UNITED STATES OF
MERIT SYSTEMS PROTECTION
UNITED STATES POSTAL SERVICE,
DATE: May 9, 2001
Maria A. Gregory, Hinesville,
Georgia, pro se.
David M. Cohen, Washington, D.C.,
for the agency.
Beth S. Slavet, Acting Chairman
Barbara J. Sapin, Vice Chairman
Susanne T. Marshall, Member
OPINION AND ORDER
¶1 This case is
before the Board on remand from the U.S. Court of Appeals for the Federal
Circuit, which affirmed in part and vacated in part the Boards final decision
affirming the removal action.
Gregory v.U.S. Postal Service, 212
F.3d 1296 (Fed. Cir. 2000), cert. granted, 121 S. Ct. 1076 (2001).
The court remanded the case for further consideration of the penalty. Upon
consideration of the issues, we REMAND the appeal to the agency, as discussed
¶2 The agency removed
the appellant from her T-6 Letter Technician position based on a charge
of failure to perform her duties in a satisfactory manner. The charge was
based on one incident in which she allegedly overestimated by 1.30 hours
her need for overtime or auxiliary assistance to case and carry her route
on September 13, 1997. Initial Appeal File (IAF), Tab 4, Subtabs 4b, 4a.
The appellant filed this appeal. IAF, Tab 1. After a hearing, the administrative
judge issued an initial decision sustaining the charge, finding that the
appellant did not establish any of her affirmative defenses, and affirming
the removal penalty. IAF, Tab 25. The Board denied her petition for review
of that decision for failure to meet the criteria for review under 5 C.F.R.
§ 1201.115. Gregory v
. U.S. Postal Service
, 84 M.S.P.R.
619 (1999) (Table). Thus, the initial decision became the Boards final
¶3 The appellant
then sought review by the U.S. Court of Appeals for the Federal Circuit,
which affirmed the Boards decision as to the charge and the appellants
affirmative defenses, but vacated the decision as to the penalty and remanded
the appeal to the Board. Gregory, 212 F.3d 1296.
¶4 In its decision,
the court held that, as a matter of law, in determining a penalty, consideration
may not be given to prior disciplinary actions that are the subject of
ongoing proceedings challenging their merits. Gregory
, 212 F.3d
at 1299. As the court noted, both the agency and the administrative judge,
in determining the penalty, considered the appellants prior discipline
consisting of a letter of warning, a 7-day suspension, and a 14-day suspension.
court found that the Letter of Warning had been overturned and ordered
expunged from the appellants record in an arbitrators decision.
212 F.3d at 1299. It also noted that the agency did not dispute that the
appellant had challenged both the 7-day suspension and the 14-day suspension,
and indeed, we find that the record shows that the appellant had proceeded
to arbitration on them, IAF, Tab 13. Thus, consideration was not properly
given to any of these disciplinary actions because they were ongoing or
not valid at the time that the agency and the administrative judge made
their penalty determinations.
¶5 The court instructed
the Board to determine whether the case should be returned to the agency
to select a penalty or whether the Board should exercise its own mitigation
authority pursuant to the framework established in LaChance v. Devall,
178 F.3d 1246, 1259-60 (Fed. Cir. 1999). In that case, the court held that,
when the Board does not sustain all of the charges, it may mitigate to
the maximum reasonable penalty so long as the agency has not indicated
that it desires a lesser penalty be imposed. Here, the issue is not whether
the penalty is no longer appropriate because not all of the charges had
been sustained but whether the penalty was no longer appropriate because
the agency and the administrative judge incorrectly considered prior discipline
as an aggravating factor. The deciding official, Senior Labor Relations
Specialist Tommy Caruthers, testified that, in the absence of the prior
discipline, the charge would not be sufficient to warrant removal. Hearing
Transcript (HT) at 271-72. He did not testify, however, as to what penalty
he would have imposed. Further, while the record shows that the appellant
had grieved her suspensions, the current status of those grievances is
¶6 Under the circumstances,
we have determined that the parties interests can best be served by remanding
the appeal to the agency to re-evaluate the penalty rather than by the
Board imposing a penalty on the present record. In this regard, we note
the long-established rule that in its consideration of a penalty, the Board
will "accord proper deference to the agencys primary discretion in managing
its work force."
Douglas v. Veterans Administration, 5 M.S.P.R.
280, 306 (1981). The agencys exercise of that discretion, of course, remains
subject to the Boards review in this case, as in all other similar appeals.
¶7 We REMAND the appeal
to the U.S. Postal Service "to select a penalty in light of the precise
status of Ms. Gregorys past disciplinary record." Gregory
F.3d at 1300. The agency must complete its proceedings and issue a new
decision within 60 days of the date of this Order. Upon issuance of that
decision, if the appellant is dissatisfied, she may file an appeal with
the Atlanta Regional Office and, if she so desires, exercise her right
to a hearing as to the reasonableness of the newly-imposed penalty, prior
to the issuance of a new initial decision addressing solely that issue.
The Board, therefore, dismisses this appeal without prejudice to the appellants
right to file an appeal within 30 days of the date of the agencys new
penalty determination. Because this decision does not finally decide the
penalty issue, the appellants right to seek judicial review of that issue
will accrue in connection with the decision now to be issued by the agency,
following the Boards action on any renewed appeal she may bring.
FOR THE BOARD:
Robert E. Taylor
Clerk of the Board