In Davis v. USPS, 2013 MSPB 100 (December 31, 2013), the Merit Systems Protection Boardupheld the USPS’s removal of a veterans preference-eligible maintenance mechanic on grounds including violation of a zero tolerance policy. (Only preference-eligible Postal Service employees are entitled to appeal adverse actions, such as removals, to the MSPB).Davis’s wife was also employed by USPS, but at a different duty station.Davis was alleged to have made threatening remarks to his wife’s station manager after Davis’s wife had called Davis, crying because of how her manager had spoken to her.Davis was alleged to have entered the station manager’s office and yelled at him, including referring to him in profane and vulgar terms.The agency maintained that Davis’s actions were threatening to other employees, as well as to the station manager.
Anadministrative judge found that removal was with the limits of reasonableness, rejecting Davis’s argument that others had received lesser penalties for similar conduct.After the AJ upheld Davis’s removal, Davis filed a petition for review with the full Board of the MSPB.
The Board narrowed its review to whether the penalty of removal was appropriate.The Board began by affirming that its role was only to reduce or modify the penalty when the agency failed to weigh the relevant mitigating factors or if the penalty exceeded the bounds of reasonableness.With respect to Davis’s claim that he received a disparate penalty, the Board stated that Davis must first show that there was enough similarity between both the nature of the conduct and other factors to lead a reasonable person to conclude that the agency treated similarlysituated employees differently.If Davis met his burden, the burden then would shift to the agency to prove a legitimate reason for the difference in treatment.
The Board determined that only one of the two comparators Davis cited was similarly situated. It ruled the agency and AJ properly determined that Davis’s conduct was more severe than that person’s and violated a zero tolerance policy for vulgar language. Further, the other person had many more years of service, a mitigating factor. Ultimately, taken together, the Board decided that despite the AJ’s failure to properly take into consideration the comparator evidence, removal was not an excessive penalty for Davis.
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