A Hole in the Zero Tolerance Policy

A fired mail handler has won his appeal before the Federal Circuit. In Cunningham v. United States Postal Service, C.A.F.C. No. 2009-3028 (nonprecedential), 4/22/09, the appeals court sided with the Administrative Judge, and reversed a decision of the full Merit Systems Protection Board.

Cunningham was employed at the Postal Service Processing and Distribution Center in Cleveland, Ohio when his troubles began. He and a co-worker got into a “physical altercation” after work hours but on Postal Service property. (Opinion p. 2) After investigating, the agency removed Cunningham for “Improper Conduct/Violation of Zero Tolerance Policy.” (p. 2)

Cunningham appealed to the MSPB and got a hearing. The AJ found that the agency deciding official had not properly applied the “Douglas Factors” when he considered the appropriateness of the penalty of removal. (p. 2, citing Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981)) The A.J. found that the co-worker had been the primary aggressor, Cunningham had acted in self-defense, and therefore ordered that the penalty be mitigated to a 30-day suspension. (p. 2)

The agency appealed to the full MSPB, which reversed the AJ, giving deference to the agency deciding official. (p. 2)

Cunningham took his case to court where he fared much better.

Acknowledging that an agency may establish a zero tolerance policy leading to automatic removal, the court points out that the agency must have effectively communicated that policy to all affected employees. Otherwise, the penalty must be analyzed according to the Douglas factors. (p. 3)

According to the court’s opinion, “neither party contends that the policy in the present case has met these requirements.” (p. 3) Thus, the court reasoned, Douglas factors must be applied. The court noted further that the deciding official had testified that in his view the zero tolerance policy required removal in Cunningham’s case. (p. 4)

The court agreed with the AJ’s finding that the agency deciding official had not considered the Douglas factor as to mitigating circumstances. For this reason the full Board “is not ‘free to overturn an administrative judge’s demeanor based credibility finding merely because it disagrees with those findings.'” (p. 3; citations omitted)

In short, the court has reversed the Board and remanded “for an appropriate remedy in favor of Mr. Cunningham consistent with this opinion.” It doesn’t get any clearer than that—Cunningham wins.

What will remain unclear is why the government did not contend that a proper zero tolerance policy for violence in the work place had been established by the agency.

 

© 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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