697 F.2d 1078 | Fed. Cir. | 1983
Lead Opinion
This is an appeal from a decision of the Merit Systems Protection Board (MSPB) sustaining petitioner’s removal from the
After a hearing including oral testimony and a visit by the presiding official to the site, the MSPB credited testimony by Arthur Cameron, petitioner’s supervisor, that on November 8th he was at the rear of the machine, verifying mail, when the buzzer sounded for Console 5, indicating that a jam had occurred there; Cameron shut off the power for that console, cleared the jam, turned the power back on, and looked through the machine tunnel to see if “everything was okay”; on so looking he saw petitioner Shaw’s hand place a folded postcard under the B-chain, start the machine from the operator’s controls, and the postcard caused the chain to go off the sprocket; Cameron could see that Shaw was sitting at the console and walked around to the other side of the machine, asking Shaw if he had tried to take anything out of the B-chain and Shaw responded: “No, I wouldn’t touch the machine.” Without then charging petitioner with an offense, Cameron called a mechanic to make the repairs which were made. Cameron also testified that mail can accidentally get in the B-chain, but in this instance he saw Shaw’s hand insert the card. There was also other testimony, for management, from another postal employee that inserting a postcard could damage the machine as described by Cameron; that mail could not accidentally get into the B-chain unless there was a major jam at the C-chain; and that a person looking through the tube or tunnel, from the rear of the machine, could see an area six inches high and three inches wide at the viewing area of the operator’s console, and the operator’s hands could be seen if they were in the viewing area.
Because there was conflicting testimony by petitioner’s witnesses as to the possibility of viewing through the tube or tunnel, the presiding official (accompanied by representatives of both parties) visited the site, took a view,
There is not, and could not be, any attack, on the existing record, on the substantiality of the evidence supporting the administrative determination. Though there is testimony going the other way, there plainly is substantial evidence sustaining the MSPB’s decision. The assault, rather, is that the agency’s delay in charging petitioner was a harmful procedural error warranting reversal of the MSPB decision. The alleged incident occurred on November 8, 1979; the letter proposing removal was served on Shaw on January 3, 1980.
The Civil Service Reform Act declares specifically that procedural errors can vitiate an agency decision only if they are “harmful,” 5 U.S.C. § 7701(c)(2)(A) (Supp. II 1978), and it is settled that to be “harmful” the error must substantially impair the employee’s rights. Brewer v. United States Postal Service, 647 F.2d 1093, 1097 (Ct.Cl.1981), cert. denied, 454 U.S. 1144, 102 S.Ct. 1005, 71 L.Ed.2d 296 (1982); S.Rep. No. 969, 95th Cong., 2d Sess. 64, reprinted in [1978] U.S.Code Cong. & Ad.News 2723, 2786. The regulation of the MSPB places the burden of showing such harm on the employee, and further defines harmful error as that “which, in the absence or cure of the error, might have caused the agency to reach a conclusion different from the one reached.” 5 C.F.R. 1201.56(c)(3) (1982).
Even though we assume that the span of elapsed time was not due in any way to Shaw,
Second, petitioner has not shown how he was harmed by the delay after November 19th or 20th even if that delay is considered erroneous. The heart of this case is that Shaw was charged with deliberately inserting a postcard into the B-chain so as to cause the chain to come off the sprocket and the machine to break down—not with negligently jamming the machine or negligently causing it to break down, or with improperly trying to unjam the machine. It is indisputable that petitioner does not contend that he tried to clear the machine and, in doing so, may have been seen by Cameron with his hand inside the machine.
That being the question, we do not see how the making of the charge against Shaw on November 20, 1979 (instead of January 3, 1980) would have better enabled him to prove or present his version that he had not taken the deliberate action with which he was charged. If he had not done that action, he obviously would have no more memory of the incident—which, in his view, never occurred as to him—on November 20th than he had on January 3d. He had, moreover, full opportunity to show his version of what occurred: he had witnesses who testified that someone in Cameron’s position could not see enough through the tube to make an identification; there was also testimony that breakdowns of this type were not infrequent and can be caused by mail and that a breakdown was unlikely to have been caused by just a postcard; the mechanic who probably repaired the chain after the breakdown could not recall the incident at all and could not remember anything specific or unusual as to it.
We conclude that petitioner has not shown that any erroneous delay in making the charge harmed any of his substantial rights.
Affirmed.
. Petitioner does not challenge the authority of the presiding official (together with the parties’ representatives) to visit the site and take a view. It is not uncommon for triers of facts to take such a view when the occasion calls for it.
. There was no Postal Service rule or regulation requiring that the charge be made in any specific amount of time after the incident took place.
. The Government says that the lapse of time was due to petitioner’s repeated absences from his work and his failure to give to the post office proper information as to his address. The presiding official, in holding that harmful error had not been shown, did not refer to these circumstances, but the MSPB (in denying review of the presiding official’s determination) referred to them. The record, however, is at best very thin on these points, and may not even be adequate to support any consideration of them at all. Accordingly, we assume that petitioner had no responsibility for the lapse of time.
. Cameron testified: “Well, initially, when I wrote up my description and reported it to the general foreman[s], I thought at that time it was an inspector’s case. That was my reasoning for not indicating to Mr. Shaw what I had seen.”
. At the hearing Cameron testified that, immediately after the B-chain came off as a result of the stuffing of the postcard, the witness “walked around the machine, Mr. Shaw was still sitting in Console 5. I asked him if he attempted to clear the machine, he said no, he wouldn’t touch it. He said the B-chain was off.” Cameron also testified that operators
. If petitioner had actually been trying to clear the machine (which he denied) and had accidentally (though perhaps negligently) caused the B-chain to come off, it is very hard for us to believe that he would not have remembered the incident even in January 1980—especially in view of Cameron’s evidence recounted in note 5, supra. A fortiori, if he had deliberately done the act with which he was charged, it is hard to believe he could not remember it.
. Cameron testified that he could not remember the name of the mechanic who fixed the chain, and that he did not discuss the incident with the mechanic.
Dissenting Opinion
dissenting.
I would set aside the action of the agency on the grounds that the record: as a whole shows harmful error, within the meaning of the Civil Service Reform Act of 1978 (the Act), in the procedures leading to petitioner’s removal. By failing to notify petitioner until two months after the occurrence on which the particular charge against him was based, petitioner was deprived of any opportunity to prepare a substantive defense. The error here is so egregious that, in my view, it constitutes a denial of due process.
The Act provides that an agency’s action “may not be sustained if the employee .. . shows harmful error in the application of the agency’s procedures in arriving at such decision.” 5 U.S.C. § 7701(c)(2)(A) (Supp. IV 1980). The regulation implementing the Act defines “harmful error” as:
Error by the agency in the application of its procedures which, in the absence or cure of the error, might have caused the agency to reach a conclusion different from the one reached. The burden is upon the appellant to show that based upon the record as a whole the error was harmful, i.e. caused substantial harm or*1082 prejudice to his/her rights. 5 CFR § 1201.56(c)(3) (1980).
The agency notice to petitioner here was no more than pro forma. Notwithstanding congressional intent that an agency’s action not be overturned by technicalities, it is clear that the object of the notice provisions of the Act is to allow an employee to make an informed reply:
Congress thus intended to reduce the degree of detail required in order for the agency to avoid reversal on procedural grounds. S.Rep. No. 969, 95th Cong., 2d Sess. 50, reprinted in [1978] U.S.Code Cong. & Ad.News 2723, 2772. The agency, however, is still required to state “the reasons for the proposed action in sufficient detail to allow the employee to make an informed reply.”
Brewer v. United States, 647 F.2d 1093, 1097 (Ct.Cl.1981), cert. denied, 454 U.S. 1144, 102 S.Ct. 1005, 71 L.Ed.2d 296 (1982).
The charge as it appeared in the notice of proposed removal served January 3,1980, is as follows:
On Thursday, November 8, 1979, at approximately 5:15 p.m., Supervisor Arthur Cameron was checking the sweep side of MPLSM “D”. While he was verifying unreadable mails on Module # 5, the dropper jam buzzer sounded for Console # 5. Mr. Cameron cleared the dropper jam and watched to ensure that everything was alright [sic]. While watching, Mr. Cameron observed you through the dropper jam aperture, as you stuffed a postcard into the B-Chain at Console # 5, before you restarted Console # 5. This caused the B-Chain to come off when you started the console.
In view of the foregoing you are charged with sabotage of Console # 5 on November 8,1979 in that you willfully and deliberately stuffed a postcard into the B-chain on Console # 5 on November 8, 1979 thereby causing damage to and a break down of Console # 5 for six (6) minutes resulting in the delay of mail on Console # 5 (60 pieces per minute) for a total of 360 pieces of mail.
Petitioner’s testimony on his own behalf, which is set forth in part below, can be reduced to three statements: breakdown of the machines was a common occurrence; he could not recollect the incident allegedly supporting the charge of sabotage; and he never intentionally caused sorting machine breakdowns.
Breakdowns of mail sorting machines are chronic occurrences. Four witnesses, in addition to petitioner, testified concerning the regularity and frequency of such incidents. Mr. Cameron, petitioner’s supervisor and
Q. Isn’t it true you had four other chains come off the sprockets that . night?
A. Well, if I have it down here, it’s four. Yes, at least four, I’d say.
The mechanic, William Nadeau, who repaired the machine after the subject incident, confirmed that such breakdowns were “common” and occurred without tampering:
Q. In your experience as both an LSM operator and an MPE mechanic, are chain slippages, you know, coming off the sprockets or whatever, are they a fairly common breakdown?
A. Yeah.
Q. What causes it?
A. Usually letters getting under the chain, bent letters, something like that. Rubber bands, to that effect.
Q. Would you say that these breakdowns or the letters being caught under the chain normally are caused by the machine itself?
A. Yes.
Mary Kwiatkowski, a union representative, testified similarly:
Q. Are you an LSM operator now?
A. No.
Q. When did you leave the LSM program?
A. Just a week—just a week ago. But, former to that I was an LSM operator for four years.
* * * * * *
Q. Okay. Again, as an LSM operator and your experience in the LSM program, would you say that chains coming off the sprocket are a fairly common occurrence?
A. It’s very common, especially sometimes you have trouble with one console, and I had mentioned to Mr. Cameron too that within the week this happened I was keying one night and my chain came off three times in the course of one night. And I brought that up to him that, you know, it is very frequent.
The substance of petitioner’s defense is that he simply could not remember anything about a particular breakdown which had occurred two months before. This lack of recall was not limited to petitioner. The only two persons other than petitioner who did have first-hand knowledge of the incident, his supervisor and the repairman, had no independent recollection of significant facts.
Mr. Nadeau was shown by office records to be the mechanic who repaired the machine after the alleged sabotage. His testimony evidencing his lack of recollection of the incident follows:
Q. Mr. Nadeau, were you the mechanic that was on duty on November 8th, 1979?
A. I was told that I was. I guess the record shows that I was, but I don’t really recall of it.
Q. By the record—what do you mean by the record?
A. Well, they asked who the mechanics were on the machine, and I was assigned to it that day. So I guess they went through my form and looked up the sheets there.
Q. Were you questioned by Mr. Cameron? Do you recall any questions on November 8th concerning the incident that had taken place where he had questioned?
A. I don’t recall anything.
Q. Was there ever any mention of sabotage or stuffing a postcard on the B chain or anything like that?
A. Not to my knowledge.
On cross-examination, Supervisor Cameron testified that he could not remember the identity of the mechanic who corrected the subject breakdown even though he testified that he fetched the mechanic and spoke to him directly concerning the repair. Mr. Cameron’s lack of recall, like petitioner’s, can be explained by the passage of time, during which many breakdowns occurred.
The devastating effect of the agency delay which resulted in notice to petitioner on January 3, 1980, of the charge of sabotage is reflected by the record as a whole of which the above-quoted testimonial excerpts are merely representative.
The agency delay which prevented petitioner from presenting an informed reply is comprehended by the definition of “harmful error”: error “which might have caused the agency to reach a conclusion different from the one reached.” 5 CFR § 1201.56(c)(3) (1980). The majority’s speculation that petitioner would have put in no better defense had he been notified on November 20,1979, is irrelevant in view of the nature of the charge and the error here:
[Wjhere a serious procedural curtailment mars an adverse personnel action which deprives the employee of pay, the court has regularly taken the position that the defect divests the removal (or demotion) of legality .... In that situation, the merits of the adverse action are wholly-disregarded. [Emphasis added.]
Ryder v. United States, 585 F.2d 482, 487-88, 218 Ct.Cl. 289 (1978).
As detailed in the majority opinion, petitioner was charged with sabotage based on a single incident, not with negligence. The charge of “sabotage” cannot be deemed of no more consequence than any other basis for removal as far as his future employment is concerned. It is an official branding. Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971). The nature of the charge in this case requires particular scrutiny of agency procedure to insure that due process was, in fact, afforded petitioner.
I conclude that there was no justification for the supervisor’s concealing his intent to proceed against petitioner. No reflective judgment was necessary. No additional evidence could be garnered. Under the circumstances here, any delay in actual notice would have been prejudicial to the employee. In the absence of something which would highlight a particular breakdown, the incident becomes merely one out of hundreds of similar incidents occurring in the normal course of events and wholly fungible with all others. A delay of 56 days assured the result that the supervisor’s testimony would constitute “substantial evidence” in support of the agency decision since no countering evidence could be put forth.
. Q. As a LSM operator, have you ever experienced any problems with the B chains or C chains?
A. Yes, it’s more or less a common occurrence, it happens several times a day. [Emphasis added.]
Q. Do you have any recollection of the incident for which you’re being charged here today?
A. No, ’cause I didn’t receive a letter of the charges until January, a full two months after this alleged incident was supposed to have taken place, so, you know, up until then I was working eight hour shifts, and you know, overtime for Christmas, and to try to look back over two months and try to identify any specific incidents that may have happened, no.
Q. Did anyone ever approach you prior to your receiving the notification of discipline, did anyone ever approach you during November or December or the early part of January concerning an incident that occurred on November 8th, anyone at all?
A. No, nobody.
Q. Do you recall—you were never contacted by the inspection service either, then?
A. No, nobody contacted me at all.
Q. Have you ever knowingly and willingly attempted to damage or destroy postal equipment?
A. No. No, that’s a serious charge. I would never do anything like that to postal equipment.
Q. Have you ever, to the best of your recollection, ever stuck mail under the B chain, either in the manner that was described here today or in any other manner?
A. No.
Q. When you received the removal notice, what was your reaction?
A. Well, I really didn’t expect it. I guess you could say I was shocked. I went up to Mr. Cameron and told him I wanted to see a union steward, and that’s when I talked to Mary.