USPS must prove benefits of removal

How would you like it if your employer forced you into a different job involuntarily and then fired you because you didn't have the necessary skills to do the work? That happened to a U.S. Postal Service employee a few years ago. Fortunately, the U.S. Court of Appeals recently was able to help him— at least temporarily.

Arturo Vidal was hired by USPS in 1993 as a part-time clerk assigned to operate a flat sorting machine (FSM). For two years, his performance operating that machine was satisfactory.

In 1995, a permanent position operating a different machine— a multipurpose letter-sorting machine (LSM)— opened and was posted for bids in accordance with USPS' national collective bargaining agreement.

No employees applied for the position. So in accordance with the agreement between USPS and the postal workers' union, Vidal was involuntarily reassigned to the permanent LSM position based on his seniority. In some respects, this was a positive development for Vidal. He was given a permanent, full-time position in place of a temporary, part-time position. The new position paid more but required greater skill. The LSM is more difficult to operate than the FSM at the standard of accuracy required by USPS.

While Vidal received training on the LSM during a portion of each workday, he continued to work several hours each day on the FSM. To qualify for the LSM position, an employee must achieve a score of 98 percent accuracy on the machine; Vidal's highest score during his training period was 96 percent. Because of his failure to meet the minimum qualifying score for his new position, Vidal received a notice on Sept. 27, 1995, that he would be fired because of unsatisfactory job performance.

Pending removal, Vidal continued his training on the LSM and improved his score to 97.3 percent, still below the minimum required score but very close. Nonetheless, Vidal's removal became effective Nov. 9, 1995.

Vidal appealed his removal to the Merit Systems Protection Board (MSPB). An initial decision by an administrative law judge on the board concluded that USPS had proved that Vidal failed to meet the qualification requirements for his reassignment. The judge conceded that reassigning a skilled employee from a job in which he can perform into one in which he cannot and then firing him does not generally promote efficiency. But the judge cited a previous case that concluded that "legitimate management reasons" may allow such a removal action in some circumstances.

The judge also acknowledged that the agreement between USPS and the union prevents the agency from disciplining or discharging an employee who volunteers for a new position and then fails to qualify for it. But she ruled that the agreement did not protect Vidal, who was reassigned involuntarily to a new position. Consequently, the judge concluded that Vidal's removal was proper.

How's that for logic? If you volunteer for a new position and fail to perform satisfactorily, you can't be fired. However, if you are forced into a position that you may not want and fail to perform satisfactorily, you can be fired!

The MSPB did not yet wash its hands of the case. It denied Vidal's petition to review the initial decision but reopened the appeal on its own motion. The board affirmed the decision upholding Vidal's removal, focusing solely on the judge's interpretation of the national agreement, concluding that it made no provision to protect part-time employees who are involuntarily reassigned to a permanent position for which they later fail to qualify.

But MSPB chairman Ben Erdreich filed a dissenting opinion, noting that USPS failed to present any evidence suggesting Vidal could not continue to serve in his original part-time position on the FSM after he had failed to qualify for the more difficult LSM job.

I wondered about that myself. When Vidal failed to operate the new machine satisfactorily, why wasn't he simply re-assigned to his old job? That would have made more sense then firing him.

Vidal then took his case to the Court of Appeals, which found little merit in what USPS and the MSPB had done (U.S. Court of Appeals for the Federal Circuit Case 97-3386, Arturo Vidal v. United States Postal Service, May 14, 1998). The court said the MSPB's analysis was not in accordance with law because it failed to consider whether it was more efficient to remove Vidal than to retain him in his previous position.

"We are convinced that Vidal's removal was not required by the national agreement," the court ruled. "While it is true that the plain language of the national agreement does not prevent the Postal Service from removing Vidal once he failed to qualify for the LSM position, neither does it require the Postal Service to remove Vidal. We conclude, therefore, that the terms of the national agreement are not dispositive in this case."

The court said the MSPB failed to consider other factors besides whether Vidal's reassignment was based on a legitimate management reason. It said USPS may have acted quite reasonably by transferring Vidal. But merely showing that the transfer was based on a legitimate management reason is not enough; USPS had to demonstrate that the efficiency of the service would be promoted more by Vidal's removal than by his retention in his former position. USPS never did that, and I seriously doubt that it ever could.

According to the ruling, USPS provided no argument or direct evidence to explain why Vidal could not have been returned to his original part-time position. Furthermore, the record does not indicate that USPS even considered retaining Vidal in a part-time capacity, much less explain why retaining him as an employee was less efficient than removing him. Yet Vidal had performed his former job for two years in a satisfactory manner, and he continued to perform his necessary duties satisfactorily while he trained for the new position.

The law requires the MSPB to re-examine the facts of this case in light of the correct legal test of whether Vidal's removal would promote the efficiency of the service more than would his restoration to his previous position. So the court remanded the case back to the board for further evaluation.

My concern is that the MSPB will find a way to rule against Vidal anyway. I hope I'm wrong.

-- Bureaucratus is a retired federal employee who contributes regularly to Federal Computer Week.

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