Mathew v. United States Postal Service ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SHELLY M. MATHEW,
Petitioner
v.
UNITED STATES POSTAL SERVICE,
Respondent
______________________
2017-2108
______________________
Petition for review of the Merit Systems Protection
Board in No. DA-0752-16-0470-I-1.
______________________
Decided: September 7, 2017
______________________
SHELLY M. MATHEW, Oklahoma City, OK, pro se.
BORISLAV KUSHNIR, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., DEBORAH
A. BYNUM.
______________________
Before PROST, Chief Judge, WALLACH and STOLL,
Circuit Judges.
2 MATHEW v. USPS
PER CURIAM.
Shelly M. Mathew appeals the Merit Systems Protec-
tion Board’s (“Board”) decision affirming the United
States Postal Service’s (“USPS”) decision to remove her
based on unacceptable performance. We affirm.
I
Ms. Mathew began working for the USPS in 1998. At
the time of her removal, she was employed with the USPS
as a Distribution Operations Supervisor.
In October 2015, Ms. Mathew’s direct supervisor,
Shannel Brown, placed Ms. Mathew on a Performance
Improvement Plan (“PIP”). The PIP required Ms.
Mathew to carry out Dock Supervisor responsibilities,
including: (1) maintaining employee work schedules and
assigning duties to subordinate employees; (2) communi-
cating with employees and having daily service and safety
talks; (3) monitoring operational problems and recom-
mending solutions; (4) coordinating mail flow activities
with other supervisors; (5) investigating accidents in her
assigned unit; (6) properly maintaining clock rings and
maintaining supporting documentation; and (7) monitor-
ing employees’ time and attendance.
On March 28, 2016, Ms. Brown conducted an investi-
gative interview of Ms. Mathew regarding various per-
formance issues. On June 20, 2016, Ms. Brown proposed
Ms. Mathew’s removal based on a charge of unacceptable
performance. This charge against Ms. Mathew contained
eight separate specifications, including: failing to assign
duties and/or shift employees based on operational needs
(specification no. 3); leaving the dock unattended during
peak times (specification no. 4); failing to ensure that mail
in her assigned area or under her supervision was cleared
(specification no. 5); failing to take a certain training
course as part of the PIP (specification no. 6); failing to
timely perform and/or maintain records of safety and
MATHEW v. USPS 3
service talks (specification no. 7); and failing to perform
her duties as they related to subordinate employees’
attendance (specification no. 8). The proposed-removal
letter also noted Ms. Mathew’s prior disciplinary record,
which included five separate disciplinary actions taken
between 2012 and 2015.
Ms. Mathew presented an oral reply to this charge on
June 20, 2016. On July 14, 2016, Plant Manager Mike
Melendrez issued a decision sustaining the removal.
Ms. Mathew appealed that decision to the Board argu-
ing, among other things, that the removal penalty was
excessively harsh given her length of service with the
agency. The administrative judge held a hearing and
heard testimony from Ms. Mathew, Ms. Brown, Mr.
Melendrez, and other witnesses. The administrative
judge issued an initial decision on March 3, 2017, sustain-
ing the aforementioned six of the eight specifications (i.e.,
nos. 3–8) and concluding that the USPS established Ms.
Mathew’s unacceptable performance by a preponderance
of the evidence.
The administrative judge then considered the appro-
priateness of the penalty. Ultimately, the administrative
judge affirmed the USPS’s removal action, finding that
“[Mr.] Melendrez responsibly balanced the appropriate
factors and the penalty did not exceed the bounds of
reasonableness.” Resp’t’s App. 30.
The administrative judge’s initial decision became the
Board’s final decision on April 7, 2017. See 5 C.F.R.
§ 1201.113. Ms. Mathew timely petitioned this court for
review. We have jurisdiction under 28 U.S.C.
§ 1295(a)(9).
II
Our review of Board decisions is limited. See 5 U.S.C.
§ 7703(c). We review a decision for whether it is: “(1)
arbitrary, capricious, an abuse of discretion, or otherwise
4 MATHEW v. USPS
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; or (3) unsupported by substantial evidence.” Id.;
see Grover v. Office of Pers. Mgmt., 828 F.3d 1378, 1382
(Fed. Cir. 2016). “A petitioner who challenges the factual
underpinnings of the [Board’s] decision must show that
the decision is unsupported by substantial evidence.”
Belanger v. Office of Pers. Mgmt., 1 F.3d 1223, 1227 (Fed.
Cir. 1993). Substantial evidence is “such relevant evi-
dence as a reasonable individual might accept as ade-
quate to support a conclusion.” Id.
Ms. Mathew raises three arguments on appeal. First,
she contends that she “did not violate any policies or
procedures.” Appellant’s Informal Br. 1. The Board found
otherwise. The administrative judge heard detailed
testimony and considered documentation regarding
specific instances of the conduct described in specification
nos. 3–8. The evidence reflects that the specifications
implicated several USPS policies or procedures. Regard-
less, “there is no requirement that an employee must
violate a specific written policy before [she] can be disci-
plined under chapter 75.” Fontes v. Dep’t of Transp., 51
M.S.P.R. 655, 663 (1991). After considering the evidence,
the administrative judge found that the USPS had proved
specification nos. 3–8. He therefore sustained the charge
of unacceptable performance. Resp’t’s App. 23 (citing
Burroughs v. Dep’t of the Army, 918 F.2d 170, 172 (Fed.
Cir. 1990)). Substantial evidence supports the Board’s
findings.
Second, Ms. Mathew contends that the Board failed to
consider her efforts to “change [her] work environment
several times.” Appellant’s Informal Br. 1. Because Ms.
Mathew did not submit a written reply to the charge
against her, and because there appears to be no transcript
of her oral reply from June 20, 2016, see Resp’t’s App. 29
n.12, the exact nature of her alleged efforts to change her
work environment is unclear. However, the record indi-
MATHEW v. USPS 5
cates that both Mr. Melendrez and the Board considered
“personality conflicts” that Ms. Mathew raised, as well as
her desire for more autonomy from her supervisors. Id. at
29. Mr. Melendrez testified, however, that (1) Ms.
Mathew’s performance issues forced his managers to
oversee her work; (2) he determined that the alleged
personality conflicts did not warrant mitigating the
penalty to less than removal; and (3) there were no miti-
gating circumstances that justified her performance
problems.
Finally, Ms. Mathew contends that the Board “should
have considered [her] length of service.” Appellant’s
Informal Br. 1. Again, the record indicates that both Mr.
Melendrez and the Board “considered her past work
record, which includ[ed] approximately 20 years of ser-
vice.” Resp’t’s App. 28. Mr. Melendrez also testified,
however, that Ms. Mathew could not perform basic super-
visory functions and that the penalty was consistent with
that issued in similar prior cases.
In sum, the administrative judge heard testimony
concerning Mr. Melendrez’s consideration of Ms.
Mathew’s alleged personality conflicts, desire for more
autonomy from her supervisors, and length of service.
The administrative judge considered this and other testi-
mony as part of a broader assessment of whether the
USPS “considered all relevant factors and exercised
management discretion within the tolerable limits of
reasonableness.” Resp’t’s App. 24 (citing Singletary v.
Dep’t of the Air Force, 94 M.S.P.R. 553, 558 (2003), aff’d,
104 F. App’x 155 (Fed. Cir. 2004)); see id. at 24–30. He
concluded that the USPS did so, and we discern no error
in the Board’s assessment. Accordingly, we affirm the
Board’s decision.
AFFIRMED
6 MATHEW v. USPS
COSTS
The parties shall bear their own costs.