June 14, 2010
JERRY WHITE, Petitioner v. UNITED STATES POSTAL SERVICE, Respondent
Petitioner Jerry White (“White”) appeals from the final order of the Merit Systems Protection Board (“the Board”) upholding his removal for eight separate incidents of accepting pay for time not worked. We affirm.
White was employed by the United States Postal Service from December 11, 1993, until his removal on February 26, 2008. White was promoted to supervisor in 1998 and in 1999 to Manager of the Computer Forwarding System (“CFS”) unit within the South Suburban Processing and Distribution Center (“South Suburban P&DC”) in Bedford Park, Illinois. In mid-2006, the Postal Service’s Office of the Inspector General (“OIG”) commenced an investigation into allegations that employees at the South Suburban P&DC were entering inaccurate information into the Postal Service’s Time and Attendance Collection System (“TACS”). A review of time records from January through June 2006 led OIG to further investigate three CFS unit supervisors, including White, who had received an inordinate amount of overtime compensation due to TACS entries in excess of their daily authorized eight-hour schedule.
From August 19 to November 3, 2006, OIG agents tracked White’s arrival and departure times from the CFS unit. On eight separate days in September 2006, White was absent from the CFS unit for long periods of time while still on the clock. For example, on September 21, 2006, White accepted compensation for working approximately ten hours based on TACS recording an arrival time of 11:58 a.m. and a departure time of 10:31 p.m. The surveillance records, however, show that White left the CFS unit at around 2:31 p.m. and that he did not return until 6:41 p.m. Consequently, White was away from the unit while being paid for four hours and ten minutes. Similar paid absences of between three to five hours occurred on September 22, 24, 25, 26, 27, 28, and 29.
On February 9, 2007, OIG Special Agent Ramona Parker prepared a Report of Investigation, which found, inter alia, that White had misappropriated Postal funds through the misuse of the TACS. The Report concluded that White had been paid $7,557.64 for 251.51 extra hours between August 19 and November 3, 2006, and on forty-three occasions during that period, including the eight specific dates in September listed above, White had been paid for time when he was out of the CFS unit for between two to six hours. The OIG Report was sent to Patrick Kavanaugh, White’s supervisor, who conducted a pre-disciplinary interview with White on March 2, 2007. When questioned about his whereabouts on the eight specific September 2006 dates, White could not offer any explanation. White requested access to his office to see if his personal notes could help him recall. Yet, when given the opportunity to obtain his notes on April 3, 2007, White failed to produce any information indicating his whereabouts. White then requested access to his e-mails but was told that OIG had confiscated his computer.
On September 6, 2007, Kavanaugh issued White a Notice of Proposed Removal, charging him with accepting pay for time not worked. The charge was supported by eight specifications corresponding to the eight September dates, and it identified specific sections of the Supervisor’s Guide to Scheduling and Premium Pay and the Postal Service’s Employee and Labor Relations Manual that White had violated. The Notice also informed White of his right to meet with Lolita Rice, the Manager of Post Office Operations and deciding officer, or to respond to the charge in writing.
On February 22, 2008, Rice issued a Letter of Decision upholding the charge and the penalty of removal. Rice explained that the evidence showed that White was in fact absent from the CFS unit during the dates and times alleged in the Notice of Proposed Removal and that when given an opportunity to explain his whereabouts, White produced no evidence that showed he was working. As for the penalty, Rice concluded that given White’s disregard for the Postal Service’s rules and regulations, White’s misguided attempts to rationalize his actions, and his unwillingness to recognize his wrongdoing, she had no trust in White as an employee and that removal would promote the efficiency of the service. In reaching this conclusion, Rice relied on the seriousness of the offense, White’s position as a manager with duties to enforce the same policies he had violated, his lack of remorse, and his refusal to accept any kind of responsibility for his actions. Rice also considered White’s prior fifteen years with the Postal Service with no past disciplinary history but determined removal was still the appropriate penalty. Accordingly, Rice upheld White’s removal effective February 26, 2008.
White appealed his removal to the Board. After discovery, the administrative judge (“AJ”), without apparent objection from either party, accepted into evidence all documents submitted by the parties and permitted White to call five of his ten proposed witnesses. The AJ conducted a hearing on July 30, 2009.
On August 3, 2009, the AJ issued an Initial Decision affirming the agency’s removal of White for accepting compensation for time not worked. The AJ, noting that White did not dispute his absences, credited Special Agent Parker’s testimony regarding White’s absences from the unit as supported by documentary evidence. The AJ then rejected as not credible White’s main defense, that he was interviewing applicants for temporary employment or for the Postal Service’s Postal Automation Redirection System (“PARS”) program. Rather, the AJ credited the testimony of Kavanaugh and Rice, who stated that White was not authorized to hire temporary employees in September 2006; the testimony of White’s witness Bob Erxleben, a Customer Service Analyst, who testified that the PARS program was not run by CFS; and the testimony of Steven Schneider, White’s then supervisor, who testified that White had no reason to leave the CFS unit to do any PARS-related work. The AJ also relied on White’s inability to name any applicants that he interviewed or to produce any application forms.
The AJ also rejected White’s contention that if he had been allowed to review his e-mail messages he may have been able to remember what he had been doing on the dates in question. The AJ found that White had not indicated what types of e-mails would help him explain his absences and, given the significant length of his absences, White likely would have remembered what he was doing without reviewing any e-mail messages.
Having found by the preponderance of the evidence that White accepted pay for time not worked, the AJ then reviewed the agency’s penalty of removal. The AJ relied on Rice’s testimony that White’s misconduct was serious in nature, that she could no longer trust White, and that he refused to take responsibility for his conduct. The AJ also relied on evidence that White’s misconduct was notorious in nature, citing a letter addressed to Rice and seven other individuals from “CFS Clerks” dated October 26, 2006, complaining that White left work several hours each day. The AJ concluded that Rice had reasonably weighed the pertinent factors in reaching her decision to remove White, including taking into account White’s years of employment with no past disciplinary history, and thus affirmed the agency’s choice of penalty.
On October 27, 2009, the full Board denied White’s Petition for Review, making the AJ’s decision the final decision of the Board. White appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1).