Gilbert H. Shaw v. United States Postal Service ( 1983 )

OSCAR H. DAVIS, Circuit Judge.

This is an appeal from a decision of the Merit Systems Protection Board (MSPB) sustaining petitioner’s removal from the United States Postal Service for sabotaging government property. The charge was that on November 8, 1979 Shaw, a mail sorting clerk who was operating a letter sorting-machine and assigned on that day to Console 5 of the machine, wilfully and deliberately stuffed a postcard into the B-chain of that console, triggering a breakdown of the machine for six minutes (causing a delay of more than 350 pieces of mail).

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,¹ and found that, on looking through the tube from the rear, he could see fingers placing a folded card beneath the B-chain. The presiding official could not see enough to identify the console operator but “could see that the person was wearing a brown short sleeved shirt and possibly could have seen more by moving my head up and down.” The presiding official concluded that Cameron could determine that petitioner was the one who placed the postcard underneath the chain. On the basis of all the evidence, plus the presiding official’s own visit, the latter found that Shaw had, as charged, stuffed a postcard beneath the chain. The MSPB denied Shaw’s petition for review.

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, 1980.² At the MSPB hearing petitioner testified that he had no remembrance of any such incident, that problems with the chains occur frequently, and that the almost two-months’ lapse of time prevented him from remembering the incident and responding adequately to the charge.

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,³ we agree with the MSPB that he has not shown that the delay was harmful error as to him. First, a part of the time must be recognized as acceptable. Cameron, the supervisor, gave on November 8th a written report with respect to the incident to his superior (indicating his view that Shaw’s action was deliberate); Cameron filed another such report, at a superior’s request, on November 19th. Heffron v. United States, 405 F.2d 1307, 1311, 186 Ct.Cl. 474 (1969), held that it is reasonable for an agency to make a complete investigation before bringing grave charges which could result in removal. This case fits that category; Cameron reported the matter to the inspection service,⁴ and some time must be allowed for that to occur and the problem of possible discipline to be considered. At the least, the delay until November 19 or 20 was not an error at all.

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.⁵ At the MSPB hearing, Shaw squarely denied that he had ever knowingly and wilfully attempted to damage or destroy postal equipment, or had “ever stuck mail under the B-chain, either in the manner that was described here today or in any other manner,” or had ever thought of inserting a folded postcard into the B-chain. Mr. Cameron testified that he had seen petitioner do precisely that which petitioner has denied. The issue in the case thus came down to the credibility of petitioner’s version that he had nothing to do with the B-ehain’s coming off versus the credibility of Cameron’s testimony that Shaw’s deliberate act was the cause.⁶

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.⁷ As far as we can see, this is just the presentation that would be made by a person who took petitioner’s position that he had nothing to do with this breakdown, and learned of the charge by November 20th. The delay in the making of the charge was likewise irrelevant to petitioner’s ability to show that Cameron was wrong or not credible. The evidence we have just summarized goes to that point. Cameron was thoroughly examined by petitioner’s representative and by the presiding official. The latter also noted in his opinion that no evidence was offered to indicate that Cameron was motivated by any animus toward Shaw. Finally, petitioner does not suggest to us—aside from the general but not-very-helpful statement that the delay was so long that he could not recall the incident at all—how he would have been better able to defend himself if the specific charge against him had been made on November 19th or 20th, rather than January 3d. Under the Reform Act and the MSPB regulation, it was Shaw’s burden to show harmful error, and he has not done so.

We conclude that petitioner has not shown that any erroneous delay in making the charge harmed any of his substantial rights.

Affirmed.

1 . 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.

2 . 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.

3 . 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.

4 . 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.”

5 . 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 were not supposed to try to clear the machine by putting hands inside the machine.

6 . 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.

7 . 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.