From Decision of the Merit System Protection Board (MSPB)

Appellant: Alethia Canary
Agency: United States Postal Service
Decision Number: 2013 MSPB 25
Docket Number: NY-0752-11-0145-I-1
Issuance Date: April 2, 2013
Appeal Type: Adverse Action by Agency
Action Type: Removal

Harmful Procedural Error

The appellant petitioned for review of an initial decision that affirmed her removal for unacceptable conduct and found that she failed to prove discrimination based on race.  The appellant was a Supervisor of Distribution Operations.  On June 7, 2010, she was involved in a violent altercation with a subordinate employee.  The subordinate employee had a history of aggressive and abusive behavior that was well known to Patty Edwards, the appellant’s immediate supervisor, and to Carolyn Davis, the Plant Manager.  Following an investigation and report by the U.S. Postal Inspection Service, Edwards determined that the appellant acted in self-defense and therefore should not receive any discipline.  Although Davis agreed that the appellant acted in self-defense, she believed that a stronger message needed to be sent that anyone acting contrary to the agency’s zero tolerance policy should be subject to discipline.  She drafted a letter of warning in lieu of a 14-day suspension for issuance to the appellant.  This draft letter was submitted to the agency’s District Labor Department for its review and editing, and officials there raised concerns regarding the lack of severity of the proposed discipline.  As a result, Davis indicated that she would change the letter of warning to a proposed removed, but testfied that, as the deciding official, she had already determined that she would have reduced the action to a letter of warning in lieu of a 14-day suspension.  In the meantime, the Manager of Human Resources for the Northeast Area, reacting to an EEO pre-complaint counseling request from the subordinate employee involved in the altercation, determined that Davis could not be objective as a decision maker in the case.  She selected a Manager of Distribution Operations at a different work facility and a different higher official to serve as proposing and deciding officials.  These individuals proposed and effected the appellant’s removal on a charge of unacceptable conduct for her involvement in the June 7, 2010 incident.

After conducting a hearing, the administrative judge issued an initial decision sustaining the charge, finding a nexus between the sustained charge and the efficiency of the service, and finding the removal penalty within the bounds of reasonableness.  The judge found that the appellant failed to prove her affirmative defenses of harmful procedural error regarding the replacement of the proposing and deciding officials and discrimination based on race.

Holdings:  The Board reversed the initial decision in part, finding that the agency committed harmful procedural error in effecting the appellant’s removal, and ordered the agency to reinstate the appellant to her position:

1. Under 5 U.S.C. § 7701(c)(2)(A), an agency’s decision may not be sustained if the appellant shows harmful error in the application of the agency’s procedures in arriving at its decision.

2.  The Board rejected the appellant’s contention that the agency violated ELM § 651.75, which provides that the deciding official “must be higher in authority than the proposing official” and that the “installation head or designee usually makes the decision.”  In this instance the deciding official was higher in authority than the proposing official.  The Board also found that the agency did not otherwise commit procedural error when it replaced deciding officials because the agency had not yet issued proposed disciplinary action to the appellant at the time of the replacement.

3. The agency violated ELM § 651.75.

a. Section 651.73 of the ELM provides that, “Unless the circumstances of a particular case make it impractical, the employee’s immediate supervisor issues a written notice of proposed adverse action.”

b. The judge found that it would not have been practical for Edwards to serve as the proposing official because she found that Edwards could not be objective given her prior experiences with the subordinate employee.  The Board found, however, that the record is devoid of any reason that would make it “impractical” for Edwards to serve as the proposing official.  The record reflects that the agency replaced Edwards because it did not agree with the chosen course of disciplinary action against the appellant.

4. The violation of ELM § 651.75 was harmful, i.e., it caused the agency to reach a decision different from the one it would have reached in the absence of the error, because Edwards testified that she would not have issued the appellant any discipline based upon her belief that the appellant acted in self-defense.

In a dissenting opinion, Member Robbins disagreed with the majority’s conclusion that it was not impractical for Edwards to serve as the proposing official.  He pointed to evidence that, prior to the June 7, 2010 altercation between the appellant and the subordinate employee, Edwards had come to believe that this employee was “uncontrollable” and posed a danger to employees at her postal facility.  Edwards’ belief was so strong that she sought the assistance of an agency Threat Assessment Team and tried to have the employee barred from agency premises.  Agency management needed to determine whether the appellant was culpable or had acted in self-defense during her June 7 encounter with the subordinate employee.  Because Edwards had already formed an opinion prior to that date that the employee presented a threat to other employees and had tried unsuccessfully to have her barred from agency premises, it is entirely understandable for agency officials to have doubted that Edwards or anyone else at the appellant’s postal facility was in a good position to judge whether the appellant’s actions on June 7 were justified.  This amounts to a determination that it was “impractical” for Edwards to serve as the proposing official.  Such a determination, which the Board is in no position to second-guess, was within the agency’s discretion under agency regulations.