The Agency Gets Three Strikes Against It in this Court Decision

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By • September 18, 2012 Comments

The appeals court has thrown a removal case back to the Merit Systems Protection Board, having found that there were procedural errors that require the Board’s analysis. (Doe v. United States Postal Service, CAFC No. 2011-3162 (nonprecedential), 6/20/12)

Terry Doe, a 24-year USPS employee worked as a full-time letter carrier in Essex Junction, Vermont. His termination revolves around a run-in with his supervisor. The employee asked that he be allowed to wear non-regulation white shoes when he was in the office. The boss said no–black shoes are required by the USPS uniform policy. Doe, his boss, and his union representative got together to discuss the matter. The boss once again denied the request and told Doe to get in proper uniform before he punched in. When Doe showed up a few minutes later still sporting the white shoes, the three convened in the boss’s office. The boss—Mr. Good—cited Doe for failure to follow instructions. At this point the facts become “he said/he said.” Good insists that Doe pointed his finger in Good’s face, blocked his office door, and Doe either pushed or bumped his boss. When Good asked Doe what he was doing, Good maintains that Doe punched him on his face and Good fell to the floor. (Opinion p. 3)

Doe denies this version of the events, claiming he never laid a hand on Good and that Good took the dive on purpose to set Doe up for punishment. Doe argues that Good wanted to get back at Doe because of Doe’s “close relationship with the union, which had filed a disproportionately large number of grievances while Good was supervisor….” (p. 3)

USPS investigated and ended up proposing to remove Doe for a single charge of “improper conduct” stemming from the altercation. (p. 4)

Doe was given ten days to respond in person and/or in writing. A written reply came in from the union on Doe’s behalf, but it was received after the ten-day response period. The agency declined to consider the response because it was late, even though the date on the letter was within the time limit. Doe was removed. (p. 4)

On appeal, Doe argued that it was error to not consider his letter because it had been mailed within the time limit. The Merit Systems Protection Board affirmed Doe’s removal, finding no error in the agency refusing to consider the late reply.

The appeals court has taken a different view. The court finds that the Board erred “in failing to analyze whether [USPS]’s failure to consider Doe’s ….letter rises to the level of a constitutional violation.” (p. 5) As the court sees it the critical issue the Board should have addressed is whether the fact that the letter was timely mailed means it was timely filed as opposed to the USPS position that it must have been timely received. [Am I the only one who sees the irony of the USPS arguing this point?]

As the court states, “By clearly informing Doe that he could use the mails to make his response, we interpret the instructions to mean that if Doe chose to use the mails to make his response, the ten-day period would be measured from the date Doe deposited his response in the mails. Under this interpretation, Doe’s response was timely, and [USPS] erred in failing to consider it.” (p. 6)

The court therefore has sent the case back to MSPB to consider the issue and to determine whether there was harmful procedural error in the agency not considering the written response.

The second issue raised by Doe to the court was that the evidence does not support the conclusion that Doe actually struck his boss. Doe argues “he could not have struck Good because had he done so, Good would have been prominently marked as a result of the blow since Doe is a trained boxer.” (p. 8) Apparently this bit of logic was the gist of the written response that the union submitted in reply to the proposed removal letter—the one that the agency declined to consider.

On this point the court has decided to “vacate” the Board’s conclusion that Doe struck Good and stating that the Board may “reinstate” its conclusion in this regard only if it determines that Doe’s rights were not violated by refusal to consider the infamous letter responding to the proposed termination. (p. 8)

In case the MSPB and the agency are not already reeling enough, the court goes on to question the agency’s consideration of a prior disciplinary action that had not been mentioned in the notice of proposal in making the removal decision. On this point the court instructs MSPB to make a harmful error analysis to determine whether removal was appropriate given that the agency should not have considered the prior discipline under the circumstances. (p. 9)

In short, this adverse action is hanging by a thread as the case goes back to the administrative appeal process.

Doe v. USPS (2011-3162)

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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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