In Holmes v U.S. Postal Service (USCAFC No. 2019-1973, 2/8/2021), a fired federal employee challenged his removal for purchasing drugs from a co-worker on agency time and property. Five co-workers had elected to go the grievance route where their removals ended up in front of an arbitrator. The arbitrator upheld the charges but mitigated the penalty and ordered the employees reinstated. Mr. Holmes, however, took his appeal to the Merit Systems Protection Board (MSPB) although he had the option of following his former co-workers down the grievance path that had led to these five saving their jobs.
Briefly, the facts as outlined by the court indicate that the employees caught up in the Inspector General’s investigation were employed at the Fort Dearborn Station in Chicago. All purchased pot from another letter carrier, Baxter, who was selling it from his postal truck during duty hours. Baxter had a system, as depicted in the IG surveillance tapes. He would put small cellophane packages in a cup holder, a co-worker would get into Baxter’s postal truck, hand Baxter money, take the package in the cup holder, and Baxter would count the money. Surveillance video showed Holmes buying what appeared to be drugs on two occasions while in uniform on duty. (Opinion pp. 3-4)
The notice of proposed removal charged Holmes with unacceptable conduct and purchase or possession of an illegal drug while on duty. In his oral reply to the deciding official, Holmes did not admit to buying drugs, but indicated he was “embarrassed,” “wanted to apologize,” and that he had “made this little mistake..” (p. 3)
Holmes was removed (as were seven coworkers facing the same charges). The deciding official found the charges were sustained by the evidence, Holmes had not disputed the charges, showed little in the way of remorse, and she had lost confidence in him because of the “egregious and illegal nature” of his conduct that had occurred while he was in uniform and on duty. (P. 4)
Of the seven coworkers also removed, five appealed through arbitration. In each of those cases, arbitrators mitigated the penalty to long term suspensions and ordered them reinstated.
When Holmes appealed to the MSPB, he did not fare as well. The Board sustained his removal.
Holmes took his case to the appeals court. Among other things he argued that the agency did not dole out equal punishment since five coworkers had been reinstated by arbitrators. Pointing out that Holmes did not make a disparate treatment argument to the MSPB (even though by then the outcome of the five arbitration appeals was known to all), the court refused to let him raise it for the first time in his court appeal. (P. 9) Even had it properly been raised to the Board, the court noted that the agency had indeed treated them equally as it had removed all of them. That the arbitrators mitigated that penalty is beside the point. Arbitration decisions are not binding on the MSPB. (P.9) Finally the court noted that there was a discriminating factor between Holmes and the other five: Holmes did not own up to his conduct, describing it as a little mistake; the other five did admit to buying the drugs. As to Holmes’ argument that the agency had not proved he had actually bought drugs, the court disagreed. In short, Mr. Holmes lost.