False Statements in the Initial Decision
Here, the record reflects that the deciding official, Paris R. Washington, applied the Douglas factors in his assessment of the appropriate penalty, and that they were outlined in his decision letter. See AF, Tab 7, Subtab 4a.
Washington noted, as mitigating factors, he considered that the appellant had many years of service without any prior disciplinary record.
Jones stated that other supervisors originally scheduled a PDI with the appellant for February 23, 2011, but because the supervisors were busy on that date, Jones ended up doing the PDI with the appellant.
Jones said he asked the appellant and his union representative to verify that they understood that the appellant would be charged AWOL if he exited the building, and they replied that they did indeed understand.
He indicated that he issued the charges underlying the removal against the appellant, based on the terminated PDI with Jones and his continuous AWOLs thereafter.
French stated that he assembled a disciplinary action request package on the appellant, to get some feedback from the Employee and Labor Relations (ELR) Office about what to do regarding the appellant’s extended absences.
Here the Judge is confused about what the purpose of a disciplinary request is. French never testified about using it to get feedback.
He noted that, at the time, he was 63 years old, and in addition to his coronary artery disease, he suffered from Stage 4 hypertension, emphysema, and cervical degenerative disc disease, all of which caused him great emotional stress, exacerbated his depression, and affected his ability to complete his route and work long periods of overtime.
The appellant testified that for many months, his supervisors began to pressure him to return to work and complete his route.
The appellant never says this.
The appellant refused the offer because he did not agree with the method that French was employing to try to adjust the route.
There is nothing in the record indicating that a letter carrier can refuse a route adjustment, let alone that the appellant did.
Next, the appellant stated that management harassed him by continuing to require him to work overtime, depriving him and his family of health benefits and life insurance for several months, not providing him with holiday pay for five days, delaying a payment for 64 hours of requested leave,5 and making him attend two predisciplinary meetings (in August 2010 and November 2010, respectively) in which supervisors told him that he could be subjected to discipline if his extended absences did not stop.
The appellant never testifies that the agency harassed him by making him attend predisciplinary meetings.
He said that, at the start of the meeting, he asked Jones to pay him for the 64 hours of annual and sick leave he requested on January 13, 2011, less than a month before.
He seemed to imply that because he left the meeting, then the agency failed to give him a predisciplinary interview for the period he was charged with being AWOL.
This is a baseless statement. The appellant's direct supervisor on the other hand does testify that as far as he knew there was not a predisciplinary interview for the period he was charged AWOL page 156 lines 7-12
He stated that, first, he thought that, because of its timing, he considered the proposal letter as “just a jab calculated to disturb” him while he and the agency were in litigation in a court case.
The appellant stated that he for the most part ignored the notice of proposed removal because “I cannot multi-task,” and he “was determined to try to minimize the effect the proposed removal would have on my pursuit of Noble v. Sombrotto.”
He said that, as a result, “I turned the whole of my attention back to my [law]suit.” Id.
He explained that because the deciding official did not immediately issue a decision letter, he concluded that he “had been correct in my evaluation of the situation, and that the Postal Service had abandoned any effort to remove me.”
In this case, although the appellant was not previously disciplined, the agency set forth at least four predisciplinary sessions which were based, in part or in whole, on his deficient attendance, and in which he was warned that his continued irregular attendance could lead to discipline, up to and including removal.
There is nothing in the record to indicate that the predisciplinary interviews were used as warnings, despite Turbitt's interpretation. Predisciplinary interviews are investigations, none of which in the appellant's case resulted in discipline.
The appellant, meanwhile, offered no evidence in support of his bare assertion that he provided medical evidence to justify his AWOLs. See Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987) (the factors to be considered in resolving credibility determinations), modified, 54 M.S.P.R. 58 (1992), rev’d and remanded on other grounds, sub nom. King v. Hillen, 21 F.3d 1572 (Fed. Cir. 1994).
Finally, he maintained that the agency, when removing him, violated his right to due process of law.
The record reflects that the agency subjected the appellant to at least 4-5 predisciplinary interviews, and constantly warned him about his extensive absences and the adverse impact his absences had on the agency’s ability to deliver mail.
Here Turbitt shows continued confusion about what a predisciplinary interview actually is.
The appellant’s supervisors all testified credibly that they advised him repeatedly that he must return to duty or be disciplined, and they even held off disciplining for a very long time, exercising great patience and forbearance.
For the first time at the hearing, the appellant asked that I include a new issue in this appeal; namely, that the agency denied him minimum due process of law.
page 22 lines 8-12 The appellant actually asked to add an affirmative defense, that the removal had been initiated by a second level supervisor. The court devotes another 11 sentences to discussing this other issue the appellant never raised.