White v. United States Postal Service , 176 F. App'x 130 ( 2006 )

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
05-3339
CHARLES WHITE,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
__________________________
DECIDED: April 10, 2006
__________________________
Before LINN, DYK, and PROST, Circuit Judges.
PER CURIAM.
Charles White (“White”) appeals a decision of the Merit Systems Protection
Board (“Board”) sustaining a charge of “improper conduct by participating in a verbal
and physical altercation,” and affirming his removal from the United States Postal
Service (“Postal Service”). White v. United States Postal Serv., No. AT-0752-05-0286-I-
1 (M.S.P.B. July 28, 2005) (“Final Order”). Because the Board’s decision sustaining the
charge and the removal is supported by substantial evidence, is not an abuse of
discretion, and does not otherwise contain reversible error, we affirm.
BACKGROUND
On August 9, 2004, while White was attending the Mail Handler’s Union picnic in
Jacksonville, Florida, he and one of his coworkers, Mr. John Sawyer (“Sawyer”),
became involved in a fight involving deadly weapons. After conducting an investigation,
the Postal Service removed White from duty. White appealed to the Board, which
affirmed the agency’s decision. See White v. United States Postal Serv., No. AT-0752-
05-0286-I-1 (M.S.P.B. May 2, 2005) (“Initial Decision”). The administrative judge (“AJ”)
found that, based on White’s admissions against interest that he brandished a knife
against a co-worker, the Postal Service proved its charge of improper conduct. The
AJ’s decision became the final decision of the Board after the Board denied White’s
petition for review. See Final Order, slip op. at 1-2. White timely appealed. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
A. Standard of Review
Pursuant to 5 U.S.C. § 7703(c), this court must affirm the Board’s decision unless
it is: (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. Chase-Baker v. Dep’t of Justice,
198 F.3d 843, 845 (Fed. Cir. 1999). The petitioner bears the burden of establishing
reversible error in reviewing a decision of an administrative agency such as the Board.
Harris v. Dep’t of Veterans Affairs, 142 F.3d 1463, 1467 (Fed. Cir. 1998).
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B. Analysis
To succeed in an adverse action against an employee, an agency must establish
that the conduct occurred, that there is a nexus between the conduct and the efficiency
of the service, and that the penalty imposed by the agency was reasonable. Bryant v.
Nat’l Sci. Found., 105 F.3d 1414, 1416 (Fed. Cir. 1997).
1. Conduct
White argues that, in sustaining the conduct determination, the Board failed to
take into account testimony of Ms. Karen Goshay (who White claims was an eye
witness) and an unidentified State Attorney (who White claims talked with the Postal
Service regarding charges against Sawyer). White asserts that the testimony of these
witnesses would help to show that he acted in self defense.
As concerns the testimony of Ms. Goshay, she wrote in her witness statement
that she was “on kitchen duty” and “did not see the alleged event.” The AJ denied
White leave to call Ms. Goshay as a witness, finding that her testimony would not be
relevant. A determination to allow or exclude witness testimony is within the sound
discretion of the administrative judge. See Tiffany v. Dep’t of the Navy, 795 F.2d 67, 70
(Fed. Cir. 1986). White has not shown that the AJ abused his discretion by excluding
Ms. Goshay as a witnesses on relevancy grounds. Since Ms. Goshay did not witness
the event, she could not provide relevant testimony as to whether White acted in self
defense. Furthermore, because the AJ’s decision was based on White’s own admission
that he brandished a knife, a fact which White admitted before the Postal Service and
before the Board, and again admits before this court in his informal briefs, the Board did
not abuse its discretion in excluding the testimony of Ms. Goshay.
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Regarding the testimony of the State Attorney, although White asserts that the
State Attorney might be able to proffer testimony regarding the State’s charges against
Sawyer, White does not explain how that testimony would be relevant to show that
White acted in self-defense. Moreover, White failed to list the State Attorney on his
witness list. Our precedent is clear that facts not before the Board cannot be
considered on appeal. “Our precedent clearly establishes the impropriety of seeking a
reversal of the [B]oard’s decision on the basis of assertions never presented to the
presiding official or to the [B]oard.” Rockwell v. Dep’t of Transp., 789 F.2d 908, 913
(Fed. Cir. 1986); see Oshiver v. Office of Pers. Mgmt., 896 F.2d 540, 542 (Fed. Cir.
1990) (holding that this court will not consider new evidence that was not presented to
the Board); Rockwell, 789 F.2d at 913 (explaining that Congress limited this court’s
appellate review “to final orders and decisions of the Board on the record”).
In sum, White has not identified any reversible error in the Board’s decision to
sustain the charge.
2. Nexus
White argues that, because the fight occurred when he was off duty, the Board
erred in finding that the nexus had been established. The Postal Service argues that
the Board’s finding of nexus should be affirmed and notes that this court has found that
off-duty conduct can give rise to a presumption of nexus. The Postal Service argues
that White’s conduct was sufficiently egregious that a nexus between the conduct and
the efficiency of the service is presumed, as it was in Brown v. Department of the Navy,
229 F.3d 1356 (Fed. Cir. 2000) (off-duty affair with officer’s spouse), Brook v. Corrado,
999 F.2d 523, 527-28 (Fed. Cir. 1993) (off-duty drug trafficking), Allred v. Department of
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Health & Human Services, 786 F.2d 1128, 1130 (Fed. Cir. 1986) (off-duty child
molestation), Dominguez v. Department of Air Force, 803 F.2d 680, 683 (Fed. Cir.
1986) (assault against supervisor at an off-duty location), and Hayes v. Department of
the Navy, 727 F.2d 1535, 1539 (Fed. Cir. 1984) (off-duty assault and battery against
child).
In the present case, the Board held that “disciplining [White] clearly promotes the
efficiency of the Federal service notwithstanding that the fight occurred off duty.” Initial
Decision, slip op. at 7. The Board found that the misconduct had an adverse effect on
the efficiency of the service because, although the misconduct did occur off-duty, it
involved two agency employees, occurred in the presence of many postal employees
who were attending a union-sanctioned event, troubled postal employees after the fact,
and put postal employees in harm’s way. Id., slip op. at 6-7.
The facts clearly indicate that White’s fellow employees remained concerned
about what had happened and complained about the incident to their supervisor. We
therefore agree with the Board’s findings and reasoning that White’s misconduct against
his fellow employee, in front of many co-workers at a union-sanctioned event, had a
chilling effect upon relationships at the workplace which can only adversely impact the
agency’s ability to fulfill its mission with proper efficiency. We find no error in the
Board’s conclusion that the evidence was sufficient to demonstrate the required nexus.
3. Penalty
White also challenges the penalty, stating that “[t]here could have been a
suspension instead of a dismissal since the other party had already resigned from the
Postal Service and the likelihood [sic] of this incident spilling over at the workplace
05-3339 5
would have been moot.” The “[d]etermination of an appropriate penalty is a matter
committed primarily to the sound discretion of the employing agency.” Brook v.
Corrado, 999 F.2d 523, 528 (Fed. Cir. 1993) (quoting Beard v. Gen. Servs. Admin., 801
F.2d 1318, 1322 (Fed. Cir. 1986)). Accordingly, “we will not disturb a penalty unless it
exceeds the range of permissible punishment or is ‘so harsh and unconscionably
disproportionate to the offense that it amounts to an abuse of discretion.’” Gonzales v.
Def. Logistics Agency, 772 F.2d 887, 889 (Fed. Cir. 1985) (quoting Villela v. Dep’t of Air
Force, 727 F.2d 1574, 1576 (Fed. Cir. 1984)).
The Board found that White displayed no remorse and left the AJ with the distinct
impression that he would have done exactly the same thing again. Initial Decision, slip
op. at 7. The Board also found that the harm caused by White’s misconduct caused
lingering concerns in the workplace in that employees were worried about the incident.
Id. In light of these findings, White’s arguments do not demonstrate that his removal
from the workplace was an abuse of discretion by the Postal Service.
CONCLUSION
For the foregoing reasons, we conclude that the Board’s decision sustaining a
charge of improper conduct and affirming the penalty of removal is supported by
substantial evidence, is not an abuse of discretion, and does not otherwise contain
reversible error. Accordingly, we affirm the Board’s decision.
COSTS
No costs.
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