NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3171

JUDY C. TEXEIRA, Petitioner,

v.

UNITED STATES POSTAL SERVICE, Respondent.

Morris E. Fischer , Law Office of Morris E. Fisc her, of Bethesda, Maryland, argued for petitioner. Marla T. Conneely , Trial Attorney, Commercial Liti gation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. On the brief were Jeanne E. Davidson , Director; Todd M. Hughes , Deputy Director; and Robert C. Bigler , Trial Attorney.

Appealed from: Merit S ystems Protection BoardNote: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3171 JUDY C. TEXEIRA, Petitioner,

v. UNITED STATES POSTAL SERVICE, Respondent.

Petition for Review from the Merit S ystems Protection Board in SF0752060072-I-2

_________________________ DECIDED: February 28, 2008

_________________________ Before BRYSON and MOORE, Circuit Judges , and WOLLE, Senior District Judge

. *
PER CURIAM. DECISION Judy Texeira (Texeira) appeals from the dec ision of the Merit Systems Protection Board (Board), Docket No. SF0752060072-I-2, t hat upheld her demot ion by the United States Postal Service (agency) from her pos ition of EAS-17 customer services supervisor at the Modesto Main Post Office to a part-time entry level position at the Post Office in

* Honorable Charles R. Wolle, Senior District Judge, United States District Court for the Southern District of Iowa, sitting by designation.2007-3171 2 Ripon, California. Texeira cont ends the Board erred in two respects. First, she contends the Board should not have split a single char ge against her, enabling the Board to dismiss one charge but discipline her on a second lesser charge. Second, Texeira contends the Board imposed excessive punishm ent for the separate charge. We conclude the Board properly considered two charges, dismissing the more serious but upholding the lesser charge of timekeeping irregularity. We vacate the penalty on the lesser charge and remand this case to the Board to impose di scipline that considers only Texeira = s conduct that proved the less serious charge. BACKGROUND In January of 2005, Texeira was superviso r of five window cl erks and several floor clerks, and she was also finance supervisor at the Modesto Main Post Office. She had been a supervisor for about seven years, a pos tal employee for about nineteen years, and had no prior record of misconduct. On Januar y 26, however, Texeira incorrectly posted 160 hours of annual leave for an employee she was supervising. The employee had not yet earned the leave, never earned it, and later returned the leave pay to the agency. When the agency learned about and investigated Texeira = s incorrect timekeeping entry, the manager of customer service at the Modesto Main Post Office served her with a notice of removal from federal service. The initial charge was a si mple statement that she had incorrectly posted the unearned leav e for an employee she was supervising. That notice of removal was revised on August 2, 2005 with a more detailed description of the conduct involved in her incorrect posting of annual l eave, including a listing of several Postal Service rules and regulations that she a llegedly had violated. The notice stated: A Charge: Unacceptable Conduct: Falsification in Reco rding Time/Failure to Follow Proper2007-3171 3 Timekeeping Procedures. @ When Texeira protested, the agency selected as its decisionmaker on the matter Richard Sar no, Human Resources Manager of the Sacramento District. Sarno conducted his ow n investigation and t hen on September 19, 2005 issued his Letter of Decision. He found the August 2 charges A fully supported by the evidence. @ In his decision on discipline, he wrote and highlighted that re moval from federal service would be A too severe. @ He decided instead to reduc e her in grade and pay to a part-time position at the much smaller postal facility in Ripon, California. BOARD DECISION On September 20, 2006, an Administrative Judge (AJ) held a plenary hearing, then filed his initial decision. T he Board denied Texeira’s petition for review making the AJ’s decision the final decision in the matter. The AJ considered the agency charge as two charges, one for falsification of time record s and the other for failure to follow proper timekeeping procedures. The AJ found the agency did not prove falsification but did prove the lesser charge. The AJ then upheld the same substantial penalty the agency had imposed for both charges In his decision the AJ first addressed Texeira = s argument that the agency had asserted a single charge against her that coul d not be divided into a greater charge and a lesser charge. The AJ held, based on Walker v. Department of the Navy , 59 M.S.P.R. 309, 318 (1993), that a single act of misconduct coul d be read as presentin g multiple charges, so long as each required differ ent elements of proof. Noting that the agency decisionmaker Sarno testified at the Board hear ing that he considered the agency = s allegation to be a single charge, the AJ nevertheless decided the agency = s charge label gave ri se to both the alleged falsification of recorded earned leave, and a separate alleged failure to follow2007-3171 4 proper timekeeping procedures. The AJ wrote t hat proof of an intent to deceive was an element of the charge of A Falsification in Recording Time, @ but that an int ent element was not required to prove failure to comply with proper timekeeping procedures. He dismissed the falsification charge as unproved, but found the agency had pr oved the second charge. Having found the agency proved only the char ge of failure to record an entry correctly, the AJ upheld the sancti on of demoting Texeira to an entry level position at a post office outside Modesto. The AJ explained that the decisionmaker Sarno gave adequate consideration to all relev ant penalty factors and wrote: [I]t is apparent from the deciding official = s analysis that he considered demotion to be appropriate even if [Tex eira] had not attempted to defraud or deceive the agency. He testified that he A did not find that [Texeira] intentionally tried to defraud @ the agency. This gives rise to Ms. Texeira = s second ground for appeal, excessiveness of the penalty. DISCUSSION We review the Board = s decision under the aut hority of 5 U.S.C. ' 7703(c) (2000), which provides that the agency = s action must be sustained unless it is found to be: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedure required by law, rule, or regulati on having been followed; or (3) unsupported by substantial evidence. See Kline v. Dep = t of Transp. , 808 F.2d 43, 44 (Fed. Cir. 1986); Hayes v. Dep = t of the Navy , 727 F.2d 1535, 1537 (Fed. Cir. 1984). On the charge separation i ssue, we agree with the AJ = s analysis and conclusion. The AJ correctly decided that the agency = s charge label gave rise to two separate charges, one falsification of recorded earned leave, and the other the failure to follow proper timekeeping procedures. Plainly the charge of A Falsification in Recording Time @ required proof of an intent to deceive , an element not required to prove timekeeping or record2007-3171 5 keeping errors. Consequently, the AJ properly analyzed the two types of timekeeping offenses separately and had t he authority to find the agency had proved the lesser charge but not the charge requiring in tent. Moreover, the AJ carefully explained the factors considered in addressing Texeira = s credibility that was critical in deciding the intent issue. The AJ’s finding that Texeira had testified truthfully that she did not intend to defraud or deceive the agency when she posted annual leav e for a fellow employee is supported by substantial evidence. The circ umstances corroborated her explana tion. In addition, the AJ found the agency had not proved that she A was guilty of falsification in recording time. @ The AJ did, however, well document the proof that Texeira had not verified the incorrect annual leave she had posted, noting that Texeira had said she had made an error and admitted she A made a mistake. @ We conclude that the AJ’s det ermination that the agency proved the lesser charge of failing to comply with agency timekeeping procedures is supported by substantial evidence. The description in t he charging label plainly presented both a more serious charge of A falsification @ and a less serious charge concerning a timekeeping violation. We find merit in Texeira = s second contention that the penalty must be reconsidered by the agency in light of the Board = s dismissal of the falsificatio n charge. When falsification was not proved, the original penalty was too severe. We do not lightly review agency disciplinary decisions. These are necessary to promote the efficiency of government service. Parker v. U.S. Postal Serv. , 819 F.2d 1113, 1116 (Fed. Cir. 1987). We give deference to the agency = s judgment unless a penalty violates a statute or r egulation or is

A so harsh and unconscionably disproportionate to t he offense that it amounts to an abuse of discretion. @ Villela v. Dep = t of the Air Force , 727 F.2d 1574, 1576 (Fed. Cir. 1984) (citing2007-3171 6 Power v. United States , 531 F.2d 505 (Ct. Cl. 1976)). The Cour t has written that our review of M.S.P.B. decisions must allow the Board A wide latitude in fulfilling it s obligation to review agency disciplinary actions. @ U.S. Postal Serv. v. Gregory , 534 U.S. 1, 6-7 (2001) ( A It is not for the Federal Circuit to substitute its own judgment for that of the Board. @ ). But our deference to the Board = s wide latitude is not unlim ited. Agencies and the Board are obligated responsibly to consider and balance relevant factor s for each individual case before selecting an appropriate penalty; and the Board has listed twelve factors—so called Douglas factors—to assure that the punishment A strikes a responsible balance within tolerable limits of reasonableness. @ Douglas v. Veterans Admin. , 5 M.S.P.R. 280, 305-06 (1981). Pertinent here, the Board in Douglas wrote: Whenever the agency = s action is based on multiple charges some of which are not sustained, the presiding official should consider carefully whether the sustained charges merit ed the penalty imposed by the agency. In all cases in which the appropriat eness of the penalty has been placed in issue, the initial decision should contain a reasoned explanation of the presiding official = s decision to sustain or modify the penalty, adequate to demonstrate that the Board itself has properly consi dered all relevant factors and has exercised its judgment responsibly.2007-3171 7 Id. at 306. Moreover, in Kline v. Department of Transportation , 808 F.2d at 45, our court addressed, as we again do here, the question whether the Board correctly upheld a penalty when only one of several charges against an em ployee had been proved. We vacated the penalty and remanded the case to allow the agency = s deciding official to determine an appropriate penalty for the single proved charge. We there emphasiz ed that the deciding official made no finding about what the penalty would be if fewer than all charges were proved. We wrote: A [The] record does not demonstrate that the presiding offi cial identified, balanced and then consi dered the relevant Douglas factors in determining that the sustained charge warranted the penalty imposed. @ 808 F.2d at 46. Similarly, the record here does not support the AJ = s statement that the decisionmaker Sarno A considered demotion to be appropria te even if [Texeira] had not attempted to defraud or deceive the agency. @ Sarno did not so test ify, neither did he write nor imply in his decision t hat he would have imposed the same discipline for a mere timekeeping error. Sarno testified: A I was losing trust and faith in her. @ And he testified: A I believe she did it on purpose to do someth ing for a friend and she made a huge mistake. @ And he testified: A She paid somebody that didn = t deserve to get paid. I think she did it on purpose. She did it for a friend and it was wrong. @ This record demonstrates a decisionmak er imposing a severe penalty because he believed the agency had proved Texeira guilty of purpo seful falsification, not just the failure to make a correct entry of vacation time. The agency has not yet articulated what less severe sentence should be imposed when it prov ed only a much less severe charge. The first of the twelve factors listed in the Board = s Douglas decision is A the nature and seriousness of the offense. @ The agency decisionmaker gave no rational basis for2007-3171 8 imposing a severe sentence on a less serious c harge. When that fact or was not properly considered, the penalty imposed was disp roportionate to the proved charge and unsupported by substantial evidenc e. We remand for reconsideration of the penalty to be imposed on the lesser charge only. CONCLUSION We affirm that part of the Board = s final decision that upheld the agency = s charge that Ms. Texeira failed to follow proper timekeeping procedures, but we vacate the Board’s final decision that upheld the agency = s penalty of demotion to a part-time position on that charge. The case is remanded so an appr opriate penalty can be imposed based only on the improper timekeeping charge.