UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MICHAEL P. SULLIVAN, ) DOCKET NUMBER

Appellant, ) BN0752920115-I-1

}

v. • )

) iftM n k

UNITED STATES POSTAL SERVICE, ) DATE: JMil U t

Agency. )

Cornelius J. Sullivan, Esquire, Sullivan & Walsh,

Mattapan, Massachusetts, for the anpellant.

Lawrence T. McDonough, Boston, Massachusetts, for the

agency.

BEFORE

Daniel R. Levinson, Chairman

Antonio C. Amador, Vice Chairman

Jessica L. Parks,

OPOION AND ORDER

The appellant timely petitions for review of the May 21,

1992 initial decision that sustained his removal. For the

•reasons discussed below, we find that the petition does not

meet the criteria for review set forth at 5 C.F.R. § 1201.115,

and we therefore DENY it. We REOPEN this case on our own

motion under 5 C.F.R. § 1201.117, however, and AFFIRM the

initial decision as MODIFIED by this Opinion and Order, still

sustaining the removal action.
BACKGROUND

The 'agency removed the appellant from the PS-5 position

of Distribution clerk based upon the charge of engaging in

conduct violative of the agency's standards of conduct.

Appeal File (AF), Tab 3, Subtabs 1, 2. The agercy alleged

that the appellant's cfonduct on October 4, 1991, toward Robert

D. Porter, Supervisor of Mail Processing, viola:^d a January

-29, 1991 last-chance settlement agreement ?agreement) that

resolved an October 18, 1990 proposed reiicva action against

the appellant. Jd., Subtab 2.

The appellant filed a timely petition i"or appeal with the

Board. Af*• r a hearing, the administrative judge found:

(1) The Bo^rd had jurisdiction over the appeal; (2) the agency

supported its charge by preponderant evidence; (3) the

appellant vris bound by the terms of the agreement because

(e) his ipresentiative signed it on his behalf and he reaped

tlvi beir f bs thereof, and (b) it was not "unfair" to him, as

he a] . ji-d; (4) the appellant's actions on October 4, 1991,

could no. be excused even if, as he alleged, agency management

was o:3t to "get rid* of him; arid (5) the penalty of removal

was rea&cnable. AF, Tab 9. Therefore, the administrative

judge affirmed the agency's removal action. Initial Decision

(ID) at 13.

Tha appellant's timely petition for review, Petition for

Review File (FFRF), Tab 1, asserts; (1) He should not be held

to the ternu* of the agreement because (a) he did not sign it

and it WAS entered into without his knowledge or consent, and
(b) management entered into it in bad faith, id. at 2; (2) h.is

actions did not rise to a violation of the agreement, id. ;

(3) management engaged in a "conspiracy" to "gang up on* and

"get" him and other union officials for their union

activities, id. at 2-6; (4) the appellant may not be legally

removed for his "vigorous representation"' as a union steward,

id. at 7-9; (5) he established below a prima feicie showing of

reprisal for his union activities but the administrative judge

failed to address that claim, id. at 9-10; and (6) the penalty

of removal is too harsh and should be mitigated.1 Jd. at

10-11. The agency has not responded to the petition.

ANALYSIS

The pertinent terms of the agreement.

The settlement agreement provided that a removal action

that the agency had proposed on October 18, 1990, would be

Along with his petition the appellant has submitted a copy

of the initial decision in this appeal. He has also submitted

copies off but no explanation for, the following documents

that are not a part of the record below: (1) An undated

statement purportedly signed by James G. Olsen; (2) an undated

"[i]nterview" with Paul Mulgrew, purportedly signed by James

G. Olsen and Paul Mulgrew; (3) an October 17, 1991

"[i]nterview" with Lillian O'Neal purportedly signed by James

G. Olsen and Lillian O'Neal; and (4) an October 9, 1991

statement regarding the appellant's placement in an off-duty

status, purportedly signed by Irene Lavery. PFRF, Tab 1.

The initial decision is, of course, already a part of the

record. Appeal File (AF), Tab 9. As to the witnesses's

purported statements, the appellant has made no showing that

they constitute new and material evidence that was

unavailable, despite due diligence, before the record closed

below. Therefore, we have not considered them. See 5 C.F.R.

§ 1201.115; Avansino v. United States Postal Service,

3 M.S.P.R. 211, 214 (1980).
held in abeyance for a 1-year period. AF, Tab 3, Subtab 6.

It further provided, in pertinent part, as follows:

During this abeyance period, [the appellant] agrees

to conduct himself in a professional, courteous, and

businesslike manner at all times. If at any time

during the [abeyance] period, [he] fails to conform

his behavior to Section 666 of the Employee and

Relations Manual [ELM], the removal action will be

re-imposed without further right of appeal through

Grievance/Arbitration.... [The appellant] further

agrees and understands that if he violates this

agreement, a new effective date for his removal will

be set immediately with no minimum notice required.

Id.

The agency's charge.

In its November 22, 1991 <wal proposal notice, the

agency alleged that the apt. i.ant violated ELM 661.53,

Unacceptable Conduct,2 and ELM 666.2, Behavior and Personal

*>

Habits, and thus violated the agreement by failing to conduct

2 According to the removal proposal notice, this provision

states as follows:

No employee will engage in criminal, dishonest,

notoriously disgraceful or immoral conduct, or other

conduct prejudicial to the Postal Service.

Conviction of a violation of any criminal statute

may be grounds for disciplinary action by the Postal

Service, in addition to any other penalty by or

pursuant to statute.

ELM 661.53, AF, Tab 3, Subtab 2B.

3 The agency stated in its removal proposal notice that this

section provides as follows:

Employees are expected to conduct themselves dyrir.c

and outside of working hours in a manner whxch

reflects favorably upon the Postal Service.

Although it is not the policy of the Postal Service

to interfere with the private lives of employaes, it

does require that postal personnel be honest,

reliable, trustworthy, courteous and of good

character and reputation. Employees are expected to
himself in a professional, courteous, and businesslike manner

during a-meeting with Supervisor Porter on October 4, 1991.

AF, Tab 3, Subtab 2.

On appeal to the Board, the administrative judge stated

as follows with regard to the agency's charge;

The agency removed the appellant for violation

of the agency's standards of conduct and for

violation of the terms of a last-chance agreement.

Specifically, the agency charged that on October 4,

1991 at approximately lt4Q a.m., the appellant did

not conduct himself in a professional, courteous and

businesslike manner as he had promised to do in an

agreement reached between him and the agency on

January 29, 1991.

ID at 1-2, In her initial decision, the administrative judgfi

considered the appellant's conduct on October 4, 1991, not only

as the basis for the breach of the settlement agreement, but

also as comprising the agency's charge underlying the removal

action. Therefore, upon sustaining that charge, she affirmed

the removal action. ID at 6-7, 13. For the reasons explained

below, however, we do not concur in this analysis of the

settlement agreement.

The agreement specifically provided that, on a breach of

its terms by the appellant, the removal action that was

proposed on October IS, 1990, would be ^re-imposed.*'4 AF, Tab

maintain satisfactory personal habits so as not to

be obnoxious or offensive to other persons or to

create unpleasant working conditions.

ELM 666.2, AF, Tab 3, Subtab 2B.

Although the agreement also provided that the previously

proposed removal would be ^re-imposed" without the requisite

"minimum notice,^ the agency, by proposing the appellant's

removal on November 22, 199.1 and effecting it on January 18,

1992, and by affording the appellant a 10-day period in which
3, Subtab 6. Although the appellant waived his right to

challenga such a re-imposed removal action "through

Grievance/Arbitration,* id., the agreement did not state that

he waived his right to appeal it to the Board. Id.; see Ferby

v. United States Postal Service, 26 H,S.P,.R. 451, 454-56

(1985).

According to the terms of the agreement then, it was the

merits of the removal action proposed on October 18, 1990,

that were properly at issue in the appellant's petition for

appeal to the Board.5 See Brin v. United States Postal

Sen/ice, 49 M.S.P.R. 549, 550-52 (1991) ,

c see generally Stewart

v. United States Postal Service, 926 F,2d 1146 (Fed. Cir.

1991). In its October 18, 1990 removal proposal, notice, the

agency had charged the appellant with violating the agency's

standards of conduct on September 12, 1990, toward a

Supervisor of Mails, Julia E. Butler. AF, Tab 3, Subtab 9,

Under the circumstances of this case, which are very

similar to those in Brin, we find that the agency effected the

removal it had initially proposed, rather than a separate

removal based upon new charges, and that its reference in the

November 22, 1991 removal proposal notice to the appellant's

to reply to the proposal notice and the opportunity to be

represented e.nd to review the material relied upon by the

agency for its action, actually accorded the appellant the

statutory rights provided under 5 U.S.C. § 7513(b), See AF,

Tab 3, Subtabs 1, 2, 6.

5 Absent a showing of bad faith or duress, the. Board has the

authority to accept into the record and enforce the terms of a

last-chance settlement agreement,, See Romano v. United states

Postal Service, 49 M.S.P.R. 319, 322 (1991).
conduct on October 4, 1991, constituted only a statement of

its reasons for finding that he had violated the agreement;

the basis for the removal remained the same as it was when the

agency initially proposed to take action-~i.e. , the

appellant's alleged conduct on September 12, 1990. Brin,

49 M.S.P,R. at 551-52? AF, Tab 3, Subtabs 2, 6, 9.

The agency met its burden o£ proof below with regard to

the removal action that was proposed on October 18 , 1990.

The agreement provided that the "Notice • of [Proposed]

Removal issued to [the appellant] on [October 18, 1990 was]

for just cause." AF, Tab 3, Subtab 6. We find that, by

agreeing to this provision, the appellant conceded that the

agency had just cause for imposing that removal action. The

appellant's stipulation suffices to sustain the agency's

action. See 5 C.F.R. § 1201.63? Swift v. Office of Personnel

Management, 48 M.S.P.R. 441, 445 (1991) (a stipulation is

sufficient to prove the fact alleged) .

Accordingly, we sustain the removal action that was

proposed on October 18, 1990 and reimposed on November 22,

1991,

This is the final order of the Merit Systems Protection

Board in this appeal. 5 C.F.R. § 1201. 113 (c).

NQTICE^TO APPELIANT

You have the right to request the United States Court of

Appeals for the Federal Circuit to review the Board's final
8

decision in your appeal if the court has jurisdiction. See

5 UrS*C. §* 7703 (a) (1) . 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

«

The court must receive your request for review no later than

30 calendar days after receipt of this order by your

representative, if you have one, or receipt by you personally,

whichever receipt occurs first. See 5 U.S.C. § 7703(b)(1).

Taylor

I Clerk of the Board

Washington, D.C.