502 F. App'x 930
Fed. Cir.2013Background
- Jones, a USPS Manager of Distribution Operations since 1997 at North Metro, faced escalating warnings from supervisor Goughler beginning 2008.
- A November 2008 Letter of Concern and subsequent Warnings preceded a 2009 performance plan; issues centered on Tour 3 duties.
- In November 2009, 182,000 delayed mail pieces were not counted in the DMCR; Jones relied on an inaccurate number.
- Proposed removal issued January 30, 2010 based on two charges, then reduced after the agency dropped the first charge.
- Administrative judge and Board upheld removal-to-cut in grade, finding a nexus between misconduct and agency efficiency.
- Jones appeals, challenging responsibility for DMCR accuracy, the charge withdrawal, disparate penalty, evidentiary exclusions, and whistleblower retaliation defense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| DMCR accuracy responsibility | Jones argues she was not solely responsible | Board found Jones designated as responsible | Yes; substantial evidence supports responsibility |
| Effect of charge withdrawal | Withdrawal undermines basis for penalty | Withdrawal did not affect merits | No; penalty still supported |
| Disparate penalty | Audit evidence shows different penalties | Audit not probative; no similar offenses shown | No; no disparate penalty shown |
| Audit evidence exclusion | Service Review should have been admitted | Not identified in prehearing submissions; within discretion | Yes; exclusion affirmed |
| Whistleblower retaliation defense | Removal timed with protected disclosure | Proposal underway before disclosure | Yes; no contributing factor by timing |
Key Cases Cited
- Malloy v. U.S. Postal Serv., 578 F.3d 1351 (Fed. Cir. 2009) (preponderant evidence and penalty reasonableness factors)
- Lachance v. Devall, 178 F.3d 1246 (Fed. Cir. 1999) (agency discretion in penalty; deference standard)
- Mings v. Dep’t of Justice, 813 F.2d 384 (Fed. Cir. 1987) (penalty within agency discretion; multiple charges possible)
- Ellison v. Merit Sys. Protection Bd., 7 F.3d 1031 (Fed. Cir. 1993) (protected disclosure contributing factor burden)
- Briggs v. Merit Sys. Prot. Bd., 331 F.3d 1307 (Fed. Cir. 2003) (standard of review and substantial evidence)