NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3074
BRENT E. GRAY,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
__________________________
DECIDED: June 9, 2005
__________________________
Before MAYER, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and LINN, Circuit
Judge.
PER CURIAM.
Brent E. Gray (“Gray”) appeals a decision of the Merit Systems Protection Board
(“Board”) sustaining a modified charge of improper conduct and reversing the initial
decision with respect to the penalty to sustain his removal from the United States Postal
Service (“Postal Service”). Gray v. United States Postal Serv., No. CH-0752-03-0738-I-
1 (M.S.P.B. Oct. 22, 2004) (“Final Decision”). Because the Board’s decision sustaining
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the charge and the removal is supported by substantial evidence, is not an abuse of
discretion, and does not otherwise contain reversible error, we affirm.
BACKGROUND
Gray had been employed by the Postal Service for nine years and was originally
hired as a Letter Carrier. In February 1995, he reported an aggravation of a pre-existing
flat-foot condition and severe fungal infection and, in February 2000, the Postal Service
accommodated his condition by assigning him to a Modified Clerk position. For slightly
less than two years prior to his removal from employment, Gray held a second job
working as a Sales Associate in the Flooring Department of a Home Depot store.
Following an investigation by the Postal Inspection Service, the Postal Service
removed Gray from his Modified Clerk position based on a charge of improper conduct.
Specifically, the charge of improper conduct, as interpreted by the administrative judge
and unobjected to by both parties, included a charge pertaining to Gray’s alleged
violation of medical restrictions limiting him to nine hours of work per day by working at
his second job in addition to his full tour of duty at the Postal Service, and a charge
pertaining to his working at the second job on ten days on which he took sick leave from
the Postal Service. The administrative judge did not sustain the charge pertaining to
Gray’s violation of the medical restriction due to lack of a nexus between the
misconduct and the efficiency of the Postal Service, but sustained the charge of abuse
of sick leave for seven of the ten days at issue. See Gray v. United States Postal Serv.,
No. CH-0752-03-0738-I-1 (M.S.P.B. Dec. 31, 2003) (“Initial Decision”). Considering all
the relevant factors, the administrative judge concluded a 30-day suspension was the
maximum reasonable penalty. Initial Decision at 16-19.
05-3074 2
The Postal Service petitioned for review to the full Board, arguing that the
administrative judge erred in not sustaining the charge of abuse of sick leave for all ten
days and in mitigating the penalty of removal. The Board reversed-in-part the Initial
Decision and sustained the abuse of sick leave charge for all of the ten days at issue.
The Board also concluded that the penalty of removal was within tolerable limits of
reasonableness. Final Decision at 4-5. Gray timely appealed.
We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9).
DISCUSSION
A. Standard of Review
Pursuant to
5 U.S.C. § 7703(c), this court must affirm the Board's decision unless
it is: (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. Chase-Baker v. Dep’t of
Justice,
198 F.3d 843, 845 (Fed. Cir. 1999). The petitioner bears the burden of
establishing reversible error in reviewing a decision of an administrative agency such as
the Board. Harris v. Dep’t of Veterans Affairs,
142 F.3d 1463, 1467 (Fed. Cir. 1998).
B. Analysis
To succeed in an adverse action against an employee, an agency must establish
that the conduct occurred, that there is a nexus between the conduct and the efficiency
of the service, and that the penalty imposed by the agency was reasonable. Bryant v.
Nat’l Sci. Found.,
105 F.3d 1414, 1416 (Fed. Cir. 1997). We address each of these
requirements in turn.
1. Conduct
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There are four periods of leave that are relevant to our analysis: (1) October 15
and 19, 2001, during which Gray worked at his second job while on regular sick leave,
and the hours at his second job overlapped with his tour of duty at the Postal Service;
(2) April 16 and 18, 2002, during which Gray worked at his second job while on sick
leave pursuant to the Family and Medical Leave Act of 1993 (“FMLA”), with no overlap
of hours at his second job and his tour of duty at the Postal Service; (3) April 1, 2, and 6,
2002, during which Gray worked at his second job while on sick leave under FMLA, and
the hours at the second job overlapped with his regular tour of duty at the Postal
Service; and (4) April 4, 8, and 9, 2002, during which Gray worked at his second job
while on sick leave under FMLA, and the hours at the second job did not overlap with
his regular tour of duty.
Regarding the dates in the first category, the administrative judge found, and the
Board affirmed, that Gray was required by the Postal Service’s Employee and Labor
Relations Manual (“ELM”) § 513.312 to obtain prior approval from the agency before
engaging in any gainful employment while on sick leave. Gray does not challenge this
finding. Instead, Gray argues that the charge pertaining to the dates in the remaining
three categories can not be sustained because they relate to sick leave under FMLA
and not to regular sick leave, and, thus, the ELM provisions are inapplicable. We
disagree.
The relevant ELM provision states, “An employee who is in sick leave status may
not engage in any gainful employment unless prior approval has been granted by
appropriate authority.” ELM § 513.312. As the Board correctly recognized, “This
provision makes no distinction between ordinary sick leave and sick leave granted
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under the FMLA, nor does it distinguish between sick leave due to the employee’s own
illness and sick leave granted for any other permissible purpose.” Final Decision at 4.
Therefore, the plain language of ELM § 513.312 requires Gray to obtain prior approval
before working at his second job for the dates in categories (2), (3), and (4). Because
there is no dispute that Gray was on sick leave during the dates in question, and he
failed to obtain prior approval for work at his second job, the Board did not err in
sustaining the charge of abuse of sick leave in its entirety.
2. Efficiency of the Service
The administrative judge found that “the [Postal Service’s] decision to discipline
the appellant was taken for such cause as promotes the efficiency of the service.” Initial
Decision at 12. Gray does not dispute this finding.
3. Penalty
The “[d]etermination of an appropriate penalty is a matter committed primarily to
the sound discretion of the employing agency.” Brook v. Corrado,
999 F.2d 523, 528
(Fed. Cir. 1993) (quoting Beard v. Gen. Servs. Admin.,
801 F.2d 1318, 1322 (Fed. Cir.
1986)). Accordingly, we will not disturb the Board’s decision to sustain the agency’s
penalty determination unless the Board’s decision is not supported by substantial
evidence, is an abuse of discretion, or otherwise contains reversible error.
5 U.S.C.
§ 7703(c) (2000); Parker v. United States Postal Serv.,
819 F.2d 1113, 1116 (Fed. Cir.
1987); Nagel v. Dep’t of Health and Human Servs.,
707 F.2d 1384, 1386-87 (Fed. Cir.
1983).
The deciding official considered various Douglas factors relevant to the present
case. See Douglas v. Veterans Admin.,
5 M.S.P.R. 280, 305-06 (1981). In particular,
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the deciding official considered the following factors: (1) nature and seriousness of
Gray’s conduct; (2) his past disciplinary record; (3) his length of service; (4) consistency
of the penalty; (5) any mitigating circumstances; and (6) adequacy and effectiveness of
alternate sanctions.
Gray contends that the penalty of removal is not reasonable primarily because he
was unaware that he was violating Postal Service leave regulations. Gray cites Fleming
v. United States Postal Service,
30 M.S.P.R. 302 (1986), to argue that his lack of
knowledge compels mitigation. First, Gray’s arguments regarding his lack of awareness
were considered and rejected by the administrative judge. While the administrative
judge stopped short of crediting Gray with knowledge of all the relevant provisions
contained in hundreds of pages of ELM regulations, he nonetheless found that Gray
should have been aware of the impropriety of working a second job while receiving paid
sick leave. See Initial Decision at 17-18. It is undisputed that: (1) Gray worked at Home
Depot while on paid sick leave; and (2) the length of his service at the Postal Service
was nine years. In view of these undisputed facts, we can say that the administrative
judge’s finding is supported by “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion,” i.e., substantial evidence. Hogan v. Dep't
of the Navy,
218 F.3d 1361, 1364 (Fed. Cir. 2000).
Second, Gray’s reliance on Fleming is misplaced. Fleming involved the removal
of an employee for unscheduled absences that were subsequently approved. Fleming,
30 M.S.P.R. at 308. The Board in Fleming held that, before an employee could be
disciplined for irregular attendance, he must be given clear notice that unscheduled
absences caused by the failure to follow leave-requesting procedures can result in
05-3074 6
disciplinary action. Id. This requirement of “clear notice” stemmed from the concern
that an employee may be “led to believe, through leave approvals, that [his or her]
attendance patterns are acceptable—only to discover later that the approved leave is
used as a basis for subsequent discipline.” Id. In this case, Gray does not contend that
he was being misled by the Postal Service into believing that his pattern of working at
Home Depot while on paid sick leave was acceptable. Thus, Fleming is distinguishable
and does not establish any reversible error in the Board’s decision.
Gray further contends that his status as a union representative was
impermissibly considered in the determination of the penalty because the administrative
judge mentioned his status as a union representative in the initial decision. Gray’s
contention is without merit because he misconstrues the initial decision. In the
proceedings before the administrative judge, Gray claimed that he lacked knowledge of
the relevant ELM leave regulations. The Postal Service responded by arguing that Gray
should have known the pertinent regulations based on his nine years of service and the
fact that he served as a union representative. The administrative judge merely
characterized the parties’ arguments as such. See Initial Decision at 17. More
significantly, however, the initial decision does not state, and Gray fails to provide any
evidence, that Gray’s status as a union representative was used as a basis for
determining the penalty for abuse of sick leave. Thus, Gray has failed to establish any
reversible error in the Board’s decision.
Finally, Gray contends that the penalty of removal is not reasonable because the
deciding official did not consider other mitigating factors such as the birth of a child and
Gray’s need to care for his other children and family members. Our precedent is clear
05-3074 7
that the deciding official and the Board need not consider all of the Douglas factors in
every case and need not explicitly state that a factor was considered and found
irrelevant. See Nagel,
707 F.2d at 1386. Here, the Board considered the relevant
factors and did not otherwise abuse its discretion in sustaining the penalty of removal.
CONCLUSION
For the foregoing reasons, we conclude that the Board’s decision, sustaining the
charge of abuse of sick leave in its entirety, and sustaining the penalty of removal, is
supported by substantial evidence, is not an abuse of discretion, and does not
otherwise contain reversible error. Accordingly, we affirm the Board’s decision.
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