                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SANDRA M. GRACE,                                DOCKET NUMBER
                  Appellant,                         CH-0752-15-0463-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: September 1, 2016
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Jack Barry, Littleton, Colorado, for the appellant.

           Deborah W. Carlson, Chicago, Illinois, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed her removal. Generally, we grant petitions such as this one only when:
     the initial decision contains erroneous findings of material fact; the initial
     decision is based on an erroneous interpretation of statute or regulation or the

     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                        2

     erroneous application of the law to the facts of the case; the administrative
     judge’s rulings during either the course of the appeal or the initial decision
     were not consistent with required procedures or involved an abuse of discretion,
     and the resulting error affected the outcome of the case; or new and material
     evidence or legal argument is available that, despite the petitioner’s due
     diligence, was not available when the record closed. See title 5 of the Code of
     Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).              After fully
     considering the filings in this appeal, we conclude that the petitioner has not
     established any basis under section 1201.115 for granting the petition for review.
     Therefore, we DENY the petition for review and AFFIRM the initial decision,
     which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

                                      BACKGROUND
¶2        The agency removed the appellant, a Supervisor of Customer Service at its
     University City branch in St. Louis, Missouri, on a single charge of Inappropriate
     Conduct, supported by a long narrative concerning a September 26, 2014 verbal
     altercation with her supervisor. Initial Appeal File (IAF), Tab 6 at 19-28. After
     holding a hearing, the administrative judge affirmed the agency’s action. IAF,
     Tab 18, Initial Decision (ID). The administrative judge found that the agency’s
     witnesses testified consistent with their contemporaneous written statements and
     were therefore more credible than the appellant and her witnesses, who made
     their written statements months after the altercation and presented inconsistent
     testimony at the hearing. ID at 8-11. The administrative judge also found “the
     appellant’s disrespectful and insubordinate conduct to be improper, especially for
     an individual in a supervisory position,” like the appellant. ID at 11.
¶3        The administrative judge rejected the appellant’s affirmative defense of
     harmful procedural error, finding that the agency did not punish the appellant
     twice for the same misconduct, but instead utilized emergency placement to put
     the appellant in an off-duty, nonpay status for 9 days as provided for in
                                                                                        3

     section 651.4 of its Employee and Labor Relations Manual (ELM) because it had
     reason to believe that she had engaged in actions that were disruptive to the
     agency’s day-to-day operations. ID at 12-14. The administrative judge further
     found that the agency established a nexus between the appellant’s misconduct and
     the efficiency of the service and that the penalty was within the tolerable limits of
     reasonableness. ID at 14-16.
¶4         In her petition for review, the appellant argues that the administrative judge
     incorrectly found that her removal was not barred by her prior 9-day placement in
     an off-duty, nonpay status for the same misconduct. Petition for Review (PFR)
     File, Tab 1.   The agency responds in opposition, and the appellant provides a
     reply to the agency’s response. PFR File, Tabs 3-4.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶5         The Board has long held that an agency may not discipline an employee
     more than once for the same misconduct. See Westbrook v. Department of the
     Air Force, 77 M.S.P.R. 149, 155 (1997); Adamek v. U.S. Postal Service,
     13 M.S.P.R. 224, 226 (1982). A “suspension,” which is an adverse action under
     5 U.S.C. chapter 75, is defined as “the placing of an employee, for disciplinary
     reasons, in a temporary status without duties and pay.”         5 U.S.C. § 7501(2).
     There is no dispute that the agency, pursuant to section 651.4 of the ELM, placed
     the appellant in a temporary status without duties and pay for 9 days before
     proposing and effecting her removal. ID at 12; IAF, Tab 6 at 31.
¶6         The pertinent question in determining whether the agency’s actions
     constituted double punishment for the same offense is whether the reason for the
     two actions, i.e., the emergency placement and the removal, was the same. Cf.
     Bradley v. U.S. Postal Service, 96 M.S.P.R. 539, ¶¶ 12-13 (2004) (finding that the
     appellant’s placement into an unpaid, nonduty status under the collective
     bargaining agreement between the agency and the appellant’s union was for a
     different reason, i.e., protecting the appellant and his coworkers, than was his
                                                                                           4

     subsequent disciplinary suspension for misconduct). Further, we note that the
     Board generally lacks the jurisdiction to consider a suspension of 14 days or less. 2
     E.g., Harrison v. U.S. Postal Service, 26 M.S.P.R. 37, 38-39 (1985).
¶7         The record shows that even though the appellant’s emergency placement
     and her removal both stem from the same episode, the agency took each of those
     actions for different reasons. We agree with the administrative judge that the
     agency established that it utilized the emergency placement procedure in this
     instance as an interim protective measure to prevent future disruption, not to
     discipline the appellant for her conduct.      ID at 13-14.     The customer service
     manager that effected the emergency placement testified that the disrespect and
     discourteousness the appellant consistently showed him significantly interfered
     with his ability to manage the other supervisors under his authority. IAF, Tab 17,
     Hearing Transcript, Oct. 14, 2015, at 14-15.
¶8         Accordingly, because the record reflects that the agency effected the
     appellant’s emergency placement under section 651.4 of the ELM and her
     subsequent removal for distinctly different reasons, using emergency placement
     as an interim protective measure and then removing her as discipline for her
     misconduct, we affirm the initial decision.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision by the U.S.
     Court of Appeals for the Federal Circuit. You must submit your request to the
     court at the following address:
                                United States Court of Appeals
                                    for the Federal Circuit
                                  717 Madison Place, N.W.
                                   Washington, DC 20439

     2
       We further note that the notice letter effecting the appellant’s placement in a nonpay
     status informed her that the decision could be appealed under the grievance/arbitration
     provisions of the ELM. IAF, Tab 6 at 31.
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The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the U.S. Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec. 27,
2012). You may read this law as well as other sections of the U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm.        Additional information is
available at the court’s website, www.cafc.uscourts.gov. Of particular relevance
is the court’s “Guide for Pro Se Petitioners and Appellants,” which is contained
within the court’s Rules of Practice, and Forms 5, 6, and 11.
      If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
