534 U.S. 1 (2001), 00-758, U.S. Postal Service v. Gregory

Docket Nº:Case No. 00-758
Citation:534 U.S. 1, 122 S.Ct. 431, 151 L.Ed.2d 323, 70 U.S.L.W. 4001
Party Name:UNITED STATES POSTAL SERVICE v. GREGORY
Case Date:November 13, 2001
Court:United States Supreme Court
 
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534 U.S. 1 (2001)

122 S.Ct. 431, 151 L.Ed.2d 323, 70 U.S.L.W. 4001

UNITED STATES POSTAL SERVICE

v.

GREGORY

Case No. 00-758

United States Supreme Court

November 13, 2001

Argued October 9, 2001

CERTIORARI TO THE UNITED STATE COURT OF APPEALS FOR THE FEDERAL CIRCUIT

Syllabus

While three disciplinary actions that petitioner Postal Service took against respondent were pending in grievance proceedings pursuant to the Postal Service's collective bargaining agreement with respondent's union, the Postal Service terminated respondent's employment after a fourth violation. The Civil Service Reform Act of 1978 (CSRA) permits covered employees, such as respondent, to appeal removals and other serious disciplinary actions to the Merit Systems Protection Board (Board) or through the negotiated grievance procedure, but not both. Respondent appealed to the Board, where an agency must prove its charge by a preponderance of the evidence, 5 U.S.C. § 7701(c)(1)(B), proving not only that the misconduct occurred, but also that the penalty assessed is reasonable in relation to it. An Administrative Law Judge (ALJ) concluded that respondent's termination was reasonable in light of her four violations. Although the three prior disciplinary actions were the subject of pending grievances, the ALJ analyzed them independently, under the approach set forth in Bolling v. Department of Air Force, 8 M. S. P. B. 658, and found that they were not clearly erroneous. While respondent's petition for review of the ALJ's decision was pending before the Board, an arbitrator overturned the first disciplinary action. Respondent did not inform the Board, which denied her petition. The Federal Circuit vacated in part and remanded, holding that prior disciplinary actions subject to ongoing proceedings may not be used to support a penalty's reasonableness.

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Held:

1. The Board may review independently prior disciplinary actions pending in grievance proceedings when reviewing termination and other serious disciplinary actions. The Federal Circuit reviews a Board decision's substance under the extremely narrow arbitrary and capricious standard, which allows the Board wide latitude in fulfilling its obligation to review agency disciplinary actions. The role of judicial review is only to ascertain if the Board has met the CSRA's minimum standards. There is nothing arbitrary about the Board's decision to independently review prior violations. Neither the Federal Circuit nor respondent has suggested that the Board has applied its policy inconsistently or that it lacks reasons for its approach. Nor is independent Board review contrary to any law. The Federal Circuit's reference to Douglas v. Veterans Admin., 5 M. S. P. B. 313, which sets out the framework for reviewing disciplinary actions, is a way of describing the Board's review process, not, as respondent suggests, an indication that the Board violated § 7701(c)(1)(B). More important, any suggestion that independent review by the Board violates that section's preponderance of the evidence standard would be incorrect. The Board has its own mechanism for allowing agencies to meet their statutory burden of justifying all violations supporting a penalty. Insofar as Bolling review is adequate, an agency may meet its burden by prevailing either in grievance or before the Board. Independent review also does not violate the CSRA's general statutory scheme, which allows Board review of serious, but not minor, disciplinary actions. Where a termination is based on a series of disciplinary actions, some of which are minor, the Board's authority to review the termination must also include the authority to review each of the prior disciplinary actions to establish the penalty's reasonableness. Any effects of such review on pending grievance procedures result from the CSRA's parallel review structures. If the Board's independent review procedure is adequate, the review that an employee receives is fair. Although that procedure's fairness is not before this Court, a presumption of regularity attaches to Government agencies' actions, and some deference to agency disciplinary actions is appropriate. Pp. 6-10.

2. Because the Board does not rely upon disciplinary actions that were overturned in grievance proceedings at the time of its review, a remand to the Federal Circuit is necessary to determine the effect that the reversal of one of respondent's disciplinary actions had on her termination. Pp. 10-11.

212 F.3d 1296, vacated and remanded.

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O'Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Scalia, Kennedy, Souter, Thomas, and Breyer, JJ., joined. Thomas, J., filed a concurring opinion, post, p. 11. Ginsburg, J., filed an opinion concurring in the judgment, post, p. 14.

Gregory G. Garre argued the cause for petitioner. With him on the briefs were Solicitor General Olson, former Acting Solicitor General Underwood, Acting Assistant Attorney General Schiffer, Deputy Solicitor General Clement, David M. Cohen, Todd M. Hughes, David B. Stinson, Mary Anne Gibbons, Lori J. Dym, and Stephan J. Boardman.

Henk Brands argued the cause and filed a brief for respondent.[*]

Justice O'Connor delivered the opinion of the Court.

The Civil Service Reform Act of 1978 allows eligible employees to appeal termination and other serious disciplinary actions to the Merit Systems Protection Board. 5 U.S.C. §§ 7512-7513. The Federal Circuit ruled that, when assessing the reasonableness of these actions, the Board may not consider prior disciplinary actions that are pending in collectively bargained grievance proceedings. 212 F.3d 1296, 1298 (2000). Because the Board has broad discretion in determining how to review prior disciplinary actions and need not adopt the Federal Circuit's rule, we now vacate and remand for further proceedings.

I

Respondent Maria Gregory worked for petitioner United States Postal Service as a letter technician with responsibility

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for overseeing letter carriers on five mail routes, and serving as a replacement carrier on those routes. App. to Pet. for Cert. A-15. On April 7, 1997, respondent left work early to take her daughter to the doctor, ignoring her super visor's instructions to sort the mail for her route before leaving. She received a letter of warning for insubordination. App. 47-48. Respondent filed a grievance under the procedure established in the collective bargaining agreement between her union and her employer, see generally 1998-2001 Agreement Between National Association of Letter Carriers, AFL-CIO and U.S. Postal Service, Art. 15. App. 43.

Later that same month respondent was cited for delaying the mail, after mail from another route was found in her truck at the end of the day. Id., at 45-46. The Postal Service suspended her for seven days, and respondent filed a second grievance. Id., at 41-42. In August 1997, respondent was again disciplined for various violations, including failing to deliver certified mail and attempting to receive unauthorized or unnecessary overtime. Id., at 38-40. She received a 14-day suspension, and again filed a grievance.

While these three disciplinary actions were pending in grievance proceedings pursuant to the collective bargaining agreement, respondent was disciplined one final time. On September 13, 1997, respondent filed a form requesting assistance in completing her route or, alternatively, 31/2 hours of overtime. Considering this request excessive, respondent's supervisor accompanied her on her route and determined that she had overestimated the necessary overtime by more than an hour. Id., at 31-33. In light of this violation and respondent's previous violations, her supervisor recommended that she be removed from her employment at the Postal Service. Ibid. On November 17, 1997, the Postal Service ordered respondent's termination effective nine days later. Id., at 24-29.

Because respondent previously served in the Army, she falls into the category of "preference eligible" Postal Service

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employees covered by the Civil Service Reform Act of 1978 (CSRA). 5 U.S.C. § 7511(a)(1)(B)(ii). The CSRA provides covered employees the opportunity to appeal removals and other serious disciplinary actions to the Merit Systems Protection Board (Board). §§ 7512-7513. Under the CSRA, respondent could appeal her termination to the Board or seek relief through the negotiated grievance procedure, but could not do both. § 7121(e)(1). Respondent chose to appeal to the Board.

When an employing agency's disciplinary action is challenged before the Board, the agency bears the burden of proving its charge by a preponderance of the evidence. § 7701(c)(1)(B). Under the Board's settled procedures, this requires proving not only that the misconduct actually occurred, but also that the penalty assessed was reasonable in relation to it. Douglas v. Veterans Admin., 5 M.S.P.B. 313, 333-334 (1981).

Following these guidelines, a Board Administrative Law Judge (ALJ) upheld respondent's termination, concluding that the Postal Service had shown that respondent overestimated her overtime beyond permissible limits on September 13, App. to Pet. for Cert. A-29, and that her termination was reasonable in light of this violation and her prior violations. Id., at A-36 to A-40. Although the three prior disciplinary actions were the subject of pending grievances, the ALJ analyzed them independently, following the approach set forth in Bolling v. Department of Air Force, 8 M.S.P.B. 658(1981). Bolling provides for de novo review of prior disciplinary actions unless: "(1) [the employee] was informed of the action in writing; (2) the action is a matter of record; and (3) [the employee] was given the opportunity to dispute the charges to a higher level than the authority that imposed the discipline." Id., at 660-661. If these conditions are met, Board review of prior...

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