NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2009-3115

ROBERT J. DI PAOLO, Petitioner,

v. UNITED STATES POSTAL SERVICE, Respondent.

Robert J. Di Paolo , of El Dorado Hills, California, pro se. Carrie A. Dunsmore , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With her on the brief were Tony West , Assistant Attorney General, Jeanne E. Davidson , Director, and Kenneth M. Dintzer , Assistant Director. Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2009-3115 ROBERT J. DI PAOLO, Petitioner,

v. UNITED STATES POSTAL SERVICE, Respondent.

Petition for review of the Merit S ystems Protection Board in SF0752080041-I-1.

__________________________ DECIDED: December 14, 2009

__________________________ Before RADER, ARCHER, and PROST, Circuit Judges

. PER CURIAM. Robert Di Paolo appeals a decision of the Merit Systems Protection Board (“MSPB” or “Board”) sustaining his demotion from the position of Postmaster to Supervisor in the Lincoln Post Office, Sacr amento District, Pacific Area. The demotion was based on four charges: (1) inappropriate stamp purchases, (2) receipt of alcohol on postal property, (3) failure to follow instruct ions, and (4) inappropriate use of information technology. In his brief to this court, Mr. Di Paolo ra ises several challenges to each of the four charges. Although some of Mr. Di Paolo’s ar guments are persuasive as to the severity of each charge individually, they do not re fute the administrative judge’s ultimateconclusion that all four char ges, when considered together, ju stify the penalty imposed. Because the penalty imposed wa s demotion, as opposed to removal from service, the U.S. Postal Service (“USPS”) need not show t hat Mr. Di Paolo was unfit to serve or supervise. The USPS need only show that the totality of the four charges establishes that Mr. Di Paolo’s perform ance did not comport with the exemplary level of responsibility associated with the position of Postmaster. Because the USPS met this burden, we agree that Mr. Di Paol o’s demotion promotes the e fficiency of the service. We therefore affirm the decision of the MSPB. DISCUSSION Mr. Di Paolo has served in the USPS for over twenty-eight years. He acquired the position of EAS-21 Postmast er of the Lincoln Post Office in 2005. After around two years of service as Postmaster, Mr. Di Paolo was demoted to EAS-17 Supervisor of Computerized Forwarding Operat ions Services. Mr. Di Paolo challenged this adverse action before an administrative judge. Although the administrative judge accepted some of Mr. Di Paolo’s arguments, he sustained at least in part the four charges against Mr. Di Paolo and found that demotion was an appropriate penalty. Mr. Di Paolo then petitioned for review before the MSPB. The Boar d agreed with the admin istrative judge and affirmed the USPS action. Mr. Di Paolo now appeals to this court. We have jurisdiction over the appeals from the MSPB pur suant to 5 U.S.C. § 7703. The standard of review in an appeal from a decision of the MSPB permits reversal where the decision was arbitrar y, capricious, an abuse of discr etion, not in accordance with law, procedurally defective, or unsupport ed by substantial evid ence. 5 U.S.C. § 7703(c); Yates v. Merits Sys. Prot. Bd. , 145 F.3d 1480, 1483 (Fed. Cir. 1998). We

2009-3115 2We discuss each of the charges underlying the adverse action and Mr. Di Paolo’s arguments below. Charge 1 Charge 1 involved a violation of Section 317.3 of the Post Office Handbook F-1. Section 317.3 requires a custom er signature for all credit card purchases. On several occasions, Mr. Di Paolo used a customer credi t card, with the customer’s consent but without the presence or signat ure of the cardholder, to purchase large amounts of stamps on behalf of the customer. Char ge 1 initially included an allegation of intimidating employees into making such pur chases, but the intimidation component of the charge was unfounded and subs equently withdrawn. The charge as sustained by the administrative judge was limited to i nappropriate purchasing or instructing employees to do so. The administrative judge found that even wit hout the intimidation component of the charge, Mr. Di Paolo’s conduct wa s in violation of Post Office rules. Mr. Di Paolo raises several challenges to Charge 1 on appeal, including (1) the penalty should have been mitigated based on the fact that Mr. Di Paolo’s previous supervisor permitted him to process credit card charges in t he manner described in Charge 1, (2) demoting Mr. Di Paolo does not promote the efficiency of the service where the USPS has not shown or alleged harm resulting from Charge 1, and (3) that the administrative judge erred in allowi ng the USPS to base its assessment on an accusation of intimidation that was late r withdrawn by the U SPS and discounted by the administrative judge. We agree with Mr. Di Paolo that the permi ssion of his supervisor, lack of harm to the USPS, and withdrawal of t he intimidation component of t he charge would reduce the

2009-3115 3severity of Charge 1. We do not agree, how ever, that the adminis trative judge abused his discretion in failing to mitigate the penalty based on the reduced severity of Charge 1, because demotion is already a miti gated penalty and the penalty was based on all four charges, not just Charge 1. Mr. Di Paolo submits the testimony of Mary Burkhart in support of his argument that stamp purchases have been made by employees at other facilities without adverse action. 1 The testimony of Ms. Burkhart establis hes that customer credit cards have in the past been used without the ca rdholder’s presence to make large purchases on behalf of the customer. The USPS’s charge against Mr. Di Paolo, however, does not turn on the fact that the cardholder was not present at the time the card was charged, but that no signature was obtained from the cardholder. The USPS’s credit card policy is that a customer must personally sign his receipt. Without a cardholder signature, any charge to the card can be disputed and the merchant will be financially liable if the issuing bank dishonors the transaction. Ms. Burkhart does not mention whether a signature was obtained during the customer transactions she descri bes in her affidavit. Her testimony is not inconsistent with a policy of obtaining a cust omer signature, as she expl ained that after charging the card a receipt for the purchase was personally delivered to the customer along with the purchased stamps. There is no evidence that a courier did not return with a signed copy

1 The USPS opposes the submission of th is testimony as it was not before the court below. We accept Mr. Di Paolo’s assertion that the testimony constitutes new and material evidence that was not previously available. We t herefore consider it part of the record on review.

2009-3115 4copy of the receipt. Thus, Ms. Burkhart’ s testimony does not dem onstrate one way or the other whether the adverse action taken against Mr. Di Paolo wa s inconsistent with the USPS’s response to the use of customer credit cards under other circumstances. Charge 2 Charge 2 was based on a violation of Sect ion 665.26 of the Post Office Employee and Labor Relations Manual. Section 665.26 prohi bits all employees from “hav[ing] or bring[ing] any container of beer, wine, or other intoxicating beverage into any Postal Service facility, regardless of whether or not the container has been opened.” Mr. Di Paolo arranged on at least three separate occa sions for personal wine deliveries to the Lincoln Post Office. Following his second rece ipt of wine on Postal Service property, Mr. Di Paolo was informed that such wine shipment s were a violation of the manual. The record shows that Mr. Di Paolo received one additional shipment of wine following the meeting at which he was informed of t he Post Office’s alcohol policy. Mr. Di Paolo does not dispute that he arranged for and received personal shipments of wine in violati on of the manual. He asserts that the containers were not open and that he placed the c ontainers in his personal vehicle immediately upon receiving the shipments. His challenge to Charge 2 alleges that the violation was de minimus, and did not warrant the adverse action taken. Mr. Di Paolo argues that other employees received similar shipments and did not suffer similar penalties. We disagree with Mr. Di Paolo that Charge 2 was de minimus and warrants no consideration in evaluating the adverse action ta ken. Charge 2 is par t of a larger set of charges, Mr. Di Paolo’s exemplary leadership pos ition as Postmaster obligates him to a higher standard of conduct than other employees. Mr. Di Paolo knowingly violated the

2009-3115 5alcohol policy. We conclude that the administrat ive judge did not err in considering Charge 2, along with the three other char ges, to support the penalty of demotion. Charge 3 Charge 3 was based on Mr. Di Paolo’s failure to follow instructions communicated during a financial review of the Lincoln Post Office. Auditing of the office revealed over sixty items in financial trusts and suspens e accounts needing corrective action. The reviewers found that those problems aros e due to inadequate internal controls and oversight attributable to Mr. Di Paolo. In response, Mr. Di P aolo stated that he implemented an action plan to co rrect the problems identified. A follow-up review was conducted several months later. The follow- up review again revealed many deficiencies, the majority of which were identified as repeat problems document ed in the previous review. The reviewer found that the persisting problems were the result of Mr. Di Paolo’s failure to take action to correct the deficiencies. Mr. Di Paolo, his supervisor, and an analyst held a meeti ng at which they conducted a line-by-line exam ination of the follow up review and discussed ways in which to correct the problems identified. Following the revi ew, Mr. Di Paolo stated that he understood the review, the deadline by whic h the problems must be resolved, and verified that he would take necessary meas ures to resolve them. Mr. Di Paolo’s supervisor responded with a memo to Mr. Di Paol o reiterating the ta sks that Mr. Di Paolo was supposed to complete and the deadline by wh ich they were to be completed. Mr. Di Paolo does not dispute that he failed to complete these tasks. Mr. Di Paolo raises several challenges wit h respect to this charge, including (1) that the memo did not characterize any of t he tasks as “instructions,” (2) that Charge 3

2009-3115 6did not specifically identify w hat instructions he failed to follow, precluding Mr. Di Paolo from fully preparing his defens e, and (3) that the tasks he was instructed to complete were unreasonable. Mr. Di Paolo failed to meet the objective s communicated in two reviews, a line-byline meeting, and a memo. Although t he memo and charge could have been more explicit in identifying Mr. Di Paolo’s incomp lete tasks as “instructions,” the language of the memo and charge were not so vague as to prevent Mr. Di Paolo from understanding the mandatory nature of the assignments, or from fo rmulating a meaningful defense to Charge 3. Additionally, Mr. Di Paolo’s argum ent that the assignm ent was unreasonable is not persuasive. Mr. Di Paolo assured his supervisor that he was capable of addressing the problems identif ied, and he never gave indica tion otherwise. He never asked for assistance or extra time to comp lete the tasks. The administrative judge did not err in finding that Charge 3 supports the penalty of demotion. Charge 4 Charge 4 was based on the forwarding of i nappropriate emails from a work email account to employees within the USPS and re cipients outside of the USPS. The charge initially included improper pers onal use of a work computer for more than a “limited” amount of time, as well as receiving and viewing inappropriate emails. The administrative judge found that the accusation of personal use for more than a limited amount of time was not supported by evidence and that receiving and viewing inappropriate emails was not Mr. Di Paolo’s fault. Mr. Di Paolo cannot control the receipt of inappropriate emails, and since many of the emails had innocuous subject lines, he cannot be blamed for viewing them. The administrative judge su stained Charge 4 only

2009-3115 72009-3115 8 Charge 4 only with respect to forwarding certai n sexually inappropriate emails from his work account to recipients both within and outside of the USPS. Mr. Di Paolo challenges the sustained component of the Charge 4 by arguing that he was the only employee involved in the circ ulation of these emails against whom any adverse action was taken. He cites testim ony from a witness that none of the other employees involved in sending t he emails at issue received any discipline. He also points out that all of the dis puted emails were sent prior to Mr. Di Paolo’s assignment to the position of Postmaster. Even if Mr. Di Paolo’s arguments with res pect to Charge 4 were persuasive, they would not defeat the ultimate conclusion that the totality of Charges 1, 2, and 3 as sustained support the penalty of demotion. CONCLUSION Although the administrative judge rejected some portions of some of the charges against Mr. Di Paolo, he ultimately sustained all four charges in some form. The totality of the four charges as su stained establishes that Mr. Di Paolo’s performance did not comport with the exemplary level of responsibility associated with the position of Postmaster. We therefore a ffirm the decision of the MSPB. COSTS Each party shall bear its own costs.