A Postal Employee appealed USPS’ decision to remove him based on a charge of Improper Conduct/Violation of Zero Tolerance Policy after the employee engaged in a physical altercation with a co-worker. The MSPB sustained the removal, but the Federal Circuit Court reversed the penalty determination and remanded the case. The MSPB found that a 30-day suspension was the maximum reasonable penalty, and therefore, ordered USPS to cancel the removal. Cunningham v. U.S. Postal Service. PR note: Now this does not mean employees can hit their co-workers without fear of getting fired. It only points out  getting fired for violating the zero tolerance policy should not be a blanket policy.

MSPB in explaining its decision wrote:

When an agency imposes removal under a zero tolerance policy without giving bona fide consideration to the appropriate Douglas factors, its penalty determination is not entitled to deference. In such a case, the Board will independently weigh the relevant Douglas factors to evaluate the reasonableness of the penalty.

Here, the administrative judge found that the deciding official imposed the penalty of removal because he believed that the agency’s zero tolerance policy requires removal for a sustained charge of violence in the workplace.

The court found that “the [administrative judge]’s determination must stand.” Therefore, we must independently weigh the relevant Douglas factors to evaluate the reasonableness of the penalty.

When the Board sustains all of the agency’s charges, but finds the agency penalty too severe, the Board may only mitigate the penalty to the maximum reasonable penalty. Here, the appellant has at least ten years of satisfactory service and the agency did not cite any prior disciplinary record in its notice of proposed removal or removal decision notice. Further, the court found that the physical altercation resulted in no serious injury, no weapons were used, and there was “an element of provocation.” As the administrative judge found, the appellant had the opportunity to avoid the altercation by going back into the building and informing the Postal police following Mr. Allmond’s initial push. Therefore, in accordance with the court’s instruction that the administrative judge’s credibility determinations must stand, we find that a thirty-day suspension is the maximum reasonable penalty.

Cunningham vs. U.S. Postal Service

Related link:  Appeals Court Overturns MSPB Decision To Uphold Postal Workers Removal – Federal Circuit Court decision