Smith v. U.S. Postal Service
| Decision Date | 24 April 1986 |
| Docket Number | No. 85-2168,85-2168 |
| Citation | 789 F.2d 1540 |
| Parties | Kenneth D. SMITH, Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent. Appeal |
| Court | U.S. Court of Appeals — Federal Circuit |
Stephen M. Zeitlin, Headley & Zeitlin, Brooklyn, N.Y., for petitioner.
Richard K. Willard, Asst. Atty. Gen., David M. Cohen, Director, M. Susan Burnett, Asst. Director and Karen S. Fishman, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., for respondent; Stephen E. Alpern, Associate Gen. Counsel and Eric J. Scharf, U.S. Postal Service, of counsel.
Before MARKEY, Chief Judge, and FRIEDMAN and NEWMAN, Circuit Judges.
Kenneth D. Smith (Smith) appeals from a decision of the Merit Systems Protection Board (board), 26 M.S.P.R. 185, sustaining his removal from United States Postal Service (Postal Service) for assaulting a police officer. We affirm.
In March 1982, the Postal Service sought to remove Smith for "engaging in a physical altercation with another postal employee." Smith filed a grievance and was represented at a Step 1 hearing by a union Shop Steward, J. Applewhite, who made oral reply on Smith's behalf. Smith was reinstated, but "on a last chance basis."
At 3:17 a.m. of March 10, 1984, Smith was seen carrying a fur coat from the J.A. Farley Building at which he worked. Smith became involved in an incident with Postal Police Officer Vincent Condon and Postal Police Sergeant Michael Padro. He was restrained and then transported to Morgan Headquarters, where he refused to surrender his photo identification. At that time, Officer Condon placed Smith under arrest and he was taken to Central Booking, where he was charged with the crime of resisting arrest. 1
On March 20, 1984, the Postal Service sent Smith four copies of a Notice of Proposed Removal (Notice): by certified and regular mail to 2140 University Ave., Apt. 2B, Bronx, New York 10468; and by certified and regular mail to 1504 Sheridan Ave., Bronx, New York 10457.
On that same day, the Postal Service mailed a copy of the Notice to Smith's union representative, who arranged for a grievance proceeding Step 1 hearing on April 3, 1984.
The Notice set forth charges of assaulting a Postal Police officer, engaging in disorderly conduct, and resisting arrest, and cited the 1982 disciplinary proceeding.
The notice provided that:
You may answer this notice personally or in writing, or both to the undersigned [i.e., Daniels] or the Postmaster's Designee in my absence at the JAF Building, Outgoing Mails Section, Tour 3, New York, New York 10199, and may submit affidavits in support of your answer.... You will be allowed seven (7) calendar days from the date you receive this notice to submit your answer. Full consideration will be given to any answer you submit. As soon as possible after your answer(s) is received, or after the expiration of the seven (7) day limit, if you do not answer, you will be given a written decision."
The Notice also provided that "you have the right to file a grievance under the Grievance-Arbitration procedures set forth in Article 15, Section 2 of the National Agreement within 14 days of your receipt of this notice."
When Smith did not appear at the April 3 Step 1 hearing, oral reply was made on his behalf by Shop Steward J. Applewhite. Smith says he did not receive the Postal Service's Notice until April 5, 1984. 2 He also says that on April 18 he attempted to contact Supervisor Daniels to obtain a Step 1 hearing, but was "denied access to the building."
The Postal Service's Letter of Decision was dated April 5, 1984. In it, the deciding official, Tour Superintendent Robert Pellot, stated that he had given "full consideration to the oral reply" made on Smith's behalf by Shop Steward Applewhite, and that removal was appropriate in view of Smith's past disciplinary record and the seriousness of the charge. The removal was to become effective April 23, 1984.
Officer Condon testified that: Smith approached him carrying a brown bag containing a fur coat, but could not produce a receipt or property pass; Smith at first refused to return to the facility to obtain a property pass, but later went inside; Officer Condon's supervisor, Padro, arrived at the scene; Smith returned with his package and ran through the doors; Officers Condon and Padro chased and apprehended Smith, who swung at Officer Condon and pushed him up against the wall; Smith was arrested for resisting arrest. Condon's testimony was corroborated by that of Officer Padro.
Smith testified that: he received the fur coat from a co-worker to show it to his wife; Officer Condon stopped him at the facility exit and demanded that he show his property pass; he returned inside to obtain a pass, but was unsuccessful; he returned to the exit and heard the guard yell "incoming" and the elevator door slam; both noises reminded him of his Vietnam experiences, and his automatic response was to take cover; he ran outside and got between a van and car; Officer Condon came up and accused him of stealing the coat; he never assaulted either officer.
Arthur Head, an agency employee, testified for Smith that: he saw Smith talking with the two officers; he saw no violence; when asked if there was a problem, Smith said everything was "all right". Smith also introduced an affidavit of Vaughn, an agency employee, who stated that "from what he was able to see" Smith did not swing at the officers.
Tour Superintendent Pellot testified that he considered an assault on a Postal Police Officer to be a serious charge warranting removal. Supervisor Willie Daniels said that, in proposing removal, he based his decision on the officers' written reports, and that his concern was not for the ownership of the fur coat, but, noting Smith's past disciplinary record, for the safety of the facility.
The Presiding Official credited the testimony of Officers Condon and Padro, saying their statements "were candid, complete and plausible." The Presiding Official noted that neither Head nor Vaughn testified that he had seen the entire incident, and that the statements of neither contradicted those of the two officers. The Presiding Official found Smith's version of the incident "totally implausible".
The Presiding Official held that the Postal Service had carried its burden with respect to the charge of assaulting a Postal Police Officer. She further concluded that nexus to the efficiency of the service was In respect of Smith's affirmative defenses, the Presiding Official determined that Smith had not shown error in the agency's holding a grievance with only the union representative present. Assuming, arguendo, however, that such were error, she further held that Smith had not established that it was harmful, reasoning that "[t]he Board's hearing is de novo, thus any prejudice to the appellant could have been cured before the Board."
clear, and that the agency had not abused its discretion in determining the appropriate penalty.
The Full Board denied review. It commented, based on Smith's allegation of late notice, that the Postal Service erred in failing to afford Smith the full thirty days' notice, as required by 5 U.S.C. Sec. 7513(b)(1). On the basis of the record before it, however, the board concluded that any error in this case did not warrant reversal because Smith had not shown "by a preponderance of the evidence that the procedure likely had a harmful effect upon the outcome before the agency."
OPINIONThough Smith says an issue in this case is whether substantial evidence supports the board's conclusions, he presents no argument and cites no evidence to support a reversal on that ground. 3
Smith's asserted basis for this appeal is that the agency action "should be reversed because the petitioner was denied due process," effectively asserting per se harmful error "in that Petitioner was not given the opportunity to defend himself in the Step One hearing." The government responds that "any error that may have occurred was clearly cured at the MSPB hearing where Smith presented his reply to the charges at a de novo proceeding." We reject both contentions respecting harmful error as too broadly stated.
No basis exists for Smith's assertions respecting constitutional due process. Smith has not shown that he was denied the necessary minimum due process, "some pretermination opportunity to respond," to which he is entitled under the Constitution. See Cleveland Board of Education v. Loudermill, --- U.S. ----, ----, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985); see also DeSarno v. Department of Commerce, 761 F.2d 657 (Fed.Cir.1985). The record here establishes that Smith had "opportunity". His union representative presented an oral reply on Smith's behalf. That same procedure was used in connection with Smith's 1982 grievance and with positive results. We have been shown no basis for assuming that the union was representing itself and not Smith in this case. That Smith's union representative was not successful in gaining for Smith a second "last chance" does not in itself mean that that representation supplied him less than due process. Because Smith's oral reply was fully considered by the deciding official, it must be deemed to have satisfied the due process minimum.
Were we convinced that Smith had been denied his right to constitutional due process by agency action, negligence, or design, and in the face of even a reasonable effort by Smith to assert that right, reversal would promptly follow. None of those factors is present here.
Nothing in this record indicates even remotely that the agency sought to deny Smith any of his rights, or neglected its duty, or in any manner played "fast and loose" with the procedures designed to insure protection of employee's rights.
Assuming that Smith did not...
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