Cabone v. United States Postal Service , 129 F. App'x 622 ( 2005 )

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
04-3418
HENRY CABONE,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
___________________________
DECIDED: April 12, 2005
___________________________
Before NEWMAN, SCHALL, and DYK, Circuit Judges.
PER CURIAM.
Henry Cabone (“Cabone”) petitions for review of the decision of the Merit
Systems Protection Board. Cabone v. United States Postal Serv., No. SF-0752010569-
I-3 (M.S.P.B. Jul. 1, 2004). We affirm.
BACKGROUND
Cabone was employed as a mail handler by the United States Postal Service
(“Postal Service”). On June 15, 2001, the Postal Service proposed to remove Cabone
on one charge of creating a hostile work environment with nine specifications. The
agency then decided to remove Cabone, effective July 23, 2001, finding all nine
specifications sustained and that Cabone’s removal would promote the efficiency of the
service.
Cabone appealed to the Merit Systems Protection Board. The administrative
judge’s initial decision dealt with each specification as follows:
Specification 1 accused Cabone of approaching another mail handler who had
exited from a meeting with a supervisor, demanding to know what had been discussed
with the supervisor, accusing the coworker of being a liar, and stating “I’ll get the truth
out [of] you.” The administrative judge sustained this specification in part, finding that
the incident occurred but that the agency had failed to provide evidence to support its
further assertion that the coworker had found the experience “very unpleasant.”
Specification 2 accused Cabone of causing his coworker to be uncomfortable by
repeatedly making negative comments about other coworkers. The administrative
judge found this specification not sustained.
Specification 3 accused Cabone of making other negative comments about
coworkers. The administrative judge found this specification not sustained.
Specification 4 accused Cabone of making rude gestures and noises to one Bill
Wiggs, such as cat calls and “snorting like a pig.” In addition, it alleges that Cabone
mocked Wiggs by saying, “I go tell . . . I go tell,” in an apparent reference to a prior
incident in which Wiggs had complained of Cabone’s harassment (an incident for which
Cabone was suspended for 14 days). The administrative judge sustained this
specification.
Specification 5 accused Cabone of consistently staring at one Joey Boatman in a
menacing manner, and making mocking comments towards him. It also accused
Cabone of manipulating urinals in restrooms so that they did not flush. The
administrative judge sustained this specification in so far as it pertained to staring and
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mocking comments, and did not sustain the specification in so far as it pertained to
manipulating urinals.
Specification 6 accused Cabone of intimidating one Terry Schrader by raising the
front of a candy vending machine and then slamming it into the ground (without having
previously inserted money into the machine) while another employee was sleeping
nearby. It also accused Cabone of staring menacingly at Schrader. The specification
finally accused Cabone of saying “[t]ime to turn up the radio” when Schrader was
nearby, apparently in order to disturb others. The administrative judge sustained this
specification in so far as it pertained to the candy machine and the staring, but did not
sustain the specification in so far as it related to the radio.
Specification 7 accused Cabone of muttering negatively about coworkers. The
administrative judge found this specification not sustained.
Specification 8 accused Cabone of making inappropriate “monkey sounds” as a
coworker walked by. The administrative judge sustained this specification.
Specification 9 accused Cabone of staring at one Nora Gonzalez and making
various gestures towards her indicating obesity. The administrative judge sustained this
specification.
The administrative judge then rejected Cabone’s defenses based on handicap
discrimination, discrimination based on veteran status, retaliation for prior discrimination
complaints, and allegations of various procedural errors. The administrative judge
found the requisite nexus between Cabone’s harassment and the efficiency of the
service, and determined that removal was a reasonable penalty. In this connection, the
administrative judge noted that Cabone had previously received a 14 day suspension
04-3418 3
for creating a hostile work environment, mishandling mail, and lying during an official
investigation.
The full Board summarily denied Cabone’s petition for review, and the decision of
the Board became final on July 1, 2004. Cabone petitions this court for review. We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
Our review of the Board is limited. The Board’s decision must be affirmed unless
it is found to be 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) (2000); Yates v. Merit Sys.
Prot. Bd., 145 F.3d 1480, 1483 (Fed. Cir. 1998).
An agency is authorized to make a removal that promotes the efficiency of the
service. 5 U.S.C. § 7513 (2000). Here, the Board determined that removing Cabone
would promote the efficiency of the service.
The bulk of Cabone’s submissions on appeal attack the administrative judge’s
factual findings, which he argues were based on unreliable testimony, lacking third-party
corroboration, or inconsistent with other evidence he presented. The administrative
judge’s factual findings were based, in large part, on testimony and credibility
determinations that are “virtually unreviewable.” Hambsch v. Dep’t of the Treasury, 796
F.2d 430, 436 (Fed. Cir. 1986). We can discern no error in the factual findings made by
the administrative judge.
Cabone argues that he was deprived of due process because the official that
issued the notice proposing his removal was the same one that decided to remove him.
04-3418 4
This argument has no merit because we have repeatedly held that “it is not a violation of
due process when the proposing and deciding roles are performed by the same
person.” Hanley v. Gen. Servs. Admin., 829 F.2d 23, 25 (Fed. Cir. 1987); De Sarno v.
Dep’t of Commerce, 761 F.2d 657, 660 (Fed. Cir. 1985).
Cabone argues that the Postal Service and the Board improperly considered his
prior disciplinary record in deciding to remove him. This argument lacks merit because
the Board and the agency are not only entitled, but positively required, to consider the
relevant factors enumerated in Douglas v. Veterans Administration, 5 M.S.P.R. 280(1981). Hayes v. Dep’t of the Navy, 727 F.2d 1535, 1540 (Fed. Cir. 1984). The
employee’s past disciplinary record is one such factor to be considered under Douglas.
5 M.S.P.R. at 305.
Cabone also argues that the administrative judge erred by sustaining the single
charge of creating a hostile work environment when she only sustained six out of nine
specifications. Further, of the six specifications sustained, the administrative judge
found three sustained in full, and three sustained in part. There is no basis to disturb
the Board decision because “where more than one event or factual specification is set
out to support a single charge, proof of one or more, but not all, of the supporting
specifications is sufficient to sustain the charge.” LaChance v. Merit Sys. Prot. Bd., 147
F.3d 1367, 1371 (Fed. Cir. 1998) (internal alterations omitted). Even had the
administrative judge only sustained one of the nine specifications, the charge of creating
a hostile work environment was properly proved. Here the administrative judge fully
sustained three of the specifications.
04-3418 5
Cabone finally argues that the administrative judge erred in rejecting his
evidence of mental handicap discrimination. Cabone is barred from raising this
argument because he has previously waived his claims of handicap discrimination
before this court. See Pet’r’s Fed. Cir. R. 15(c) Statement Concerning Discrimination
(filed Sept. 17, 2004).
We have considered Cabone’s other arguments and find them to be without
merit.
CONCLUSION
For the foregoing reasons, the decision of the Board is affirmed.
COSTS
No costs.
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