Past actions count

• By Milt x_Zall
• Jan 06, 2002

The Supreme Court recently overturned a Federal Court of Appeals decision that said past disciplinary actions under review should not be considered when a case is appealed.

The unanimous ruling means that the Merit Systems Protection Board may look at past disciplinary actions still under appeal when reviewing terminations and other disciplinary infractions involving feds. At issue was the weight that can be given to any prior disciplinary history.

The case in point involved Maria Gregory, a letter technician in Hinesville, Ga., who was fired by the U.S. Postal Service. Gregory appealed her termination to the MSPB, which said the termination was justified because she had a prior disciplinary record.

The Federal Court of Appeals ruled that the board was unable to consider prior unresolved disciplinary action against Gregory when making its decision, but the Supreme Court disagreed, saying the MSPB should be allowed broad discretion in determining how to review past disciplinary actions.

Before Gregory was fired, she received three disciplinary actions for insubordination. Two were still being appealed. Her first pending disciplinary action — the basis for the other two — was subsequently dropped when an arbitrator ruled in her favor. In my opinion, the three disciplinary actions involved minor issues, none of them serious.

In the first instance, Gregory was given a letter of warning for leaving work early to take her 13-year-old daughter to a doctor. An arbitrator later determined that she was justified in believing that she had permission to leave work for that purpose. Gregory filed three grievances under procedures set up between her union, the National Association of Letter Carriers, and the Postal Service.

The record shows that the Postal Service had some prior run-ins with Gregory. In 1995, Gregory accused a co-worker of sexual harassment. She then filed a grievance with the Equal Employment Opportunity Commission alleging that her complaints were treated lightly.

Justice Department attorneys representing the Postal Service before the Supreme Court contended that a decision in favor of Gregory would "do serious harm to the civil service system." They said such a ruling would give feds an incentive to file grievances and prolong proceedings to prevent their history from being considered in future disciplinary actions. That may be true, but it was not OK to fire Gregory because of a minor infraction of the rules.

In light of the case's outcome, Gregory's attorneys can again contest the practices of the MSPB if they choose to. The board does not typically handle postal worker appeals, but because Gregory had served in the Army, she was allowed to appeal her firing through the board. Justice Ruth Bader Ginsburg said Gregory could have asked for arbitration and possibly might have fared better.

Despite the Supreme Court's ruling against her, she could still win back her postal job if the appeals court decides her dismissal was unjust.

Zall is a retired federal employee who since 1987 has written the Bureaucratus column for Federal Computer Week. He can be reached at [email protected].