Juan Cabrera worked as a mail carrier in the Hayward-Castro Valley Post Office in Castro Valley, California. On October 24, 2007, the agency issued a notice removing him from his position based on two charges: unacceptable conduct and deviation from his postal route. Mr. Cabrera appealed his removal to the Merit Systems Protection.
According to the decision handed down by the United States Court of Appeals for the Federal Circuit:
The unacceptable conduct charge contained a single specification alleging that Mr. Cabrera had engaged in inappropriate sexual contact with a postal customer. The evidence showed that on June 13, 2007, Mr. Cabrera parked his mail truck across the street from Mandy Ilmberger’s home on Lamson Road in Castro Valley. Mr. Cabrera then crossed the street, approached Ms. Ilmberger’s house, and hand-delivered the mail to Ms. Ilmberger. According to Ms. Ilmberger, Mr. Cabrera handed her the mail in the doorway of her home, then stepped into the house, grabbed her by her right arm, and pushed her behind the front door. Ms. Ilmberger testified that while Mr. Cabrera held her by the arm, he kissed her with his mouth open and “shoved his tongue down my throat.”
Ms. Ilmberger stated that after she pushed him away, Mr. Cabrera handed her a wrapped condom. Ms. Ilmberger gave the condom back to Mr. Cabrera and told him to leave. As Mr. Cabrera was walking away he stopped on the porch, turned to face Ms. Ilmberger, and said, “I’ll see you tomorrow morning.” Mr. Cabrera drove off in his delivery vehicle, but returned to Ms. Ilmberger’s house about two minutes later and told her that she was “looking good” and reiterated that he would “definitely” see her the next morning. Ms. Ilmberger’s neighbor, Kathy Christensen, testified that later that afternoon Ms. Ilmberger told her about the alleged incident involving Mr. Cabrera.
Although Mr. Cabrera admitted that he had crossed Lamson Road to deliver the mail to Ms. Ilmberger on June 13, he testified that he stood on her front lawn and handed her the mail while she was on her porch. Mr. Cabrera asserted that he did not kiss Ms. Ilmberger or enter her house, but rather talked with her briefly about a piece of misdirected mail and then proceeded along his postal route without any further contact with Ms. Ilmberger that day.
The administrative judge credited Ms. Ilmberger’s version of events. He explained that he had observed Ms. Ilmberger at the hearing and found her testimony to be convincing, specific, highly detailed, and based on personal knowledge. He added that her testimony was consistent with the statements she had made to the Sheriff’s Office, to Mr. [Dante]Datu, and to the supervisor of customer services at Hayward Post Office. In contrast, the administrative judge was “unconvinced by the appellant’s presentation” and found Mr. Cabrera’s testimony to be inconsistent with the statement he had made to the Sheriff’s Office. The administrative judge therefore sustained the agency’s unacceptable conduct charge against Mr. Cabrera.
The agency also charged Mr. Cabrera with two specifications of deviating from his postal route in connection with the alleged sexual assault on Ms. Ilmberger. The first specification alleged that Mr. Cabrera had deviated from his route on June 13, 2007, when he crossed Lamson Road to hand-deliver the mail to Ms. Ilmberger immediately before the alleged assault. To maximize efficiency, the Postal Service automatically sorts mail according to a delivery point sequence corresponding to a mail carrier’s prescribed delivery route. Typically, the delivery point sequence prearranges mail for delivery to one side of a street at a time so that mail carriers do not traverse the street in a criss-cross fashion when making their deliveries. Carriers are prohibited from deviating from their assigned route for any reason without specific managerial authorization.
Mr. Cabrera conceded that he had deviated from his route on June 13, but he argued that mail carriers routinely do so in order to hand-deliver mail to postal customers. Such deviations, Mr. Cabrera claimed, result in better customer service while adding only a negligible amount of time to the carrier’s overall route. The administrative judge explained that while he had “no reason to doubt that individual carriers believe that specific customers are better served by such deviations, it is undisputed that the appellant’s actions on June 13, 2007 with regard to 18131 Lamson involved a deviation from his known route.”
The second specification to the charge alleged that Mr. Cabrera had deviated from his assigned route on June 14, 2007. After the alleged incident with Ms. Ilmberger, Mr. Cabrera’s supervisor removed Lamson Road from his postal route, instructed him to remove any mail addressed to Lamson Road from his mail truck, and assigned those deliveries to another mail carrier. Because Lamson Road was not on Mr. Cabrera’s postal route for that day, Mr. Cabrera had no reason to be on Lamson Road. However, Ms. Christensen testified that on the morning of June 14, she observed Mr. Cabrera make repeated U-turns in front of Ms. Ilmberger’s house. Mr. Cabrera then parked his mail truck.
Mr. Cabrera did not contest that he deviated from his route on June 14. Rather, he testified that he inadvertently drove by Ms. Ilmberger’s house after becoming disoriented while attempting to deliver two letters to another address on Lamson Road.
The administrative judge therefore concluded that Mr. Cabrera deviated from his route on June 14, 2007, first when he circled in front of Ms. Ilmberger’s house, and then again when he returned to her house at the behest of her brother-in-law.
We therefore see no error in the administrative judge’s determination upholding the agency’s decision to remove Mr. Cabrera.