No. 00-758 

In the Supreme Court of the United States 

UNITED STATES POSTAL SERVICE, PETITIONER 

v. 

MARIA A. GREGORY 

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FEDERAL CIRCUIT 

PETITION FOR A WRIT OF CERTIORARI 

MARY ANNE GIBBONS 

General Counsel 

LORI J. DYM 
STEPHAN J. BOARDMAN 

Attorneys 
Office of General Counsel 
United States Postal 

Service 
Washington, D.C. 20260 
SETH P. WAXMAN 

Solicitor General 

Counsel of Record 

DAVID W. OGDEN 

Assistant Attorney General 

BARBARA D. UNDERWOOD 

Deputy Solicitor General 

AUSTIN C. SCHLICK 

Assistant to the Solicitor 

General 

DAVID M. COHEN 
TODD M. HUGHES 
DAVID B. STINSON 

Attorneys 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514–2217 

QUESTION PRESENTED 

Whether a federal agency, when disciplining or re- 
moving an employee for misconduct pursuant to the 
Civil Service Reform Act of 1978, 5 U.S.C. 1101 et seq., 
may take account of prior disciplinary actions that are 
the subject of pending grievance proceedings. 

(I) 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 1 

Statutory provisions involved ..................................................... 
2 

Statement ........................................................................................ 2 

Reasons for granting the petition ............................................... 
5 

Conclusion ....................................................................................... 18 

Appendix A ..................................................................................... 
1a 

Appendix B ..................................................................................... 
9a 

Appendix C ..................................................................................... 
13a 

Appendix D ..................................................................................... 
44a 

Appendix E ..................................................................................... 
45a 

TABLE OF AUTHORITIES 

Cases: 

Bolling v. Department of Air Force, 8 M.S.P.B. 658 

(1981) ......................................................................... 

4, 10, 11, 13 

Bredehorst v. United States, 677 F.2d 87 (Ct. Cl. 

1982) ......................................................................................... 10 

Bureau of Alcohol, Tobacco & Firearms v. FLRA, 

464 U.S. 89 (1983) ................................................................... 

7 

Bush v. Lucas, 462 U.S. 367 (1983) ..................................... 

7, 13 

Carlucci v. Doe, 488 U.S. 93 (1988) .................................... 

7 

Carr v. Department of Air Force, 9 M.S.P.B. 714 

(1982) ........................................................................................ 12 

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 

(1985) ........................................................................................ 13 

Coleman v. Paccar Inc., 424 U.S. 1301 (1976) ................. 

12 

Cornelius v. Nutt, 472 U.S. 648 (1985) ................................. 

7 

Crawford v. Department of Justice, 45 M.S.P.R. 

234 (1990) ................................................................................. 

11 

Department of Navy v. Egan, 484 U.S. 518 

(1988) ........................................................................................ 7, 10 

(III) 

IV 

Cases—Continued: Page 

Douglas v. Veterans Admin., 5 M.S.P.B. 313 

(1981) ................................................................................ 

9, 10, 15 

Freeman v. Department of Transp., 20 M.S.P.R. 

290 (1984) ................................................................................. 

12 

Hagmeyer v. Department of Treasury, 757 F.2d 

1281 (Fed. Cir. 1985) ............................................................. 

9 

Holland v. Department of Defense, 83 M.S.P.R. 

317 (1999) ................................................................................. 

11 

Hubbard v. United States Postal Serv., 32 

M.S.P.R. 505 (1987) ........................................................... 

12, 13 

Hynes v. Grimes Packing Co., 337 U.S. 86 (1949) ........... 

12 

Jones v. Department of Air Force, 24 M.S.P.R. 

429 (1984) ............................................................................. 

12, 14 

LaChance v. Devall, 178 F.3d 1246 (Fed. Cir. 

1999) ......................................................................................... 

8, 9 

LaChance v. Erickson, 522 U.S. 262 (1998) ...................... 

7, 13 

Morgan v. Department of Defense, 63 M.S.P.R. 

58 (1994) ................................................................................... 

12 

National Fed’n of Fed. Employees, Local 1309 v. 

Department of Interior, 526 U.S. 86 (1999) ..................... 

17 

Payne v. United States Postal Serv., 69 M.S.P.R. 

503 (1996) ................................................................................. 

14 

Swentek v. United States, 658 F.2d 791 (Ct. Cl. 

1981) ......................................................................................... 10 

United States v. Fausto, 484 U.S. 439 (1988) ................... 

7, 17 

Webb v. United States, 227 Ct. Cl. 777 (1981) ................... 

10 

Statutes and regulations: 

Civil Sevice Reform Act of 1978, Pub. L. No. 95-454, 

92 Stat. 1111 (5 U.S.C. 1101 et seq.) .................................... 

2, 7 

5 U.S.C. 7101(b) ................................................................. 

7 

5 U.S.C. 7503 .................................................................... 

8, 13 

5 U.S.C. 7511(a)(1)(B)(ii) .............................................. 

8, 45a 

5 U.S.C. 7511(b)(8) ............................................................ 

8 

5 U.S.C. 7512 .................................................................. 

8, 46a 

5 U.S.C. 7513 ........................................................... 8, 13, 47a 

V 

Statutes and regulations—Continued: 
Page 

5 U.S.C. 7513(a) ................................................ 

8, 15, 17, 47a 

5 U.S.C. 7513(b) ............................................................. 

8, 47a 

5 U.S.C. 7513(c) ............................................................. 

8, 48a 

5 U.S.C. 7513(d) ............................................................. 

8, 48a 

5 U.S.C. 7701(c) ............................................................. 

9, 51a 

5 U.S.C. 7703 ........................................................... 

4, 6, 9, 56a 

5 U.S.C. 7703(a)(1) ...................................................... 

7, 56a 

5 U.S.C. 7703(c) ............................................................. 

9, 57a 

5 U.S.C. 7703(d) ........................................................... 

7, 57a 

28 U.S.C. 1295(a)(9) (1994 & Supp. IV 1998) ....................... 

4, 9 

39 U.S.C. 1005(a)(1) .................................................................. 

7 

5 C.F.R.: 

Section 1201.115(d)(1) ........................................................... 

14 

Section 1201.118 ..................................................................... 

14 

Miscellaneous: 

Agreement Between United States Postal Service 

and National Association of Letter Carriers, AFL- 
CIO (1994-1998) ..................................................................... 

16 
Department of Defense Administrative Instruct. 

No. 8 (Aug. 17, 1981) ............................................................. 

16 

S. Rep. No. 969, 95th Cong., 2d Sess. (1978) ........................ 7 

In the Supreme Court of the United States 

NO. 00-758 

UNITED STATES POSTAL SERVICE, PETITIONER 

v. 

MARIA A. GREGORY 

ON PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FEDERAL CIRCUIT 

PETITION FOR A WRIT OF CERTIORARI 

The Solicitor General, on behalf of the United States 
Postal Service, petitions for a writ of certiorari to 
review the judgment of the United States Court of 
Appeals for the Federal Circuit in this case. 

OPINIONS BELOW 

The opinion of the court of appeals (App., infra, 1a- 
8a) is reported at 212 F.3d 1296. The opinion of the 
Merit Systems Protection Board (App., infra, 9a-12a) is 
unpublished, but the decision is noted at 84 M.S.P.R. 
619 (Table). 

JURISDICTION 

The judgment of the court of appeals was entered on 
May 15, 2000. A petition for rehearing was denied on 
July 13, 2000 (App., infra, 44a). On October 2, 2000, the 
Chief Justice extended the time for filing a petition for 

(1) 

2 

a writ of certiorari to and including November 13, 2000. 
The jurisdiction of this Court is invoked under 28 
U.S.C. 1254(1). 

STATUTORY PROVISIONS INVOLVED 

The pertinent provisions of the Civil Service Reform 
Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (5 U.S.C. 
1101 et seq.), are reproduced at App., infra, 45a-58a. 

STATEMENT 

1. Respondent worked for the United States Postal 
Service (Postal Service) as a Letter Technician in 
Hinesville, Georgia. App., infra, 1a. The Postal Service 
disciplined respondent on three separate occasions 
between May 1997 and August 1997. On May 13, 1997, 
respondent received a letter of warning for insub- 
ordination after she left work for a doctor’s appoint- 
ment without first putting her day’s mail in order. Id. 
at 2a, 36a. Less than a month later, on June 7, 1997, 
respondent received a seven-day suspension for delay- 
ing the mail and failing to follow instructions. Id. at 2a. 
Two months later, on August 7, 1997, respondent re- 
ceived a 14-day suspension for delaying the mail, claim- 
ing unauthorized overtime, failing to follow instruc- 
tions, and performing her duties in an unsatisfactory 
manner. Ibid. The union representing respondent filed 
grievances challenging each of those three disciplinary 
actions. 

On September 13, 1997, respondent requested 3.5 
hours of overtime (or assistance from another letter 
carrier) to prepare and deliver the mail on her route. 
App., infra, 14a. That request “seemed like a gross 
overestimate” to respondent’s supervisor. Id. at 17a. 
The supervisor later testified that respondent had “a 
low volume of mail” on the day in question; that he 
could not recall another request for so much overtime 

3 

during a non-holiday period; and that any request for 
more than two hours of overtime “sends up a red flag.” 
Ibid. After respondent reaffirmed her estimate of 3.5 
hours overtime, the supervisor reassigned some of 
respondent’s mail to other letter carriers and accompa- 
nied respondent on her route. Id. at 17a-18a. The 
supervisor observed no unusual conditions on the route. 
Respondent also did not appear to suffer from any 
physical impairment. Id. at 18a-19a. Based upon his 
observations and the amount of time taken by respon- 
dent and the other letter carriers, the supervisor 
charged respondent with overestimating her time by 

1.5 hours. Id. at 15a, 29a. Letter carriers are responsi- 
ble for correctly estimating the amount of time they 
will need to complete their work on a given day, within 
a margin of error of 15 to 20 minutes. Id. at 16a. 

The supervisor proposed that respondent be re- 
moved from service and a personnel officer upheld that 
removal. App., infra, 2a. The Postal Service dismissed 
respondent effective November 26, 1997. Id. at 13a. 

2. After two days of hearings, an administrative 
judge of the Merit Systems Protection Board (MSPB) 
affirmed respondent’s dismissal. App., infra, 13a-43a. 
The administrative judge upheld the Postal Service’s 
finding that respondent had failed to perform her duties 
in a satisfactory manner (id. at 14a-30a), and rejected 
respondent’s affirmative defenses of discrimination. Id. 
at 30a-35a. 

The administrative judge also upheld the penalty of 
removal from service. App., infra, 36a. In deciding to 
remove respondent, the Postal Service relied upon the 
nature of the charge, “the fact that there was no room 
for [respondent’s overestimate] to have been a mis- 
take,” and respondent’s history of similar offenses. 
Ibid. The administrative judge noted that because prior 

4 

disciplinary actions against respondent were in writing, 
had been made a part of the record, and respondent had 
an opportunity to grieve them, review of those earlier 
actions was limited under MSPB precedent to 
determining whether the earlier actions were clearly 
erroneous. Id. at 37a (citing Bolling v. Department of 
the Air Force, 8 M.S.P.B. 658, 659-661 (1981)). Respon- 
dent had not argued in the removal proceeding that the 
Postal Service’s earlier disciplinary actions were im- 
proper. Nevertheless, the administrative judge re- 
viewed the earlier actions on which the Postal Service 
relied and found that they were not clearly erroneous. 
Ibid. The administrative judge further found that 
respondent’s removal, although seemingly harsh “[a]t 
first blush” (ibid.), was “within the bounds of 
reasonableness” (id. at 39a) given respondent’s “pattern 
of [mis]conduct” (id. at 38a); respondent’s calculated 
submission of an inflated overtime request to earn 
undeserved pay or lessen her workload (ibid.); and 
respondent’s own testimony indicating that she “has 
little potential for rehabilitation” (id. at 39a). 

3. Respondent petitioned the MSPB for review of 
the administrative judge’s decision. In July 1999, while 
respondent’s petition for review was pending, an 
arbitrator ruled in favor of respondent with respect to 
the first disciplinary action taken against her—the May 
1997 letter of warning for insubordination—and or- 
dered it expunged from respondent’s disciplinary 
record. App., infra, 5a. The MSPB was not advised of 
the arbitrator’s decision, however. It denied respon- 
dent’s petition for review, in part on the ground that 
respondent had not provided any “new, previously 
unavailable, evidence.” Id. at 9a-10a. 

4. The United States Court of Appeals for the 
Federal Circuit, exercising jurisdiction pursuant to 

5 

5 U.S.C. 7703 and 28 U.S.C. 1295(a)(9), affirmed in part, 
vacated in part, and remanded for further proceedings. 
App., infra, 1a-8a. Deciding the case without argument, 
the court of appeals affirmed the MSPB’s determination 
that respondent failed to perform her duties in a 
satisfactory manner. The court of appeals also affirmed 
the MSPB’s rejection of respondent’s discrimination 
claims. Id. at 4a-5a. But the court of appeals reversed 
the MSPB’s approval of the removal penalty. The court 
took judicial notice that the arbitrator had overturned 
the Postal Service’s May 7, 1997, letter of warning to 
respondent, and that other challenges to respondent’s 
disciplinary record were pending. Id. at 5a-6a. In light 
of these facts, the court of appeals held “that, as a 
matter of law, consideration may not be given to prior 
disciplinary actions that are the subject of ongoing 
proceedings challenging their merits.” Id. at 7a. The 
court reasoned that consideration of earlier disciplinary 
actions that are subject to a pending challenge “would 
risk harming the legitimacy of the reasonable penalty 
analysis, by allowing the use of unreliable evidence (the 
ongoing prior disciplinary actions) to support an agency 
action.” Ibid. The court remanded to the MSPB for a 
determination whether (1) the case should be sent back 
to the Postal Service, or (2) the MSPB itself should set 
a new penalty. Id. at 7a-8a. 

On July 13, 2000, the court of appeals denied the 
Postal Service’s petition for rehearing. 

REASONS FOR GRANTING THE PETITION 

The court of appeals has incorrectly decided a ques- 
tion of considerable importance to the federal govern- 
ment and federal employees. The court of appeals’ 
decision finds no support in the civil service laws or in 
due process. To the contrary, the longstanding admin- 

6 

istrative procedures overturned by the court of appeals 
fully protect the statutory and constitutional rights of 
federal employees and the reliability of agency deter- 
minations. 

The court of appeals’ decision fails to give appropri- 
ate deference to the MSPB’s statutory responsibility 
for reconciling the twin goals of efficiency in the civil 
service and fairness to federal employees. See 
generally United States v. Fausto, 484 U.S. 439, 444-447 
(1988). If it is allowed to stand, the court of appeals’ 
decision will result in a less efficient civil service and 
greater administrative costs, without any substantial 
increase in fairness to employees. The court of appeals 
recognized that the employee’s disciplinary history is 
“an important factor when considering whether a 
particular penalty [for misconduct] is reasonable.” 
App., infra, 6a. Yet, overturning decades of consistent 
administrative practice, the court of appeals precluded 
federal employers and the MSPB from considering 
highly relevant disciplinary histories in many cases. 
The court of appeals’ new rule creates a strong incen- 
tive for employees who are subject to discipline to file 
grievances and prolong grievance proceedings, solely to 
protect against possible future discipline. At the same 
time, the new rule may discourage federal agencies 
from retaining and seeking to rehabilitate employees 
who are subject to dismissal, because it may be impossi- 
ble to discharge a recidivist employee if efforts at 
rehabilitation fail. As a result of the Federal Circuit’s 
exclusive jurisdiction over appeals from decisions of the 
MSPB (see 5 U.S.C. 7703), the issue in this case is 
unlikely to be presented to any other court of appeals. 
Indeed, the issue is unlikely to arise again in the Fed- 
eral Circuit, because the MSPB will apply the ruling of 
the court of appeals, and the government (unlike its 

7 

employees) does not have an automatic right of appeal 
from adverse MSPB decisions. 5 U.S.C. 7703(a)(1); 
5 U.S.C. 7703(d) (1994 & Supp. IV 1998). 

Because the court of appeals’ decision threatens to do 
substantial damage to the civil service and represents 
an unjustifiable judicial intrusion into federal employee 
discipline, further review is warranted.1 

1. The Civil Service Reform Act of 1978 (Reform 
Act), Pub. L. 95-454, 92 Stat. 1111, comprehensively 
revised the statutory rights and obligations of federal 
civil servants. Bureau of Alcohol, Tobacco & Firearms 

v. FLRA, 464 U.S. at 91. Among Congress’s purposes 
in enacting that reform was “preserv[ing] the ability of 
federal managers to maintain ‘an effective and efficient 
Government,’ ” a goal that Congress pursued through 
new provisions covering removal and discipline of 
employees for unacceptable performance or misconduct. 
Cornelius v. Nutt, 472 U.S. at 650-651 (quoting 5 U.S.C. 
7101(b)). In particular, Congress wanted “to give 
agencies greater ability to remove or discipline 
expeditiously employees who engage in misconduct, or 
whose work performance is unacceptable.” Id. at 662- 
663 (quoting S. Rep. No. 969, 95th Cong., 2d Sess. 51 
(1978)). 

To achieve Congress’s goals, the Reform Act pro- 
vides agencies primary discretion to take disciplinary 
action that will most effectively address an employee’s 

1 This Court has often recognized that a possible misapplication 
of the federal civil service laws by the court of appeals is suffi- 
ciently important to warrant review. See, e.g., LaChance v. Erick- 
son, 522 U.S. 262 (1998); Carlucci v. Doe, 488 U.S. 93 (1988); 
Fausto, supra; Department of Navy v. Egan, 484 U.S. 518 (1988); 
Cornelius v. Nutt, 472 U.S. 648 (1985); see also Bureau of Alcohol, 
Tobacco & Firearms v. FLRA, 464 U.S. 89 (1983); Bush v. Lucas, 
462 U.S. 367 (1983). 

8 

misconduct. Sections 7512 and 7513 of Title 5 provide 
that an agency may take adverse action against a 
covered employee—including removal, suspension of 
more than 14 days, demotion, or a furlough—“for such 
cause as will promote the efficiency of the service.” 
5 U.S.C. 7513(a).2 The employee, however, is entitled to 
four specific procedural protections: (1) advance writ- 
ten notice of the proposed employment action; (2) a 
reasonable time to respond; (3) counsel or another 
chosen representative; and (4) a written decision pro- 
viding specific reasons for the agency’s action. 5 U.S.C. 
7513(b) and (c). “Thus, on the one hand, the Reform Act 
strives to enable government managers to more 
effectively hire, fire, and otherwise discipline their 
employees, while at the same time according employees 
their requisite procedural protections.” LaChance v. 
Devall, 178 F.3d 1246, 1254 (Fed. Cir. 1999). 

An employee who receives a suspension of more than 
14 days, or another serious sanction such as removal, 
may appeal the agency’s decision to the MSPB.3 
5 U.S.C. 7513(d). The MSPB must sustain the agency’s 
decision if the decision is supported by a preponderance 
of the evidence and the employee does not show that 
the decision was infected by “harmful error in the appli- 
cation of the agency’s procedures,” a specifically prohib- 
ited employment practice such as discrimination, or 

2 Respondent qualifies as a covered employee under 5 U.S.C. 
7511(a)(1)(B)(ii) and (b)(8). Pertinent provisions of the Reform Act 
also apply to respondent pursuant to 39 U.S.C. 1005(a)(1) and (2). 

3 Section 7503 of Title 5 establishes procedures for suspensions 
of 14 days or less. Section 7503 affords employees accused of less 
serious offenses fundamentally the same procedural protections 
guaranteed by Section 7513: notice, an opportunity to respond, 
representation, and a written decision. The employee, however, 
does not have a right of appeal. 

9 

another violation of law. 5 U.S.C. 7701(c). The MSPB 
may alter the agency’s designated penalty if the pen- 
alty exceeds the bounds of reasonableness. Devall, 
supra; Douglas v. Veterans Admin., 5 M.S.P.B. 313, 
314-324 (1981). 

An employee aggrieved by the MSPB’s decision may 
appeal to the United States Court of Appeals for the 
Federal Circuit, which has exclusive jurisdiction over 
such appeals. 5 U.S.C. 7703; 28 U.S.C. 1295(a)(9). The 
court of appeals will reverse MSPB decisions that are: 
“(1) arbitrary, capricious, an abuse of discretion, or 
otherwise not in accordance with law; (2) obtained 
without procedures required by law, rule, or regulation 
having been followed; or (3) unsupported by substantial 
evidence.” 5 U.S.C. 7703(c). The court of appeals has 
recognized, however, that fixing the appropriate pen- 
alty for employee misconduct “is a matter committed 
primarily and largely to the discretion of the agency.” 
Hagmeyer v. Department of Treasury, 757 F.2d 1281, 
1284 (Fed. Cir. 1985). Accordingly, the court of appeals 
“will normally defer to the judgment of the agency as to 
the appropriate penalty for employee misconduct unless 
the severity appears totally unwarranted.” Id. at 1284- 
1285. 

2. The new rule announced by the court of appeals in 
this case—that “consideration may not be given to prior 
disciplinary actions that are the subject of ongoing 
proceedings challenging their merits” (App., infra, 7a) 
—contradicts two decades of consistent administrative 
practice that faithfully implemented the Reform Act’s 
procedures for employee discipline. 

The MSPB’s decision in Douglas, supra, issued in 
1981, established standards to guide the agencies’ exer- 
cise of their broad discretion to select appropriate 
discipline. Drawing upon judicial and administrative 

10 

precedent, the MSPB identified a non-exhaustive list of 
twelve factors that are “generally recognized as rele- 
vant” to the penalty determination. 5 M.S.P.B. at 331. 
Among those factors are the employee’s disciplinary 
record and potential for rehabilitation. Id. at 332. 
When setting a disciplinary penalty, the agency must 
“consider the relevant factors and * * * strike a 
responsible balance within tolerable limits of reason- 
ableness.” Id. at 332-333. 

Later in 1981, the MSPB addressed the question pre- 
sented by this case: Under what circumstances may 
prior disciplinary action be reopened or disregarded in 
the course of later disciplinary proceedings? See 
Bolling v. Department of Air Force, 8 M.S.P.B. 658 
(1981). To answer that question, the MSPB looked to 
regulations that formerly had governed the Civil Ser- 
vice Commission.4 Adopting the pre-existing adminis- 
trative rule, the MSPB held that when it reviews a 
disciplinary action that is premised upon the employee’s 
disciplinary record, the disciplinary record is itself a 
proper subject of review.5 Id. at 658-659. 

The level of review depends upon the procedural pro- 
tections afforded the employee in the earlier discipli- 

4 “The [MSPB] was created to assume the adjudicatory func- 
tions of the old [Civil Service] Commission and, with certain excep- 
tions, those functions passed unchanged from the Commission to 
the [MSPB].” Department of Navy v. Egan, 484 U.S. at 531 n.6. 
Among those functions inherited by the MSPB was review of 
agency-imposed discipline. In Douglas, the MSPB held that it has 
the same authority to review disciplinary penalties as the Civil 
Service Commission possessed. 5 M.S.P.B. at 314-324. 

5 The Court of Claims recognized and applied that administra- 
tive policy. Bredehorst v. United States, 677 F.2d 87, 90 (Ct. Cl. 
1982); Swentek v. United States, 658 F.2d 791, 794-796 (Ct. Cl. 
1981); Webb v. United States, 227 Ct. Cl. 777 (1981). 

11 

nary action that the employee collaterally attacks. 
Specifically, the MSPB looks for three procedural safe- 
guards in the earlier action: (1) whether the employee 
was informed of the action in writing; (2) whether the 
employee was given an opportunity to dispute the 
action before a higher authority; and (3) whether the 
action is a matter of record. 8 M.S.P.B. at 659, 660-661. 
If one or more of those protections is absent, then the 
MSPB undertakes “a full, de novo review” of the earlier 
action as part of its review of the later disciplinary 
decision. Id. at 659. But, if all three safeguards are 
present, then the MSPB will overturn the prior action 
only if the employee can show, based upon the existing 
record gathered in the earlier proceeding, that the 
earlier action was clearly erroneous. Id. at 660-661. 
The MSPB determined that its approach 

strikes a reasonable and workable balance between 
the competing interests involved * * *. On the one 
hand, an appellant is not allowed to relitigate issues 
that either were, or could have been thoroughly 
litigated previously. On the other hand, agencies 
are not able to utilize clearly erroneous prior actions 
as aggravating factors so as to enhance the penalties 
imposed. 

Id. at 660. The MSPB has consistently applied the rules 
of decision set out in Bolling. E.g., Crawford v. Depart- 
ment of Justice, 45 M.S.P.R. 234, 236 n.1 (1990) (citing 
cases); Holland v. Department of Defense, 83 M.S.P.R. 
317, 320-322 (1999). 

Pursuant to Bolling, the MSPB reviews disciplinary 
actions in the employee’s record for clear error even 
when, as here, these actions are the subject of a pend- 
ing arbitral grievance. An earlier agency action that 
has not been overturned and was procedurally regular 

12 

enjoys “the presumption of honesty and integrity which 
accompanies administrative adjudicators;”6 the action is 
given effect, notwithstanding the pending grievance, 
unless it is clearly erroneous or subject to de novo 
review. Hubbard v. United States Postal Serv., 32 
M.S.P.R. 505, 508 (1987).7 

The employee, however, may introduce evidence that 
the earlier disciplinary action has been overturned as a 
result of the employee’s grievance. In that situation, 
the reversal overcomes the presumption that the 
earlier disciplinary action is valid, and precludes reli- 
ance upon it. Jones v. Department of Air Force, 24 
M.S.P.R. 429, 431 (1984). 

3. The longstanding Bolling approach, as applied by 
the MSPB in this case, is entirely consistent with the 
protections afforded federal employees under the Re- 
form Act, and reasonably accommodates the competing 
interests of government efficiency and employee due 
process. The Reform Act’s notice and hearing require- 
ments establish an “elaborate, comprehensive scheme 
that encompasses substantive provisions forbidding 
arbitrary action by supervisors and procedures— 

6 See generally Hynes v. Grimes Packing Co., 337 U.S. 86, 101 
(1949) (“An administrative order is presumptively valid.”); 
Coleman v. Paccar Inc., 424 U.S. 1301, 1306 (Rehnquist, Circuit 
Justice 1976) (noting “the time-honored presumption in favor of 
the validity of” agency determinations). 

7 See also Morgan v. Department of Defense, 63 M.S.P.R. 58, 61 
(1994) (“the pending grievance is considered a challenge to the 
action,” which the MSPB reviews under Bolling); Freeman v. 
Department of Transp., 20 M.S.P.R. 290, 292 (1984) (subject to 
Bolling review, “an agency may rely on a record of past discipline 
even where a prior disciplinary action is the subject of a pending 
grievance”); Carr v. Department of Air Force, 9 M.S.P.B. 714, 715 
(1982) (same). 

13 

administrative and judicial—by which improper action 
may be redressed.” Bush v. Lucas, 462 U.S. at 385. 
And the Bolling rule ensures that employees are not 
denied the “carefully delineated rights” to notice and a 
hearing that Congress afforded through this scheme. 
LaChance v. Erickson, 522 U.S. at 266. 

As discussed above, the Reform Act entitles em- 
ployees facing adverse action to written notice of the 
proposed action, an opportunity to respond, and a 
written decision giving reasons for the action. 5 U.S.C. 
7503, 7513; cf. Cleveland Bd. of Educ. v. Loudermill, 
470 U.S. 532 (1985) (discussing due process require- 
ments applicable to termination of public employee). 
Bolling protects those rights. If, in a prior disciplinary 
action, the employee was not afforded written notice, an 
opportunity for review by a different authority, or a 
record decision, then the presumption of validity does 
not apply to the prior action and the employee is 
entitled to de novo review. The MSPB applies a 
presumption of validity to the employee’s disciplinary 
record only after it determines that the employee 
received those three procedural protections. Even 
then, the MSPB reviews the relevant administrative 
record for clear error. Bolling, 8 M.S.P.B. at 659-661; 
see also Hubbard, 32 M.S.P.R. at 508-509. Accordingly, 
any material aspect of the employee’s disciplinary 
record that has not been developed in accordance with 
the key procedural protections, is subject to de novo 
review by the Board. 

There will be cases, such as this one, in which a 
procedurally regular agency determination that forms 
part of the employee’s disciplinary record, and is relied 
upon by the agency, is later reversed. But the MSPB 
has accommodated those cases as well. If the employee 

14 

takes an appeal to the MSPB, and the prior action is 
reversed before the MSPB renders its decision, then 
the MSPB will strike the prior action from the em- 
ployee’s disciplinary record and overturn any reliance 
upon it. Jones, 24 M.S.P.R. at 431. Thus, respondent 
could have brought the arbitrator’s July 1999 decision 
overturning the Postal Service’s May 1997 letter of 
warning to the attention of the MSPB in connection 
with her petition for review of the administrative 
judge’s decision. The arbitrator’s decision would have 
qualified as new, previously unavailable evidence, 
which would have supported granting her petition. 
5 C.F.R. 1201.115(d)(1) (MSPB may grant a petition for 
review when “[n]ew and material evidence is available 
that, despite due diligence, was not available when the 
record closed”). 

The MSPB also has discretion to reopen its decision 
in the event that the employee’s disciplinary record is 
revised materially after the MSPB affirms the chal- 
lenged disciplinary action. 5 C.F.R. 1201.118 (“The 
Board may reopen an appeal and reconsider a decision 
of a judge on its own motion at any time, regardless of 
any other provisions of this part.”). The MSPB’s 
discretionary power to reopen provides the employee a 

fair opportunity to have the agency’s sanction re-evalu- 
ated when a relevant grievance is not timely resolved. 
Cf. Payne v. United States Postal Serv., 69 M.S.P.R. 
503, 505-508 (1996) (reopening “in the interests of jus- 
tice” where employee’s criminal conviction was re- 
versed after MSPB upheld employee’s removal in light 
of the conviction). 

4. The rule adopted by the court of appeals, if per- 
mitted to stand, would do serious harm to the civil 
service system, which includes more than two million 
federal employees. The rule significantly limits the 

15 

ability of federal agencies to issue appropriate disci- 
pline. In all likelihood, the rule announced by the court 
of appeals works to the detriment of most affected 
employees as well. 

a. The rule announced by the court of appeals 
seriously impairs federal agencies’ authority and discre- 
tion to calibrate disciplinary action to the circumstances 
presented by the employee’s record, and thereby 
undermines the statutory goal of “promot[ing] the 
efficiency of the service.” 5 U.S.C. 7513(a). Even when 
removal or a long suspension would be reasonable, a 
supervisor may deem it best for the efficiency of the 
service to impose a lesser penalty, such as a short 
suspension or letter of reprimand. Repetition of the 
same or related infractions would lead to more severe 
penalties, including removal if the employee refuses to 
correct his or her conduct. When supervisors use that 
approach (known in private-sector labor relations as 
“progressive discipline”), employees benefit from addi- 
tional notice of workplace problems and an opportunity 
to correct deficiencies prior to termination. For its 
part, the agency has the flexibility to address recidi- 
vism if it occurs. 

That flexible approach, however, assumes review of 
the employee’s disciplinary history. Indeed, the em- 
ployee’s disciplinary history is one of the factors federal 
agencies generally must consider when setting a 
penalty. Douglas, 5 M.S.P.B. at 332. If pending griev- 
ances precluded an agency from taking account of past 
disciplinary actions for, say, unexcused absences, then 
the agency could not punish a second, third, or tenth 
absence more severely than a first absence. The most 
recent charge, even if part of a pattern of similar 
misconduct, would have to be considered in a vacuum. 
The decision of the court of appeals would thus prevent 

16 

agencies from sensibly disciplining habitual offenders 
whose instances of misconduct, considered in isolation, 
do not warrant a serious penalty. 

The problem of excluding recent disciplinary actions 
from consideration is all the more acute because federal 
agencies’ disciplinary guidelines commonly limit the use 
of prior disciplinary actions that are stale. For exam- 
ple, Department of Defense Administrative Instruction 
No. 8 (Aug. 17, 1981), which applies to employees under 
the Secretary of Defense and the Joint Chiefs of Staff, 
provides for consideration of past suspensions only if 
they occurred within the last three years, and of past 
reprimands and admonishments only if they occurred 
within the last two years. Grievance proceedings, 
however, may take years to resolve. By the time a 
valid disciplinary action is upheld and thus rendered 
cognizable by the court of appeals, it may be too old to 
consider. Employees may be able to preclude any 
future consideration of a disciplinary action, simply by 
filing a grievance.8 Thus, in practical effect, the court of 

8 In this case, the arbitrator overturned respondent’s May 1997 
letter of warning more than two years later, in July 1999. App., 
infra, 5a. Respondent’s grievances challenging the June 1997 and 
August 1997 suspensions still are pending after more than three 
years. Yet, the collective bargaining agreement governing 
respondent’s employment with the Postal Service provided that 
“[t]he records of a disciplinary action against an employee shall not 
be considered in any subsequent disciplinary action if there has 
been no disciplinary action initiated against the employee for a 
period of two years.” Agreement Between United States Postal 
Service and National Association of Letter Carriers, AFL-CIO 
(1994-1998) art. 16:10. If respondent’s misconduct during 1997 
could not be considered within two years of its occurrence because 
of the pending grievances, and could not be considered thereafter 
under the collective bargaining agreement, then this misconduct 

17 

appeals’ decision is at odds with the court’s own rec- 
ognition “that prior disciplinary actions are an impor- 
tant factor when considering whether a particular pen- 
alty is reasonable under given circumstances.” App., 
infra, 6a. 

The possibility also exists that federal supervisors, 
being unable to implement discipline based upon the 
employee’s full record, may impose a more severe (but 
nevertheless reasonable) penalty for a first offense, 
rather than imposing a less severe penalty in the hope 
that the employee’s conduct will improve. Such an 
outcome could increase turnover and discontent among 
federal employees, also compromising “the efficiency of 
the service.” 5 U.S.C. 7513(a). Indeed, by establishing 
an apparently unqualified rule that “as a matter of law, 
consideration may not be given to prior disciplinary 
actions that are the subject of ongoing proceedings 
challenging their merits,” App., infra, 7a, the court of 
appeals unnecessarily limited the ability of the MSPB 
and federal agencies to develop procedures that ad- 
dress the court of appeals’ underlying concerns, yet also 
respect the needs of an efficient civil service system. 
Cf. National Fed’n of Fed. Employees, Local 1309 v. 
Department of Interior, 526 U.S. 86, 99-101 (1999) 
(remanding to give Federal Labor Relations Authority 
the opportunity to address federal labor issue in light of 
Court’s statutory construction). 

b. The decision of the court of appeals immunizes 
employees from cumulative discipline so long as a 
grievance is pending. This immunity will encourage 
employees to challenge all disciplinary actions, even 
relatively minor ones. It will also give employees an 

might never be eligible for consideration in any disciplinary 
proceeding. 

18 

incentive to prolong grievance proceedings. The 
decision below thus will increase the administrative 
burden on federal agencies and undermine processes 
for the efficient resolution of disputes. The dockets of 
the MSPB and, ultimately, the Federal Circuit also will 
be burdened with strategic appeals brought to protect 
against possible future discipline. The decision below, if 
allowed to stand, will upset Congress’s plan for a 
system of administrative and judicial review that 
“balance[s] the legitimate interests of * * * federal 
employees with the needs of sound and efficient 
administration.” Fausto, 484 U.S. at 445. 

CONCLUSION 

The petition for a writ of certiorari should be 
granted. 

Respectfully submitted. 

MARY ANNE GIBBONS 

General Counsel 

LORI J. DYM 
STEPHAN J. BOARDMAN 

Attorneys 
Office of General Counsel 
United States Postal 

Service 
SETH P. WAXMAN 

Solicitor General 

DAVID W. OGDEN 

Assistant Attorney General 

BARBARA D. UNDERWOOD 

Deputy Solicitor General 

AUSTIN C. SCHLICK 

Assistant to the Solicitor 

General 

DAVID M. COHEN 
TODD M. HUGHES 
DAVID B. STINSON 

Attorneys 

NOVEMBER 2000 

APPENDIX A 

UNITED STATES COURT OF APPEALS 

FOR THE FEDERAL CIRCUIT 

No. 00-3123 

MARIA A. GREGORY, PETITIONER 

v. 

UNITED STATES POSTAL SERVICE, RESPONDENT 

[Decided: May 15, 2000 
Rehearing Denied: July 13, 2000] 

Before: MAYER, Chief Judge, CLEVENGER, and 
GAJARSA, Circuit Judges. 

CLEVENGER, Circuit Judge. 

Maria A. Gregory was fired from her position as a 
Letter Technician with the United States Postal Ser- 
vice (“Postal Service”) in Hinesville, Georgia, because 
she allegedly overestimated the delivery time of her 
route by about an hour and a half. The Merit Systems 
Protection Board (“Board”) rejected Ms. Gregory’s ap- 
peal, holding that the penalty of removal was justified 
by Ms. Gregory’s prior disciplinary record, part of 
which was the subject of then-current administrative 
grievance proceedings. See Gregory v. United States 
Postal Serv., No. AT075298261-I-1, slip op. at 19 (Sept. 
11, 1999). Because prior disciplinary actions that are 
subject to ongoing proceedings may not be used to 

(1a) 

2a 

support the reasonableness of a penalty, we affirm-in- 
part, vacate-in-part and remand for further pro- 
ceedings. 

I 

On September 13, 1997, Ms. Gregory requested 3.5 
hours of overtime or assistance in completing her mail 
route. Her supervisor, questioning whether the over- 
time was required, nonetheless granted her three hours 
of assistance. Indeed, Ms. Gregory’s supervisor, 
William J. Cox, provided the assistance and accompa- 
nied Ms. Gregory himself. Mr. Cox, keeping precise 
records of Ms. Gregory’s activities that day, alleged 
that Ms. Gregory overestimated the amount of time or 
assistance she needed by about 1.3 hours, and under- 
took disciplinary action on that basis. The Postal Ser- 
vice proposed to remove Ms. Gregory for this offense 
(“failure to perform duties in a satisfactory manner”) 
based in part upon Ms. Gregory’s prior disciplinary 
record, which (at that time) contained the following: 
(1) a May 13, 1997, Letter of Warning for insubordina- 
tion; (2) a June 7, 1997, seven-day suspension for delay- 
ing the mail and failure to follow instructions; and (3) an 
August 7, 1997, fourteen-day suspension for delaying 
the mail, unauthorized overtime, failure to follow in- 
structions, and failure to perform duties in a satisfac- 
tory manner. The proposed removal was upheld by the 
personnel officer in November 1997. 

On appeal to the Board, Ms. Gregory argued that any 
overestimation should be excused because she was 
untrained in the practice of estimating route completion 
times, was unfamiliar with the route she serviced that 
day, was suffering from carpal tunnel syndrome and 
bursitis, and had recently had foot surgery. In its 

3a 

Initial Decision, the Board rejected her arguments, 
finding Ms. Gregory’s factual testimony unpersuasive. 
See Gregory, No. AT0752980261-I-1, slip op. at 11-12. 
Instead, the Board credited the evidence introduced by 
the Postal Service, especially the testimony of Mr. Cox. 
See id., slip op. at 12. Accordingly, the Board sustained 
the charge. See id., slip op. at 13. 

The Board also rejected Ms. Gregory’s affirmative 
defenses. These included: (1) allegations that her 
removal was in part based upon her disabled status (as 
we noted above, Ms. Gregory suffered from carpal 
tunnel syndrome, bursitis, and had recently had foot 
surgery); (2) claims that her removal was based in part 
upon race, sex, and age discrimination; and (3) claims 
that her removal was in retaliation for filing EEO and 
OSHA complaints and for engaging in union activities. 
The Board found that Ms. Gregory had not produced 
sufficient facts to substantiate her claims that the 
disciplinary action was taken against her for any of 
these reasons. See id., slip op. at 13-17. 

Finally, the Board sustained the removal penalty— 
finding that the Postal Service had properly applied the 
factors announced in Douglas v. Veterans Admin., 
5 MSPB 313, 5 M.S.P.R. 280, 306 (1981). In doing so, 
the Board’s analysis rested heavily upon Ms. Gregory’s 
prior disciplinary record, stating that “it revealed a pat- 
tern of conduct by [Gregory] to disregard the agency’s 
and her supervisor’s expectations of her performance 
and conduct.” See Gregory, No. AT0752980261-I-1, slip 
op. at 19. Because of this “pattern,” the Board ruled 
that the agency had chosen a penalty within the bounds 
of reasonableness and affirmed the removal. See id., slip 
op. at 20. 

4a 

The initial decision became final on October 20, 1999, 
see Gregory v. United States Postal Serv., 84 M.S.P.R. 
619 (1999) (Final Order), precipitating Ms. Gregory’s 
petition to this court. See 5 U.S.C. § 7703 (1994). We 
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) 
(1994). 

II 

In this court, Ms. Gregory challenges the factual 
findings that underlie the Board’s holding sustaining 
the charge against her and rejecting her affirmative 
defenses. Our review of these factual considerations is 
extremely limited. See Rosete v. Office of Personnel 
Mgmt., 48 F.3d 514, 516 (Fed. Cir. 1995). We must 
affirm the Board’s decision unless we find it to be: 
(1) arbitrary, capricious, an abuse of discretion, or 
otherwise not in accordance with law; (2) in violation of 
required procedures; or (3) unsupported by substantial 
evidence. See 5 U.S.C. § 7703(c) (1994). 

Here, we cannot say that the Board’s factual findings 
are unsupported by substantial evidence. The Board 
evaluated the evidence presented by both Ms. Gregory 
and the Postal Service, finding the latter more credible 
and persuasive. Such evaluations, when based on the 
testimony of witnesses, are “virtually unreviewable” by 
this court. King v. Department of Health & Human 
Servs., 133 F.3d 1450, 1453 (Fed. Cir. 1998). The Board 
found that Ms. Gregory had indeed overestimated the 
amount of overtime or assistance she required, and that 
Ms. Gregory’s arguments relating to her lack of quali- 
fications for making such a determination were “with- 
out merit,” given Ms. Gregory’s position and experience 
with the Postal Service. The Board further found that 
Ms. Gregory had failed to produce evidence sufficient to 

5a 

make a prima facie case of discrimination or retaliation 
in her defense—the Board concluded that no evidence 
was introduced that indicated that the disciplinary 
action was not the result of her job performance, and 
that, in addition, no evidence was introduced that would 
show that discrimination or retaliation played any role 
in the evaluation of Ms. Gregory’s performance or 
penalty. We have reviewed the record produced by the 
Board and find that the Board’s factual findings are 
supported by substantial evidence. Accordingly, we 
affirm the Board’s decision on the charge and its 
rejection of Ms. Gregory’s affirmative defenses. 

III 

Ms. Gregory also argues that the Board erred when 
it rested its analysis of the reasonableness of the pen- 
alty upon her three prior disciplinary actions, at least 
some of which were then the subject of grievance 
proceedings. We agree. 

Both the Board and the Postal Service considered, as 
part of their analysis, three prior disciplinary actions 
taken against Ms. Gregory: (1) the May 1997 Letter of 
Warning, (2) the June 1997 seven-day suspension, and 
(3) the August 1997 fourteen-day suspension. It is 
undisputed that at least some of these prior actions 
were the subject of grievance proceedings during the 
time that this case was pending before the Postal 
Service and the Board. Indeed, we have taken judicial 
notice of the fact that one of the actions—the May 1997 
Letter of Warning—was overturned by an arbitrator in 
July 1999 and ordered expunged from Ms. Gregory’s 
personnel record. Our review of the record does not 
indicate the status of the challenges to the remaining 
disciplinary actions used to support the removal of Ms. 

6a 

Gregory, though we note again that the Postal Service 
does not dispute that duly-raised challenges to these 
actions were pending during the time that this dispute 
was being considered by the Postal Service and the 
Board. 

The Board made clear that its determination that the 
penalty of removal was reasonable under these circum- 
stances was based largely on the prior disciplinary 
history put forward by the Postal Service. Indeed, the 
Board noted that “a removal for one instance for failure 
to perform duties satisfactorily may appear unreason- 
able.” Gregory, No. AT0752980261-I-1, slip op. at 19. 
However, the Board stated that the prior disciplinary 
history “reveals a pattern of conduct” that made the 
penalty of removal reasonable. Id. 

There is no doubt that prior disciplinary actions are 
an important factor when considering whether a par- 
ticular penalty is reasonable under given circum- 
stances. See, e.g., Bryant v. National Science Found., 
105 F.3d 1414, 1417 (Fed. Cir. 1997) (sustaining penalty 
in part based upon prior disciplinary record); Webster v. 
Department of the Army, 911 F.2d 679, 684-85 (Fed. 
Cir. 1990) (same); Davis v. Veterans Admin., 792 F.2d 
1111, 1113 (Fed. Cir. 1986) (same); Douglas v. Veterans 
Admin., 5 MSPB 313, 5 M.S.P.R. 280, 306 (1981) (prior 
disciplinary actions relevant when assessing penalty). 
But there can also be no doubt that a penalty deter- 
mination cannot be supported by an earlier prior 
disciplinary action that is subsequently reversed. See 
Jones v. Department of the Air Force, 24 M.S.P.R. 429, 
431 (1984) (“Since [employee’s] earlier ten-day suspen- 
sion . . . was reversed by grievance, it was effectively 
canceled and thus should not be considered in deter- 

7a 

mining a reasonable penalty for the current charge.”). 
In this case, Ms. Gregory had challenged, via grievance 
proceedings, at least part of the prior disciplinary 
history that was relied upon by the Postal Service and 
Board in determining the reasonableness of the penalty. 
At the time of the Board decision, at least, it appears 
that these challenges were pending. If the grievances 
were sustained and the prior actions ordered ex- 
punged—as, indeed, happened in at least one instance 
in this very case—the foundation of the Board’s Doug- 
las analysis would be compromised. Accordingly, we 
hold that, as a matter of law, consideration may not be 
given to prior disciplinary actions that are the subject 
of ongoing proceedings challenging their merits. To 
conclude otherwise would risk harming the legitimacy 
of the reasonable penalty analysis, by allowing the use 
of unreliable evidence (the ongoing prior disciplinary 
actions) to support an agency action. 

Here, as we noted above, the Board (and, it appears, 
the Postal Service1) used Ms. Gregory’s prior discipli- 
nary history as a primary factor in determining the 
reasonableness of the penalty. Because those prior 
actions that were the subject of ongoing grievance pro- 
ceedings could not be used, the Board abused its discre- 
tion in relying upon them. Accordingly, the Board’s de- 
termination that the penalty of removal was reasonable 
must be set aside. 

Upon remand, we leave it to the Board to determine 
whether: (a) the case should be immediately returned 
to the Postal Service to select a penalty in light of the 

1 Both Ms. Gregory's immediate superior and the personnel 
officer explicitly noted that Ms. Gregory's prior disciplinary record 
was a significant basis for their decision to remove her. 

8a 

precise status of Ms. Gregory’s prior disciplinary 
record; or, (b) the Board should retain jurisdiction for 
the purpose of exercising its own mitigation authority 
pursuant to the framework established by LaChance v. 
Devall, 178 F.3d 1246, 1259-60 (Fed. Cir. 1999). 

IV 

The Board’s determination regarding the charge 
against Ms. Gregory—that she failed to perform her 
duties satisfactorily by overestimating the amount of 
time that it would take her to complete her mail 
route—is supported by substantial evidence. The 
Board’s conclusion that the removal penalty was 
reasonable under the circumstances was an abuse of 
discretion and is vacated. The case is returned to the 
Board for further proceedings not inconsistent with this 
opinion. 

COSTS 

No costs. 

AFFIRMED-IN-PART, VACATED-IN-PART AND 
REMANDED 

9a 

APPENDIX B 

UNITED STATES OF AMERICA 
MERIT SYSTEMS PROTECTION BOARD 

Docket Number AT-0752-98-0261-I-1 

MARIA A. GREGORY, APPELLANT 

v. 

UNITED STATES POSTAL SERVICE, AGENCY 

[Filed: Oct. 20, 1999] 

FINAL ORDER 

Before: ERDREICH, Chairman, SLAVET, Vice Chair, 
MARSHALL, Member 

The appellant has filed a petition for review in this 
case asking us to reconsider the initial decision issued 
by the administrative judge. We grant petitions such 
as this one only when significant new evidence is 
presented to us that was not available for consideration 
earlier or when the administrative judge made an error 
interpreting a law or regulation. The regulation that 
establishes this standard of review is found in Title 5 of 
the Code of Federal Regulations, section 1201.115 (5 
C.F.R. § 1201.115). 

After fully considering the filings in this appeal, we 
conclude that there is no new, previously unavailable, 

10a 

evidence and that the administrative judge made no 
error in law or regulation that affects the outcome. 
5 C.F.R. § 1201.115(d). Therefore, we DENY the peti- 
tion for review. The initial decision of the administra- 
tive judge is final. This is the Board’s final decision in 
this matter. 5 C.F.R § 1201.113. 

NOTICE TO THE APPELLANT REGARDING 
YOUR FURTHER REVIEW RIGHTS 

You have the right to request further review of this 
final decision. 

Discrimination Claims: Administrative Review 

You may request the Equal Employment Opportu- 
nity Commission (EEOC) to review this final decision 
on your discrimination claims. See Title 5 of the United 
States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). 
You must send your request to EEOC at the following 
address: 

Equal Employment Opportunity Commission 
Office of Federal Operations 
P.O. Box 19848 
Washington, DC 20036 

You should send your request to EEOC no later than 
30 calendar days after your receipt of this order. If you 
have a representative in this case, and your repre- 
sentative receives this order before you do, then you 
must file with EEOC no later than 30 calendar days 
after receipt by your representative. If you choose to 
file, be very careful to file on time. 

11a 

Discrimination and Other Claims: Judicial Action 

If you do not request EEOC to review this final deci- 
sion on your discrimination claims, you may file a civil 
action against the agency on both your discrimination 
claims and your other claims in an appropriate United 
States district court. See 5 U.S.C. § 7703(b)(2). You 
must file your civil action with the district court no 
later than 30 calendar days after your receipt of this 
order. If you have a representative in this case, and 
your representative receives this order before you do, 
then you must file with the district court no later than 
30 calendar days after receipt by your representative. 
If you choose to file, be very careful to file on time. If 
the action involves a claim of discrimination based on 
race, color, religion , sex, national origin, or a disabling 
condition, you may be entitled to representation by a 
court-appointed lawyer and to waiver of any require- 
ment of prepayment of fees, costs, or other security. 
See 42 U.S.C. § 2000e-5(f ); 29 U.S.C. § 794a. 

Other Claims: Judicial Review 

If you do not want to request review of this final 
decision concerning your discrimination claims, but you 
do want to request review of the Board’s decision 
without regard to your discrimination claims, you may 
request the Untied States Court of Appeals for the 
Federal Circuit to review this final decision on the 
other issues in your appeal. You must submit your 
request to the court at the following address: 

United States Court of Appeals 
for the Federal Circuit 
717 Madison Place, N.W. 
Washington, DC 20439 

12a 

The court must receive your request for review no later 
than 60 calendar days after your receipt of this order. 
If you have a representative in this case, and your 
representative receives this order before you do, then 
you must file with the court no later than 60 calendar 
days after receipt by your representative. If you 
choose to file, be very careful to file on time. The court 
has held that normally it does not have the authority to 
waive this statutory deadline and that filings that do 
not comply with the deadline must be dismissed. See 
Pinat v. Office of Personnel Management, 931 F.2d 
1544 (Fed. Cir. 1991). 

If you need further information about your right to 
appeal this decision to court, you should refer to the 
federal law that gives you this right. It is found in 5 
U.S.C. § 7703. You may read this law as well as review 
other related material at our web site, www.mspb.gov. 

FOR THE BOARD: 
Signature illegible 

Robert E. Taylor 
Clerk of the Board 

Washington, D.C. 

13a 

APPENDIX C 

UNITED STATES OF AMERICA 
MERIT SYSTEMS PROTECTION BOARD 
ATLANTA REGIONAL OFFICE 

Docket No. AT-0752-98-0261-I-1 

MARIA A. GREGORY, APPELLANT 

v. 

UNITED STATES POSTAL SERVICE, AGENCY 

[Filed: Sept. 11, 1998] 

INITIAL DECISION 

Before: YOVINO, Administrative Judge 

On December 23, 1997, the appellant filed an appeal 
of her removal from the position of Letter Technician, 
PS-6, with the U.S. Postal Service in Hinesville, 
Georgia, effective November 26, 1997. 

The Board has jurisdiction over this appeal. See 5 
U.S.C. §§ 7511(a)(1)(B), 7512(1), and 7701. The hearing 
requested by the appellant was held in Savannah, Geor- 
gia, on March 31, and April 1, 1998. For the reasons 
below, the agency’s action is AFFIRMED.1 

1 After the close of record, the appellant filed a Supplemental 
Brief. See Appeal File, Tab 24. Because that brief was filed after 
the close of record and is not a reply brief to the agency’s closing 
argument, I have not considered it. 

14a 

BURDEN OF PROOF 

The agency must prove: (1) its charge by preponder- 
ant evidence, 5 U.S.C. § 7701(c)(1)(B); (2) the existence 
of a nexus between the sustained charge and the effi- 
ciency of the service, 5 U.S.C. § 7513(a); and (3) the rea- 
sonableness of its penalty, Douglas v. Veterans Ad- 
ministration, 5 M.S.P.R. 280, 307-308 (1981). 

The appellant has the burden of proving, by pre- 
ponderant evidence, her affirmative defenses of disabil- 
ity, race, sex, and age discrimination and retaliation for 
filing Equal Employment Opportunity (EEO) com- 
plaints, Occupational Safety & Health Administration 
(OSHA) complaints, and union activity.2 See 5 C.F.R. 
§ 1201.56(a)(2)(iii); Appeal File, Tab 14. 

ANALYSIS AND FINDINGS 

1. The merits 

The appellant was removed based on a charge of 
failure to perform her duties in a satisfactory manner. 
See Agency Response, Tab 4b. The specification of the 
charge involves an allegation that the appellant over- 
estimated her need for overtime/auxiliary assistance on 
September 13, 1997. It is undisputed that the appellant 
carried the mail on City Route 04 (CR4) on September 
10 through 13, 1997. On September 13, 1997, while 
assigned to case and carry that route, she requested 3.5 
hours of overtime/auxiliary assistance. The disputed 

2 The appellant’s allegation of harmful procedural error was 
rejected prior to the hearing for failure to clarify her allegations 
after the prehearing conference. See Appeal File, Tab 16. 

15a 

factual issue on the merits of the charge concerns 
whether the appellant overestimated her time by the 

1.5 hours with which she was charged. 

To understand the factual basis for the agency’s 
charge, it is important to understand the duties of the 
appellant’s position. Five mail delivery routes may be 
configured in a swing route and the mail for those 
routes is delivered by five letter carriers and a Letter 
Technician (T-6), who replaces one of the regular 
carriers on a different day of the week or when that 
carrier is absent. This system allows for each of the six 
employees to have a scheduled day off and still have the 
five routes covered each day. 

Therefore, the T-6’s job is more in-depth than that of 
a regular carrier. Id. at 34. He/she must be familiar 
with five routes and perform the duties of a letter 
carrier (casing and delivering mail) when the regular 
carrier is off work. The T-6 has other responsibilities, 
including training new carriers, reporting observations 
of problems on the routes, and providing assistance on 
other routes as needed. As a result, the T-6 is paid a 
higher salary than the regular letter carrier. The 
appellant worked as a letter carrier and a T-6 for almost 
all of the twelve years she worked for the U.S. Postal 
Service. Transcript (Tr.) at 463. 

J. T. Adams, President of Local Branch 53 in Jack- 
sonville, Florida, testified generally about the duties 
and responsibilities of a letter carrier and T-6, but he 
testified that he was not familiar with the route at issue 
in this appeal—CR4. He testified that, when the appel- 
lant first arrives at work, there is mail waiting for her 
to prepare for delivery. The appellant’s first respon- 
sibility is to separate the mail for delivery at her case, 

16a 

which was described as similar to a table with a hutch 
on the back of it. Tr. at 20. That hutch contains hori- 
zontal shelves with dividers to allow for the separation 
of the mail. Id. The dividers have address labels (re- 
ferred to as case labels) on them, and the carrier must 
use memory recall to determine whether the postal 
customer has moved or placed his/her mail on hold. Id. 
at 20-21. 

Clerks leave mail for the carriers at their case and 
that mail is generally labeled in trays identifying the 
route to which the mail goes. Id. at 23. The carriers 
then take a hand full of mail, and, piece by piece, place it 
in the designated slot. Id. 

After the mail is cased, the carrier pulls the mail and 
prepares to go on the street to deliver it. At that point, 
the carrier withdraws the Delivery Point Sequence 
(DPS) mail for her route, i.e., mail that has been sepa- 
rated by computer for delivery. She loads the postal 
vehicle with her cased mail, her DPS mail, and her 
accountable mail (mail requiring signature or collection 
of money), proceeds to her route, and delivers the mail. 
She then returns to the post office. 

By 9:30 a.m. each morning, the carrier is required to 
turn in Postal Form 3996, entitled “Carrier-Auxiliary 
Control” if he/she believes that he/she will need addi- 
tional assistance to accomplish mail delivery. By com- 
pleting that form, the carrier is requesting additional 
assistance either through the approval of overtime or 
assistance from other carriers. It is undisputed that the 
carriers are held to being able to estimate their time 
within 15-20 minutes of the actual time expended. 

17a 

On September 13, 1997, the appellant completed a 
3996 requesting 3.5 hours of overtime/auxiliary assis- 
tance to deliver the mail on CR4. See Appeal File, Tab 
7, Exhibit 1. In Block J of that form, the appellant was 
required to write the reason for her use of auxiliary 
assistance and she wrote: “1/2 K-Marts,” “Heavy mail 
volume,” “Heavy accountables,” and, “Heavy parcels.” 
Id. She also added “new case labels.” Id. 

The appellant’s supervisor, William J. Cox, Supervi- 
sor of Customer Service in Hinesville, Georgia, testified 
that, on September 13, 1997, the appellant’s cased vol- 
ume was only 9.25 linear feet (not including DPS mail) 
and that her estimate of 3.5 hours of overtime/auxiliary 
assistance seemed like a gross overestimate to him for 
such a low volume of mail. Tr. at 100. Mr. Cox testified 
that, whenever anyone put in a request for more than 2 
hours, it sends up a red flag. Id. He testified that, on 
September 13, 1997, the mail volume was so light that 
the carriers only put in two 3996s all day. Id. at 102. 
He also testified that, except around a holiday, he did 
not recall anyone requesting overtime in the amount of 

3.5 hours. Tr. at 140. Thus, based upon his knowledge 
of her mail volume on that day, he questioned whether 
she had grossly overestimated her need for assistance. 

Mr. Cox testified that she turned in the 3996 before 
she finished casing her mail. After she finished casing 
her mail, he observed the mail that she had and 
questioned her whether delivery of the mail would take 
the time she estimated. Tr. at 100-101. The appellant 
responded to him that it was an estimate. Id. at 101. 
He then decided to hand off some of her mail to other 
carriers and to accompany her when she delivered the 
remaining portion of her route. 

18a 

Mr. Cox pulled off that portion of the mail the 
appellant had that he estimated would take about 
3 hours to deliver. That mail was counted by Shawn 
A. Thompson, Supervisor of Customer Service at 
Hinesville, Georgia. It was then assigned to three dif- 
ferent carriers who did not have 8 hours of work to 
complete due to low volume: James Poppell, Shannon 
Aldridge, and “KC.” 

The appellant and Mr. Cox then went out to the 
postal vehicle she had previously loaded with her mail 
and separated out the portion that she was going to 
deliver. Id. at 104. They switched delivery vehicles 
because they needed a vehicle that had an extra seat on 
which he could sit. Id. at 104-05. It took the appellant 3 
hours to deliver her route, which she completed at 3:00 

p.m. She drove back to the post office and unloaded her 
vehicle, which took 22 minutes. Thus, she returned to 
the post office at 3:22 and was thereafter sent out to 
assist on another route. Id. at 105. She left work at the 
end of her regular tour of duty, which was at 4:30 p.m. 

According to Mr. Cox’s testimony, he testified 
generally that he observed nothing unusual concerning 
the appellant’s delivery of mail on CR4. That route is 
not a walking route; the carrier pulls up to the boxes 
and delivers the mail. That route has over 1,000 stops 
and cluster boxes. Tr. at 202. A cluster box, for 
example, contains the mail receptacles at an apartment 
building and services several postal customers. The 
front of the box is where postal customers retrieve 
their mail by using their individual keys. The back of 
the box can be opened by the carrier with one key, 
giving her access to all boxes at once for the delivery of 
mail. 

19a 

Mr. Cox testified that a carrier has to walk approxi- 
mately 10 to 15 feet to a cluster box. There are two 
parking loops on CR4, which require the carrier to walk 
approximately 1/4 mile to deliver the mail for the whole 
loop. Id. at 110. 

Mr. Cox testified that he accompanied the appellant 
each time she walked up to a cluster box to deliver mail. 
Tr. at 116. He testified that some of the boxes had 
some mail left from the day before, but that none were 
too full to the point that she could not easily place mail 
in the boxes. Id. In fact, he testified that he remem- 
bered that one box had five small cards in it. Id. He 
testified that she did not pull mail out of cluster boxes 
to bring it back to the post office. Id. at 106. 

He testified that he does not recall if she were [sic] 
wearing a brace on her arm, but he does recall that, 
while she had previously been on light duty, she was 
not on light duty or restricted duty that week. Id. at 
106-07. And, she did not indicate or act like she was 
feeling less than normal concerning her physical health. 
Id. at 107-08. And, he did not observe her having any 
difficulty walking to and from her postal vehicle on 
September 13. Id. at 118-19. 

The appellant had a myriad of explanations as to how 
she estimated that she would need 3.5 hours of addi- 
tional assistance. Although she testified that she did 
not know how to calculate the amount of additional 
assistance she would need because she was not trained 
in that regard, she also testified that she not only felt 
that she had properly estimated her time, but that she 
may have shorted herself from the time she would have 
needed to deliver the route. Tr. at 556-57. 

20a 

In fact, the appellant testified that she considered 
many, many factors, in her deliberations, which would 
lead one to conclude that she had a reasoned basis for 
her estimate. She testified that she considered such 
factors as: (1) she was unfamiliar with the route; (2) she 
would have to “clean up” mail she brought back to the 
post office; (3) she estimated her DPS mail based on the 
average of 1000 pieces, but she only had 871 pieces on 
September 13; (4) she received an additional 1.5 feet of 
mail after she turned in the 3996; (5) having considered 
that she would pull mail out of customers’ boxes 
regardless of the fact that she was told not to do so by 
Mr. Cox; (6) her having to prepare and carry mail that 
was curtailed from the day before; (7) she had approxi- 
mately 20 linear feet of mail to deliver; (8) having the 
case labels changed so that it would slow her down 
while she re-learned where the addresses were located 
on the case; (9) her impaired ability to walk because of 
her foot surgery and to case and carry mail because of 
her carpel tunnel syndrome and bursitis; (10) the effects 
of having to deliver mail during the day and of the 
sunlight hitting the pavement and after dark and the 
presence of nightfall impairing her ability to see; (11) 
auxiliary assistance does not have to service the route 
because they deliver the mail regardless of whether the 
postal customer has moved or has mail on hold; and (12) 
she thought she would be leaving to deliver the mail 45 
minutes to 1 hour later than she actually left because 
Mr. Cox told her not to pull the mail for the hold mail at 
the post office, but to do it on the street. 

I found the appellant’s explanation that she was not 
trained in the art of estimating to be without merit. 
First, clearly, even at the hearing, she believed that she 
had properly estimated, if not shorted herself with, the 

21a 

time she would need to deliver the mail she had on 
September 13, 1997. And, she provided detailed testi- 
mony as to the many variables she claims she thought- 
fully considered in arriving at her estimate for auxiliary 
assistance for that day. Both her belief in the correct- 
ness of her estimate and her detailed thought process is 
inconsistent with her claim that a lack of training was 
responsible for any overestimate on her part. 

As one of the T-6s, the appellant was paid more and 
was expected to be able to handle more than the regu- 
lar letter carriers. She had been performing that job 
for several years. In fact, Mr. Cox testified that she 
delivered the mail on CR4 faster than the regular car- 
rier. Tr. at 138. And, it is undisputed that the carriers 
are held to being able to estimate their time to within 
15 to 20 minutes. Despite her disciplinary action in 
August 1997 for unauthorized use of overtime, there is 
no evidence that she requested training specifically on 
how to complete a 3996 or otherwise asserted that she 
did not know how to perform that function. In fact, Mr. 
Cox testified that she never indicated that she lacked 
the skills to estimate properly or that she was other- 
wise not qualified to perform the duties of a T-6, Tr. at 
109, 112-13. 

Moreover, I found the appellant’s explanations as to 
the matters she considered in arriving at her estimate 
lacked merit. As for her claim that she was unfamiliar 
with the route, she testified that she had carried CR4 
for a total of about fifteen times and for three days 
immediately preceding September 13, 1997. Thus, she 
had, in my view, a reasonable amount of time in which 
to familiarize herself with the route. And, I note that 

22a 

she did not raise this in her defense in response to the 
notice of proposed removal. 

As it turned out, Mr. Cox’s ability to estimate the 
amount of time required to deliver mail was very 
telling, in my view, particularly since he had not deliv- 
ered, and was not responsible for delivering, the mail on 
CR4. Carrier Poppell assisted CR 4 for .18 (hundredths 
of an hour), Aldridge assisted for 1.42 (hundredths), and 
KC assisted for 1.25 (hundredths). See Exhibit E. See 
Tr. at 102-03. Thus, those three carriers delivered the 
mail Mr. Cox pulled off from the appellant in 2.85 
(hundredths) hours, making his estimate for three 
hours of work short by only .15 hundredths of an hour. 

I also find it difficult to believe that she considered 
that she would need time to “clean up” or process the 
mail that she brought back to the post office. She, her- 
self, testified that, when working overtime, the carrier 
is not allowed to clean up that mail. That mail must be 
processed the next day. Tr. at 499. 

As for the appellant’s claim that she assumed that 
there wold be more DPS than there was on September 
13, she assumed that she would have 1000 pieces of 
DPS mail to deliver, but she only had 871 pieces. Tr. at 
559. She estimated that it would have taken her about 
20 minutes longer if she had the additional 129 pieces of 
mail. Id. However, Mr. Cox testified, without rebuttal, 
that, in filling out the 3996, every carrier is supposed to 
look at the volume report for DPS mail that is posted on 
the wall. Tr. at 169-70. He also testified that it would 
take only a couple of minutes more to deliver 1000, as 
opposed to 871, pieces of DPS mail since the mail was 
already in order to be delivered. Id. at 170-71. 

23a 

It is not clear to me how the fact that the appellant 
may have received additional mail to case and/or deliver 
after she turned in the 3996 was a favorable considera- 
tion to the appellant. Since she allegedly received it 
after she estimated the amount of auxiliary assistance 
she would need when she turned in the 3996, any such 
additional mail could not have been a relevant factor in 
the appellant’s act of estimating. If anything, the 
appellant’s receipt of any such additional mail would 
tend to show that she had overestimated her need for 
auxiliary assistance by even more than that with which 
she was charged. 

The appellant’s argument that her estimate was 
inflated, in part, because she considered that she would 
pull mail out of customers’ boxes even though she was 
specifically told not to do so by Mr. Cox3 is unpersua- 
sive. Since Mr. Cox told her not to pull any such mail, 
the appellant should not have assigned any additional 
time for this task when calculating the need for assis- 
tance. And, by the appellant’s own account, she would 
bring such mail back to the post office little by little so 
as not to have Mr. Cox detect that she continued to 
disobey his instructions. Tr. at 537-40. The appellant 
had been delivering that route for three days before 
September 13. She did not explain how, under the 
circumstances, that much mail would have accumulated 
in so many boxes on her route in four days such that it 
would add additional time for her to deliver the mail. 
Finally, Mr. Cox testified that he did not see any boxes 

3 I note that, in the notice of 14-day suspension dated August 7, 
1997, Mr. Cox specifically informed the appellant that she “cleaned 
out cluster boxes which [he] told [her] was the responsibility of the 
regular carrier and not the T-6. . . .” See Appeal File, Tab 12, 

Exhibit 9, pp. 6-7. 

24a 

that were stuffed with mail; he specifically recalled one 
box having five pieces of mail in it. 

There is no evidence that the fact that the appellant 
had mail curtailed from the day before (K-Mart cir- 
culars and parcels) was a factor that helped to justify 
her overestimate of assistance required. The volume of 
previously-curtailed mail was taken into account by Mr. 
Cox in his estimate and assignment of assistance to the 
appellant. And, the mail was delivered by the appellant 
and the other carriers in far less time than the appellant 
estimated she would need. 

In addition, the appellant argued that she had a very 
heavy volume of mail—20 linear feet of mail—to de- 
liver. The records show that she had 17 feet of deliv- 
ered volume (including 9.5 feet of cased mail), but she 
testified that she had approximately 20 feet of mail.4 
Tr. at 508. 

In my view, it is not necessary to determine the exact 
amount of the mail that the appellant had to deliver 
that day. For, the fact of the matter is that Mr. Cox, 
considering the same amount of mail, was able to pull 

4 On September 4, 1997, the appellant requested 4.25 hours of 
auxiliary assistance because of high volume following a holiday— 

22.25 feet of mail (without DPS mail). See Exhibit A-1. Mr. Cox 
testified that he approved 3 hours of overtime and that the appel- 
lant had a great deal of justification in making her estimate—a 
total of 30 feet of mail to deliver. Tr. at 141-43. And, he testified 
that he cannot say that the appellant overestimated her time on 
September 4 because he did not know if he curtailed some mail 
that day. Id. 141-44. In any event, the appellant testified that, in 
making her estimate of the need for assistance on September 13, 
she did not consider the amount of mail she had to deliver on 
September 4. Id. at 511. 

25a 

off almost exactly 3 hours of mail to distribute to other 
carriers to deliver and have them accomplish the 
delivery of that mail. In addition, the appellant was 
able to deliver the remaining mail in far less time than 
her estimate. 

The appellant’s testimony was undisputed that the 
address labels on her case were changed on September 

13. She testified that she considered that, as a result, it 
would take her more time to case the mail that day and 
she would, therefore, need that much more help to 
complete her route. However, the appellant did not 
explain how this consideration justified her estimate on 
that day. Again, even with the case labels being 
changed, delivery of the mail on CR4 was accomplished 
in far less time than the appellant estimated she would 
need. 

I find it particularly revealing that the appellant did 
not list on the 3996 on September 13 her alleged 
impaired ability to walk or to case and carry the mail 
due to her foot surgery, carpal tunnel and bursitis. For, 
on September 8, 1997, she listed that one reason she 
needed auxiliary assistance that day was because her 
hand hurt. See Exhibit A-2. Thus, she clearly knew she 
could list her medical condition, if it impacted her 
ability to deliver her route, as a basis for justifying her 
need for auxiliary assistance. And, in her affidavit 
dated September 25, 1997, in response to the notice of 
proposed removal, the appellant stated that she was 
wearing her carpal tunnel brace, but she did not 
mention any difficulty regarding her foot. See Appeal 
File, Tab 1. I also note that Mr. Cox testified that he did 
not recall if she were [sic] wearing a brace on her arm 
on September 13. Tr. at 106. 

26a 

The appellant had surgery on her right foot in May 
1997 to remove a neuroma and she was then on sick 
leave for about 2.5 months. Tr. at 464. She returned to 
work on light duty in mid-July 1997, with a restriction 
of not walking more than 50 feet and carrying no more 
than 20 pounds. Id. at 465-66. She continued on light- 
duty status until the end of August 1997, receiving 
auxiliary assistance to deliver her routes. 

However, she had been released to full duty begin- 
ning in September. And, I note that Mr. Cox testified 
that the appellant did not indicate she was in less than 
full health and did not act as if she were having any 
difficulties. Tr. at 107. Specifically, he testified that she 
was having no difficulty walking to and from the postal 
vehicle on September 13. Tr. at 118-19. And, he testi- 
fied that there was not a great deal of walking on the 
appellant’s route. 

The humidity and reflection from hot weather during 
daylight hours are factors that might affect every 
carrier and the appellant presented no evidence that 
she, in particular, would be affected by such conditions. 
And, the appellant’s testimony that it started to get 
dark at about 6:00 p.m. on September 13 is not credible. 
Actually, on September 13, 1997, the sun did not set 
until 7:34 p.m. in Savannah, Georgia. See The Old 
Farmer’s Almanac, www.almanac.com. If the appellant 
had been granted the amount of overtime she re- 
quested, she would have concluded at 8:00, including 
her travel back to the post office and unloading the 
vehicle. Thus, even assuming that the sky becomes 
dark exactly at sunset, she would only have had a few 
minutes of mail left to deliver based upon her estimate. 

27a 

As for the appellant’s statement that auxiliary 
assistance does not have to service the route because 
they deliver the mail regardless of whether the postal 
customer has moved or has mail on hold, the appellant 
did not explain how much additional time it would have 
taken to deliver the route if the mail had been serviced 
for people moving or placing their mail on hold. In 
addition, there is no evidence that, on September 13, 
there was a great deal of mail on hold or to be for- 
warded. And, as noted below, I find that the appellant 
was allowed to pull the hold mail at her case—at least 
the mail that was triggered by memory recall. Thus, I 
find that the appellant did not show that this factor 
accounted in any significant way for the discrepancy 
between her estimate and the actual time it took to 
deliver the mail on September 13. 

The appellant’s testimony that she considered that 
she would be leaving the post office 45 minutes to one 
hour sooner than she did on September 13 is also of no 
moment. The reason, she testified, that she miscalcu- 
lated her leaving time was because Mr. Cox prevented 
her from completing the withdrawal of her hold mail 
and told her to perform that function on the street. Tr. 
at 546-48. Mr. Cox testified that the appellant verified 
her hold mail and change of address at her case on that 
day. Tr. at 117. 

I find that Mr. Cox’s testimony was more credible 
than the appellant’s. He clearly had no “ax to grind” 
with the appellant. In fact, the appellant testified that 
when he rode with her on September 13, they discussed 
various matters of a personal nature, such as family 
matters, hobbies, and his car. Tr. at 567-68. Thus, it ap- 
pears that they had a rather pleasant, friendly conver- 

28a 

sation, during which they joked and the appellant 
expressed concern for his safety. Id. at 568. 

Mr. Cox’s testimony was straightforward and not 
dissembling. He had a vivid recollection of the events 
of September 13, and I can discern no reason for him to 
fabricate his testimony in this regard. It also does not 
make sense that he would tell her not to pull the hold 
mail after he had made the decision to pull off some of 
her mail for other carriers to deliver. And, the appel- 
lant, at various times throughout the hearing, vacillated 
in her testimony and focused on minutia that could not 
have been responsible for her estimate. Accordingly, I 
find that Mr. Cox did not prevent the appellant from 
performing her duties regarding hold mail at the case 
on September 13. 

Mr. Cox also acknowledged that she did stop her 
postal vehicle to retrieve a first-class letter in the 
middle of the road on the military base. Tr. at 135-37. 
He testified that he did not believe that it was her 
responsibility to police the base and that he considered 
this act, and the fact that she seemed to be rearranging 
packages in her vehicle, to be a waste of time. Tr. at 
132, 136-37. He also acknowledged that she brought 
back to the post office some DPS mail that could not be 
delivered, but that he did not recall how much mail was 
involved. Tr. at 137. Again, because she requested 
auxiliary assistance, she would not have been author- 
ized to work any mail with which she returned to the 
post office. And, I also note that the agency did not 
subtract any time she spent in relocating her mail in the 
vehicle with two seats. 

In her response to the notice of proposed removal, 
the appellant argued that the total time she spent on 

29a 

CR4 on September 13 was only .6 of an hour of addi- 
tional time than she had requested. See Appeal File, 
Tab 1. The appellant’s calculations are incorrect. She 
began her tour of duty at 8:00 a.m. and was supposed to 
end at 4:30 p.m. According to her estimate of a need for 

3.5 additional hours, the time spent on her route should 
have concluded at 8:00 p.m. (a total of a 11.5 hour day, 
excluding a half-hour for lunch). By her own accounts, 
she returned to the post office at 3:22. Taking into 
account the 2.85 (hundredths) hours (or 2 hours and 51 
minutes) spent by the three other carriers, delivery of 
mail on CR4 could have been completed at 6:13 p.m. (2 
hours and 51 minutes after 3:22). Thus, it appears that 
the appellant overestimated the need for auxiliary 
assistance by approximately 1 hour and 45 minutes, 
which exceeds the 15-20 minute allowance by approxi- 
mately 1.5 hours. 

I find, therefore, that the agency proved that the 
appellant overestimated her need for auxiliary assis- 
tance on CR4 on September 13 by 1.5 hours beyond the 
permissible limits. Part of her duties include the 
requirement that she estimate the need for auxiliary 
assistance so that management can decide the best way 
to accomplish mail delivery by shifting workload or 
approving overtime. See Appeal File, Tab 7, Exhibit 3. 
Thus, I conclude that the agency proved that the appel- 
lant failed to perform her duties in a satisfactorily [sic] 
manner when she overestimated the need for auxiliary 
assistance on CR4 on September 13. The charge is, 
therefore, SUSTAINED. 

30a 

2. The appellant’s affirmative defenses 

a. Disability discrimination 

To establish a prima facie case of disability dis- 
crimination based on a failure to accommodate, the 
appellant must show: (a) that she is a disabled person 
under 29 C.F.R. § 1614.203(a) and that the action 
appealed to the Board was based upon her disability; 
and (b) that she is a qualified disabled person, that is, 
that she can perform the essential functions of her job 
with or without reasonable accommodation. See Savage 

v. Department of the Navy, 36 M.S.P.R. 148, 151-53 
(1988). After the appellant has established a prima 
facie case, the burden shifts to the agency to demon- 
strate that reasonable accommodation would impose an 
undue hardship on its operations. Thereafter, the bur- 
den shifts back to the appellant to show that the 
agency’s reasons are a pretext for discrimination. 

The appellant contends that she suffers from various 
medical conditions relating to her foot, bursitis and 
carpel tunnel syndrome and that her conditions limit 
her ability to grip, lift and reach up with her right arm. 
See Appeal File, Tab 14. She argued that she could 
have done her job and estimated her time properly if 
she were not disabled, i.e., if she had delivered CR4 
herself, it would have taken her the amount of time she 
estimated. 

Assuming that the appellant is a qualified disabled 
person, there is no evidence that her removal was based 
on her disability. As I found above, there is no evidence 
that the appellant’s medical conditions negatively 
impaired her ability to deliver the mail on CR4 or that 

31a 

she would have taken more time if she had delivered 
the route herself. On September 13, she was no longer 
on light duty following her foot surgery and she did not 
identify pain in her hand, arm or foot on the 3996 as a 
basis for needing additional auxiliary assistance. She 
was responsible for calculating the estimate at which 
she arrived and, according to her testimony, she con- 
sidered many factors not relating to any alleged medical 
condition. Accordingly, I find that the appellant failed 
to present a prima facie case that her disability was 
related to the charge for which she was removed. 

b. Race, sex, and age discrimination 

The elements of a claim of discrimination on the 
ground of disparate treatment are: (a) the appellant is 
a member of a protected group; (b) she was similarly 
situated to an individual who was not a member of the 
protected group; and (c) she was treated more harshly 
or disparately than the individual who was not a 
member of her protected group.5 Buckler v. Federal 
Retirement Thrift Investment Board, 73 M.S.P.R. 476, 
497 (1997). Once the appellant has established a prima 
facie case, the burden shifts to the agency to articulate 
a legitimate nondiscriminatory reason for the agency’s 
actions. Finally, once the agency has articulated a 
legitimate nondiscriminatory reason for its actions, the 
burden shifts to the appellant to show that the agency’s 
proffered explanation constitutes a pretext for dis- 
crimination. To do so, the appellant must establish that 
the stated reason was false or not the real reason for 

5 Because the appellant is alleging age discrimination, she must 
show that her age was the determinative factor in the action she is 
appealing. See Borowski v. Department of Agriculture, 40 
M.S.P.R. 372, 374 (1989). 

32a 

the action and that discrimination was the real reason. 
Carter v. Small Business Administration, 61 M.S.P.R. 
656, 665 (1994). 

It is undisputed that the appellant is Hispanic, fe- 
male, and over 40 years old. The basis for the appel- 
lant’s claim is that there were other carriers who were 
not disciplined for overestimating their workload. See 
Appeal File, Tab 14. Specifically, she identified Shan- 
non Aldrich, James Poppell, Casey Chipple, Art 
Mathadiel, Tammie England, Eddie Johnson and John 
Weatherbee. Id. 

During the prehearing conference, the appellant was 
advised that, for an employee to be a valid comparative 
employee in a disparate treatment claim, the appellant 
must prove that the employee engaged in substantially 
similar misconduct, including having a prior disciplinary 
record, and were disciplined more harshly. The appel- 
lant introduced no evidence whatsoever that any of 
these employees, except for possibly Eddie Johnson, 
had a prior disciplinary record. And, there was no evi- 
dence that any of those employees overestimated their 
need for auxiliary assistance. Therefore, I find that the 
appellant failed to prove her claim that comparative 
employees (who were not in her protected groups) were 
treated less harshly. 

In addition, Tammie England and Shannon Aldridge 
are both female and Messrs. Chipple, Johnson and 
Weatherbee are over 40 years old. See Appeal File, 
Tab 14. Therefore, for these additional reasons, I find 
that the appellant failed to prove a prima facie case of 
discrimination based upon age and sex. 

33a 

c. Retaliation for filing EEO and OSHA complaints 
and for union activities 

To establish a prima facie case of retaliation for filing 
an EEO complaint, the appellant must show that: (a) 
she engaged in protected activity; (b) the accused 
official knew of the protected activity; (c) the adverse 
employment action under review could, under the 
circumstances, have been retaliation; and (d) there was 
a genuine nexus between the retaliation and the 
adverse employment action. See Cloonan v. United 
States Postal Service, 65 M.S.P.R. 1, 4 (1994). To estab- 
lish a genuine nexus between the protected activity and 
the adverse employment action, the appellant must 
prove that the employment action was taken because of 
the protected activity. Id. at n.3. If the appellant 
meets this burden, the agency must show that it would 
have taken the action even absent the protected 
activity. See Rockwell v. Department of Commerce, 39 
M.S.P.R. 217, 222 (1989). 

The appellant contends that both Messrs. Cox and 
Tommy L. Caruthers, deciding official and Senior 
Labor Relations Specialist for the South Georgia Dis- 
trict, Macon, Georgia, retaliated against her for her 
protected activities of filing thirty-two EEO complaints 
concerning discrimination, one OSHA complaint in 
December 1997 concerning faculty equipment and fail- 
ure to have a fire plan, and filing grievances on behalf of 
herself and others. See Appeal File, Tab 14. 

Mr. Cox testified, without rebuttal, that he was not 
aware when he issued the notice of proposed removal 
that the appellant had filed a series of EEO complaints. 
Tr. at 118-19. He testified that he knew that she had 
called OSHA into the post office about some hard trays 

34a 

that were defective, but he also testified, again without 
rebuttal, that her doing so played no part in his decision 
to propose her removal. He testified rather adamantly 
that she was doing what she should have done—report 
a safety hazard. Tr. at 120. He was also aware that she 
filed grievances because he discussed them with her at 
Step 1 in the grievance process. 

Mr. Cox’s testimony was straightforward and not 
dissembling. And, I note particularly that, even from 
the appellant’s description of what occurred between 
her and Mr. Cox while she was delivering her route on 
September 13, 1997, their conversation was pleasant 
and personal. I detected no animus toward her in his 
testimony, other than the fact that he truly believed 
that she intentionally overestimated her need for 
auxiliary assistance on September 13, 1997. Accord- 
ingly, I find no nexus between retaliation and his 
decision to propose the appellant’s removal. 

As for Mr. Caruthers, he testified that he was not 
aware that the appellant had file an OSHA complaint 
independently of the instant litigation. Tr. at 235. 
There was no testimony establishing that he knew that 
she filed grievances on behalf of herself and others at 
the time he made his decision to effect her removal. He 
testified that the appellant may have mentioned during 
her oral reply that she filed EEO complaints. Tr. at 
233. However, there is no evidence that Mr. Caruthers 
decided to remove the appellant because she filed EEO 
complaints. In fact, Mr. Caruthers, testified that he 
read the notice of proposed removal for the first time on 
the morning of the oral reply. Tr. at 240. 

The appellant’s evidence of retaliation at the hearing 
focused for the most part, not on Mr. Cox and Mr. 

35a 

Caruthers, but primarily on William H. Davis, Post- 
master of the Hinesville Post Office and Mr. Cox’s 
supervisor. The undisputed testimony was that Mr. 
Cox did not discuss with Mr. Davis the fact that he was 
bringing the instant charge against the appellant. Tr. 
at 295. Mr. Cox simply sent him the paperwork and Mr. 
Davis signed the disciplinary request form, concurring 
in the issuance of the notice of proposed removal. Id. 
There was simply no evidence that Mr. Cox’s issuance 
of the notice of proposed removal was tainted in any 
way by any influence on the part of Mr. Davis. 

Similarly, there was no evidence that Mr. Davis 
attempted to influence Mr. Caruthers in his decision to 
effect the appellant’s removal. As noted above, Mr. 
Caruthers testified that he was not familar with the 
case involving the appellant until the morning of the 
oral reply. And, he testified that he talked briefly with 
Mr. Davis after the oral reply and that he did not 
discuss the matter with him after that brief discussion. 
Tr. at 240-41 Mr. Caruthers was not asked at the hear- 
ing to identify the substance of his conversation with 
Mr. Davis. Accordingly, there is no evidence that Mr. 
Davis attempted to influence Mr. Caruthers’ decision- 
making concerning the appellant’s removal. 

3. Nexus 

It is axiomatic that there is a nexus between unsat- 
isfactory performance and the efficiency of the service. 
Cf. 5 U.S.C. § 4302 (employees may be disciplined for 
performance-related matters). Thus, I find that there is 
a nexus between the sustained [sic] the charge and the 
efficiency of the service. 

36a 

4. Reasonableness of the penalty 

The Board will review an agency-imposed penalty 
only to determine if the agency considered all the 
relevant factors and exercised management discretion 
within tolerable limits of reasonableness. Douglas v. 
Veterans Administration, 5 M.S.P.R. 280, 306 (1981). 
For the reasons below, I find that the agency con- 
scientiously considered the Douglas factors and that 
the penalty of removal is within the bounds of reason- 
ableness. 

Mr. Caruthers testified that he considered the nature 
of the charge and the fact that there was no room for it 
to have been a mistake. Tr. at 230. He also considered 
the fact that the appellant’s recent, prior disciplinary 
actions referenced similar offenses. Id. 

The appellant’s prior record consisted of: (1) a letter 
of reprimand on May 13, 1997, for insubordination for 
not following instructions to case her route before 
leaving work because her child was ill and she needed 
to obtain a doctor’s appointment; (2) a 7-day suspension 
on June 7, 1997, for delaying mail and failure to follow 
instructions; and, (3) a 14-day suspension on August 18, 
1997, for delaying accountable mail, unauthorized 
overtime/failure to follow instructions, and failure to 
perform her duties in a satisfactory manner/unauthor- 
ized overtime.6 

See Appeal File, Tab 13. 
Because those prior disciplinary actions were in 
writing, made a matter of record, and the appellant had 

6 The first two disciplinary actions were issued as a 7-day and a 
14-day suspension, but were subsequently reduced to a letter of 
reprimand and a 7-day suspension. 

37a 

the opportunity to grieve them, the Board’s review of a 
prior disciplinary action is limited to determining 
whether that action is clearly erroneous. Bolling v. 
Department of the Air Force, 9 M.S.P.R. 335, 339-40 
(1981). Despite having been notified that she could 
present argument concerning whether the prior actions 
were clearly erroneous in her closing brief, the appel- 
lant’s closing brief did not set forth any such argu- 
ments. See Appeal File, Tabs 14 and 21. I have, none- 
theless, reviewed the record of the prior disciplinary 
actions and I do not find that I am left with a “firm and 
definite conviction that a mistake has been committed.” 
Bolling, 9 M.S.P.R. at 340. Accordingly, I find that the 
agency properly considered the appellant’s prior dis- 
ciplinary actions. 

Mr. Caruthers testified that the appellant did not 
present any mitigating factors to him during the oral 
reply. Tr. at 231. Although she mentioned her medical 
conditions, she did not prove that her removal was 
taken because of any of those conditions or that they 
had any impact on the sustained charge. And, while she 
testified that she was under stress in the post office in 
September 1997, she produced no evidence to substanti- 
ate any such stress or show how stress caused her to 
overestimate her time. Once an agency has presented a 
prima facie case of proper penalty, the burden of going 
forward with evidence of mitigating factors shifts to the 
appellant. Kissner v. Office of Personnel Management, 
792 F.2d 133, 134-35 (Fed. Cir. 1986). 

At first blush, a removal for one instance of failure to 
perform duties satisfactorily may appear unreasonable. 
However, considering the appellant’s prior disciplinary 
actions also involved unauthorized overtime, that one 

38a 

instance takes on additional significance and tends to 
reveal a pattern of conduct by the appellant to dis- 
regard the agency’s and her supervisor’s expectations 
of her performance and conduct. 

Although the appellant claims that she did not know 
how to estimate the amount of assistance/overtime she 
would need, she argued at the hearing that she accu- 
rately estimated her time and, indeed, may even have 
shorted herself. I found the appellant’s testimony to be 
disingenuous. Because Mr. Cox could estimate the 
amount of time to deliver mail so well and he never 
even delivered CR4, because it was undisputed that 
carriers are expected to, and that 99% of the carriers7 
can, estimate the amount of time it will take them to 
deliver mail, and because the appellant’s explanations 
for how she accounted for her estimate were not 
credible, I find that the appellant’s overestimate was 
intentional and that she did it to either earn overtime 
for herself or to avoid delivering some of her mail. See 
Hamilton v. U.S. Postal Service, 71 M.S.P.R. 547, 555- 
56 (1996) (if an agency proves that the employee’s mis- 
conduct was intentional rather than merely negligent, 
the agency is free to use that fact as an aggravating 
factor in the penalty selection). 

The appellant occupied a leadership position amongst 
carriers and was expected to be able to carry out her 
job. The agency expects carriers and T-6s to properly 
complete a 3996 so that they can reassign work, as 
necessary, to accomplish its mission—to deliver the 
mail as promptly as possible. The agency has to be able 

7 See Tr. at 118-19. 

39a 

to rely upon the honest assessments of their carriers/T- 
6s to accomplish that mission. 

I have considered the testimony of Sheila J. Bolden, 
who has been the Postmaster in Lafayette, Georgia, 
since 1991. Prior to 1991, Ms. Bolden supervised the 
appellant and she testified that the appellant was one of 
the best employees she ever had. Tr. at 388. She also 
testified that she would hire her to work in her post 
office. Id. There was no evidence, however, that Ms. 
Bolden worked with the appellant recently or was 
otherwise aware of the appellant’s past disciplinary 
record. Accordingly, I find that the testimony of her 
current supervisor, Mr. Cox, is entitled to greater 
weight than that of Ms. Bolden. 

In my view, that the appellant refuses to accept the 
instructions she was given by her present supervisors 
was evident from her own testimony. She testified that 
Mr. Cox specifically told her not to empty cluster boxes 
if they were full. Tr. at 534-40. In fact, in the notice of 
14-day suspension dated August 7, 1997, Mr. Cox wrote: 
“After you returned to the office, it was found that you 
had taken out hold mail again and mail that you had 
cleaned out of customers boxes which as previously 
explained was the regular carrier’s duty.” See Appeal 
File, Tab 13. Nevertheless, she testified that she con- 
tinues to pull this mail and even disguises the fact that 
she is doing so in order to avoid detection by Mr. Cox. 
Tr. at 538-40. I find that this testimony reveals the 
appellant has little potential for rehabilition. 

Based upon these findings and despite the appellant’s 
12 years of federal service, I find that the agency 
properly considered the relevant factors and arrived at 
a penalty that is within the bounds of reasonableness. 

40a 

Accordingly, I find that the appellant’s removal pro- 
motes the efficiency of the service. 

DECISION 

The agency’s action is AFFIRMED. 

FOR THE BOARD: 

/s/ LYNN P. YOVINO 

LYNN P. YOVINO 
Administrative Judge 

NOTICE TO APPELLANT 

This initial decision will become final on Oct. 16 1998, 
unless a petition for review is filed by that date or the 
Board reopens the case on its own motion. This is an 
important date because it is usually the last day on 
which you can file a petition for review with the Board. 
However, if this initial decision is received by you more 
than 5 days after the date of issuance, you may file a 
petition for review within 30 days after the date you 
actually receive the initial decision. The date on which 
the initial decision becomes final also controls when you 
can file a petition for review with the Equal Employ- 
ment Opportunity Commission (EEOC) or with a 
federal court. The paragraphs that follow tell you how 
and when to file with the Board, the EEOC, or the 
federal courts. These instructions are important 
because if you wish to file a petition, you must file it 
within the proper time period. 

BOARD REVIEW 

You may request Board review of this initial decision 
by filing a petition for review. Your petition for review 
must state your objections to the initial decision, sup- 

41a 

ported by references to applicable laws, regulations, 
and the record. You must file your petition with: 

The Clerk of the Board 
Merit Systems Protection Board 
1120 Vermont Avenue, NW., Room 806 
Washington, DC 20419 

If you file a petition for review, the Board will obtain 
the record in your case from the administrative judge 
and you should not submit anything to the Board that is 
already part of the record. Your petition must be 
postmarked, faxed, or hand-delivered no later than the 
date that initial decision becomes final, or if this initial 
decision is received by you more than 5 days after the 
date of issuance, 30 days after the date you actually 
receive the initial decision. If you fail to provide a 
statement with your petition that you have either 
mailed, faxed, or hand-delivered a copy of your petition 
to the agency, your petition will be rejected and 
returned to you. 

EQUAL EMPLOYMENT OPPORTUNITY 
COMMISSION REVIEW 

If you disagree with the Board’s final decision on 
discrimination, you may obtain further administrative 
review by filing a petition with the EEOC no later than 
30 calendar days after the date this initial decision 
becomes final. The address of the EEOC is: 

Office of Federal Operations 
Equal Employment Opportunity Commission 
P.O. Box 19848 
Washington, D.C. 20036 

42a 

JUDICIAL REVIEW 

If you do not want to file a petition with the EEOC, 
you may ask for judicial review of both discrimination 
and nondiscrimination issues by filing a civil action. If 
you are asserting a claim under the Civil Rights Act or 
under the Rehabilitation Act, you must file your appeal 
with the appropriate United States district court as 
provided in 42 U.S.C. § 2000e-5. If you file a civil action 
with the court, you must name the head of the agency 
as the defendant. See 42 U.S.C. § 2000e-16(c). To be 
timely, your civil action under the Civil Rights Act, 42 
U.S.C. § 2000e-16(c) must be filed no later than 30 cal- 
endar days after the date this initial decision becomes 
final. If you are asserting a claim under the Age Dis- 
crimination in Employment Act, your claim must be 
filed with the appropriate United States district court 
as provided in 29 U.S.C. § 633a(c). You may have up to 
6 years to file such a civil action. See 28 U.S.C. 
§ 2401(a). 

If you choose not to contest the Board’s decision on 
discrimination, you may ask for judicial review of the 
nondiscrimination issues by filing a petition with : 

The United States Court of Appeals 
for the Federal Circuit 
717 Madison Place, NW 
Washington, DC 20439 

You may not file your petition with the court of 
appeals before this decision becomes final. To be timely, 
your petition must be received by the court of appeals 
no later than 30 calendar days after the date this initial 
decision becomes final. 

43a 

NOTICE TO AGENCY/INTERVENOR 

The agency or intervenor may file a petition for 
review of this initial decision in accordance with the 
Board’s regulations. 

44a 

APPENDIX D 

UNITED STATES COURT OF APPEALS 
FOR THE FEDERAL CIRCUIT 

MARIA A. GREGORY, PETITIONER 

v. 

UNITED STATES POSTAL SERVICE, RESPONDENT 

[Filed: July 13, 2000] 

O R D E R 

Before: MAYER, Chief Judge, CLEVENGER, Circuit 
Judge, and GAJARSA, Circuit Judge. 

A petition for rehearing having been filed by the 

RESPONDENT, 

UPON CONSIDERATION THEREOF, it is 

ORDERED that the petition for rehearing be, and the 
same hereby is, DENIED; 

The mandate of the court will issue on July 20, 2000. 

FOR THE COURT, 

/s/ JAN HORBALY 

JAN HORBALY 
Clerk 

Dated: July 13, 2000 

45a 

APPENDIX E 

STATUTORY PROVISIONS 

1. Section 7511(a) of Title 5 of the United States 
Code states as follows: 

§ 7511. 

Definitions; application 

(a) For the purpose of this subchapter— 

(1) “employee” means— 

(A) an individual in the competitive service— 

(i) who is not serving a probationary or 
trial period under an initial appointment; or 

(ii) who has completed 1 year of current 
continuous service under other than a 
temporary appointment limited to 1 year or 
less; 

(B) a preference eligible in the excepted 
service who has completed 1 year of current 
continuous service in the same or similar 
positions— 

(i) in an Executive agency; or 

(ii) in the United States Postal Service or 
Postal Rate Commission; and 

(C) an individual in the excepted service 
(other than a preference eligible)— 

(i) who is not serving a probationary or 
trial period under an initial appointment 

46a 

pending conversion to the competitive service; 
or 

(ii) who has completed 2 years of current 
continuous service in the same or similar 
positions in an Executive agency under other 
than a temporary appointment limited to 2 
years or less; 

(2) “suspension” has the same meaning as set 
forth in section 7501(2) of this title; 

(3) “grade” means a level of classification under 
a position classification system; 

(4) “pay” means the rate of basic pay fixed by 
law or administrative action for the position held by 
an employee; and 

(5) “furlough” means the placing of an employee 
in a temporary status without duties and pay be- 
cause of lack of work or funds or other nondiscipli- 
nary reasons. 

2. Section 7512 of Title 5 of the United States Code 
states as follows: 

§ 7512. 

Actions covered 

This subchapter applies to— 

(1) a removal; 

(2) a suspension for more than 14 days; 

(3) a reduction in grade; 

(4) a reduction in pay; and 

(5) a furlough of 30 days or less; 

47a 

but does not apply to— 

(A) a suspension or removal under section 7532 
of this title, 

(B) a reduction-in-force action under section 
3502 of this title, 

(C) the reduction in grade of a supervisor or 
manager who has not completed the probationary 
period under section 3321(a)(2) of this title if such 
reduction is to the grade held immediately before 
becoming such a supervisor or manager, 

(D) a reduction in grade or removal under 
section 4303 of this title, or 

(E) an action initiated under section 1215 or 
7521 of this title. 

3. Section 7513 of Title 5 of the United States Code 
states as follows: 

§ 7513. 

Cause and procedure 

(a) Under regulations prescribed by the Office of 
Personnel Management, an agency may take an action 
covered by this subchapter against an employee only 
for such cause as will promote the efficiency of the 
service. 

(b) An employee against whom an action is proposed 
is entitled to— 

(1) at least 30 days’ advance written notice, 
unless there is reasonable cause to believe the em- 
ployee has committed a crime for which a sentence 

48a 

of imprisonment may be imposed, stating the 
specific reasons for the proposed action; 

(2) a reasonable time, but not less than 7 days, 
to answer orally and in writing and to furnish affida- 
vits and other documentary evidence in support of 
the answer; 

(3) be represented by an attorney or other 
representative; and 

(4) a written decision and the specific reasons 
therefor at the earliest practicable date. 

(c) An agency may provide, by regulation, for a 
hearing which may be in lieu of or in addition to the 
opportunity to answer provided under subsection (b)(2) 
of this section. 

(d) An employee against whom an action is taken 
under this section is entitled to appeal to the Merit 
Systems Protection Board under section 7701 of this 
title. 

(e) Copies of the notice of proposed action, the 
answer of the employee when written, a summary 
thereof when made orally, the notice of decision and 
reasons therefor, and any order effecting an action 
covered by this subchapter, together with any sup- 
porting material, shall be maintained by the agency and 
shall be furnished to the Board upon its request and to 
the employee affected upon the employee’s request. 

49a 

4. Section 7701 of Title 5 of the United States Code 
states as follows: 

§ 7701. 

Appellate procedures 

(a) An employee, or applicant for employment, may 
submit an appeal to the Merit Systems Protection 
Board from any action which is appealable to the Board 
under any law, rule, or regulation. An appellant shall 
have the right— 

(1) to a hearing for which a transcript will be 
kept; and 

(2) to be represented by an attorney or other 
representative. 

Appeals shall be processed in accordance with regu- 
lations prescribed by the Board. 

(b)(1) The Board may hear any case appealed to it or 
may refer the case to an administrative law judge 
appointed under section 3105 of this title or other 
employee of the Board designated by the Board to hear 
such cases, except that in any case involving a removal 
from the service, the case shall be heard by the Board, 
an employee experienced in hearing appeals, or an 
administrative law judge. The Board, administrative 
law judge, or other employee (as the case may be) shall 
make a decision after receipt of the written repre- 
sentations of the parties to the appeal and after 
opportunity for a hearing under subsection (a)(1) of this 
section. A copy of the decision shall be furnished to 
each party to the appeal and to the Office of Personnel 
Management. 

50a 

(2)(A) If an employee or applicant for employment is 
the prevailing party in an appeal under this subsection, 
the employee or applicant shall be granted the relief 
provided in the decision effective upon the making of 
the decision, and remaining in effect pending the out- 
come of any petition for review under subsection (e), 
unless— 

(i) the deciding official determines that the 
granting of such relief is not appropriate; or 

(ii)(I) the relief granted in the decision provides 
that such employee or applicant shall return or be 
present at the place of employment during the 
period pending the outcome of any petition for 
review under subsection (e); and 

(II) the employing agency, subject to the pro- 
visions of subparagraph (B), determines that the 
return or presence of such employee or applicant is 
unduly disruptive to the work environment. 

(B) If an agency makes a determination under sub- 
paragraph (A)(ii)(II) that prevents the return or 
presence of an employee at the place of employment, 
such employee shall receive pay, compensation, and all 
other benefits as terms and conditions of employment 
during the period pending the outcome of any petition 
for review under subsection (e). 

(C) Nothing in the provisions of this paragraph 
may be construed to require any award of back pay or 
attorney fees be paid before the decision is final. 

(3) With respect to an appeal from an adverse 
action covered by subchapter V of chapter 75, authority 

51a 

to mitigate the personnel action involved shall be 
available, subject to the same standards as would apply 
in an appeal involving an action covered by subchapter 
II of chapter 75 with respect to which mitigation 
authority under this section exists. 

(c)(1) Subject to paragraph (2) of this subsection, 
the decision of the agency shall be sustained under 
subsection (b) only if the agency’s decision— 

(A) in the case of an action based on unaccept- 
able performance described in section 4303 or a 
removal from the Senior Executive Service for fail- 
ure to be recertified under section 3393a, is sup- 
ported by substantial evidence; or 

(B) in any other case, is supported by a pre- 
ponderance of the evidence. 

(2) Notwithstanding paragraph (1), the agency’s 
decision may not be sustained under subsection (b) of 
this section if the employee or applicant for em- 
ployment— 

(A) shows harmful error in the application of the 
agency’s procedures in arriving at such decision; 

(B) shows that the decision was based on any 
prohibited personnel practice described in section 
2302(b) of this title; or 

(C) shows that the decision was not in 
accordance with law. 

(d)(1) In any case in which— 

52a 

(A) the interpretation or application of any civil 
service law, rule, or regulation, under the juris- 
diction of the Office of Personnel Management is at 
issue in any proceeding under this section; and 

(B) the Director of the Office of Personnel Man- 
agement is of the opinion that an erroneous decision 
would have a substantial impact on any civil service 
law, rule, or regulation under the jurisdiction of the 
Office; 

the Director may as a matter of right intervene or 
otherwise participate in that proceeding before the 
Board. If the Director exercises his right to participate 
in a proceeding before the Board, he shall do so as early 
in the proceeding as practicable. Nothing in this title 
shall be construed to permit the Office to interfere with 
the independent decisionmaking of the Merit Systems 
Protection Board. 

(2) The Board shall promptly notify the Director 
whenever the interpretation of any civil service law, 
rule, or regulation under the jurisdiction of the Office is 
at issue in any proceeding under this section. 

(e)(1) Except as provided in section 7702 of this title, 
any decision under subsection (b) of this section shall be 
final unless— 

(A) a party to the appeal or the Director 
petitions the Board for review within 30 days after 
the receipt of the decision; or 

(B) the Board reopens and reconsiders a case on 
its own motion. 

53a 

The Board, for good cause shown, may extend the 30- 
day period referred to in subparagraph (A) of this 
paragraph. One member of the Board may grant a 
petition or otherwise direct that a decision be reviewed 
by the full Board. The preceding sentence shall not 
apply if, by law, a decision of an administrative law 
judge is required to be acted upon by the Board. 

(2) The Director may petition the Board for a 
review under paragraph (1) of this subsection only if 
the Director is of the opinion that the decision is 
erroneous and will have a substantial impact on any 
civil service law, rule, or regulation under the 
jurisdiction of the Office. 

(f) The Board, or an administrative law judge or 
other employee of the Board designated to hear a case, 
may— 

(1) consolidate appeals filed by two or more 
appellants, or 

(2) join two or more appeals filed by the same 
appellant and hear and decide them concurrently, 

if the deciding official or officials hearing the cases are 
of the opinion that the action could result in the appeals’ 
being processed more expeditiously and would not 
adversely affect any party. 

(g)(1) Except as provided in paragraph (2) of this 
subsection, the Board, or an administrative law judge 
or other employee of the Board designated to hear a 
case, may require payment by the agency involved of 
reasonable attorney fees incurred by an employee or 
applicant for employment if the employee or applicant 

54a 

is the prevailing party and the Board, administrative 
law judge, or other employee (as the case may be) 
determines that payment by the agency is warranted in 
the interest of justice, including any case in which a 
prohibited personnel practice was engaged in by the 
agency or any case in which the agency’s action was 
clearly without merit. 

(2) If an employee or applicant for employment is 
the prevailing party and the decision is based on a 
finding of discrimination prohibited under section 
2302(b)(1) of this title, the payment of attorney fees 
shall be in accordance with the standards prescribed 
under section 706(k) of the Civil Rights Act of 1964 (42 
U.S.C. 2000e-5(k)). 

(h) The Board may, by regulation, provide for one 
or more alternative methods for settling matters 
subject to the appellate jurisdiction of the Board which 
shall be applicable at the election of an applicant for 
employment or of an employee who is not in a unit for 
which a labor organization is accorded exclusive rec- 
ognition, and shall be in lieu of other procedures 
provided for under this section. A decision under such a 
method shall be final, unless the Board reopens and 
reconsiders a case at the request of the Office of Per- 
sonnel Management under subsection (e) of this section. 

(i)(1) Upon the submission of any appeal to the 
Board under this section, the Board, through reference 
to such categories of cases, or other means, as it deter- 
mines appropriate, shall establish and announce pub- 
licly the date by which it intends to complete action on 
the matter. Such date shall assure expeditious con- 
sideration of the appeal, consistent with the interests of 
fairness and other priorities of the Board. If the Board 

55a 

fails to complete action on the appeal by the announced 
date, and the expected delay will exceed 30 days, the 
Board shall publicly announce the new date by which it 
intends to complete action on the appeal. 

(2) Not later than March 1 of each year, the Board 
shall submit to the Congress a report describing the 
number of appeals submitted to it during the preceding 
fiscal year, the number of appeals on which it completed 
action during that year, and the number of instances 
during that year in which it failed to conclude a 
proceeding by the date originally announced, together 
with an explanation of the reasons therefor. 

(3) The Board shall by rule indicate any other cate- 
gory of significant Board action which the Board deter- 
mines should be subject to the provisions of this sub- 
section. 

(4) It shall be the duty of the Board, an administra- 
tive law judge, or employee designated by the Board to 
hear any proceeding under this section to expedite to 
the extent practicable that proceeding. 

(j) In determining the appealability under this 
section of any case involving a removal from the service 
(other than the removal of a reemployed annuitant), 
neither an individual’s status under any retirement 
system established by or under Federal statute nor any 
election made by such individual under any such system 
may be taken into account. 

(k) The Board may prescribe regulations to carry 
out the purpose of this section. 

56a 

5. Section 7703 of Title 5 of the United States Code 
(1994 & Supp. IV 1998) states as follows: 

§ 7703. 

Judicial review of decisions of the Merit 

Systems Protection Board 

(a)(1) Any employee or applicant for employment 
adversely affected or aggrieved by a final order or 
decision of the Merit Systems Protection Board may 
obtain judicial review of the order or decision. 

(2) The Board shall be named respondent in any 
proceeding brought pursuant to this subsection, unless 
the employee or applicant for employment seeks review 
of a final order or decision on the merits on the underly- 
ing personnel action or on a request for attorney fees, in 
which case the agency responsible for taking the per- 
sonnel action shall be the respondent. 

(b)(1) Except as provided in paragraph (2) of this 
subsection, a petition to review a final order or final 
decision of the Board shall be filed in the United States 
Court of Appeals for the Federal Circuit. Notwith- 
standing any other provision of law, any petition for 
review must be filed within 60 days after the date the 
petitioner received notice of the final order or decision 
of the Board. 

(2) Cases of discrimination subject to the provisions 
of section 7702 of this title shall be filed under section 
717(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e- 
16(c)), section 15(c) of the Age Discrimination in Em- 
ployment Act of 1967 (29 U.S.C. 633a(c)), and section 
16(b) of the Fair Labor Standards Act of 1938, as 
amended (29 U.S.C. 216(b)), as applicable. Notwith- 
standing any other provision of law, any such case filed 

57a 

under any such section must be filed within 30 days 
after the date the individual filing the case received 
notice of the judicially reviewable action under such 
section 7702. 

(c) In any case filed in the United States Court of 
Appeals for the Federal Circuit, the court shall review 
the record and hold unlawful and set aside any agency 
action, findings, or conclusions found to be— 

(1) arbitrary, capricious, an abuse of discretion, 
or otherwise not in accordance with law; 

(2) obtained without procedures required by law, 
rule, or regulation having been followed; or 

(3) unsupported by substantial evidence; 

except that in the case of discrimination brought under 
any section referred to in subsection (b)(2) of this 
section, the employee or applicant shall have the right 
to have the facts subject to trial de novo by the 
reviewing court. 

(d) The Director of the Office of Personnel Manage- 
ment may obtain review of any final order or decision of 
the Board by filing, within 60 days after the date the 
Director received notice of the final order or decision of 
the Board, a petition for judicial review in the United 
States Court of Appeals for the Federal Circuit if the 
Director determines, in his discretion, that the Board 
erred in interpreting a civil service law, rule, or regula- 
tion affecting personnel management and that the 
Board’s decision will have a substantial impact on a civil 
service law, rule, regulation, or policy directive. If the 
Director did not intervene in a matter before the Board, 

58a 

the Director may not petition for review of a Board 
decision under this section unless the Director first 
petitions the Board for a reconsideration of its decision, 
and such petition is denied. In addition to the named 
respondent, the Board and all other parties to the 
proceedings before the Board shall have the right to 
appear in the proceeding before the Court of Appeals. 
The granting of the petition for judicial review shall be 
at the discretion of the Court of Appeals.