A twenty-year letter carrier fired as the result of a fight with a co-worker struck out with both the Merit Systems Protection Board and the appeals court in his effort to overturn the removal. (Eck v. United States Postal Service, C.A.F.C. No. 2007-3303 (nonprecedential), 1/14/08) The facts are taken from the court’s opinion.
Mr. Eck was delivering mail on his route when he got into a shoving match with an off duty co-worker. Eck was arrested and charged with aggravated assault. The agency charged Eck with unacceptable conduct and fired him. Eck appealed to the Board and argued that he did not start the fight, did not cause severe bodily injury as alleged by the agency, and he had acted in self defense.
The Administrative Judge apparently found the agency’s evidence more credible than Eck’s version of the events. Eck admitted that he had taunted the co-worker and shoved him. However, Eck claimed that the co-worker then threw the first punch. Unfortunately for Mr. Eck, he had previously told the police and the postal inspector in their separate investigations just after the incident that he did not recall who actually threw the first punch. The AJ did not buy Eck’s explanation for this inconsistency.
Eck’s supervisor who had gone to the scene of the altercation testified that Eck told him at that time that he had yelled at his co-worker and then swung and hit him. The agency also presented eyewitness testimony that Eck had begun the physical fight. Most important to the AJ was the fact that Eck himself admitted that he had started the verbal sparring and that he had made the first physical contact by pushing his co-worker. (Opinion pp. 2-3)
Eck’s argument to the Board that he had not actually caused severe bodily injury as the agency had alleged did not get very far either. The police report indicated that while Eck had a small cut on his hand, the co-worker had a "bloody face which was red, bruised and swollen," and that he had to be air lifted to a hospital because of the "extent of [his] head injuries." (p. 3)
In short, the MSPB ruled against Eck and upheld his firing. He took his case to the Federal Circuit Court of Appeals. The court has affirmed the Board and Mr. Eck remains fired.
The court turned aside Eck’s argument that the Board should have sided with his version of the events, pointing out that witness credibility determinations by the MSPB are "virtually unreviewable." (p. 4)
As to Eck’s argument that removal was too severe a penalty given his 20-year service with the agency, the court had this to say: "On appeal, this court will not overturn a choice of penalty within the agency’s discretion ‘unless the severity of the agency’s action appears totally unwarranted in light of all the factors.’" (p. 5; citations omitted) In this case, the court found that the Postal Service’s removal of Eck was not unwarranted.