When demand exceeds supply

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 miltzall@starpower.net.

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