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@example.com.