Demotion of 28-Year Employee Upheld in Court

By on December 30, 2009 in Court Cases, Current Events with 0 Comments
An appeals court has let stand the demotion of a Postmaster to a Supervisor in the Sacramento District of the USPS. (Di Paolo v United States Postal Service, C.A.F.C. No. 2009-3115 (nonprecedential), 12/14/09).
 
Di Paolo had been a Postal Service employee for more than 28 years. Two years after being promoted to the postmaster position, Di Paolo was demoted to an EAS-17 supervisor position. He appealed to the Merit Systems Protection Board. Following a hearing the Administrative Judge sustained four charges against Di Paolo and concluded that demotion was appropriate. Di Paolo took his case to the appeals court. (Opinion pp. 1-2)
 
Charge 1 cited Di Paolo’s failure to get the required customer signature on all credit card purchases. The AJ found that on several occasions Di Paolo used a customer’s credit card with the customer’s consent but without the required presence or signature of the customer to purchase for the customer large quantities of stamps.
 
The court agreed with Di Paolo that the fact that his previous supervisor had permitted this practice, that there was no harm to the agency, and that the agency’s withdrawal of part of its charge alleging Di Paolo had intimidated employees to process the charges add up to reduce the severity of the charge.
 
Nevertheless, the court did not agree that the AJ erred in failing to mitigate his penalty. The court points out that "demotion is already a mitigated penalty and the penalty was based on all four charges, not just Charge 1." (pp. 3-4)
 
Charge 2 was based on Di Paolo’s violation of the agency rule prohibiting employees from having intoxicating beverages in an agency facility, whether opened or sealed. After being warned about violating this policy by receiving shipments of wine at work, Di Paolo received at least one more shipment.
 
Di Paolo does not dispute the facts on Charge 2. He argued that because the wine was never opened and he immediately placed it in his car the violation was minimal and did not support adverse action against him. Not so, ruled the court indicating that "Di Paolo’s exemplary leadership position as Postmaster obligates him to a higher standard of conduct than other employees. Mr. Di Paolo knowingly violated the alcohol policy." (pp. 5-6) Again, this charge was one of four and the totality of the charges supported Di Paolo’s demotion. (p. 6)
 
Charge 3 was based on Di Paolo’s failure to follow instructions given him during a financial review of the Lincoln Post Office. An audit resulted in more than 60 items requiring correction as a result of inadequate internal controls and oversight attributed to Di Paolo. The agency found that despite written itemization of the action items that Di Paolo needed to take, he failed to complete the tasks. (p. 6)
 
The court brushed aside Di Paolo’s arguments that these writings were not "instructions," that they were unreasonable and that there was no specificity as to which he had failed to follow. The court noted, "Di Paolo failed to meet the objectives communicated in two reviews, a line-by-line meeting, and a memo….Mr. Di Paolo assured his supervisor that he was capable of addressing the problems…never asked for assistance or extra time to complete the tasks." (p. 7)
 
Charge 4 related to De Paolo forwarding "sexually inappropriate" emails from his agency account to outsiders and to agency employees. (pp. 7-8) Di Paolo argued that he was the only one the agency took adverse action against and that these incidents took place before he became Postmaster. However, the court again cited the "totality" of the charges. (p/ 7)
 

Bottom line: the Federal Circuit Court of Appeals sustains Di Paolo’s demotion. 

09-3115Di Paolo

© 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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