In the Matter of the Petition by ) July 20, 1998
)
MICHAEL M. SANDS )
3864 Lyell Road )
Rochester, NY 14606-4402 )
)
)
)
Termination of Post Office Box Service )
for P.O. Box 1, Rochester, NY ) P.S. Docket No. POB 98-172
APPEARANCE FOR PETITIONER: Michael M. Sands
3864 Lyell Road
Rochester, NY 14606-4402
APPEARANCE FOR RESPONDENT: Janessa L. Grady, Esq.
Civil Practice Section
United States Postal Service
475 L'Enfant Plaza, SW
Washington, D.C. 20260-1127
This proceeding arises out of a Petition filed by Mr. Sands after receiving a letter, dated March 25, 1998, from the Rochester, New York Postmaster informing him that his post office box service was terminated "due to your abusive behavior."
After Respondent's Answer was filed, an Order was issued on May 19, 1998, stating that unless a party requested an oral hearing this case would be decided on a written record. The parties were given until June 22, 1998 to file additional material, including affidavits of witnesses, and until July 10, 1998 to file rebuttal. Petitioner filed a large volume of documents, and Respondent filed a Motion for Summary Judgment, with four exhibits attached. Petitioner filed a one-page rebuttal. Neither party filed any sworn statements from witnesses. The following findings of fact are based on all the materials submitted by the parties:(1)
1. Petitioner has been a postal employee in Rochester, New York since 1985. The record does not show how long he has rented P. O. Box 1. This box is located at the Downtown Station, where Petitioner worked as a distribution clerk during the time pertinent to this case.
2. Petitioner has a long history of disputes and confrontations with management and co-workers over a wide variety of issues, with many allegations of improper conduct flowing in both directions. ((Rx. 2 and 3; Pet. Ex. 2, 4, 6 (Dr. Lynch memorandum), Pet. Ex. 8)).
3. On March 2, 1998, Petitioner brought an excess mail notice(2) to the window where box clerk Ron Valinsky was working. There had been some degree of unfriendliness between Petitioner and Mr. Valinsky in the past (Rx. 1; Rx. 3; Pet. Ex. 2). Evidence as to what happened next is found in an unsworn statement of Mr. Valinsky (Rx. 1), and an unsworn statement of Ms. Perez (Pet. Ex. 6). Petitioner's version of the event is found only in the written argument of his union representative submitted during a grievance process on April 14, 1998 (Pet. Ex. 1). Whether justified or not, Petitioner perceived that Mr. Valinsky was intentionally delaying getting Petitioner's mail. Petitioner left the lobby, came into the work area, approached quite close to Valinsky and said, in a raised voice, "Are you going to get my mail or not?" or words to that effect. He continued to follow Valinsky closely and also used the phrase, "Hurry your ass," or words to that effect. Disturbed by all of this, Mr. Valinsky left the area without getting Petitioner's mail. Petitioner then asked Ms. Perez to get his mail. She told him to return to the window, which he did. She retrieved his mail from the "overflow bin" and delivered it to him at the window. Mr. Valinsky complained to his supervisor, Mr. Durbin, that he felt Petitioner's actions to be hostile and threatening.
4. On March 23, 1998, Mr. Durbin, who was also Petitioner's supervisor, gave Petitioner a Notice of Proposed Removal (Rx. 2; Pet. Ex. 1). This Notice listed two charges as the basis for the action. The first was labeled "obnoxious behavior," and described the March 2 incident with Mr. Valinsky. The second was labeled "failure to follow instructions," and alleged that Petitioner had been cautioned and instructed "repeatedly" to stop harassing other employees. The Notice also stated that the supervisor had considered Petitioner's past history, which included a 7-day suspension and two 14-day suspensions for various infractions between 1995 and 1997. The Notice informed Petitioner that he, or his representative, could respond to the proposed action within ten days, and could file a grievance within fourteen days.
5. Petitioner filed a grievance, and he and his representative met with Postmaster Montague on April 1 and April 17, 1998. On April 23, 1998, Mr. Montague issued a Letter of Decision, which discussed the March 2 incident at length as well as several other examples of Petitioner's confrontational behavior. He concluded that the March 2 incident "if taken in isolation, would not warrant your removal," but that "your continuous obnoxious, disruptive behavior impact the efficiency of postal operations and warrant your removal from the Postal Service." (Rx. 3). The letter informed Petitioner of his right to appeal to the Merit Systems Protection Board (MSPB).
6. The grievance process continued, and on May 13, 1998, management and Petitioner's union signed a settlement agreement that included the following terms:
1. The Notice of Proposed Removal dated March 23, 1998 and the Letter of Decision upholding that removal dated April 23, 1998 will be reduced to a 14-Calendar Day Suspension. It is also agreed that Mr. Sands will not be made to serve the suspension in a LWOP status; this will be a paper suspension.
2. Mr. Sands will be reassigned as an unassigned regular to the Computer Forwarding Unit. . . . Mr. Sands will be allowed a 120-day period during which time he may use his bidding seniority to bid another position. It is also agreed that during this interim assignment . . . that he will be precluded from bidding to any vacancies at the Downtown Station.
3. . . . If Mr. Sands does not obtain a position within the 120-day period, he will be assigned to a vacant position in accordance with the National Agreement ....
Contentions of the Parties
In the Motion for Summary Judgment, Respondent argues that there is no genuine issue of fact presented by the Petition and that the undisputed facts regarding the March 2 incident provide a basis for the postmaster to terminate post office box service. Respondent cites Section D910.8.2 of the Domestic Mail Manual (DMM), which gives a postmaster authority to terminate box service if a customer "conducts himself or herself in a violent, threatening, or otherwise abusive manner on postal premises.(3)"
Petitioner argues that his conduct on March 2 did not constitute "abusive behavior," and that Mr. Valinsky's version of the event is not entirely true. He cites the terms of the settlement agreement as proof that the incident was not sufficiently serious to justify terminating his box service. Specifically, he points out that, under paragraphs 2 and 3 of the agreement, he is precluded from returning to work at the Downtown Station only for 120 days, and since he would then be permitted to work there again there is no good reason for denying him a post office box there.
Despite the evidentiary weakness of Respondent's case, i.e. no sworn statements from witnesses, the record is sufficient to support the postmaster's decision to terminate Petitioner's box service. What is being judged here is the reasonableness of the postmaster's action. This is not a criminal charge against Petitioner, and there is no requirement to prove "guilt" "beyond a reasonable doubt." Though Petitioner disputes some of the details in Mr. Valinsky's account of the March 2 incident, it is significant that he has never denied pursuing Valinsky into the work area, getting very close to him, and shouting at him. Petitioner's history of behavior problems in dealing with supervisors and co-workers is also significant. The specifics of any other particular incident are not established in the record, but there are many references to such incidents in the materials submitted by Petitioner.(4) It is not possible to make a judgment as to who was "right or wrong" on any occasion, but Petitioner does not deny that he has previously been counseled about such matters. It is appropriate to consider this history in judging whether the postmaster had a sound basis for terminating box service.
There is some logic to Petitioner's reliance on the settlement agreement to show that the March 2 incident was not as serious as it was originally made out to be. There is quite a come-down after all from firing an employee to giving him a two-week suspension with pay. On the other hand, one of the terms of the settlement agreement removed Petitioner from the Downtown Station for at least 120 days. Closing his post office box at that station is consistent with that. Petitioner's argument that he should be allowed to keep the post office box because he may be allowed to work there again in the future is based on speculation. Moreover, a settlement agreement does not establish any facts, and this particular agreement in no way ties the postmaster's hands in taking other appropriate action. The March 2 incident did occur, and considered in the context of Petitioner's history, even though there is no evidence that he voiced any actual threats to Valinsky, his behavior was threatening and abusive. The postmaster acted within his authority under DMM §D910.8.2 to terminate Petitioner's post office box service.(5)
Respondent's Motion for Summary Judgment is denied, because there
are material factual issues in dispute. On the facts as I have
found them, however, the postmaster's decision to terminate Petitioner's
post office box service is sustained. The Petition is dismissed.
Bruce R. Houston
Chief Administrative Law Judge