What evidence counts?

A recent Merit Systems Protection Board ruling provides valuable guidance

to supervisors who are considering disciplinary action against an employee.

The case in point involved Thomas Groeber, a U.S. Postal Service employee

(Merit Systems Protection Board, No. PH-0752-96-0054-I-4, Jan. 3, 2000).

On Oct. 3, 1995, the Postal Service fired Groeber from his position as a

letter carrier, citing "misconduct."

Groeber's misconduct consisted of verbally attacking a customer after

refusing to deliver her mail, threatening to "take care" of her, and swinging

a chain and brandishing a knife at his supervisor. He also was accused of

cursing and threatening a fellow employee, a nurse, telling her he was first

"going after" his supervisor, and then would "go after her and everyone

at the medical unit." An administrative judge concluded that the charges

were true.

The deciding Postal Service official in the case acknowledged that when

he was considering firing Groeber, he took into account additional information

that was not included in the dismissal letter. The deciding official had:

* Seen Groeber yell and scream at a shop steward.

* Received a telephone call from an African-American counselor who reported

that Groeber had directed a racial epithet at him.

* Learned that Groeber was said to have grabbed a knife and chased a

group of children who had thrown snowballs at his car.

Groeber appealed his dismissal to the MSPB. In his appeal, Groeber did not

deny the misconduct charges but argued that the Postal Service committed

a procedural error when it considered conduct that was not included in its

notice of proposed removal or in the subsequent decision letter. Groeber

also claimed that the action taken against him was the result of disability

discrimination and national origin discrimination.

After a hearing on Groeber's appeal, an administrative judge did not

sustain the Postal Service's removal action, and the case then went to the

full MSPB for consideration.

The full MSPB ruled that it was improper for the deciding official to rely

on background information when deciding an appropriate penalty for the charged

misconduct. The MSPB said that a deciding official cannot rely on an employee's

negative past behavior if the employee was not disciplined for it, particularly

when the incidents were not mentioned in either the agency's notice of proposed

removal or the decision letter.

In this case, however, the MSPB ruled that the Postal Service's procedural

error did not change the outcome: The board sustained the charge against

Groeber and determined that removal was a reasonable penalty for the sustained

charge.

For agency officials who must make the decision on what the appropriate

penalty should be for employee misconduct, the lesson learned is this: Do

not consider negative background information when making your decision.

You may not come out as lucky as the deciding official did in this case.

— Zall is a retired federal employee who since 1987 has written the Bureaucratus

column for Federal Computer Week.