Discipline Problems

WASHINGTON (08/21/2000) - A recent court case should lift the spirits of federal employees who have had disciplinary problems in the past. The U.S.

Court of Appeals for the Federal Circuit invalidated a Merit Systems Protection Board decision that had relied on an employee's prior disciplinary record as the basis for her firing. Here is what happened.

Mariah Gregory, a letter technician with the U.S. Postal Service in Hinesville, Ga., requested three-and-a-half hours of overtime/assistance to finish her mail route. Her supervisor granted her three hours and accompanied her on her route.

Afterwards, however, her supervisor said that Gregory overestimated the amount of time/assistance she needed by about 1.3 hours and recommended that disciplinary action be taken against her. He subsequently fired her for failure to perform duties in a satisfactory manner. Before this incident, Gregory had been disciplined for insubordination; for delaying the mail and failure to follow instructions; for unauthorized overtime; and for failure to perform duties in a satisfactory manner. Because of her prior disciplinary record, the Postal Service saw this latest infraction as the straw that broke the camel's back.

Gregory's appeal to the MSPB was rejected. The MSPB said that Gregory's removal was justified because she had a prior disciplinary record. The MSPB said her prior record "revealed the pattern of conduct by Gregory to disregard the agency and her supervisors' expectations of her performance and conduct."

Gregory argued that although she had overestimated the amount of time that she needed to finish her route, it was an honest mistake. She said she was unfamiliar with the route and shouldn't be fired for a human error.

The MSPB decision was immediately appealed to the U.S. Court of Appeals for the Federal Circuit. The court said that the MSPB was wrong to base its decision on Gregory's prior disciplinary actions because those actions were still unresolved. In addition, the court said it was inappropriate to judge this case based on disciplinary actions that were totally unrelated to the present situation.

The MSPB had said that firing Gregory was reasonable because of her prior disciplinary actions. The court said that it's appropriate to consider a person's past history of disciplinary actions when deciding whether the punishment fits the crime but that a penalty determination shouldn't rest on an earlier disciplinary action that could be reversed.

In this case, because Gregory had appealed the prior disciplinary actions that were taken against her, the MSPB shouldn't have considered them in determining whether it was justified in firing Gregory. Accordingly, the case was remanded back to the MSPB to determine whether Gregory should be returned to her job or whether a lesser penalty was appropriate for her transgression. Thank goodness you're innocent until proven guilty in America!

--Zall is a retired federal employee who since 1987 has written the Bureaucratus column for Federal Computer Week. He can be reached at miltzall@starpower.net.

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