                     NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                     2009-3008

                                LYNN M. VAUGHN,

                                                          Petitioner,

                                         v.

                       UNITED STATES POSTAL SERVICE,

                                                          Respondent.


      Lynn M. Vaughn, of Atlanta, Georgia, pro se.

       James P. Connor, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant
Director. Of counsel was Devin A. Wolak, Trial Attorney.

Appealed from: Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                      2009-3008

                                 LYNN M. VAUGHN,

                                                     Petitioner,

                                          v.

                        UNITED STATES POSTAL SERVICE,

                                                     Respondent.


Petition for review of the Merit Systems Protection Board in AT0752070971-I-1.


                            __________________________

                             DECIDED: March 13, 2009

                            __________________________


Before GAJARSA, CLEVENGER, and DYK, Circuit Judges.


PER CURIAM.

      Lynn M. Vaughn appeals from a decision of the Merit Systems Protection Board,

Vaughn v. U.S. Postal Service, 109 M.S.P.R. 469 (2008), sustaining her reduction in

grade and pay. We affirm.

                                   BACKGROUND

      Ms. Vaughn served as the EAS-20 Manager, Customer Services at the Glenridge

Post Office in Atlanta, Georgia. On April 26, 2007, Charles Gracek, Manager, Customer

Service Operations, Atlanta, Georgia Post Office, proposed demoting Ms. Vaughn to the
EAS-17 position of Supervisor, Customer Services, based on a charge of failure to

perform her duties in an effective manner. Gracek alleged that on several occasions,

Ms. Vaughn failed to provide information to the union steward or to schedule “Formal A

meetings” in the grievance process, as is required by the Collective Bargaining

Agreement. As a result of this failure, the grievances were taken to a higher level (“Step

B”) without management documentation and responses, ultimately leading to decisions

and awards totaling nearly $28,000 in the union’s favor.         The Step B decisions

acknowledged Ms. Vaughn’s failure to provide the appropriate information, and

admonished her to provide such information in the future. In addition, Ms. Vaughn

received several letters of warning from Mr. Gracek, outlining Ms. Vaughn’s

performance deficiencies and ordering her to rectify the violations. On December 20,

2007, Kevin Helmer, Postmaster, Atlanta, Georgia, issued a revised letter of decision

sustaining the proposal and reducing the appellant in grade and pay for failing to

perform her duties in a satisfactory manner, and informed her that she would be

reassigned to the position of EAS-17 Supervisor, Customer Services, Martech Station,

Atlanta, Georgia, effective December 22, 2007. Ms. Vaughn then appealed the decision

to the Board’s Atlanta Regional Office.

      At the Board’s Regional Office, Ms. Vaughn withdrew her request for a hearing.

The administrative judge (“AJ”) then reversed the demotion based on the written record,

holding that the evidence of ineffective performance was hearsay, conclusory in nature,

and insufficient to sustain a charge of ineffective performance. The agency filed a

petition for review with the Board, which reversed the decision of the AJ. Vaughn, 109

M.S.P.R. at 479. The Board held that the AJ erred in finding that the Step B decisions




2009-3008                                   2
were not sufficiently probative to support the charge, and reversed his decision.

Ms. Vaughn then timely filed this appeal.       On appeal, Ms. Vaughn challenges the

Board’s decision to sustain her demotion.

                                     DISCUSSION

      Decisions of the Board must be affirmed unless the decision is “(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); see also Dickey v. OPM,

419 F.3d 1336, 1339 (Fed. Cir. 2005) (outlining this court’s standard of review).

      Ms. Vaughn argues that the evidence was not sufficient to sustain the charge.

The Board’s determination in fact is supported by substantial evidence. Ms. Vaughn

also argues that the Board erred in failing to consider her penalty argument, namely that

the severe understaffing at the Glenridge Post Office excused her actions.            We

disagree. It is well settled that a penalty’s reasonableness should be assessed under

the 12 factors set forth in Douglas v. Veterans Administration, one of which is mitigating

circumstances. 5 M.S.P.R. 280 (1981). See, e.g., Webster v. Department of the Army,

911 F.2d 679, 686 (Fed. Cir. 1990). Ms. Vaughn argued to the Board that her failure to

perform her duties was due to understaffing and the resulting need for her to perform

the work of her subordinates, thus rendering it impossible for her to complete all of her

work. The Board concluded that “the alleged understaffing at the Glenridge Post Office

[is] insufficient to warrant mitigating the penalty.” Vaughn, 109 M.S.P.R. at 478-79.

Because the Board properly considered this mitigating factor and found that it did not




2009-3008                                   3
mandate a lesser penalty, we find no abuse of discretion in the Board’s decision.

Therefore, the decision of the Board is affirmed.

      No costs.




2009-3008                                   4
