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Doe v. USPS 11-3162

Doe v. USPS 11-3162

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Published by: FedSmith, Inc. on Jul 05, 2012
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N
OTE
: This disposition is nonprecedential.
United States Court of Appealsfor the Federal Circuit
 __________________________ TERRY D. DOE,
 Petitioner,
v.UNITED STATES POSTAL SERVICE,
Respondent.
 __________________________ 
2011-3162
 __________________________ 
Petition for review of the Merit Systems ProtectionBoard in case no. PH0752100292-I-1.
 __________________________ 
Decided: June 20, 2012
 __________________________ 
D
EVIN
M
CLAUGHLIN
, Langrock Sperry & Wool, of Mid-dlebury, Vermont, argued for petitioner. A 
NUJ
 V
OHRA 
, Trial Attorney, Commercial LitigationBranch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. Withhim on the brief were T
ONY 
W
EST
, Assistant AttorneyGeneral, J
EANNE
E.
 
D
 AVIDSON
, Director, and P
 ATRICIA 
M.
 
M
CCARTHY 
, Assistant Director.
 __________________________ 
 
DOE
v.
USPS
 2
Before N
EWMAN
, C
LEVENGER
, and L
INN
,
Circuit Judges
.C
LEVENGER
,
Circuit Judge
.The petitioner, Terry D. Doe, appeals the final orderof the Merit Systems Protection Board (“Board”) sustain-ing his removal.
 Doe v. United States Postal Service
, No.PH-0752-10-0292-I-1, slip op. (M.S.P.B. Apr. 28, 2011)(“
Final Decision
(Apr. 28, 2011)”). Because we agree thatthere were procedural errors in the administrative proc-ess, we vacate and remand for further proceedings consis-tent with this opinion.IDoe was a twenty-four-year employee of the UnitedStates Postal Service. He was employed by the PostalService as a full-time letter carrier at the Essex JunctionPost Office in Essex Junction, Vermont, until his termina-tion on March 14, 2010. Doe’s termination resulted froman incident that took place on November 21, 2009, in theoffice of his then-supervisor, Jamie Good, arising from adispute about Doe’s uniform. During the dispute, Goodalleges that Doe struck him in the face, which Doe denies.On November 21, 2009, Doe arrived for work at thePost Office and asked that he be allowed to wear a pair of non-regulation white shoes while he was in the office.Good denied that request and stated that Doe was re-quired to wear black shoes while on duty in accordancewith the Postal Service’s uniform policy. Mark Hickory,the union steward, joined the conversation and urgedGood to allow use of the white sneakers. Good againdenied the request, directed Doe and Hickory to punch inand check their vehicles, and told Doe that he needed tobe in proper footwear to start the work day. A few minutes later, Doe came back in from checkinghis vehicle and was still wearing the white sneakers.
 
DOE
v.
USPS
 3
Good asked Doe to come into his office so that they coulddiscuss the matter further. Doe asked that Hickory beallowed to accompany him, which Good allowed. Once inGood’s office, Good explained that Doe had failed to followinstructions by not wearing proper footwear. At this point, according to Good, Doe approached Goodand pointed his finger in Good’s face; Good attempted toleave his office, and as he was walking out the door, hewas either pushed or bumped by Doe. Then, Good alleg-edly turned around and asked Doe what he was doing, atwhich time Doe allegedly punched him at the top of hisface. As a result of this alleged punch, Good fell to thefloor. Doe denies this version of events. He says that henever punched Good and that Good purposefully took adive to set Doe up for punishment. Doe contends thatGood was motivated to lie because of Doe’s close relation-ship with the union, which had filed a disproportionatelylarge number of grievances while Good was supervisor atthe Essex Junction Post Office. Doe also states that hetried to help Good up from the floor.Good notified his supervisor about the incident, andthe Postal Service initiated an investigation that wasconducted by Postal Inspector Patricia Quarato. Quaratoeither interviewed or obtained written statements fromDoe, Good, Hickory, and other employees who were pre-sent at the Essex Junction post office and witnessed theincident. Good attested that he had been punched in theface, which both Doe and Hickory denied. Other PostalService employees stated that they had either seen Doeattempt to punch Good or believed that Doe had punchedGood; however, these statements were either recanted orwere arguably inconsistent with Good’s version of events.On January 27, 2012, the Postal Service issued Doe anotice of proposed removal, which was based upon a

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