Case May Define When Past Can Be Prologue for Disciplining an Employee

By Stephen Barr

Sunday, October 7, 2001

Appeals of disciplinary actions against federal employees are fairly common, but only the occasional case makes it all the way to the Supreme Court. Rarer still is the case that the high court agrees to hear.

On Tuesday, though, the court will hear oral arguments in an appeal that could set a precedent for how agencies discipline federal employees. At stake is the notion of progressive discipline -- specifically, to what extent past discipline can be used as support for a new disciplinary action.

The case before the court, U.S. Postal Service v. Gregory, involves Maria A. Gregory , a letter carrier in Hinesville, Ga. She was fired in 1997 because of her prior disciplinary record -- a letter of warning, a seven-day suspension and a 14-day suspension. Gregory challenged the first three disciplinary actions through a negotiated grievance procedure and appealed her firing to the Merit Systems Protection Board.

The MSPB upheld the Postal Service, saying that past disciplinary actions taken cumulatively can support a more severe punishment than would be warranted by the most recent infraction alone.

In this case, the incident spurring the removal was Gregory's estimate of how long it would take to complete a mail route. "After more than 12 years of dedicated service, respondent had been fired for overestimating by a little over one hour the more than 10 hours it took to deliver a route on which she was not the regular carrier," her lawyer, Henk Brands , of the District, said in his brief.

Gregory appealed again, to the U.S. Court of Appeals for the Federal Circuit. She argued, among other things, that her firing was connected to her relationship with her supervisors, which became strained in 1995 when workplace incidents led her to file equal employment opportunity complaints.

In its ruling, the appeals court said her firing must be reconsidered because, while the prior disciplinary actions were underway, Gregory won the first of the grievances, resulting in the withdrawal of the warning letter.

The appeals court held that when weighing the reasonableness of a penalty, the MSPB may not consider "prior disciplinary actions that are the subject of ongoing proceedings challenging their merits."

The Justice Department, on behalf of the Postal Service, said in its brief to the high court that the appeals court reversed two decades of MSPB rulings on progressive discipline. "The MSPB has followed the common sense rule that federal agencies may rely on an employee's disciplinary record in assessing the appropriate discipline for subsequent misconduct, without regard to whether prior disciplinary actions are subject to pending grievances," Justice lawyers said.

The Justice Department pointed out that if a prior disciplinary action is set aside after the MSPB has ruled in favor of the agency, the individual can ask the merit board to reconsider its decision in light of that development.

The department also contended that the appeals court's ruling will give employees an incentive to challenge all actions against them and to string out the proceedings on the theory that no more serious action could be taken against them while those grievances are pending. This would prevent agencies from using recent disciplinary history in making their decisions, the brief said.

But Brands contends that the lower court's decision affects only MSPB practices, not those of agencies.

In his brief, he argued that if a grievance against an earlier disciplinary action is still pending, the MSPB can defer its decision until the grievance has been resolved. "Given these arrangements," the brief said, "agencies will be able to rely on an employee's prior record to precisely the extent as they always have," although agencies would have to act with the understanding that a past action may be overturned.

Brands argued it is well established in the grievance arena that arbitrators do not consider charges still being grieved as a valid basis for a disciplinary action.

Without such a rule, he pointed out, it is the employer who has the incentive to delay grievance cases. The employer can press ahead to fire a worker and then refuse to proceed on the earlier disciplinary disputes on the grounds that the person is no longer an employee and not eligible for grievance protections.

In Gregory's case, Brands wrote, "the Postal Service embarked upon a strategy of delay."