The US Court of Appeals for the Federal Circuit upheld the Merit System Protection Board’s decision removing EAS-17 Customer Services Supervisor David Whelan from his position (see background of case below). The Court issued its non-precedential decision without an opinion.  

Background

On October 3, 2005, the Postal Service removed David Whelan, an EAS-17 Supervisor of Customer Services, based on a charge of falsification of time and a charge of failure to meet the responsibilities of his position. 

The Postal Service charged the supervisor with giving  employees credit for time not worked in order to reward them for their speed and efficiency.  The second charge also related to the Supervisor’s actions regarding time and attendance records, both his own and those of his subordinate employees. Whelan was also charged with improper access of  the Times and Attendance Control System (TACS) in order  to add or manipulate the clock rings of letter carriers by using the passwords of two supervisors. Although an administrative judge reduced the removal to a demotion, MSPB reversed the decision and sustained the initial removal.

In a sworn statement by one of the letter carriers involved in the falsification charge :

she states that she had an arrangement with you, whereas, she would deliver up to 12-13 hours of mail in eight (8) hours or less and would be compensated with additional overtime pay that was not worked.  Tavernese stated she was instructed by you to not punch an end tour and that you would take care of it by giving her an end time clock ring.  Records show that Tavernese failed to clock an end tour approximately 206 times.  Out of the 206 occasions there were approximately 150 occasions where she received overtime.  Tavernese stated that during this time period, whenever she received overtime, it was in accordance with the arrangement that she worked out with you, i.e. she was paid overtime for hours not worked when she was able to finish a 12 or 13 hour route in 8 hours or less.

With respect to the second charge, the Postal Service  specified in part that:

During the time frame of December 2003 through March 2005, TACS [Time and Attendance Collection System] records show that there were employees that failed to have end tour clock rings.  

Also during the same time period, you admit in your statement that you have improperly accessed the TACS system to add or manipulate the clock rings of Sherrie Oakes and other letter carriers by using the passwords of supervisors.

Whelan filed a MSPB appeal challenging his removal. After a hearing the administrative judge sustained only the second charge and reduced the removal penalty to a demotion. The administrative judge found that Whelan’s sworn statement given during an investigative interview was not reliable and that the Postal Service had therefore failed to show by “a preponderance of the evidence that he intended to mislead or deceive the Postal Service as to the charge of falsification.”   The Postal Service filed a petition for review, arguing that the administrative judge erred in not sustaining the first charge and in reducing the penalty.

The Board rejected the administrative judge’s finding that the Postal Service failed to show that Whelan intended to defraud the Postal Service.  Specifically, the Board found that when the appellant “rewarded” subordinate employees for their speed and efficiency by adding end tours for work the employees had not performed, “he knowingly provided the agency with incorrect information with a reckless disregard for the truth or with conscious purpose to avoid learning the truth.  The Board therefore found that the Postal service had proven its falsification charge.”

Whelan argued that his penalty “was inconsistent with those given to two other supervisors [referring to other Supervisors who admittedly also clocked end times for the same employees on several occasions].” However, MSPB found that the he had “failed to establish that the charges and the circumstances surrounding the charged conduct in the cases he cited were similar to those of his case.”  Therefore, MSPB   found that the “penalty of removal was within the parameters of reasonableness under all the circumstances of this case.”