The Agency Gets Three Strikes Against It in this Court Decision

By on September 18, 2012 in Court Cases, Current Events with 25 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 (Doe v. United States Postal Service, CAFC No. 2011-3162 (nonprecedential), 6/20/12)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)

© 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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  1. Catlady971 says:

    The DOD has a company come to the flightline hangers on a scheduled day–and DOD pays for up to a certain price for a set of steel toe shoes.  If USPS thinks their guidelines are make in concrete,,people go to your doctor get it in writing!!
    FMLA also give USPS employees the rights as well as DOD……All cases must be recognized as a viable complaint.  Don’t let them bully you into thinking there isn’t a way to help yourself….keep on keepin on…..contact your union..post a complaint–make it happen!!  I will be rooting for you to win!!!

  2. Catlady971 says:

    OMG!!  that sounds so familiar!!  My supervisors set me up so they could suspend me with pay–they told the very large man to call the sp’s and say that I attacked him..now understand..this man was 6’5′ and he weighed approx 350lbs.  I am only 5’7″ and I only weigh 250 lbs.  I was employed for 25 years with the dod and he was a new hire and had been working only 5 years.  well,,,the sp’s came to the flightline got the statements then took up separately–handcuffed— to the sp building…I was so upset all I could do was cry..I called my best friend and if she had not been there as my witness they would have probably kept me arrested–which turned out to be false.  I even gave her my locker key to get some of my items out of my locker and my supervisors WOULD NOT ALLOW HER TO!!  I refused to do a statement because I wanted legal representation and I had already stated I wanted my union steward and had invoked my weingarten rights.  A few weeks after that I was called into my supervisors office but I stopped dead in my tracks because I was cornered and I refused to go into the office because I wanted my union steward which was right outside the door.  Both supervisors stood in front and in back of me and one pushed me into the office–that really made me mad–my first line super told me to give him my CAC card–I asked on what grounds he hollered at me and said to hand it over.  I asked again for union representation and invoked my rights.  I did not have any protection for these two bullies so I did hand it over–under protest because I was responsible to the dod for the safety and security of that CAC card.  well,,,next thing was the office door opened and guess who steps in..Security police–informing me that I had been banned for the base and they would be escorting me off the base!!  now again…I was followed out of my building by security police total humilitation and they did follow me to a gate……and 30 days later they fired me…but understand…I had already put in for my disability retirement and it was approved and I was retired the next day!!  strange things happened and I have seen and dealt with the lies that supervisors will tell—-then after all that DFAC sent me a letter saying they had overpaid me..well,,for that 30 days I was sent home..I had NO say so about how I was paid!!  and yes…they started taking the repayment out of my retirement money five months later.!!  Don’t ever believe that working for the govt is like candy–it may look sweet but its nasty once you get inside….Take care and keep us posted!!!

  3. Ricky Doe says:

    I am also a postal employee and Terry Doe’s twin brother. He had plantar fibroma a tumor on his plantar fascia tendon and was scheduled for surgery in less than a month. His black shows were worn and it happened to be a warm period in late November in VT. So wearing his new winter shoes would have been too hot. The white ones were new and provided better support. He was going to change his shoes before his shift. He arrived early and asked for permission from his supervisor and was denied. As he started changing his shoes his steward told him to come with him to the supervisor. The steward tried to reason with the CSS as Terry had a note from his podiatrist to wear shoes which made his feet comfortable prior to his surgery. The CSS said no punch in and check your vehicles. They did this and returned to the office. Terry was never afforded the opportunity to change his shoes. The CSS was transferred from his PM position at his office to Terry’s office because he had lied to his superiors. There were 197 grievances filed against him in the previous 2 years. In a class action settlement of many of these he agreed to never supervise carriers in Terry’s office or Burlington, VT and not to supervise carriers in other offices for 6 months. This was in a pre arbitration settlement of numerous grievances against him for falsifying timesheets, creating hostilities etc. The Fed MSPB judge wrote a decision upholding the removal. In her decision she said there were many conflicting testimonies on key facts. So she resorted to character and demeanor. 90 % of her facts were incorrect and were not supported by the testimony in the case. She said the steward lied to support Terry. Not one witness supported the CSS version of the events. The CSS statements to the police, postal inspectors and postmaster all differed. The USPS failed to separate the witnesses prior to getting their statements and failed to take pictures of the injuries (there were none). How this case has gone on for 3.5 years is beyond me. It should have ended on day one. No video cams in this office. No one heard the CSS say anything that he said he said even though they were close enough to hear him speak. Terry changed his shoes in the office while the steward argued with the CSS. When he saw it was going no where he said he was leaving and turned toward the door, the steward said the CSS bolted toward the door bumping into Terry causing him to turn with his back toward the door as he looked over his left shoulder the CSS opened the door and dove toward the floor making a funny sound. Terry thought he tripped over the threshold and went to him and grabbed his arm to help him up, the CSS then rolled away from Terry causing him to loose his balance. He never let go of the arm and his other hand finally found Goods back at the shoulder as he was laying facedown. He then yelled stop hitting me and Terry realized what was happening and stood up. The Fed Appeals court got it right. The counsel for USPS was told “do you know how often this court unanimously overturns a MSPB decision?” almost never – less than 2%. Hopefully the remand will take place and Terry will be vindicated..

  4. Terry Doe says:

                 I would like Ms. Smith to contact me, this article is missing a lot of the facts in this case. I hope the truth can be heard.I have a listed phone # here in northern Vt.

  5. Tddoe57 says:

           There is more to this than what is in this article. NO ONE has contacted me Terry D. Doe, I went in early to see about the white sneakers [ my black new balance 14 EEEE sneakers were worn out and I had new winter boots ,I also had two Doctor notes to wear whatever was comfortable for I was having surgery in less than a month to remove a growth on my plantar tendon]. The supervisors version is a lie and if someone would go to the P.O. and see the scene they would see it is physically impossible for his story to be true,along with the fact that no one testified to a single item of his story! Also his statement to the Police, Postal Inspector,written statement,and two testimonies are all very different. I have spent alot of my time and money fighting for JUSTICE ,it’s all WE ask for. The MSPB judge states in her decision [p4] Several other postal employees,[[[ their names]… testified and gave varying accounts of the incident.    [p7] In light of contradicting testimony on key facts,[????]also on p7 I note at the outset that there is a fundamental disagreement between the appellant ,Mr. Good[supervisor]  and the agency witnesses as to what transpired . The judge made many errors in her decision as to what had been testified to[dozens as my lawyer said. It will be 41 months[if I was counting]Sunday.The P.O. has now offered reinstatement with no back pay or legal fees ,put me on LWOP til June and give me a 30 year pension . I declined their offer.Still in the fight!

  6. USPS Letter Carrier says:

    [When Doe showed up a few minutes later still sporting the white shoes, the THREE (3) 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.”]

    There is no mention of (Mark Hickory) the Union steward’s version of events?

  7. Angry says:

    I was in a similiar situation when a coworker accused me of assaulting him—I did not do this and never would have but he called security police on me.  The SP’s came to the area–listened to both of our stories but I was told he was charging me with simple assault—so I charged him with simple assault.  We both were handcuffed and taken to the SP building on base–they sat me down without legal counsel and I told them I would not say anything unless I had legal counsel..they said ok..thats fine…
    He did two different statements !!  After it was all over with…that issue never went anywhere—
    it was dropped that day.  In a few months later I was fired for a simple assault charge…..now how in the heck can I clear my name??  I was in the DOD workforce for 25 years…..
    oh and he is still working………………..

    • Old Fed says:

      You need a good attorney versed in Federal law. I’d get one of these folks you see writing columns here or check out the Federal Times back pages where they advertise.

    • Pozzo5 says:

       Was the assault for which you were fired a new charge or was the termination based on the charge filed a few months earlier?  Did your attorney file a complaint with the union or with the EEOC or MSPB?

    • Steve Neal says:

      I hear yah there…    I was also falsely accused of physical assault, in fact a “body slam” that never occurred on a remote Alaskan airfield.  I’ll avoid all the lengthy details and skip to his big mistake and my main point.

      There was an unbiased witness, a new co-worker, with us on the entire day’s journey and task load.  As we worked within 30 feet all day, he confirmed that there was no observed altercation nor any signs of physical contact between us.  However, after spreading these filthy lies to everyone at our community airport and the main hub in Anchorage, then the whole interview ordeal, reading of rights, sworn statements, management investigation and second-level review, warnings of various federal assault punishments and the union / Weingarten process, when the dust settled and the complaint was throw out, the bastard got away with it and didn’t lose so much as a night’s sleep over it.

      Gladly, I’m out of there now.  3,000 miles is a good minimum distance from that whole situation…

    • Steve Neal says:

      I hear yah there…    I was also falsely accused of physical assault, in fact a “body slam” that never occurred on a remote Alaskan airfield.  I’ll avoid all the lengthy details and skip to his big mistake and my main point.

      There was an unbiased witness, a new co-worker, with us on the entire day’s journey and task load.  As we worked within 30 feet of each other all day, he confirmed that there was no observed altercation nor any signs of physical contact between us.  However, after spreading these filthy lies to everyone at our community airport and the main hub in Anchorage, then the whole interview ordeal, reading of rights, sworn statements, management investigation and second-level review, warnings of various federal assault punishments and the union / Weingarten process, when the dust settled and the complaint was throw out, the bastard got away with it and didn’t lose so much as a night’s sleep over it.

      Gladly, I’m out of there now.  3,000 miles is a good minimum distance from that whole situation…

  8. wombat1951 says:

    Just another example among thousands about how hard it is to remove bad employees from Federal service.

    Forget the allegations of physical contact [although if “Doe” was a former boxer, the probablility of him getting physical does pass the smell test].

    Just on the basis of him refusing to obey a supervisors regulations supported directive should have been enough to suspend with cause, and to put him on notice that another violation would result in termination.

    But in the public service, unless there is film of a felony, even the worst employees can’t be removed.

    So nothing to look at…..move along.

    • Old Fed says:

      You obviously have no clue what you are talking about. I have seen people removed for ridiculous, trumped up reasons. And sometimes, the removals stick. It depends  a lot on whether the employee has good legal representation.

    • Ex-USPS says:

      I believe Doe…Worked for USPS for over 20 years! Saw and heard a lot! Saw the writing on the wall. Thank God I was able to get out of there. If you have never worked for USPS, believe me it’s as crazy as it sounds. Doe only ask to wear the shoes in the office – what’s the problem with that? Still have a lot of friends working there. They have a bunch of new supervisors that don’t know crap but throw their weight around because they can. Just saw a Judge Judy case where a USPS supervisor received $300 from an employee to pay for her tax preparer but refused to pay him back. Judge Judy raked her over the coals pretty good. Ruled in the employees favor. Like Doe said “Where is the mark he would/could have left from the alleged assault?” Did the supervisor call the police? Did they not take a statement from the union steward that was in the office with them? Supervisor knew he had the upper hand and he used it!!!! Keeping my fingers crossed for you, Doe.

    • Terry Doe says:

                          You are so RIGHT ! MR.GOOD had been transferred to our office because he had problems in his [alleged sexual harassment by 3 female employees ] then before my hearing he had a class action taken against him with about 30 of the 197 grievances that he had in 27 months in our 11 carrier office . He signed an agreement to never again supervise in our office or any Burlington office, and to not supervise carriers in our union for 6 months. He also had a letter of warning in his file for lying to his boss .Now he has filed false charges with police and postal inspectors,but you don’t have all the information in this case, yet you pass judgement. 

  9. Pozzo5 says:

    If I recall correctly, this is the first time you have written about a case in which the ruling was not entirely in the agency’s favor.  I hope you continue to write about cases in which the decision was in favor of the employee.

    • retiredforaliving says:

      The fact that feds win less than 2% of their cases makes finding them as scarce as hen teeth

      • Pozzo5 says:

        Cases in which the employee has prevailed are easy to find.  Each year employees win on the merits after a hearing.
        There are many cases in which a settlement is reached before the hearing stage.  Many of these are wins for the employee.

    • Fedup says:

      Yeah let’s hear all the stories about the unacceptable SUPERVISOR!!!!

    • Tduran125 says:

      Really!! It seems as though the people here at FedSmith are just for the managers, supervisors and the agency. They can’t be unbiased.

  10. Lori Miller says:

    This article is such a tease!  We don’t even find out WHY he wanted to wear white shoes!

    • Management Attorney says:

      The white shoes were sneakers.  The decision doesn’t say but it was probably more comfortable to walk in them. 

    • Old Fed says:

      Like many letter carriers, he probably had foot problems and was asking to wear tennis shoes. They provide a lot better support than the regulation “street shoes” required by the USPS Letter Carrier uniform. The guy could have just worn black tennis shoes, but given the level of animosity here, probably still would have been charged with FTFI. The USPS is notorious for giving outrageous penalties for alleged transgressions. Their attitude is, “throw it and let’s see if it sticks.” They don’t care about the cost to the employee or anyone else. Worked there many years and happily transferred to another agency. I had transferable skills (I.T.), whereas these poor guys don’t.

    • $1459925 says:

       New Balance makes all kinds of black shoes.  All carriers should be allowed to buy them when they need them.

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