UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

SANDRA M. GRACE,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

CH-0752-15-0463-I-1

DATE: September 1, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Jack Barry, Littleton, Colorado, for the appellant.

Deborah W. Carlson, Chicago, Illinois, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

affirmed her removal. Generally, we grant petitions such as this one only when: 

the initial decision contains erroneous findings of material fact; the initial 

decision is based on an erroneous interpretation of statute or regulation or the 

 1 A nonprecedential order is one that the Board has determined does not add 

significantly to the body of MSPB case law. Parties may cite nonprecedential orders, 

but such orders have no precedential value; the Board and administrative judges are not 

required to follow or distinguish them in any future decisions. In contrast, a 

precedential decision issued as an Opinion and Order has been identified by the Board 

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c). 
2

erroneous application of the law to the facts of the case; the administrative 

judge’s rulings during either the course of the appeal or the initial decision 

were not consistent with required procedures or involved an abuse of discretion, 

and the resulting error affected the outcome of the case; or new and material 

evidence or legal argument is available that, despite the petitioner’s due 

diligence, was not available when the record closed. See title 5 of the Code of 

Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully 

considering the filings in this appeal, we conclude that the petitioner has not 

established any basis under section 1201.115 for granting the petition for review. 

Therefore, we DENY the petition for review and AFFIRM the initial decision, 

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b). 

BACKGROUND

¶2 The agency removed the appellant, a Supervisor of Customer Service at its 

University City branch in St. Louis, Missouri, on a single charge of Inappropriate 

Conduct, supported by a long narrative concerning a September 26, 2014 verbal 

altercation with her supervisor. Initial Appeal File (IAF), Tab 6 at 19-28. After 

holding a hearing, the administrative judge affirmed the agency’s action. IAF,

Tab 18, Initial Decision (ID). The administrative judge found that the agency’s 

witnesses testified consistent with their contemporaneous written statements and 

were therefore more credible than the appellant and her witnesses, who made 

their written statements months after the altercation and presented inconsistent 

testimony at the hearing. ID at 8-11. The administrative judge also found “the 

appellant’s disrespectful and insubordinate conduct to be improper, especially for 

an individual in a supervisory position,” like the appellant. ID at 11. 

¶3 The administrative judge rejected the appellant’s affirmative defense of 

harmful procedural error, finding that the agency did not punish the appellant 

twice for the same misconduct, but instead utilized emergency placement to put 

the appellant in an off-duty, nonpay status for 9 days as provided for in
3

section 651.4 of its Employee and Labor Relations Manual (ELM) because it had

reason to believe that she had engaged in actions that were disruptive to the 

agency’s day-to-day operations. ID at 12-14. The administrative judge further

found that the agency established a nexus between the appellant’s misconduct and 

the efficiency of the service and that the penalty was within the tolerable limits of 

reasonableness. ID at 14-16. 

¶4 In her petition for review, the appellant argues that the administrative judge 

incorrectly found that her removal was not barred by her prior 9-day placement in 

an off-duty, nonpay status for the same misconduct. Petition for Review (PFR)

File, Tab 1. The agency responds in opposition, and the appellant provides a 

reply to the agency’s response. PFR File, Tabs 3-4. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 The Board has long held that an agency may not discipline an employee 

more than once for the same misconduct. See Westbrook v. Department of the 

Air Force, 77 M.S.P.R. 149, 155 (1997); Adamek v. U.S. Postal Service,

13 M.S.P.R. 224, 226 (1982). A “suspension,” which is an adverse action under 

5 U.S.C. chapter 75, is defined as “the placing of an employee, for disciplinary 

reasons, in a temporary status without duties and pay.” 5 U.S.C. § 7501(2). 

There is no dispute that the agency, pursuant to section 651.4 of the ELM, placed 

the appellant in a temporary status without duties and pay for 9 days before 

proposing and effecting her removal. ID at 12; IAF, Tab 6 at 31. 

¶6 The pertinent question in determining whether the agency’s actions 

constituted double punishment for the same offense is whether the reason for the 

two actions, i.e., the emergency placement and the removal, was the same. Cf.

Bradley v. U.S. Postal Service, 96 M.S.P.R. 539, ¶¶ 12-13 (2004) (finding that the 

appellant’s placement into an unpaid, nonduty status under the collective 

bargaining agreement between the agency and the appellant’s union was for a 

different reason, i.e., protecting the appellant and his coworkers, than was his 
4

subsequent disciplinary suspension for misconduct). Further, we note that the 

Board generally lacks the jurisdiction to consider a suspension of 14 days or less.

2

E.g., Harrison v. U.S. Postal Service, 26 M.S.P.R. 37, 38-39 (1985). 

¶7 The record shows that even though the appellant’s emergency placement 

and her removal both stem from the same episode, the agency took each of those

actions for different reasons. We agree with the administrative judge that the 

agency established that it utilized the emergency placement procedure in this 

instance as an interim protective measure to prevent future disruption, not to 

discipline the appellant for her conduct. ID at 13-14. The customer service 

manager that effected the emergency placement testified that the disrespect and 

discourteousness the appellant consistently showed him significantly interfered 

with his ability to manage the other supervisors under his authority. IAF, Tab 17, 

Hearing Transcript, Oct. 14, 2015, at 14-15. 

¶8 Accordingly, because the record reflects that the agency effected the 

appellant’s emergency placement under section 651.4 of the ELM and her

subsequent removal for distinctly different reasons, using emergency placement 

as an interim protective measure and then removing her as discipline for her 

misconduct, we affirm the initial decision. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request review of this final decision by the U.S.

Court of Appeals for the Federal Circuit. You must submit your request to the 

court at the following address: 

United States Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, DC 20439

 2 We further note that the notice letter effecting the appellant’s placement in a nonpay 

status informed her that the decision could be appealed under the grievance/arbitration 

provisions of the ELM. IAF, Tab 6 at 31. 
5

The court must receive your request for review no later than 60 calendar days 

after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27, 

2012). If you choose to file, be very careful to file on time. The court has held 

that normally it does not have the authority to waive this statutory deadline and 

that filings that do not comply with the deadline must be dismissed. See Pinat v. 

Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991). 

If you need further information about your right to appeal this decision to 

court, you should refer to the Federal law that gives you this right. It is found in

title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27, 

2012). You may read this law as well as other sections of the U.S. Code, at our 

website, http://www.mspb.gov/appeals/uscode.htm. Additional information is 

available at the court’s website, www.cafc.uscourts.gov. Of particular relevance 

is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained 

within the court’s Rules of Practice, and Forms 5, 6, and 11. 

If you are interested in securing pro bono representation for an appeal to 

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at 

http://www.mspb.gov/probono for information regarding pro bono representation 

for Merit Systems Protection Board appellants before the Federal Circuit. The 

Merit Systems Protection Board neither endorses the services provided by any 

attorney nor warrants that any attorney will accept representation in a given case. 

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board