A letter carrier lost his job with the Postal Service in August 2000 after being charged with improper conduct and failure to follow instructions.

The letter carrier appealed his dismissal, but later agreed with postal officials to withdraw the appeal and instead resolve the issue through negotiation. A Merit Systems Protection Board administrative judge gave the letter carrier 45 days to file the paperwork needed to begin the negotiations. The letter carrier filed the paperwork one day late.

The judge asked letter carrier to produce evidence justifying why he had filed late or he would have to forfeit his right to negotiation. Slate listed several reasons for his tardiness including a sick wife, loss of his counsel just days before the filing deadline and no postal service on the deadline date, which he said fell on a Sunday.

The administrative judge rejected letter carrier's excuses, noting that Nov. 20, the deadline, was a Saturday and the letter carrier could have mailed his paperwork on time.

In his subsequent appeal, the letter carrier admitted he was wrong about the dates, that he thought the deadline was Nov. 21, and said that the “rush to get the re-file in caused much stress and confusion,” adding to the stress his wife’s illness was already causing him.

The board decided that because the letter carrier lost his counsel in the midst of the filing process, had only missed the deadline by one day and seemed confused about the process, his paperwork was valid and he could participate in the negotiations with his agency.

“The agency has given no indication that it was prejudiced in any way by the one-day delay,” the board concluded. “An appellant should not be denied an opportunity to have his case heard on the merits where his intention to file a board appeal has been clear throughout the proceedings, and the appeal was initially timely filed.”
 

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HOLDING: The Board restated the rule in Gregory v. USPS, 212 F.3d 1296, that as a matter of law, in determining a penalty, consideration may not be given to prior disciplinary actions that are the subject of ongoing proceedings challenging their merits; consideration of prior discipline is not improper as inadmissible evidence of bad character; because the appellant’s prior record could not be considered under Gregory, and the record was not complete on issues relevant to the effect of that finding, the appeal was remanded to the agency for reconsideration of the penalty, subject to the Board’s review if the appellant seeks it.

Based on 4 current charges and 2 earlier suspensions, the agency suspended the appellant for 30 days. On appeal, the AJ sustained each of the charges, but not one of the specifications of one of them, and found the agency-assessed penalty reasonable. The appellant filed a PfR, and the agency cross-petitioned.

A majority of the Board, Member Marshall dissenting, found that the portion of the appellant’s PfR in which she challenged the AJ’s findings on the charges and her affirmative defenses failed to meet the review criteria, because its review found no error in the way the AJ adjudicated these issues, nor in the manner in which he conducted the proceedings. It also denied the agency’s cross PfR for failure to meet the criteria. It granted the portion of the appellant’s petition challenging the penalty, however.

It did so in light of Gregory v. USPS, 212 F.3d 1296, in which the Federal Circuit held that as a matter of law, in determining a penalty, consideration may not be given to prior disciplinary actions that are the subject of ongoing proceedings challenging their merits. The appellant had filed grievances as to both of her prior record elements. Thus, consideration was not properly given to these past disciplinary actions because they were ongoing at the time the agency and the AJ made their penalty determinations.

The court also stated that the Board should determine whether, in such circumstances, it should make a new penalty determination or should remand the case to the agency for reconsideration. Because the deciding official did not indicate whether the charges would be sufficient to support a 30-day suspension in the absence of the prior discipline, and because the record does not reflect the current status of the appellant’s grievances, the Board decided that the parties’ interests can best be served by remanding the appeal to the agency for reevaluation of the penalty. The agency’s exercise of its discretion, however, remains subject to the Board’s review if the appellant should seek it.

Finally, the Board rejected the appellant’s claim that allowing consideration of her prior discipline is improper because it constitutes inadmissible evidence of "bad character." Instead, it found that an employee’s past disciplinary record has long been considered a relevant factor for consideration in determining the appropriateness of an agency-imposed penalty.

In her dissent, Member Marshall noted that the agency had asserted in its cross petition that even if no consideration were given to prior record and the one specification is not sustained, it would still impose a 30-day suspension. She therefore would have found remand unnecessary and would have sustained the agency-assessed penalty as reasonable

Marucci v. OPM

PH-844E-00-0066-I-1

September 12, 2001

Retirement – Disability
Precedential Effect of Authority - OWCP

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HOLDING: Unlike OWCP compensation claims, where an applicant must establish that an injury was work-related, the cause of the condition is not relevant in determining whether she is eligible for disability retirement; where the actual results of clinical tests on the appellant are not in the record, but nothing suggests that the psychologist was unqualified to interpret them, the Board credited them; while there may be cases where the employee’s psychological impairment is so severe that "finely tuned correlations between particular medical impairments and specific job requirements" are not required, this is not such a case; nonetheless, based on the appellant’s primary psychologist’s comparisons of her PD and her condition, and other evidence, the Board found that the appellant was entitled to a FERS disability annuity based on her stress, anxiety, and depression.

The AJ affirmed OPM’s decision that the appellant was not entitled to a disability retirement based on her stress, anxiety, and depression, which had begun as a result of rumors circulated about her by a co-worker. The Board reversed.

To be eligible for a FERS disability retirement annuity, an employee must have completed at least 18 months of creditable civilian service; must be unable, because of disease or injury, to render useful and efficient service in his or her position; and must not have declined a reasonable offer of reassignment to a vacant position in the employing agency at the same or greater grade or pay level in the employee's commuting area in which he or she is able to render useful and efficient service. OPM's regulations further require that the disabling medical condition be expected to continue for at least one year from the date the application is filed, and that accommodation of the condition in the appellant's position be unreasonable.

The only issue remaining before the Board is whether the appellant met the second of these requirements. In concluding that she did, the Board noted, however, that while there may be cases where the employee’s psychological impairment is so severe that "finely tuned correlations between particular medical impairments and specific job requirements" are not required, this is not such a case.

Nonetheless, the Board found that the appellant met her burden of proof. Unlike OWCP compensation claims, where an applicant must establish that an injury was work-related, the cause of the condition is not relevant in determining whether an employee is eligible for disability retirement. Based on several clinical tests he performed, a psychologist concluded that the appellant had "significant anxiety" as well as an "underlying obsessive/compulsive personality pattern." While the actual results of the tests are not in the record, nothing suggests that the psychologist was unqualified to interpret the tests. Further, he concluded that the appellant was "unable to function in her previous job or at any job requiring significant responsibility or decision making." The Board noted that the appellant’s PD required that she be able to exercise significant responsibility and decision-making capabilities.

Further, the appellant’s primary therapist prepared a psychological evaluation that related the appellant’s symptoms to specific responsibilities of her position. Among those findings, the Board noted particularly that the appellant’s ability to understand complex documents was affected by the symptoms associated with her anxiety and depression; and that her ability to interact with co-workers and peers was affected by the physical symptoms she experienced in social situations. In general, the Board noted, the duties the psychologist delineated were consistent with the duties described by the appellant’s position description and performance evaluations.

Finally, the Board found, based on the medical evidence and the appellant’s testimony, that her condition worsened over time, despite medication and therapy.