Jones v. United States Postal Service

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
CAROLYN JONES,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
__________________________
2012-3149
__________________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-10-0788-I-1.
___________________________
Decided: January 11, 2013
___________________________
CAROLYN JONES, of Duluth, Georgia, pro se.
P. DAVIS OLIVER, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were STUART F. DELERY, Acting Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and PATRICIA
M. MCCARTHY, Assistant Director.
__________________________
JONES v. USPS 2
Before RADER, Chief Judge, and DYK and REYNA, Circuit
Judges.
PER CURIAM.
Carolyn Jones appeals from a final order of the Merit
Systems Protection Board (Board) denying her petition for
review of the Board’s initial decision. Jones v. U.S. Postal
Serv. (Final Order), No. AT–0752–10–0788–I–1 (M.S.P.B.
April 6, 2012). The Board’s initial decision affirmed the
decision of the United States Postal Service (USPS)
removing Ms. Jones from her position as Manager of
Distribution Operations at the North Metro Processing
Center and Distribution Center in Atlanta, Georgia
(North Metro) and placing her in a Customer Services
Analyst position. Jones v. U.S. Postal Serv. (Initial Deci-
sion), No. AT–0752–10–0788–I–1 (M.S.P.B. June 15,
2011). Because substantial evidence supports the Board’s
decision, this court affirms.
I
Ms. Jones began her career with the USPS in 1981.
By 1993, she was a Manager of Distribution Operations
(MDO), EAS-24. Ms. Jones became an MDO at North
Metro in 1997. In August 2008, Christine Goughler
joined North Metro as the Senior Manager of Distribution
Operations, EAS-25, and became Ms. Jones’ immediate
supervisor. At that time, Ms. Jones was the Lead MDO
for “Tour 3,” the 3 p.m. to 11:30 p.m. shift at North Metro.
Ms. Goughler challenged Ms. Jones’ performance as
Lead MDO. She issued a series of escalating warnings to
Ms. Jones, beginning with a Letter of Concern issued to
Ms. Jones on November 5, 2008. The Letter of Concern
informed Ms. Jones that she was “failing to perform
thirteen specific duties and responsibilities of her posi-
3 JONES v. USPS
tion,” and addressed Tour 3 productivity issues. Initial
Decision, slip op. at 3.
On November 26, 2008, Ms. Goughler issued a formal
Letter of Warning to Ms. Jones. Id. On February 23,
2009, Ms. Jones received a Letter of Warning in Lieu of a
Seven Day Suspension for failing to acceptably discharge
her duties. Id. at 4. The letter stated that Ms. Jones did
not clear operations on Tour 3 on the night of February
20, 2009, and did not possess adequate knowledge of and
engagement in the process. Id. at 4 n.7. On February 24,
2009, Ms. Jones was placed on a performance improve-
ment plan (PIP). Id. at 4. Ms. Goughler testified that Ms.
Jones’ performance improved during the PIP. Id. How-
ever, on October 9, 2009 Ms. Jones received a Letter of
Warning in Lieu of a Fourteen Day Suspension for failing
to discharge her duties effectively. Id.
Ms. Jones then was moved to Lead MDO for “Tour 1,”
the 11 p.m. to 7 a.m. shift. On November 6, 2009, delayed
mail interrupted Tour 1. Id. at 5. Ms. Jones called Ms.
Goughler at home at midnight and 2 a.m. to notify her of
the delayed mail. Id. At the end of Tour 1, over 182,000
pieces of mail had not been processed. Id. However, the
delayed mail was not counted, and was not placed on the
Daily Mail Condition Report (DMCR). Id. Relying on the
flawed DMCR, Ms. Jones did not report the correct
amount of delayed mail at the daily 8 a.m. teleconference
after Tour 1 ended. Id. While it was not Ms. Jones’ direct
responsibility to count the delayed mail or to prepare the
DMCR, the administrative judge found that, as Lead
MDO for Tour 1, “agency procedures clearly designated
[Ms. Jones] as the individual responsible for ensuring the
accuracy of the DMCR.” Id. at 14.
On November 16, 2009, Ms. Goughler asked the USPS
Office of Human Resources to draft a proposal for Ms.
JONES v. USPS 4
Jones’ removal. Id. at 16. On December 17, 2009, human
resources sent a draft proposal to the legal department for
review. Id. The final Notice of Proposed Removal, dated
January 30, 2010, featured two charges: (1) Unacceptable
Work Performance: Failing to Record Delayed Volume
Accurately, and (2) Failure to Discharge Assigned Duties
in a Satisfactory Manner. Id. at 13; J.A. 38. Both charges
relied on a single narrative, describing Ms. Jones’ failure
to accurately report 182,000 pieces of delayed mail on
November 6, 2009. The Notice also stated that Ms. Jones’
past record influenced the proposed removal decision,
citing the three previous Letters of Warning. J.A. 39.
The deciding official found the evidence fully support-
ed the charges. Final Order, slip op. at 2; J.A. 41. He
found Ms. Jones’ actions were a “serious dereliction of
[her] managerial responsibilities” and noted Ms. Jones’
performance had not improved despite several corrective
measures. J.A. 41–42. The deciding official determined
Ms. Jones was not capable of continuing her managerial
role, but mitigated the penalty from removal to a reduc-
tion in grade to Customer Services Analyst, EAS–17. Id.
After Ms. Jones appealed, the USPS withdrew the first
charge and proceeded only on the charge of Failure to
Assigned Discharge Duties in a Satisfactory Manner.
Final Order, slip op. at 2. The Board affirmed. Id. Ms.
Jones appeals the Board’s final order. This court has
jurisdiction under 5 U.S.C. § 7703(b)(1) and 28 U.S.C.
§ 1295(a)(9).
II
This court’s review of a Board decision is limited by
statute. This court must affirm the Board’s decision
unless it is “(1) arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with the law; (2)
obtained without procedures required by law, rule, or
5 JONES v. USPS
regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c); Briggs v. Merit
Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003). The
petitioner has the burden of establishing reversible error.
Harris v. Dep’t of Veterans Affairs, 142 F.3d 1463, 1467
(Fed. Cir. 1998).
Ms. Jones argues the Board erred: (1) in finding that
she was responsible for ensuring the accuracy of the
DMCR; (2) in affirming the agency action despite the
withdrawal of the charge of Unacceptable Work Perfor-
mance; (3) in finding she was not disparately penalized;
(4) in affirming the administrative judge’s exclusion of an
audit of North Metro’s operation; and (5) in finding the
personnel action was not taken in retaliation for protected
disclosures Ms. Jones made to Members of Congress.
An agency taking an adverse action against an em-
ployee must (1) “establish by preponderant evidence that
the charged conduct occurred,” (2) “show a nexus between
that conduct and the efficiency of the service,” and (3)
“demonstrate that the penalty imposed was reasonable in
light of the relevant factors set forth in Douglas v. Veter-
ans Admin., 5 M.S.P.R. 280, 307–08 (1981).” Malloy v.
U.S. Postal Serv., 578 F.3d 1351, 1356 (2009). This court
“‘will not disturb a choice of penalty within the agency’s
discretion unless the severity of the agency’s action ap-
pears totally unwarranted in light of all factors.’”
Lachance v. Devall, 178 F.3d 1246, 1251 (Fed. Cir. 1999)
(quoting Mings v. Dep’t of Justice, 813 F.2d 384, 390 (Fed.
Cir. 1987)). Further, the Board may sustain the agency’s
chosen penalty even if it does not sustain all of the agen-
cy’s original charges. See id. at 1259.
Having thoroughly reviewed the entire record, this
court concludes that substantial evidence supports the
Board’s decision. The record shows that the charged
JONES v. USPS 6
conduct occurred: 182,000 pieces of delayed mail were not
reported on the DMCR for November 6, 2009, and Ms.
Jones testified that the she relied on an inaccurate num-
ber during the morning teleconference. Final Order, slip
op. at 4. Ms. Jones argues, however, that the Board erred
in finding she was responsible for the DMCR’s accuracy.
While Ms. Jones agrees that USPS Standard Operating
Procedures indicate that “the MDO” has responsibility for
the accuracy of the DMCR, she suggests that her subordi-
nate, Ms. Valerie Wiggs, or her supervisor, Ms. Goughler,
should have been held responsible. Appellant’s Br. at 3.
The administrative judge credited the testimony of
Ms. Jones’ co-workers in finding that “agency procedures
clearly designated [Ms. Jones] as the individual responsi-
ble for ensuring the accuracy of the DMCR.” Initial
Decision, slip op. at 7. This court is not in a position to
reevaluate these credibility determinations, which were
made by an administrative judge who personally observed
the witnesses’ testimony, and which are “not inherently
improbable or discredited by undisputed fact.” Pope v.
U.S. Postal Serv., 114 F.3d 1144, 1149 (Fed. Cir. 1997).
The administrative judge found a “clear and direct re-
lationship between [Ms. Jones’] misconduct of failing to
discharge her duties in a satisfactory manner and the
agency’s mission.” Id. at 8. Substantial evidence sup-
ports the finding that the USPS established a nexus
between the charged conduct and the efficiency of the
service.
The record also contains substantial evidence to sup-
port the Board’s determination that the penalty imposed
was reasonable. As a preliminary matter, the Board
correctly determined that the decision to drop the charge
of “Unacceptable Work Performance: Failing to Record
Delayed Volume Accurately” did not undermine the basis
7 JONES v. USPS
for the penalty imposed. Final Order, slip op. at 3. The
dropped charge was simply a more specific version of the
charge on which the USPS proceeded, as both charges
relied on the same specification and narrative. The
administrative judge noted the deciding official “stated
that the dropping of charge 1 had no effect on his conclu-
sion that demotion was the appropriate penalty.” Initial
Decision, slip op. at 10. Accordingly, the decision to
proceed only on Charge 2 did not affect the merits of the
case.
The administrative judge properly considered the
Douglas factors in determining that the USPS’s decision
to remove Ms. Jones from her management position and
reassign her to a lower grade position was reasonable.
Initial Decision, slip op. at 10–11. Specifically, the admin-
istrative judge considered the seriousness of Ms. Jones’
misconduct, her position as a high level manager, her past
disciplinary record, and the effect that her “continued lack
of engagement and follow-up” and “refusal to take any
responsibility” would have on her continued ability to
perform her duties. Id.; see Douglas, 5 M.S.P.R. at 305.
Ms. Jones emphasizes that she did not engage in inten-
tional wrongdoing or purposefully falsify the DMCR.
Here, however, the absence of malicious intent does not
make the penalty unreasonable. As the administrative
judge noted, Ms. Jones was on notice that her “lack of
engagement” was unacceptable for someone in her posi-
tion and could lead to discipline. See Initial Decision, slip
op. at 10.
Additionally, Ms. Jones argues she was discriminated
against because other, more serious, mail delays occurred
at North Metro and yet went unpunished. Like the
Board, we interpret this as an allegation of disparate
penalty, because Ms. Jones has “affirmatively waived all
of her discrimination claims.” Final Order, slip op. at 5.
JONES v. USPS 8
In support of her disparate penalty allegation, Ms. Jones
submitted to the Board and this court a partial copy of an
audit of North Metro’s operations conducted in June 2010
(Service Review). The administrative judge excluded this
document because Ms. Jones did not identify it in her
prehearing submissions. Id. Ms. Jones has not shown the
administrative judge abused her discretion in excluding
the Service Review. Moreover, this court agrees with the
Board’s determination that the Service Review does not
demonstrate that Ms. Jones was subjected to a penalty
inconsistent with those imposed on other employees for
similar offenses. Id. The report does not show other
instances in which delayed mail was inaccurately report-
ed, nor does it identify other individuals with a similar
history of discipline who were responsible for the delays.
Id.
Finally, Ms. Jones argues the Board erred in finding
she did not prove her affirmative defense of whistleblower
retaliation. Ms. Jones claims the USPS rushed to remove
her from her position in retaliation for signing a Decem-
ber 8, 2009 letter to Members of Congress. Initial Deci-
sion, slip op. at 9. The letter alleged that the USPS,
specifically Ms. Gougler and “her direct reports,” were
refusing employee requests to substitute paid for unpaid
leave under the Family and Medical Leave Act. Id.
To establish a prima facie case of whistleblower retal-
iation, an employee must prove by a preponderance of the
evidence that she made a protected disclosure under 5
U.S.C. § 2302(b)(8) that was a contributing factor in the
adverse action. Ellison v. Merit Sys. Protection Bd., 7
F.3d 1031, 1034 (Fed. Cir. 1993). The employee may
demonstrate the protected disclosure was a contributing
factor through circumstantial evidence by showing that
“the official taking the personnel action knew of the
disclosure” and the action “occurred within a period of
9 JONES v. USPS
time such that a reasonable person could conclude that
the disclosure was a contributing factor in the personnel
action.” 5 U.S.C. § 1221(e)(1).
The administrative judge found the proposal to re-
move Ms. Jones was underway weeks before she signed
the petition. Therefore, even if the petition constituted a
protected disclosure, it could not have been a contributing
factor. The administrative judge found Ms. Jones “did not
sign the petition until December 20, 2009.” Initial Deci-
sion, slip op. at 9 n.19. Further, the administrative judge
credited Ms. Goughler’s testimony that she decided on
November 16, 2009 to propose Ms. Jones’ removal. Id. at
9. The record also shows Ms. Goughler regularly ex-
pressed concern with Ms. Jones’ job performance and
worked with her “for well over one year to improve her
performance deficiencies” before proposing her removal.
Id. Having thoroughly reviewed the record, this court
finds substantial evidence to support the administrative
judge’s determination that the USPS decided to propose
Ms. Jones’ removal from her position as Lead MDO well
before she signed the petition.
III
For the forgoing reasons, this court affirms the judg-
ment of the Board.
AFFIRMED