The Postal Manager’s nearly 45 years  of service could not save her job

Below are the facts and decision (sanitized version) of the recent federal court case

Jean Montgomery was a Customer Services Manager, a supervisory position, at the Englewood Postal Station in Chicago, Illinois. On April 2, 2012, Ms. Montgomery received a notice from the Postal Service proposing her removal. The proposed removal was based on charges including a failure to report an accident and multiple failures to perform assigned duties.

The notice alleged that Ms. Montgomery failed to report an injury as a result of dog bites to one of the letter carriers incurred while he was delivering mail. In particular, rather than filing a report and instructing the letter carrier to seek medical attention, Ms. Montgomery is alleged to have instructed the letter carrier to continue with his route despite his injuries.

The notice also detailed multiple allegations of Ms. Montgomery’s failure to perform assigned duties. Ms. Montgomery was warned on several occasions about complying with Postal Service procedures and processes. The notice further points out several instances where Ms. Montgomery failed to follow particular instructions from her manager.

The Postal Service, on August 30, 2012, sustained the charges specified in the notice against Ms. Montgomery. The Postal Service found that the “failure to report the dog bite accident suffered by [the carrier] was an extremely serious offense, especially given [her] position as Station Manager.” In addition, the Postal Service determined that Ms. Montgomery failed to ensure the postal station scanned mail properly, mail was delivered on time, and attendance reviews and disciplinary actions were properly submitted.

Having found the charges supported by the record, the Postal Service then determined that the penalty of removal was appropriate. The Postal Service described the charges as “extremely serious.” In particular, the Postal Service found that Ms. Montgomery failed to assure her employee’s safety and health by sending the letter carrier back to the streets after his injury. The Postal Service also noted Ms. Montgomery’s failure to follow her manager’s instructions. The Postal Service further noted that Ms. Montgomery was disciplined on October 26, 2011 for failure to perform managerial duties and for failure to cooperate during an investigatory interview. Those earlier allegations overlapped substantially with the charges here. Based on this record, the Postal Service found the charges sufficient to support her removal. Ms. Montgomery’s forty-four years of service, while a mitigating factor, did not overcome the “seriousness of [her] misconduct.”

Ms. Montgomery appealed the Postal Service’s decision to the Merit System Protection Board (“MSPB”). In an initial decision dated February 1, 2013, the administrative judge (“AJ”) affirmed the removal decision. After a hearing, the AJ found that the charges were supported by preponderant evidence. As to the penalty of removal, the AJ noted that Ms. Montgomery was employed in an important supervisory position requiring high standards of conduct. The allegations raised against her addressed the same type of disciplinary issues covered by a prior disciplinary action. As a result, the AJ considered Ms. Montgomery to have “poor rehabilitative potential.”

The AJ therefore found the penalty within the Postal Service’s disciplinary discretion under Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981) (listing “Douglas factors” used in determining the appropriateness of a penalty).

Ms. Montgomery petitioned for a full Board review. On October 28, 2013, the Board affirmed the AJ’s initial decision, which became the Board’s final decision. The Board did not find error in the AJ’s findings and rejected any new arguments or evidence that Ms. Montgomery could have presented to the AJ. In addition, the Board found the penalty of removal sufficient especially in light of the MSPB’s long-standing position that “agencies are entitled to hold supervisors, like the appellant, to a higher standard of conduct than nonsupervisors because they occupy positions of trust and responsibility.

MSPB’s decision is supported by substantial evidence. With respect to the charge of Ms. Montgomery’s failure to report an accident, the AJ heard testimony and admitted evidence regarding the dog bites suffered by the carrier, Mr. Ford. Although Ms. Montgomery testified that she became aware of the incident more than two weeks after the date of the incident, Mr. Ford provided testimony that he returned to the station soon after the incident and reported the injuries directly to Ms. Montgomery. According to Mr. Ford, Ms. Montgomery did not
complete an injury report and did not recommend that he seek medical attention. Rather, Mr. Ford testified that Ms. Montgomery instructed him to return to his route and to continue delivering mail.

Mr. Ford took leave the following day to seek medical treatment, and the medical treatment report indicated the extent of Mr. Ford’s injuries. The record also reflects that Mr. Ford informed other witnesses, who also testified that they advised Ms. Montgomery of Mr. Ford’s injuries. In addition, there was testimony regarding the residents on the delivery route complaining of “blood all over their mail.” Based on this record, the AJ determined that Ms. Montgomery must have been aware of Mr. Ford’s injuries. In reaching this determination, which is supported by substantial evidence, the AJ reasonably resolved conflicting testimony and evidence in the agency’s favor. As a result, we discern no error related to this charge.

As to the Board sustaining MSPB’s finding of Ms. Montgomery’s failure to perform assigned duties, this court also discerns no error. The AJ found evidence supporting allegations that Ms. Montgomery did not comply with multiple Postal Service requirements and instructions from her manager. For example, the AJ determined the evidence showed Ms. Montgomery did not conduct the necessary attendance reviews and did not take the necessary disciplinary actions to correct employees with attendance deficiencies. When Ms. Montgomery had the opportunity to come forward with any evidence indicating otherwise, she failed to do so.
Likewise, documentary evidence shows that many carriers under Ms. Montgomery’s supervision did not complete their assigned routes by 5:00 pm as her manager had instructed. Emails also show Ms. Montgomery’s general sarcasm in responding to her manager, which at times was derogatory. The situation does not seem to have been better in person as the record shows that Ms. Montgomery screamed at her manager during an “all-city meeting.” The record also supports the AJ’s determination that Ms. Montgomery refused to discuss her failure to open her postal station for the holiday dispatch schedule. Additionally, it was uncontroverted that Ms. Montgomery’s manager discovered packages of mail in unlocked cabinets and domestic money orders that were not secured. Furthermore, evidence supports the AJ’s finding that Ms. Montgomery failed to properly respond to an investigatory interview.

With respect to the penalty of removal, the AJ’s determination was in accordance with the law. The AJ was faithful to the Douglas factors in evaluating the appropriate penalty in this case. (listing “the employee’s past work record, including length of service” as an appropriate factor to consider).

Ms. Montgomery on appeal does not challenge these findings as erroneous, but rather, similar to her petition for review to the full Board, Ms. Montgomery attempted to present evidence and arguments not raised before the AJ during the initial Board proceeding. The Board rejected new evidence and arguments that were not unavailable when the record was closed in the prior proceedings. For instance, Ms. Montgomery had previously attempted to argue that others committed worse misconduct and claims that the deciding official failed to consider all the pertinent Douglas factors in determining the penalty. Also, Ms. Montgomery claimed in her petition for review that she informed several Postal Service officials on multiple occasions of improprieties committed by other employees including falsification of time records, falsification of scanning data, and nepotism and implied that she was removed in retaliation for doing so. However, Ms. Montgomery did not produce any evidence that supported her claims and MSPB did not find any support for her allegations in the documents she submitted for review.

The court did not overlook Ms. Montgomery’s long tenure as a federal employee and appreciated her decades of federal service. But the court said they are bound to apply the law as written. Further, the court stated, “The Board correctly applied the law, and its decision was not arbitrary or capricious and was supported by the record. This court affirms the Board’s decision.”

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit (June 12, 2014)

Note: Ms. Montgomery received a letter dated January 23, 2013 congratulating her for 45 years of service to the Postal Service. In 2014, she would have been in her 46th year with the Postal service.

I know by including name of the postal worker and identifying the court this case will more than likely pop up on other websites. But  this case clearly illustrates that it does not matter how many years a person works for a company–particularly the Postal Service– you can be fired.