NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3115
ROBERT J. DI PAOLO,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
Robert J. Di Paolo, of El Dorado Hills, California, pro se.
Carrie A. Dunsmore, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director,
and Kenneth M. Dintzer, Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3115
ROBERT J. DI PAOLO,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
Petition for review of the Merit Systems Protection Board in SF0752080041-I-1.
__________________________
DECIDED: December 14, 2009
__________________________
Before RADER, ARCHER, and PROST, Circuit Judges.
PER CURIAM.
Robert Di Paolo appeals a decision of the Merit Systems Protection Board
(“MSPB” or “Board”) sustaining his demotion from the position of Postmaster to
Supervisor in the Lincoln Post Office, Sacramento District, Pacific Area. The demotion
was based on four charges: (1) inappropriate stamp purchases, (2) receipt of alcohol on
postal property, (3) failure to follow instructions, and (4) inappropriate use of information
technology.
In his brief to this court, Mr. Di Paolo raises several challenges to each of the four
charges. Although some of Mr. Di Paolo’s arguments are persuasive as to the severity
of each charge individually, they do not refute the administrative judge’s ultimate
conclusion that all four charges, when considered together, justify the penalty imposed.
Because the penalty imposed was demotion, as opposed to removal from service, the
U.S. Postal Service (“USPS”) need not show that Mr. Di Paolo was unfit to serve or
supervise. The USPS need only show that the totality of the four charges establishes
that Mr. Di Paolo’s performance did not comport with the exemplary level of
responsibility associated with the position of Postmaster. Because the USPS met this
burden, we agree that Mr. Di Paolo’s demotion promotes the efficiency of the service.
We therefore affirm the decision of the MSPB.
DISCUSSION
Mr. Di Paolo has served in the USPS for over twenty-eight years. He acquired
the position of EAS-21 Postmaster of the Lincoln Post Office in 2005. After around two
years of service as Postmaster, Mr. Di Paolo was demoted to EAS-17 Supervisor of
Computerized Forwarding Operations Services. Mr. Di Paolo challenged this adverse
action before an administrative judge. Although the administrative judge accepted some
of Mr. Di Paolo’s arguments, he sustained at least in part the four charges against Mr. Di
Paolo and found that demotion was an appropriate penalty. Mr. Di Paolo then petitioned
for review before the MSPB. The Board agreed with the administrative judge and
affirmed the USPS action. Mr. Di Paolo now appeals to this court. We have jurisdiction
over the appeals from the MSPB pursuant to 5 U.S.C. § 7703.
The standard of review in an appeal from a decision of the MSPB permits reversal
where the decision was arbitrary, capricious, an abuse of discretion, not in accordance
with law, procedurally defective, or unsupported by substantial evidence. 5 U.S.C. §
7703(c); Yates v. Merits Sys. Prot. Bd., 145 F.3d 1480, 1483 (Fed. Cir. 1998). We
2009-3115 2
We discuss each of the charges underlying the adverse action and Mr. Di Paolo’s
arguments below.
Charge 1
Charge 1 involved a violation of Section 317.3 of the Post Office Handbook F-1.
Section 317.3 requires a customer signature for all credit card purchases. On several
occasions, Mr. Di Paolo used a customer credit card, with the customer’s consent but
without the presence or signature of the cardholder, to purchase large amounts of
stamps on behalf of the customer. Charge 1 initially included an allegation of
intimidating employees into making such purchases, but the intimidation component of
the charge was unfounded and subsequently withdrawn. The charge as sustained by
the administrative judge was limited to inappropriate purchasing or instructing
employees to do so. The administrative judge found that even without the intimidation
component of the charge, Mr. Di Paolo’s conduct was in violation of Post Office rules.
Mr. Di Paolo raises several challenges to Charge 1 on appeal, including (1) the
penalty should have been mitigated based on the fact that Mr. Di Paolo’s previous
supervisor permitted him to process credit card charges in the manner described in
Charge 1, (2) demoting Mr. Di Paolo does not promote the efficiency of the service
where the USPS has not shown or alleged harm resulting from Charge 1, and (3) that
the administrative judge erred in allowing the USPS to base its assessment on an
accusation of intimidation that was later withdrawn by the USPS and discounted by the
administrative judge.
We agree with Mr. Di Paolo that the permission of his supervisor, lack of harm to
the USPS, and withdrawal of the intimidation component of the charge would reduce the
2009-3115 3
severity of Charge 1. We do not agree, however, that the administrative judge abused
his discretion in failing to mitigate the penalty based on the reduced severity of Charge
1, because demotion is already a mitigated penalty and the penalty was based on all
four charges, not just Charge 1.
Mr. Di Paolo submits the testimony of Mary Burkhart in support of his argument
that stamp purchases have been made by employees at other facilities without adverse
action. 1 The testimony of Ms. Burkhart establishes that customer credit cards have in
the past been used without the cardholder’s presence to make large purchases on
behalf of the customer.
The USPS’s charge against Mr. Di Paolo, however, does not turn on the fact that
the cardholder was not present at the time the card was charged, but that no signature
was obtained from the cardholder. The USPS’s credit card policy is that a customer
must personally sign his receipt. Without a cardholder signature, any charge to the card
can be disputed and the merchant will be financially liable if the issuing bank dishonors
the transaction.
Ms. Burkhart does not mention whether a signature was obtained during the
customer transactions she describes in her affidavit. Her testimony is not inconsistent
with a policy of obtaining a customer signature, as she explained that after charging the
card a receipt for the purchase was personally delivered to the customer along with the
purchased stamps. There is no evidence that a courier did not return with a signed copy
1
The USPS opposes the submission of this testimony as it was not before
the court below. We accept Mr. Di Paolo’s assertion that the testimony constitutes new
and material evidence that was not previously available. We therefore consider it part of
the record on review.
2009-3115 4
copy of the receipt. Thus, Ms. Burkhart’s testimony does not demonstrate one way or
the other whether the adverse action taken against Mr. Di Paolo was inconsistent with
the USPS’s response to the use of customer credit cards under other circumstances.
Charge 2
Charge 2 was based on a violation of Section 665.26 of the Post Office Employee
and Labor Relations Manual. Section 665.26 prohibits all employees from “hav[ing] or
bring[ing] any container of beer, wine, or other intoxicating beverage into any Postal
Service facility, regardless of whether or not the container has been opened.” Mr. Di
Paolo arranged on at least three separate occasions for personal wine deliveries to the
Lincoln Post Office. Following his second receipt of wine on Postal Service property, Mr.
Di Paolo was informed that such wine shipments were a violation of the manual. The
record shows that Mr. Di Paolo received one additional shipment of wine following the
meeting at which he was informed of the Post Office’s alcohol policy.
Mr. Di Paolo does not dispute that he arranged for and received personal
shipments of wine in violation of the manual. He asserts that the containers were not
open and that he placed the containers in his personal vehicle immediately upon
receiving the shipments. His challenge to Charge 2 alleges that the violation was de
minimus, and did not warrant the adverse action taken. Mr. Di Paolo argues that other
employees received similar shipments and did not suffer similar penalties.
We disagree with Mr. Di Paolo that Charge 2 was de minimus and warrants no
consideration in evaluating the adverse action taken. Charge 2 is part of a larger set of
charges, Mr. Di Paolo’s exemplary leadership position as Postmaster obligates him to a
higher standard of conduct than other employees. Mr. Di Paolo knowingly violated the
2009-3115 5
alcohol policy. We conclude that the administrative judge did not err in considering
Charge 2, along with the three other charges, to support the penalty of demotion.
Charge 3
Charge 3 was based on Mr. Di Paolo’s failure to follow instructions communicated
during a financial review of the Lincoln Post Office. Auditing of the office revealed over
sixty items in financial trusts and suspense accounts needing corrective action. The
reviewers found that those problems arose due to inadequate internal controls and
oversight attributable to Mr. Di Paolo. In response, Mr. Di Paolo stated that he
implemented an action plan to correct the problems identified. A follow-up review was
conducted several months later. The follow-up review again revealed many deficiencies,
the majority of which were identified as repeat problems documented in the previous
review. The reviewer found that the persisting problems were the result of Mr. Di
Paolo’s failure to take action to correct the deficiencies.
Mr. Di Paolo, his supervisor, and an analyst held a meeting at which they
conducted a line-by-line examination of the follow up review and discussed ways in
which to correct the problems identified. Following the review, Mr. Di Paolo stated that
he understood the review, the deadline by which the problems must be resolved, and
verified that he would take necessary measures to resolve them. Mr. Di Paolo’s
supervisor responded with a memo to Mr. Di Paolo reiterating the tasks that Mr. Di Paolo
was supposed to complete and the deadline by which they were to be completed. Mr. Di
Paolo does not dispute that he failed to complete these tasks.
Mr. Di Paolo raises several challenges with respect to this charge, including (1)
that the memo did not characterize any of the tasks as “instructions,” (2) that Charge 3
2009-3115 6
did not specifically identify what instructions he failed to follow, precluding Mr. Di Paolo
from fully preparing his defense, and (3) that the tasks he was instructed to complete
were unreasonable.
Mr. Di Paolo failed to meet the objectives communicated in two reviews, a line-by-
line meeting, and a memo. Although the memo and charge could have been more
explicit in identifying Mr. Di Paolo’s incomplete tasks as “instructions,” the language of
the memo and charge were not so vague as to prevent Mr. Di Paolo from understanding
the mandatory nature of the assignments, or from formulating a meaningful defense to
Charge 3. Additionally, Mr. Di Paolo’s argument that the assignment was unreasonable
is not persuasive. Mr. Di Paolo assured his supervisor that he was capable of
addressing the problems identified, and he never gave indication otherwise. He never
asked for assistance or extra time to complete the tasks. The administrative judge did
not err in finding that Charge 3 supports the penalty of demotion.
Charge 4
Charge 4 was based on the forwarding of inappropriate emails from a work email
account to employees within the USPS and recipients outside of the USPS. The charge
initially included improper personal use of a work computer for more than a “limited”
amount of time, as well as receiving and viewing inappropriate emails. The
administrative judge found that the accusation of personal use for more than a limited
amount of time was not supported by evidence and that receiving and viewing
inappropriate emails was not Mr. Di Paolo’s fault. Mr. Di Paolo cannot control the receipt
of inappropriate emails, and since many of the emails had innocuous subject lines, he
cannot be blamed for viewing them. The administrative judge sustained Charge 4 only
2009-3115 7
Charge 4 only with respect to forwarding certain sexually inappropriate emails from his
work account to recipients both within and outside of the USPS.
Mr. Di Paolo challenges the sustained component of the Charge 4 by arguing that
he was the only employee involved in the circulation of these emails against whom any
adverse action was taken. He cites testimony from a witness that none of the other
employees involved in sending the emails at issue received any discipline. He also
points out that all of the disputed emails were sent prior to Mr. Di Paolo’s assignment to
the position of Postmaster.
Even if Mr. Di Paolo’s arguments with respect to Charge 4 were persuasive, they
would not defeat the ultimate conclusion that the totality of Charges 1, 2, and 3 as
sustained support the penalty of demotion.
CONCLUSION
Although the administrative judge rejected some portions of some of the charges
against Mr. Di Paolo, he ultimately sustained all four charges in some form. The totality
of the four charges as sustained establishes that Mr. Di Paolo’s performance did not
comport with the exemplary level of responsibility associated with the position of
Postmaster. We therefore affirm the decision of the MSPB.
COSTS
Each party shall bear its own costs.
2009-3115 8