Simmons-Roberts v. Department of Defense , 443 F. App'x 539 ( 2011 )

NOTE: This disposition is nonprecedential
United States Court of Appeals
for the Federal Circuit
__________________________
TRACEY SIMMONS-ROBERTS,
Petitioner,
v.
DEPARTMENT OF DEFENSE,
Respondent.
__________________________
2011-3056
__________________________
Petition for review of the Merit Systems Protection
Board in DA0752100054-I-1.
__________________________
Decided: September 19, 2011
___________________________
TRACEY SIMMONS-ROBERTS, of Oklahoma City, Okla-
homa, pro se.
ALEX P. HONTOS, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and REGINALD T. BLADES,
JR., Assistant Director
__________________________
SIMMONS-ROBERTS v. DEFENSE 2
Before DYK, CLEVENGER, and REYNA, Circuit Judges.
PER CURIAM.
Tracey Simmons-Roberts (“Petitioner”) petitions for
review of a final order of the Merit Systems Protection
Board (“Board”). The Board affirmed the removal of
Petitioner from her position with the Defense Logistics
Agency (“DLA”). Simmons-Roberts v. Dep’t of Defense, No.
DA-0752-10-0054-I-1 (M.S.P.B. November 10, 2010)
(“Final Order”). We affirm.
BACKGROUND
Petitioner was employed as a Transportation Loss and
Damage Claims Examiner for DLA at the Defense Distri-
bution Depot at Tinker Air Force Base in Oklahoma.
While on duty on May 15, 2009, Petitioner was involved
in an altercation with a coworker in which she engaged in
a physical fight and used offensive language. When
another employee attempted to break up the fight, Peti-
tioner shoved and hit the other employee causing the
other employee to fall. As a result, the other employee
sustained an injury and was placed on workers’ compen-
sation.
On July 14, 2009, DLA notified Petitioner of its pro-
posal to remove her from Federal service for her “second
offense” of misconduct—fighting, using offensive lan-
guage, and inflicting bodily harm. Petitioner provided a
timely written response to the notice, acknowledging her
actions, noting her 25 years of service, and claiming,
among other things, that her actions were incited by her
coworker. At this stage, Petitioner did not dispute the
labeling of these actions as a second offense. On Septem-
ber 3, 2009, DLA issued its decision to remove Petitioner
for her “second offense” of misconduct. In reaching his
decision, the deciding official considered the facts of the
3 SIMMONS-ROBERTS v. DEFENSE
case within the framework of the relevant aggravating
and mitigating factors as instructed by Douglas v. Veter-
ans Administration, 5 M.S.P.B. 313, 331–32 (1981).
Petitioner subsequently appealed to the Board, con-
tending, among other things, that in fact there was no
“second offense” because DLA improperly relied on a prior
disciplinary action that should have been eliminated from
her file. She also argued that the penalty of removal was
not reasonable. The Administrative Judge (“AJ”) held,
inter alia, that the agency did not commit harmful error
because, although DLA referred to Petitioner’s actions as
a “second offense,” the deciding officer credibly testified
that he did not actually consider any prior discipline in
his decision to remove her. Also, DLA’s handbook on
maintaining discipline lists removal as a permissible
penalty for a single offense of fighting or inflicting bodily
harm. In light of the seriousness of the charges and the
mitigating factors, the AJ held that removal was an
appropriate penalty. Petitioner then sought review by
the full Board. Final Order, slip op. at 1. The full Board
denied review but issued an opinion concluding that any
error in labeling the misconduct as a second offense did
not result in harmful error. Final Order, slip op. at 3-4.
This was because the deciding official credibly testified
that this discipline was not a factor in his decision to
remove her. Final Order, slip op. at 2. The Board also
concluded that Petitioner had not established the exis-
tence of a disparate penalty. Final Order, slip op. at 3.
Petitioner timely petitioned for review by this court. We
have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
Our review of Board decisions is limited. We may
only set aside agency actions, findings, or conclusions that
we find to be “(1) arbitrary, capricious, an abuse of discre-
SIMMONS-ROBERTS v. DEFENSE 4
tion, 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); see also Bennett v. Merit
Sys. Prot. Bd., 635 F.3d 1215, 1218 (Fed. Cir. 2011).
Petitioner argues that the Board erred when finding
that DLA did not improperly rely on a previous offense.
We disagree. Substantial evidence supports the Board’s
finding that the deciding official did not rely upon a prior
offense when making his decision to remove Petitioner.
The deciding official testified that his decision was based
on the severity of the incident rather than Petitioner’s
disciplinary history. Petitioner’s undisputed conduct was
serious, and the DLA handbook lists removal as a poten-
tial punishment for a single offense of fighting and inflict-
ing bodily harm. When the Board’s credibility
determinations are “‘not inherently improbable or discred-
ited by undisputed fact,’” those determinations are “virtu-
ally unreviewable.” Bieber v. Dep't of the Army, 287 F.3d
1358, 1364 (Fed. Cir. 2002) (quoting Pope v. U.S. Postal
Serv., 114 F.3d 1144, 1149 (Fed. Cir. 1997)). Here, there
is no basis for rejecting the Board’s credibility determina-
tions.
Petitioner also argues that she did not get a fair hear-
ing because her representative was often interrupted by
the AJ. However, Petitioner has made no showing of “a
deep-seated favoritism or antagonism” on behalf of the AJ
“that would [have made] fair judgment impossible.”
Beiber, 287 F.3d at 1362 (internal quotation marks omit-
ted) (quoting Liteky v. United States, 510 U.S. 540, 555
(1994)).
Petitioner also contends that her removal was not
consistent with penalties given to other employees in
similar situations. The Board distinguished Petitioner’s
5 SIMMONS-ROBERTS v. DEFENSE
case from the other fighting cases in the record which “did
not involve the same level of intensity . . . and did not
result in serious injury.” Final Order, slip op. at 3. The
Board also found that Petitioner’s coworker, who was not
removed for her involvement in the altercation, did not
fight back and did not cause injury to anyone. There is no
basis for setting aside the Board’s findings in these re-
spects.
Finally, Petitioner contends that the penalty of re-
moval was unreasonable. DLA considered the relevant
mitigating and aggravating factors as set forth in Douglas
and determined that “removal [was] appropriate and
necessary to maintain discipline . . . and to promote the
efficiency of the Federal Service.” A. 43. This court must
“defer to the agency's determination of disciplinary action
unless the penalty is so harsh and unconscionably dispro-
portionate to the offense that it amounts to an abuse of
discretion.” Allen v. U.S. Postal Serv., 466 F.3d 1065,
1071 (Fed. Cir. 2006) (internal quotation marks omitted)
(quoting Villela v. Dep’t of the Air Force, 727 F.2d 1574,
1576 (Fed. Cir. 1984)). The Board did not abuse its dis-
cretion here. Removal was not unconscionably dispropor-
tionate to Petitioner’s offense.
AFFIRMED
COSTS
No costs.