A recent Merit Systems Protection Board (MSPB) case dealt with the question of how to discipline a manager who misbehaves. The board took corrective action in what was a transparent example of an agency imposing an inordinately severe punishment on a manager. The case involved Patricia Davis, who w
A recent Merit Systems Protection Board (MSPB) case dealt with the question of how to discipline a manager who misbehaves. The board took corrective action in what was a transparent example of an agency imposing an inordinately severe punishment on a manager.
The case involved Patricia Davis, who was a postmaster of a small Alabama post office. Based on two performance-related charges, the U.S. Postal Service fired Davis from the EAS-18 position of postmaster in New Market, Ala., effective Jan. 3, 1994.
Davis filed an appeal with the MSPB. After a hearing before an administrative law judge, an initial decision was filed on Aug. 31, 1994, that found that only one of the charges against Davis was supported by a preponderance of the evidence. The judge concluded that the penalty of removal was too harsh.
The judge ordered the Postal Service to "cancel the removal and substitute in its place a demotion to a nonsupervisory position for which Davis is qualified."
Although it was clear that the judge was telling the Postal Service not to be excessively harsh with Davis, it looks like the agency didn't get the message. The Postal Service placed her in the position of PS-4 mail processor at the Huntsville General Mail Facility, a position 14 grades below her former postmaster position.
Davis immediately appealed, contending that the Postal Service had not complied with the spirit of the MSPB's final order. Davis argued that the Postal Service should have placed her in a nonsupervisory position with the least reduction in grade and pay and that it should not have dropped her down 14 notches.
The Postal Service responded that it had complied with the MSPB's final order. Then it argued that because Davis' previous nonsupervisory positions were PS-5 city letter carrier and PS-5 distribution clerk, the new level given to her was proper. Never mind that she had worked her way up to be postmaster. All that counted was that the new position was close to the level of her last nonsupervisory position.
The Postal Service also argued that Davis lacked the qualifications to perform the duties of either position. They based that contention on the fact that she did not have any current "scheme" knowledge, meaning that Davis did not know the sorting scheme for a particular mail route. Of course, she couldn't be expected to have current scheme knowledge, but you would certainly expect her to be able to pick up such knowledge quickly, given that she previously had qualified as a postmaster.
To this observer, it appears that the Postal Service wanted to punish Davis, notwithstanding the MSPB order to go easy on her.
The administrative judge who handled this appeal didn't have much patience with the agency (Merit Systems Protection Board, June 4, 1999, Patricia S. Davis v. United States Postal Service, docket AT-0752-94-0300-C-1). He noted that there was a discrepancy between the MSPB's decisions in two prior cases involving similar circumstances. In one case, the MSPB mitigated the penalty imposed on a supervisor from removal to a demotion and required the agency to place the employee in a nonsupervisory position with the least reduction in grade and pay. But in another case, the board placed no specific limitation on the agency's discretion to select the position to which the employee would be demoted.
The judge explained why the second decision, which also involved the Postal Service, did not apply here. In that case, the Postal Service removed the employee from his supervisory position based on a charge of committing a dishonest act by executing a false document.
The administrative judge mitigated the penalty to a 60-day suspension and a "demotion to a nonsupervisory position" without further specifying the nature of the required corrective action. The administrative judge took this action because the serious nature of the employee's misconduct had made it a close question as to whether removal was appropriate, and the judge wanted to allow the Postal Service to exercise its discretion in determining the appropriate penalty.
But in Davis' case, there was no clear expression of intent by the MSPB. In the absence of specific guidance in the initial decision, the other case cited takes precedence, the judge ruled. That meant the Postal Service had to place Davis in a nonmanagerial or nonsupervisory position with the least reduction in grade and pay for which she could become qualified without undue interruption of the Postal Service's mission.
On the basis of that analysis, the judge said that the Postal Service had to submit a list of all vacant positions at the EAS-17 level and below from Aug. 31, 1994, the date of the initial decision, through Oct. 20, 1994, the date the Postal Service placed Davis in the PS-4 position of mail processor. In addition, the Postal Service had to submit a list of all vacant positions at the EAS-17 level and below for which Davis is qualified or could become qualified without undue interruption of the Postal Service's mission, from Aug. 31, 1994, until the present. And to rub some salt into the Postal Service's wounds, for every vacant position for which the agency found Davis unqualified, it was ordered to submit an explanation of its determination.
I guess it is possible to get justice from the MSPB. Not too often, but it does happen.
- Bureaucratus is a retired federal employee who contributes regularly to Federal Computer Week.
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