A Georgia post office Supervisor who was demoted to Clerk based on unsatisfactory performance and failing to follow instructions failed to convince the appeals court to mitigate the penalty to a suspension. (Parker v United States Postal Service, C.A.F.C. No. 2009-3251 (nonprecedential), 12/10/2009)
The agency cited the same two specifications to support each of the two charges leveled against Parker. On appeal to the Merit Systems Protection Board, the administrative judge found that the agency had proved one of the specifications but had failed to prove the second one. Even though the agency deciding official testified that he would have still imposed demotion even with one specification to support each of the two charges, the administrative judge decided that the penalty should be mitigated to a 30-day suspension. (Opinion p. 2)
The full MSPB disagreed with the administrative judge. Based on the agency deciding official’s testimony that he would have opted for a demotion with only the one specification supporting each charge, the Board upheld Parker’s demotion. (p. 2)
Not surprisingly, Parker took her case to the appeals court where she basically argued that the administrative judge had made the correct ruling and that her demotion should instead be mitigated to a 30-day suspension. She argued that because one of the specifications was not sustained the agency penalty decision was not entitled to deference. (p. 3)
In short order, the appeals court has sustained the full MSPB and refused to mitigate Parker’s penalty. The court agrees with the Board that the deciding official’s testimony that he would have demoted Parker anyway based on the surviving specification is the crux of the matter. End of discussion. (p. 4)
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.