             NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
              is not citable as precedent. It is a public record.

United States Court of Appeals for the Federal Circuit


                                       04-3223



                               KENNETH P. VANCURA,

                                                      Petitioner,

                                           v.

                        UNITED STATES POSTAL SERVICE,

                                                      Respondent.



                           __________________________

                           DECIDED: December 16, 2004
                           __________________________



Before MAYER, Chief Judge, NEWMAN and CLEVENGER, Circuit Judges.

PER CURIAM.



      Mr. Kenneth P. Vancura appeals the final decision of the Merit Systems Protection

Board, Docket No. AT0752020808-I-1, affirming Mr. Vancura's removal from the position of

mail handler at the United States Postal Service. We affirm the Board's decision.

                                     DISCUSSION

      Mr. Vancura had been warned by two supervisors at the Mid-Florida Processing and

Distribution Center not to enter the Computer Forwarding System unit (CFS), which is
responsible for processing mail that is not deliverable. Thereafter, postal investigators

videotaped Mr. Vancura entering the CFS on five occasions during midnight hours when

CFS staff was not present. On May 8, 2002 the investigators recorded Mr. Vancura loading

parcels into a cardboard box. Mr. Vancura carried the box to his tow-motor. He was

followed by a postal inspector, who retrieved the box and also received Mr. Vancura's

consent to search his private vehicle. The vehicle contained an opened piece of mail

addressed to someone else and contained glossy photographs of Michael Jordan. Inside

the cardboard box the inspectors found forty-two compact discs. The agency removed Mr.

Vancura on charges of theft of the mail containing the photographs, and unauthorized

possession of the CDs. Mr. Vancura appealed to the Board.

      The Administrative Judge did not sustain the charge of theft of the mail with the

photographs of Michael Jordan, for evidence showed that the letter was 2-3 years old, and

it was not clear how the letter came into Mr. Vancura's possession. However, the AJ found

that Mr. Vancura was not authorized to possess the CDs, undeliverable mail that the Postal

Service had marked for destruction at the request of the CD companies. The AJ found Mr.

Vancura's explanations not to be credible, and upheld the agency's finding of intentional

wrongdoing. After considering the reasonableness of the agency's choice of penalty,

applying Douglas v. Veterans Administration, 5 M.S.P.R. 280, 307-08 (1981), the AJ

affirmed the agency's decision to remove Mr. Vancura from his position, and the full board

denied review.

      Mr. Vancura argues that the penalty of removal was too severe because the CDs

were of de minimis value and were slated for destruction; he did not reap personal gain

from the CDs; and, he lacked notice of the rules concerning waste mail in the Computer


04-3223                                     2
Forwarding System unit. He states that the penalty of removal is "grossly disproportionate"

to the wrong, citing Miguel v. Department of the Army, 727 F.2d 1081 (Fed. Cir. 1984). In

Miguel this court held that the penalty of removal was grossly disproportionate for theft of

two bars of soap. The Postal Service distinguishes Miguel on its facts, pointing out that the

CDs had greater intrinsic value, and the CD companies had requested that they be

destroyed if they could not be delivered because of potential copyright and royalty issues

arising from their use by unauthorized parties. The Postal Service stresses that Mr.

Vancura had previously been warned not to enter the Computer Forwarding System unit.

       Mr. Vancura argues that the penalty of removal should be mitigated by his thirty

years of federal service without discipline and by his potential for rehabilitation. Although

this court had referred to the petitioner's record of service in Miguel, 727 F.2d at 1083, Mr.

Miguel did not occupy a position of trust with regard to the bars of soap, whereas Mr.

Vancura occupied a position of trust with respect to the delivery of mail. The Administrative

Judge found that Mr. Vancura was "less than truthful during the investigation," and that it

did not appear Mr. Vancura could be rehabilitated in view of the frequency with which he

entered the Computer Forwarding System unit after being told not to do so. These findings

are supported by substantial evidence, and support the Board's decision. We agree with

the Postal Service that those entrusted with the mail must meet rigorous standards of

honesty and credibility, and that the remedy imposed, after several warnings, is within the

discretionary scope contemplated by the Douglas factors.

       No costs.




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