US Supreme Court Decisions


                                  Agency. DOCKET NUMBER

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


¶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 below.

¶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 decision.

¶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. Id. The court found that the Letter of Warning had been overturned and ordered expunged from the appellants record in an arbitrators decision. Gregory, 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, id., 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 unclear.

¶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, 212 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.

Washington, D.C. ______________________________
Robert E. Taylor
Clerk of the Board

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