UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION 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### THIS FINAL ORDER IS NONPRECEDENTIAL 1

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1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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 t o 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 it s University City branch in St. Louis, Missouri
, on a single charge of Inappropriate Conduct, supported by a long nar rative 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 administra tive 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 presen ted i nconsistent 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

- d uty , nonpay status for 9 days as provided for in3

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 opposit ion
, and the appellant provides a reply to the agency’s response. PFR File, Tabs 3

- 4.

DISCUSSION OF ARGUME NTS ON REVIEW ¶5 T he Board has long held that an agency may not discipline an employee
more than once for the same misconduct. See Westbrook v. Depar tment 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 stat us without duties and pay for 9 days before proposing and effecting her removal. ID at 12; IAF, Ta b 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, non duty 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 his4

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

a nd her removal both stem from the same episode
, the agency took each of those
action s 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 di sruption, 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 appella nt consistently showed him significantly interfered with his ability to manage the other superv isors 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

app ellant’s emergency placement und er 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 initia l decision

.

NOTICE TO THE APPELL ANT 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 tha t 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

ava ilable 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 a ccept representation in a given c ase.

FOR THE BOARD:

Washington, D.C. ______________________________ Jennifer Everling Acting Clerk of the Board