Supreme Court case could alter federal grievance process

A case argued before the U.S. Supreme Court Tuesday could change the way disciplinary actions under review are used and applied to current disciplinary actions. The case originated in 1997, when the Postal Service fired Maria Gregory, a letter technician in Hinesville, Ga., because she overestimated the time needed to complete a mail route. Letter technicians are responsible for five mail routes and deliver the mail for those routes when regularly assigned carriers are unavailable. Carriers and technicians are supposed to estimate the amount of time needed to complete their work per day within a 15 to 20 minute margin of error, according to the Postal Service. Gregory's supervisor decided that her poor judgment warranted punishment and on Nov. 26, 1997, the Postal Service fired her. Postal officials considered Gregory's prior disciplinary record when making the decision to fire her. At the time she was fired, Gregory had three disciplinary actions under challenge: a May 1997 letter of warning for insubordination; a June 1997 seven-day suspension for delaying the mail and failing to follow instructions; and an August 1997 14-day suspension for delaying the mail, taking unauthorized overtime, failing to follow instructions and failing to perform duties in a satisfactory manner. Gregory appealed her dismissal to the Merit Systems Protection Board, which upheld her firing. The case then went to the Federal Circuit Court of Appeals, which decided that because Gregory's pending first disciplinary action--which was the basis for the other two actions--was dropped, neither the Postal Service nor the MSPB could rely on that prior history in deciding her punishment for the September 1997 offense. The case eventually made its way to the Supreme Court. "What the government is trying to do is shift the burden of proof on the charges and the penalty as well, to the employee," said Ed Passman, an attorney with the National Employment Lawyers Association, which submitted an amicus brief to the high court supporting the circuit court's position. "It makes more sense not to rely on prior discipline where it's being challenged." What is at stake for federal managers is the impact the court's decision could have on the grievance process, according to Jerry Shaw, general counsel for the Senior Executives Association. If the Supreme Court upholds the circuit court's decision, "managers will not be able to use prior disciplinary actions in order to justify removing employees for subsequent actions as long as they are being challenged," Shaw explained. "In an already flooded EEO grievance system, and agency and negotiated contract system, it's just a bad, bad decision." According to Shaw, agencies could reverse an employee's dismissal if challenged disciplinary actions were later found to be unsubstantiated. "If you are not allowed to remove an employee for their second, third or fourth offense because your hands are tied, why have a progressive discipline system?" Shaw asked. Passman agreed that the circuit court's ruling would affect the grievance process. "It will have some impact, to what extent we'll have to see," Passman said. The Supreme Court will rule on the case within a year.