When demand exceeds supply
- By Dan Verton
- Aug 21, 2000
A recent court case should lift the spirits of federal employees who have
had disciplinary problems in the past. The U.S. Court of Appeals for the
Federal Circuit invalidated a Merit Systems Protection Board decision that
had relied on an employee's prior disciplinary record as the basis for her
firing. Here is what happened.
Mariah Gregory, a letter technician with the U.S. Postal Service in
Hinesville, Ga., requested three-and-a-half hours of overtime/ assistance
to finish her mail route. Her supervisor granted her three hours and accompanied
her on her route.
Afterwards, however, her supervisor said that Gregory overestimated
the amount of time/assistance she needed by about 1.3 hours and recommended
that disciplinary action be taken against her. He subsequently fired her
for failure to perform duties in a satisfactory manner. Before this incident,
Gregory had been disciplined for insubordination; for delaying the mail
and failure to follow instructions; for unauthorized overtime; and for failure
to perform duties in a satisfactory manner. Because of her prior disciplinary
record, the Postal Service saw this latest infraction as the straw that
broke the camel's back.
Gregory's appeal to the MSPB was rejected. The MSPB said that Gregory's
removal was justified because she had a prior disciplinary record. The MSPB
said her prior record "revealed the pattern of conduct by Gregory to disregard
the agency and her supervisors' expectations of her performance and conduct."
Gregory argued that although she had overestimated the amount of time
that she needed to finish her route, it was an honest mistake. She said
she was unfamiliar with the route and shouldn't be fired for a human error.
The MSPB decision was immediately appealed to the U.S. Court of Appeals
for the Federal Circuit. The court said that the MSPB was wrong to base
its decision on Gregory's prior disciplinary actions because those actions
were still unresolved. In addition, the court said it was inappropriate
to judge this case based on disciplinary actions that were totally unrelated
to the present situation.
The MSPB had said that firing Gregory was reasonable because of her
prior disciplinary actions. The court said that it's appropriate to consider
a person's past history of disciplinary actions when deciding whether the
punishment fits the crime but that a penalty determination shouldn't rest
on an earlier disciplinary action that could be reversed.
In this case, because Gregory had appealed the prior disciplinary actions
that were taken against her, the MSPB shouldn't have considered them in
determining whether it was justified in firing Gregory. Accordingly, the
case was remanded back to the MSPB to determine whether Gregory should be
returned to her job or whether a lesser penalty was appropriate for her
transgression. Thank goodness you're innocent until proven guilty in America!
—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]