Tompkins v. United States Postal Service , 415 F. App'x 226 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
KENNETH TOMPKINS,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
__________________________
2009-3219
__________________________
Petition for review of the Merit Systems Protection
Board in AT0752090033-I-1.
_________________________
Decided: January 19, 2011
_________________________
ALLISON M. BLACK MCIVER, The McIver Law Group, of
Lawrenceville, Georgia, argued for petitioner. On the
brief was WAYNE A. J. WATTLEY.
MICHAEL J. ELSTON, Office of the General Counsel,
United States Postal Services, of Washington, DC, argued
for respondent. On the brief was LORI J. DYM, Chief
Counsel. Of counsel was Michelle A. Windmueller.
__________________________
TOMPKINS v. USPS 2
Before LOURIE, SCHALL, and BRYSON, Circuit Judges.
SCHALL, Circuit Judge.
DECISION
Kenneth Tompkins petitions for review of the final
decision of the Merit Systems Protection Board (“Board”)
that sustained the action of the United States Postal
Service (“Postal Service” or “agency”) removing him from
the position of Mail Handler, PS-4. Tompkins v. United
States Postal Service, No. AT-0752-09-0033-I-1 (M.S.P.B.
Apr. 22, 2009) (“Final Decision”). We affirm.
DISCUSSION
I.
Mr. Tompkins was employed at the Postal Service’s
Atlanta Processing and Distribution Center in Atlanta,
Georgia. He was removed from his position based upon
the charge of “improper conduct: unauthorized opening,
obstruction, and possession of the mail.” The charge grew
out of an incident in which, the agency alleged, Mr.
Tompkins removed a camcorder from the mail, possessed
it without authorization, and converted it to his own use.
Mr. Tompkins timely appealed his removal to the
Board. Before the Board, the parties stipulated that Mr.
Tompkins had obstructed the mail and that he had en-
gaged in the unauthorized possession of the mail when he
removed the camcorder from the postal facility and took
possession of it for his own use. Following a hearing, the
administrative judge (“AJ”) sustained the removal.
Tompkins v. United States Postal Service, No. AT-0752-
09-0033-I-1 (Feb. 6, 2009) (“Initial Decision”).
The AJ viewed the charge against Mr. Tompkins as
consisting of three distinct acts or specifications, one of
which described an alleged unauthorized opening of the
3 TOMPKINS v. USPS
mail, the second of which described an alleged obstruction
of the mail, and the third of which described an alleged
unauthorized possession of the mail. Initial Decision, slip
op. at 9. The AJ stated that, under these circumstances,
proof of any one of the acts or specifications was enough to
sustain the charge of improper conduct. Id. Although the
AJ found that the Postal Service had failed to meet its
burden of proving the unauthorized opening of the mail,
he determined that, based upon the parties’ stipulation,
the specifications of obstruction of the mail and unauthor-
ized possession of the mail were sustained. Id. at 10.
After rejecting Mr. Tompkins’s charge of harmful proce-
dural error by the agency, he also determined that the
Postal Service had not abused its discretion in imposing
the penalty of removal. Id. at 14, 16.
The Initial Decision became the final decision of the
Board on April 22, 2009, when the Board denied Mr.
Tompkins’s petition for review for failure to meet the
criteria for review set forth at 5 C.F.R. § 1201.115(d).
This appeal followed. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9).
II.
Our scope of review in an appeal from a decision of
the Board is limited. Specifically, we must affirm the
Board’s decision unless we find it to be (1) arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed;
or (3) unsupported by substantial evidence. 5 U.S.C. §
7703(c); Kewley v. Dep’t of Health & Human Servs., 153
F.3d 1357, 1361 (Fed. Cir. 1998). Mr. Tompkins raises
three arguments on appeal. We address them in turn.
TOMPKINS v. USPS 4
A.
Mr. Tompkins’s first argument is that the AJ erred as
a matter of law in viewing the charge of improper conduct
as consisting of three separate acts or specifications,
rather than as one allegation with three elements. Mr.
Tompkins argues that, if the AJ had correctly viewed the
charge as a single allegation with three elements, the
agency would have had to prove each element in order for
the charge to be sustained. See, e.g., Edwards v. Dep’t of
the Navy, 62 M.S.P.R. 174, 178-79 (1994). As noted, the
AJ found that the Postal Service had failed to prove that
Mr. Tompkins had opened the package containing the
camcorder. Therefore, Mr. Tompkins reasons, the Board
erred in sustaining the charge against him because one of
three elements of the charge was not established.
However, where a single charge consists of three
separate acts or specifications of misconduct “that are not
dependent upon each other and that do not comprise a
single, separable event,” each act or specification consti-
tutes a separate charge. Chauvin v. Dep’t of the Navy, 38
F.3d 563, 565 (Fed. Cir. 1994). In such a case, the agency
need only prove one of the specifications in order to have
the charge sustained. See, e.g., Lachance v. Merit Sys.
Prot. Bd., 147 F.3d 1367, 1371 (Fed. Cir. 1998) (“‘[W]here
more than one event or factual allegation is set out to
support a single charge . . . , proof of one or more, but not
all, of the supporting specifications is sufficient to sustain
the charge.’”) (quoting Burroughs v. Dep’t of the Army, 918
F.2d 170, 172 (Fed. Cir. 1990)).
We see no error in the AJ’s ruling with respect to the
charge against Mr. Tompkins. Each of the three acts
which the Postal Service alleged against Mr. Tompkins
involved separate and distinct activity which could be
undertaken without performing either of the other two
5 TOMPKINS v. USPS
acts. On a related matter, we also see no error in the AJ’s
declining to rule on the issue of the agency’s charge prior
to the hearing. An AJ is given broad discretion in proce-
dural matters. Turner v. Merit Sys. Prot. Bd., 805 F.2d
241, 245 (Fed. Cir. 1986). There was no abuse of that
discretion here. In any event, in view of the parties’
stipulation that Mr. Tompkins obstructed the mail and
possessed the camcorder without authorization for his
own personal use, it is most difficult to discern how any
error on the part of the AJ in this regard could have
affected the outcome of the case.
B.
Mr. Tompkins’s second argument is that the Postal
Service committed harmful procedural error in the re-
moval process. Specifically, he contends that the agency
improperly failed to issue him an emergency placement
letter prior to his being interviewed by investigators from
the Office of Inspector General (“OIG”). According to Mr.
Tompkins, had he been issued such a letter before his
interview, he would have been in a better position to
defend himself against the agency’s charge. The AJ
rejected this argument on two grounds. First, he found
that Mr. Tompkins had failed to demonstrate that the
Postal Service was required to issue an emergency place-
ment letter. Second, he found that, even assuming the
Postal Service did violate its procedures, Mr. Tompkins
had failed to show that the error was harmful.
We agree with the AJ that Mr. Tompkins failed to
demonstrate harmful procedural error in the removal
process. Harmful error is error by the agency in the
application of its procedures that is likely to have caused
the agency to reach a conclusion different from the one it
would have reached in the absence of the error or differ-
ent from the one that it would have reached if the error
TOMPKINS v. USPS 6
had been cured. See 5 C.F.R. § 1201.56(c)(3). The appel-
lant has the burden of proving that a given error was
harmful. 5 U.S.C. § 7701(c)(2); Diaz v. Dep’t of the Air
Force, 63 F.3d 1107, 1109 (Fed. Cir. 1995).
The provision to which Mr. Tompkins points, Article
16.7 of the Interpretation Manual for the Contract be-
tween the Postal Service and the National Postal Mail
Handlers Union states in relevant part that “an employee
placed on emergency off-duty status is entitled to written
notice of the reasons within a reasonable period of time.”
Mr. Tompkins, however, has not directed us to any lan-
guage stating that the Postal Service was required to
issue an emergency placement letter (with a notice of
charges) before the OIG investigators talked to him.
Indeed, it strikes us as illogical to impose such a require-
ment because there are, no doubt, many instances in
which charges are not brought against an employee until
after he or she is interviewed by agency investigators.
Moreover, Mr. Tompkins failed to come forward with any
evidence suggesting that the Postal Service would not
have pursued the removal action if it had issued an
emergency placement letter.
C.
Mr. Tompkins’s final argument is that, in imposing
the penalty of removal, the agency abused its discretion.
He contends that Vanessa Bailey, the Postal Service’s
deciding official, failed to consider his potential for reha-
bilitation or the adequacy and effectiveness of alternative
sanctions, two of the twelve so-called Douglas factors. See
Douglas v. Veterans Admin., 5 M.S.P.R. 280 (1981).
We do not think the Postal Service abused its discre-
tion in removing Mr. Tompkins from his position. Having
reviewed the record, we are satisfied that Ms. Bailey in
fact considered the possibility of rehabilitation but re-
7 TOMPKINS v. USPS
jected it given the seriousness of Mr. Tompkins’s offenses.
We also are satisfied that the penalty of removal was
entirely reasonable in this case. It is undisputed that Mr.
Tompkins obstructed the mail, that he possessed the
camcorder without authorization, and that he converted
the camcorder to his own use. It goes without saying that
Mr. Tompkins’s actions, which amounted to theft from the
mail, were most serious. They frustrated the mission of
the Postal Service and also had a direct impact on the
trust that customers of the Postal Service are entitled to
have in the agency.
III.
For the foregoing reasons, the final decision of the
Board is affirmed.
Each party shall bear its own costs.
AFFIRMED