Parker v. United States Postal Service , 355 F. App'x 410 ( 2009 )


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  •                       NOTE: This disposition is nonprecedential.
    United States Court of Appeals for the Federal Circuit
    2009-3251
    LINDA A. PARKER,
    Petitioner,
    v.
    UNITED STATES POSTAL SERVICE,
    Respondent.
    Linda A. Parker, of Fayetteville, Georgia, pro se.
    David D’Alessandris, Trial Attorney, Commercial Litigation Branch, Civil Division,
    United States Department of Justice, of Washington, DC, for respondent. With him on
    the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
    and Bryant G. Snee, Deputy Director.
    Appealed from: Merit Systems Protection Board
    NOTE: This disposition is nonprecedential.
    United States Court of Appeals for the Federal Circuit
    2009-3251
    LINDA A. PARKER,
    Petitioner,
    v.
    UNITED STATES POSTAL SERVICE,
    Respondent.
    Petition for review of the Merit Systems Protection Board in AT0752090108-I-1.
    ___________________________
    DECIDED: December 10, 2009
    ___________________________
    Before MAYER, PLAGER, and DYK, Circuit Judges.
    PER CURIAM.
    Linda A. Parker (“Parker”) appeals the final order of the Merit Systems Protection
    Board (“Board”) sustaining the decision of the United States Postal Service (“agency”)
    demoting her from the position of Supervisor to Clerk. See Parker v. U.S. Postal Serv.,
    No. AT-0752-09-0108-I-1 (M.S.P.B. June 23, 2009) (“Final Order”). We affirm.
    BACKGROUND
    Parker was employed by the agency as a Supervisor at the Church Street
    Branch of the Riverdale, Georgia post office. On October 25, 2008, she was demoted
    to the position of Clerk based on charges of unsatisfactory performance and failure to
    follow instructions. The first specification supporting the charges was Parker’s failure to
    follow instructions that directed her to “perform a full office proficiency and street count
    on one route weekly starting March 24, 2008.” Id. at 2 (quotation marks omitted). This
    required Parker to monitor the sorting and delivery of mail, and ride along on postal
    routes to perform the count. Parker v. U.S. Postal Serv., No. AT-0752-09-0108-I-1, slip
    op. at 3 (M.S.P.B. Mar. 6, 2009) (“Initial Decision”); Resp’t’s Br. 3.        The second
    specification, also a basis for both charges, involved Parker’s alleged continuing failure
    to “clear” clock ring errors on a daily basis. Initial Decision at 2. Agency employees
    such as mail carriers must clock in at work, creating “clock ring entries.”   An error can
    be caused due to various reasons, such as when someone forgets to clock in when he
    initially arrives at work. The failure to clear such errors could jeopardize the agency’s
    ability to accurately track employee time and pay. Resp’t’s App. 37.
    Parker appealed the demotion to the Board, and in an initial decision, the
    Administrative Judge (“AJ”) sustained both charges as to the first specification, but
    found that the agency had failed to prove the second specification. Initial Decision at 2–
    3. The agency deciding official testified that he considered the relevant Douglas factors,
    see Douglas v. Veterans Admin., 
    5 M.S.P.R. 280
    , 305–06 (1981) (addressing the
    appropriateness of a penalty), in selecting the original penalty and that he would have
    still imposed demotion absent the clock ring specification. However, the AJ found that
    the agency’s penalty determination of demotion was not entitled to deference because
    of the failure to establish the clock ring specification, and mitigated the penalty to a
    thirty-day suspension. Initial Decision at 4. On review, the full Board reversed the AJ
    and upheld the demotion, crediting the agency’s testimony that it would have imposed
    the same penalty without the clock ring specification. Final Order at 4.
    2009-3251                                2
    Parker timely petitioned for review of the Board’s decision in our court. We have
    jurisdiction pursuant to 
    28 U.S.C. § 1295
    (a)(9) and 
    5 U.S.C. § 7703
    (b)(1).
    DISCUSSION
    The scope of our review in an appeal from a Board decision is limited. We can
    only set aside the Board’s decision if it was “(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).
    On appeal, Parker challenges only the penalty imposed against her, not the
    Board’s findings sustaining the charges. As such, we accept the Board’s findings that
    the first specification was proven, that the second was not, and that both the
    unsatisfactory performance charge and the failure to follow instructions charge were
    established.
    Parker urges that the Board erred in sustaining her demotion because fewer than
    all of the specifications asserted against her were proven. In doing so, she argues that
    her case is no different than one in which fewer than all of the charges were sustained.
    In such cases, the nexus between the charges brought by an agency and the penalty
    imposed may be severed. Thus, remand on the penalty issue may be appropriate in
    some cases.    Lachance v. Devall, 
    178 F.3d 1246
    , 1259 (Fed. Cir. 1999); see also
    Russo v. U.S. Postal Serv., 
    284 F.3d 1304
    , 1310 (Fed. Cir. 2002). Even if such a rule
    applied to Parker’s case, “when the agency makes . . . clear before the Board” that “the
    agency itself would have imposed the same penalty on the basis of the sustained
    charges that it chose on the basis of the combined charges,” the nexus is not severed
    2009-3251                               3
    and the agency’s chosen penalty is entitled to deference. Lachance, 
    178 F.3d at 1259
    .
    Here, the agency deciding official testified that “[i]f there had been no allegations
    concerning clock ring errors,” the penalty he imposed on Parker “would have still been
    the same.” Resp’t’s App. 25. Thus, the Board’s decision to sustain the demotion was
    supported by substantial evidence and was not arbitrary, capricious, or an abuse of
    discretion.
    For the aforementioned reasons, we affirm the Board’s decision.
    COSTS
    No costs.
    2009-3251                              4
    

Document Info

Docket Number: 2009-3251

Citation Numbers: 355 F. App'x 410

Judges: Dyk, Mayer, Per Curiam, Plager

Filed Date: 12/10/2009

Precedential Status: Non-Precedential

Modified Date: 8/3/2023