SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 2001
certiorari to the united states court of appeals for the federal circuit
No. 00-758. Argued October 9, 2001—Decided November 13, 2001
While three disciplinary actions that petitioner Postal Service took against respondent were pending in grievance proceedings pursuant to the Postal Service's collective bargaining agreement with respondent's union, the Postal Service terminated respondent's employment after a fourth violation. The Civil Service Reform Act of 1978 (CSRA) permits covered employees, such as respondent, to appeal removals and other serious disciplinary actions to the Merit Systems Protection Board (Board) or through the negotiated grievance procedure, but not both. Respondent appealed to the Board, where an agency must prove its charge by a preponderance of the evidence, 5 U. S. C. § 7701(c)(1)(B), proving not only that the misconduct occurred, but also that the penalty assessed is reasonable in relation to it. An Administrative Law Judge (ALJ) concluded that respondent's termination was reasonable in light of her four violations. Although the three prior disciplinary actions were the subject of pending grievances, the ALJ analyzed them independently, under the approach set forth in Bolling v. Department of Air Force, 8 M. S. P. B. 658, and found that they were not clearly erroneous. While respondent's petition for review of the ALJ's decision was pending before the Board, an arbitrator overturned the first disciplinary action. Respondent did not inform the Board, which denied her petition. The Federal Circuit vacated in part and remanded, holding that prior disciplinary actions subject to ongoing proceedings may not be used to support a penalty's reasonableness.
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