording Time/Failure to Follow Proper Timekeeping Procedures." (Opinion pp. 1-2)

The final agency decision sustained the charge but mitigated the penalty to a demotion to a part-time job at a smaller postal facility. (p. 3)

On appeal to the MSPB, the Administrative Judge determined that the charge was in fact two charges—falsification and failure to follow procedures—and found that the agency had proved the lesser charge, but not the falsification charge. However, the AJ sustained the penalty. (pp. 3-4)

The appeals court has now affirmed the part of the Board’s decision sustaining the failure to follow procedure charge. However, the court apparently choked on the Board’s refusal to mitigate the penalty. As the court stated, "The record demonstrates a decisionmaker imposing a severe penalty because he believed the agency had proved Texeira guilty of purposeful falsification, not just the failure to make a correct entry of vacation time. The agency has not yet articulated what less severe sentence should be imposed when it proved only a much less severe charge." (p. 7)

In short, the appeals court has ordered the case back to the MSPB for reconsideration of the penalty on the lesser charge only. (p. 8)

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

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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.

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