At least that is one of the events which lead up the removal of a Warren, Michigan letter carrier after getting injured o nthe job. David Aleck was removed from his position as letter carrier based on three charges: (1) “failure to perform duties in a safe manner.” He was driving the vehicle without wearing a seat belt and with the door open. Aleck fell from the postal vehicle he was operating, and the vehicle then struck a parked car. The second charge was (2) “failure to immediately report an accident.” The accident occurred at 11:00 a.m., but he did not report it until 12:45 p.m. The third charge was (3) “failure to follow instructions to report to clinic.” Aleck failed to obey the instructions of his supervisor that he report to a medical clinic for an evaluation. MSPB ruled removal was justified and the federal circuit court found no reason to overturn that decision. 

The following is the condensed HTML (without references) version of  decision. PDF version can found here.

Mr. Aleck was removed from his position after an incident that occurred on February 19, 2005. On that day, Mr. Aleck fell from the postal vehicle he was operating, and the vehicle then struck a parked car. Following an investigation of the incident, the agency removed Mr. Aleck based upon three charges. The first charge was “failure to perform duties in a safe manner.” In regard to this charge, the agency alleged that Mr. Aleck fell out of the vehicle because, contrary to agency policy and regulations, he was driving the vehicle without wearing a seat belt and with the door open. The second charge was “failure to immediately report an accident.” In regard to this charge, the agency alleged that the accident occurred at 11:00 a.m., but that Mr. Alleck did not report it until 12:45 p.m. The third charge was “failure to follow instructions to report to clinic.” In regard to this charge, the agency alleged that, following the accident, Mr. Aleck failed to obey the instructions of his supervisor that he report to a medical clinic for an evaluation.

Mr. Aleck appealed his removal to the Board. On August 9, 2005, the administrative judge (“AJ”) to whom the appeal was assigned issued an initial decision based upon the documentary record after Mr. Aleck waived his right to an evidentiary hearing. In his initial decision, the AJ (i) found that the agency had established the charges against Mr. Aleck by a preponderance of the evidence; (ii) rejected Mr. Aleck’s affirmative defenses (based upon allegations of procedural error and disability discrimination); and (iii) determined that the penalty of removal was reasonable.  Based upon these rulings, the AJ sustained the agency’s action removing Mr. Aleck from his position.  The AJ’s initial decision became the final decision of the Board on December 8, 2005, when the Board denied Mr. Aleck’s petition for review for failure to meet the criteria for review set forth at 5 C.F.R. § 1201.115(d). Final Decision. This appeal followed.

On appeal, Mr. Aleck argues that the agency did not sustain its burden of proof with respect to the three charges against him. He thus urges that the decision of the Board is not supported by substantial evidence. “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” We have reviewed the Board’s decision concerning the charges against Mr. Aleck in light of the evidence of record. Having done so, we have no difficulty concluding that the Board’s decision is supported by substantial evidence. We therefore reject Mr. Aleck’s argument with respect to the sufficiency of the evidence.

Mr. Aleck claims that the agency committed harmful procedural error when, during its initial investigation of the February 19th incident, it denied him union representation. The AJ considered this claim and determined that, while the agency had committed a “technical violation” of the right to representation, the violation constituted harmless error.  (“Harmful error in procedures . . . raises the question: Did the wrongful procedure harm the employee in the presentation of his defense so that a different result might have been reached?”);  (“[I]n an appeal of an agency disciplinary decision to the Board, the agency’s failure to follow bargained-for procedures may result in its action’s being overturned, but only if the failure might have affected the result of the agency’s decision to take the disciplinary action against the individual employee.”). Based upon the record before him, the AJ concluded that Mr. Aleck failed to establish the likelihood that, had he received union representation at the initial investigation, the agency might have reached a different conclusion in the matter. We see no error in this conclusion. We also see no error in the AJ’s rejection of Mr. Aleck’s argument that harmful procedural error occurred because he was not personally present during the oral reply to the charges against him. See id. at 5-6. The AJ found—and substantial evidence supports the finding—that Mr. Aleck’s representative was present for the oral reply and indicated that Mr. Aleck did not wish to be present.

Finally, Mr. Aleck argues that the penalty of removal was unreasonable. After considering the appropriate “Douglas factors,” however, the AJ determined that the penalty of removal was reasonable and did not represent an abuse of discretion. Based upon the evidence of record before us, we see no reason to disturb that ruling.

542.1 Employee Claims for Injury or Illness
542.11 Traumatic Injury
542.111 Notice
The notice of traumatic injury is given on Form CA-1.

542.112 Time Limit
FECA requires that written notice of a traumatic injury be given by the employee, or person acting on behalf of the employee, within 3 years of the injury. However, failure to give notice on Form CA-1 within 30 calendar days from the date the injury occurred will result in a loss of entitlement to COP and may also result in a loss of compensation rights if the claim for compensation is not filed within 3 years. In order to protect their own interests and to ensure an uninterrupted income, employees should give notice or have someone give notice on their behalf, immediately after the traumatic injury occurs.