Troy E. Bowers v. United States Postal Service
Background
- Appellant (Acting Branch Manager) was investigated by USPS OIG and accused of using government computers to run/monitor a private eBay business and to access personal Gmail.
- Agency issued a proposed removal (Feb 24, 2014); an initial removal was rescinded, then a second removal was issued (effective Oct 17, 2014). Appeals consolidated before the MSPB administrative judge.
- Administrative judge sustained two specifications: (1) using agency computer/system to promote/maintain eBay business (including accessing eBay and using internal tracking); (2) using agency computer to access personal Gmail.
- Appellant contested proof of charge, penalty severity, and asserted affirmative defenses of disability and uniformed-service discrimination and due process violations; he also sought damages arising from the rescinded first removal.
- Board affirmed the administrative judge: agency proved misuse (no intent required), appellant’s credibility rejected on key points, penalty of removal reasonable under Douglas factors, discrimination and due process defenses not proven; appeal of the first (rescinded) removal found moot and damages denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether agency proved misuse of government equipment (eBay tracking, internal tracking, Gmail access) | Bowers denied or minimized conduct; argued use confined to breaks/lunch and permissible under limited-use policy; challenged lack of screenshots for internal tracking | Agency relied on OIG logs, investigative admission, and system records showing extensive use; misuse prohibited regardless of intent or break status | Sustained — agency proved use and misuse; intent unnecessary; credibility findings supported sustaining all specifications |
| Whether removal penalty was reasonable | Bowers argued penalty excessive given lack of knowledge and no prior discipline | Agency considered Douglas factors, prior warnings, supervisory status, frequency/duration of misconduct; removal within discretion | Sustained — penalty within tolerable limits; deciding official weighed relevant Douglas factors |
| Affirmative defenses: disability and uniformed-service discrimination; disparate treatment | Bowers pointed to comparator(s) (e.g., K.P., J.S.) treated less harshly and alleged discrimination | Agency showed material differences between comparator misconduct, positions, warnings, and scope; no evidence decisions were based on disability or service | Denied — appellant failed to establish discrimination; comparators not substantially similar; credibility and record supported agency treatment |
| Status of rescinded first removal and damages claimed (interest, premium pay, compensatory/consequential/liquidated damages) | Bowers sought interest on back pay, additional premium detail pay, and various damages after rescission | Agency rescinded action, restored pay/benefits and returned appellant to status quo ante; argued such remedies not available where rescission is voluntary or facts do not meet statutory requirements | Moot — appeal of the rescinded removal dismissed: agency returned status quo ante; interest and additional damages not awardable under the circumstances |
Key Cases Cited
- Rogers v. Department of Justice, 60 M.S.P.R. 377 (1994) (agency must prove use of government property and that use was unauthorized; intent not required)
- Haebe v. Department of Justice, 288 F.3d 1288 (Fed. Cir. 2002) (deference to credibility findings based on witness demeanor)
- Portner v. Department of Justice, 119 M.S.P.R. 365 (2013) (Board reviews penalty for whether agency considered Douglas factors and stayed within reasonableness)
- Singletary v. Department of the Air Force, 94 M.S.P.R. 553 (2003) (nature/seriousness of misconduct and relation to duties is most important penalty factor)
- Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981) (list of factors to weigh in assessing penalty)
- Voss v. U.S. Postal Service, 119 M.S.P.R. 324 (2013) (standard for disparate penalty/comparator analysis)
- Els v. Department of the Army, 82 M.S.P.R. 27 (1999) (misuse of government property establishes nexus to efficiency of service)
- Williams v. Department of the Army, 97 M.S.P.R. 246 (2004) (voluntary rescission of removal generally precludes interest on back pay)