Grainger v. Social Security Administration , 119 F. App'x 278 ( 2005 )


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  •              NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
    is not citable as precedent. It is a public record.
    United States Court of Appeals for the Federal Circuit
    04-3303
    ESTELLE GRAINGER,
    Petitioner,
    v.
    SOCIAL SECURITY ADMINISTRATION,
    Respondent.
    __________________________
    DECIDED: January 5, 2005
    __________________________
    Before NEWMAN, CLEVENGER, and GAJARSA, Circuit Judges.
    PER CURIAM.
    Estelle Grainger seeks judicial review of the decision of the Merit Systems Protection
    Board, Docket No. PH0752020351-I-1, affirming the agency's thirty-day suspension from
    August 5, 2002 through September 3, 2002. We affirm.
    BACKGROUND
    Ms. Grainger was employed by the Social Security Administration as a Social
    Insurance Claims Examiner (Foreign Benefit Technical Examiner) at the agency
    headquarters in Woodlawn, Maryland. The events that led to the suspension are reported
    to have occurred between July 2001 and April 2002. During this period Ms. Grainger's
    supervisors became increasingly concerned about her allegedly eccentric and disruptive
    behavior; she was referred to the Employee Assistance Program, and in October 2001 she
    was placed on paid administrative leave for two weeks in order to obtain medical review of
    her psychological and physical condition.        Her management reported a "noticeable
    improvement," and the agency's medical officer reviewed the medical documentation
    provided by her physician and concluded that Ms. Grainger "has a treatable medical
    condition that should not interfere with her performing her job satisfactorily." However, the
    record records further incidents of eccentric or disruptive behavior, and on June 26, 2002
    the agency proposed to suspend Ms. Grainger for thirty days, charging her with
    inappropriate and disruptive behavior in the workplace, uncooperative behavior toward her
    supervisors, failure to follow instructions, and abuse and misuse of official materials. The
    administrative judge affirmed the suspension on December 10, 2002, and the full Board
    denied review. This appeal followed.
    DISCUSSION
    The Board's decision must be affirmed unless it was arbitrary, capricious, an abuse
    of discretion, or otherwise not in accordance with law; obtained without procedures required
    by law, rule, or regulation; or unsupported by substantial evidence. 
    5 U.S.C. §7703
    (c); see
    Kewley v. Dep't of Health & Human Servs., 
    153 F.3d 1357
    , 1361 (Fed. Cir. 1998).
    04-3303                                      2
    Ms. Grainger argues that the penalty was disproportionately severe, and that the
    Board failed to take into account the "Douglas factors," as set forth in Douglas v. Veterans
    Administration, 
    5 M.S.P.R. 280
    , 305-06 (1981). However, the AJ reviewed these factors,
    and found the penalty of a thirty-day suspension to be reasonable in light of the events that
    occurred. We agree that the agency's action was reasonable in the circumstances that
    were shown to have existed, and discern no abuse of discretion or error of law in the action
    taken.
    Ms. Grainger raises additional arguments on this appeal, stating that she was a
    whistleblower, that the Board failed to take into account various tort claims and other
    wrongs including discrimination, that she was not afforded a presumption of innocence, and
    that her constitutional rights were violated. These issues were not discussed by the Board,
    and do not appear to have been developed at the hearing before the administrative judge.
    See Bosley v. MSPB, 
    162 F.3d 665
    , 668 (Fed. Cir. 1998) ("A party in an MSPB proceeding
    must raise an issue before the administrative judge if the issue is to be preserved for review
    in this court.") Ms. Grainger does not identify any protected disclosures as a whistleblower,
    
    5 U.S.C. §2302
     (b)(8)(A), which may have been a contributing factor in the suspension.
    To the extent Ms. Grainger alleges a violation of constitutional due process, we
    discern none. Ms. Grainger was provided notice by the agency and an opportunity to
    respond, Stone v. Fed. Deposit Insurance Corp., 
    179 F.3d 1368
    , 1376 (Fed. Cir. 1999), and
    no irregularities have been shown in the Board's review of the agency's action.
    04-3303                                       3
    

Document Info

Docket Number: 2004-3303

Citation Numbers: 119 F. App'x 278

Judges: Clevenger, Gajarsa, Newman, Per Curiam

Filed Date: 1/5/2005

Precedential Status: Non-Precedential

Modified Date: 8/3/2023