Williams v. United States Postal Service , 520 F. App'x 957 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RICKY WILLIAMS,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
______________________
2012-3200
______________________
Appeal from the Merit Systems Protection Board in
No. AT0752100284-B-1.
______________________
Decided: February 12, 2013
______________________
RICKY WILLIAMS, of Jackson, Mississippi, pro se.
J. HUNTER BENNETT, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were STUART F. DELERY, Principal Depu-
ty Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and DEBORAH A. BYNUM, Assistant Director.
______________________
2 RICKY WILLIAMS v. USPS
Before PROST, SCHALL, and REYNA, Circuit Judges.
PER CURIAM.
DECISION
Ricky Williams petitions for review of the final deci-
sion of the Merit Systems Protection Board (“Board”) that
sustained the action of the United States Postal Service
(“Postal Service” or “agency”) removing him from his
position as a mail handler in Jackson, Mississippi. Wil-
liams v. United States Postal Service, No. AT-0752-10-
0284-B-1 (M.S.P.B. July 6, 2012) (“Final Decision”). We
affirm.
DISCUSSION
I.
The Postal Service removed Mr. Williams from his
position for failing to be regular in attendance and for
being absent without leave (“AWOL”). The agency
charged that, between March 3, and May 20, 2008, Mr.
Williams had 136 hours of unscheduled absences totaling
17 days and 224 hours, or 28 days of AWOL. Mr. Wil-
liams appealed his removal to the Board.
Before the Board, Mr. Williams did not dispute that
he was absent from work on the dates identified and for
the number of hours specified by the Postal Service.
Rather, he argued that he had requested leave for his
absences and that the absences were covered by the
Family Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. §
2601, et seq. He also raised several affirmative defenses:
(1) that the agency discriminated against him on the basis
of disability; (2) that the agency discriminated against
him on the basis of age and gender; and (3) that his
removal was in retaliation for his having filed an equal
employment opportunity (“EEO”) complaint. In due
course, following a hearing, the administrative judge
(“AJ”) to whom the appeal was assigned issued an initial
RICKY WILLIAMS v. USPS 3
decision affirming the agency’s action. Williams v. United
States Postal Service, No. AT-0752-10-0284-B-1 (Apr. 5,
2011) (“Initial Decision”).
In support of the AWOL charge, the Postal Service
presented records and the testimony of Marcia Shamwell,
the Attendance Control Supervisor for the Jackson Post
Office. With regard to the March-May period, Ms. Sham-
well testified that she never saw any documentation
reflecting that Mr. Williams had an FMLA-covered illness
and that, when asked to do so, Mr. Williams failed to
provide documentation supporting his claim of such an
illness. Initial Decision at 2-3. For that reason, the
agency denied his request for leave under the FMLA. Ms.
Shamwell further testified that Mr. Williams failed to
return to work when instructed to do so by the agency.
Id. at 3. In addition to considering the testimony of Ms.
Shamwell, the AJ noted that Mr. Williams’s medical
documentation did not indicate that any of the conditions
described prevented him from coming to work, so as to
entitle him to leave under the FMLA. Id. at 3-4. She
therefore sustained the charge of AWOL. Id. at 5. After
finding the penalty of removal promoted the efficiency of
the service and was reasonable, the AJ affirmed the
agency’s action. Id. at 8-10.
The AJ also rejected each of Mr. Williams’s affirm-
ative defenses. As far as the claim of disability discrimi-
nation was concerned, the AJ explained that, although
Mr. Williams had provided a list of medical conditions
from which he suffered, he had failed to identify which
ones were disabling. Accordingly, the AJ found that Mr.
Williams had failed to establish that he was disabled or
that the Postal Service had a duty to accommodate him.
Initial Decision at 5-6. Mr. Williams’s affirmative defense
of discrimination on the basis of age and gender was
based upon the claim that six younger men and a woman
had worse attendance records than he and were not
removed. The AJ found, however, that the record did not
4 RICKY WILLIAMS v. USPS
reflect that any of the men identified by Mr. Williams as
having received a lesser punishment for a similar offense
were younger than Mr. Williams or that any of these men
or the identified woman “was absent on leave not protect-
ed by the FMLA for 45 days, as was the appellant, and
failed to respond after the agency ordered him or her to
come back to work, as did the appellant.” Id. at 7. On
this basis, the AJ determined that Mr. Williams was not
similarly situated to others not in his protected group.
She therefore rejected his affirmative defense of age and
gender discrimination. Id. Finally, the AJ rejected Mr.
Williams’s claim that his removal was in retaliation for
his having filed an EEO complaint because she concluded
that Mr. Williams had failed to establish a genuine nexus
between his EEO activity and the removal action and
because she found the Postal Service had demonstrated
that it would have removed him even in the absence of his
EEO activity. Id. at 8.
Mr. Williams petitioned the Board for review. In
the Final Decision, the Board denied the petition. Noting
that Mr. Williams did not dispute that he had failed to
report for duty on the dates charged, the Board stated
that the FMLA certifications he had provided to the
Postal Service were deficient and that he had not cured
the deficiencies despite being given the opportunity to do
so. Final Decision at 3-6. Turning to Mr. Williams’s
affirmative defenses, the Board held first that the claim of
disability discrimination failed because Mr. Williams had
failed to request any accommodation for his alleged
disabilities. Id. at 7. Addressing Mr. Williams’s claim of
age and gender discrimination, the Board found that,
although three of the men identified by Mr. Williams as
being treated more leniently than him were (contrary to
the AJ’s finding) younger than him, the circumstances of
the six men were sufficiently distinct from his situation to
undercut any claim of discrimination against him based
upon age. Id. at 7-8. The Board also found that Mr.
RICKY WILLIAMS v. USPS 5
Williams had failed to point to any evidence in support of
his claim of gender discrimination. Id. at 8. Finally, the
Board agreed with the AJ that Mr. Williams had failed to
establish a nexus between his protected EEO activity and
his removal. Id. at 9. With the petition for review denied,
except to the extent modified by the Final Decision, the
Initial Decision became the final decision of the Board.
This appeal followed. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9).
II.
Our scope of review in an appeal from a decision of
the Board is limited. Specifically, we must affirm the
Board’s decision unless we find it to be (1) arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed;
or (3) unsupported by substantial evidence. 5 U.S.C. §
7703(c); Kewley v. Dep’t of Health & Human Servs., 153
F.3d 1357, 1361 (Fed. Cir. 1998).
III.
As outlined above, both the AJ and the Board ren-
dered thorough and well-reasoned decisions in this case.
Against that background, we address the arguments Mr.
Williams raises on appeal.
First, Mr. Williams contends that both the AJ and
the Board failed to consider some 41 pages of prehearing
submissions that he filed on February 22, 2011. This
argument is without merit. The Board cited documents in
the tab comprising these submissions five times. See
Final Decision at 4 (three citations), 6, 8 n.4. At the same
time, while it is true that the AJ did not specifically cite
any of the documents at issue, “[w]e presume that a fact
finder reviews all of the evidence presented unless [it]
explicitly expresses otherwise.” Medtronic, Inc. v. Daig
Corp., 789 F.2d 903, 906 (Fed. Cir. 1986).
6 RICKY WILLIAMS v. USPS
Mr. Williams’s second argument on appeal relates
to his claim that, in removing him, the Postal Service
discriminated against him on the basis of age. He claims
that two of the six employees whom he identified as being
younger than him and who also had AWOL absences were
treated more leniently than him. We lack jurisdiction,
however, to consider this claim of discrimination. See 5
U.S.C. §§ 7703(b)(1), (b)(2); Kloeckner v. Solis, 133 S. Ct.
596, 603-07 (2012). In any event, there is no evidence in
the record to support Mr. Williams’s discrimination claim
because the first employee identified by Mr. Williams was
younger than Mr. Williams, while the second identified
employee had fewer absences and no AWOLs during the
period covered by the discipline that Mr. Williams con-
tends was more lenient than his. In short, neither of the
identified employees was similarly situated to Mr. Wil-
liams.
Finally, Mr. Williams asserts that “[t]he MSPB on
page 3 [of the Final Decision] stated that Marcia Sham-
well testimony was not accurate [but] afterward came
back on page 6 and stated that the same testimony was
unrefuted.” Petitioner’s Informal Brief, Response to
Question 5. Mr. Williams appears to be arguing that the
Board’s decision is defective because in the Final Deci-
sion, in contradictory fashion, the Board both rejected and
accepted the testimony of Ms. Shamwell. We reject this
argument because it is based upon a misreading of the
Final Decision. At page 3 of the Final Decision, in foot-
note 2, the Board did not reject Ms. Shamwell’s testimony.
Rather, it simply stated that the AJ’s characterization of
one aspect of the testimony in the Initial Decision was not
accurate. In short, there is no contradiction in the
Board’s treatment of Ms. Shamwell’s testimony.
RICKY WILLIAMS v. USPS 7
IV.
Because the final decision of the Board in this case
is supported by substantial evidence and is free of legal
error, it is affirmed.
AFFIRMED
No costs.