Davis v. United States Postal Service , 487 F. App'x 571 ( 2012 )


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  •        NOTE: This disposition is nonprecedential.
    United States Court of Appeals
    for the Federal Circuit
    __________________________
    LONDER B. DAVIS,
    Petitioner,
    v.
    UNITED STATES POSTAL SERVICE,
    Respondent.
    __________________________
    2012-3069
    __________________________
    Petition for review of the Merit Systems Protection
    Board in case no. DA0752100459-B-1.
    _________________________
    Decided: June 12, 2012
    _________________________
    LONDER B. DAVIS, of Dallas, Texas, pro se.
    RYAN M. MAJERUS, Trial Attorney, Commercial Litiga-
    tion Branch, Civil Division, United States Department of
    Justice, of Washington, DC, for respondent. With him on
    the brief were STUART F. DELERY, Assistant Attorney
    General, JEANNE E. DAVIDSON, Director, and CLAUDE
    BURKE, Assistant Director.
    __________________________
    DAVIS   v. USPS                                           2
    Before LINN, MOORE, and O’MALLEY, Circuit Judges.
    PER CURIAM.
    Londer B. Davis (“Davis”) appeals from the final deci-
    sion of the Merit Systems Protection Board (“the Board”)
    which: (1) denied his petition for review of the administra-
    tive judge’s (“AJ”) initial decision on grounds that he
    failed to show any new, previously unavailable, evidence;
    and (2) adopted the AJ’s initial decision affirming the
    United States Postal Service’s (“USPS” or “the agency”)
    decision to remove him from employment for unacceptable
    conduct. Davis v. U.S. Postal Serv., No. DA-0752-10-
    0459-B-1, 2011 MSPB LEXIS 6950 (M.S.P.B. Nov. 21,
    2011) (reported in table format at 
    117 M.S.P.R. 107
    )
    (“Final Decision”); Davis v. U.S. Postal Serv., No. DA-
    0752-10-0459-B-1, 2011 MSPB LEXIS 2867 (M.S.P.B.
    May 9, 2011) (“Initial Decision”). For the reasons ex-
    plained below, we affirm.
    BACKGROUND
    Davis began working for the Postal Service on June
    12, 1993. Prior to his removal, Davis was a full-time
    letter carrier assigned to the Robert E. Price Station in
    Dallas, Texas. On September 26, 2009, Davis was in-
    volved in an altercation with another carrier, Tat Lee.
    The altercation took place in a conference room at the
    station and occurred in the presence of two witnesses:
    Hilario Montoya, the Acting Supervisor for the station,
    and Biagio Randazzo, the Chief Union Steward for that
    shift. Montoya and Randazzo later testified that they
    were in the conference room to investigate an earlier
    argument that Davis and Lee had on the workroom floor.
    It is undisputed that Davis used profanity during that
    verbal altercation.
    3                                            DAVIS   v. USPS
    While in the conference room, Davis and Lee contin-
    ued to exchange profanity, and Lee slammed his fist into
    the conference room table. At that point, Davis left his
    end of the table, walked toward the end of the table where
    Lee was standing, and punched Lee in the head. Al-
    though testimony from Montoya and Randazzo and a
    written statement from Lee confirmed this sequence of
    events, Davis denied hitting Lee.
    In a letter dated September 30, 2009, Montoya noti-
    fied Davis that he was being placed on “non-duty status,
    non-pay, effective September 26, 2009.” Appendix (“A.”)
    83. The letter informed Davis that his conduct during
    the altercation was unacceptable, and that an investiga-
    tion was underway to determine whether corrective action
    was warranted.
    On October 23, 2009, Montoya sent Davis a Notice of
    Proposed Removal for unacceptable conduct stemming
    from the September 26, 2009 incident. By letter dated
    November 9, 2009, George Young, the Postal Service’s
    deciding official for this case, informed Davis that he
    would be removed from employment effective November
    29, 2009. In the letter, Young: (1) explained that he
    considered the factors listed in Douglas v. Veterans Ad-
    ministration, 
    5 M.S.P.R. 280
    , 306-07 (1981) (“the Douglas
    factors”) to assess whether the penalty of removal is
    appropriate; and (2) walked through each of the twelve
    Douglas factors as they applied to Davis.
    Davis appealed his removal to the Board, and the AJ
    conducted an evidentiary hearing on August 12, 2010.
    During the hearing, the AJ heard testimony from several
    individuals, including Montoya, Randazzo, Davis, and
    Young. On August 13, 2010, the AJ issued an initial
    decision dismissing Davis’ removal appeal as untimely
    filed. Davis v. U.S. Postal Serv., No. DA-0752-10-0459-I-
    DAVIS   v. USPS                                           4
    1, 2010 MSPB LEXIS 4783 (M.S.P.B. Aug. 13, 2010).
    Davis petitioned the Board for review and, in a decision
    dated January 7, 2011, the Board granted the petition
    and reversed, finding that the regional office had improp-
    erly rejected Davis’ filing as premature, thereby contribut-
    ing to his untimeliness. Davis v. U.S. Postal Serv., 
    116 M.S.P.R. 329
    , 2011 MSPB LEXIS 223 (M.S.P.B. Jan. 7,
    2011). The Board remanded the case to the AJ to render
    an initial decision on the merits of Davis’ claims.
    On February 3, 2011, the AJ conducted a conference
    call with the parties, explaining that he “already con-
    ducted a hearing on the matter and received evidence
    regarding the agency’s charge.” Initial Decision, 2011
    MSPB LEXIS 2867, at *1-2. The AJ informed the parties
    that the record would close on February 14, 2011, but that
    they could submit additional evidence and argument
    before that date. Neither party submitted any additional
    evidence.
    On May 9, 2011, the AJ issued an initial decision af-
    firming the agency’s penalty of removal. First, the AJ
    concluded that the USPS “presented preponderant evi-
    dence to support the charge of unacceptable conduct.”
    Initial Decision, 2011 MSPB LEXIS 2867, at *2. Based on
    the evidence, the AJ found it undisputed that Davis was
    involved in a verbal altercation with Lee and used profan-
    ity on the workroom floor. Indeed, Davis admitted to
    doing so at the evidentiary hearing. The AJ noted a
    conflict in the evidence with respect to whether Davis
    struck Lee during the altercation in the conference room.
    Although testimony from Montoya and Randazzo was
    consistent with Lee’s written statement that Davis
    punched him in the head, Davis denied doing so. The AJ
    did not find Davis’ denial credible, noting that “Randazzo,
    as a union steward appeared reluctant to present testi-
    mony that could be considered adverse to another (or
    5                                              DAVIS   v. USPS
    former) union official, but he nevertheless confirmed that
    he witnessed [Davis’] unprovoked attack on Lee.” Id. at
    *7. The AJ further found it inherently unlikely that
    Montoya, Randazzo, and Lee “would fabricate such a
    surprising event” and that there was “no suggestion of
    any collusion or conspiracy.” Id. at *7-8. Accordingly, the
    AJ concluded that the agency showed, by a preponderance
    of the evidence, that Davis struck Lee.
    As to the penalty, the AJ found that removal “is rea-
    sonable and promotes the efficiency of the service.” Id. at
    *8. Specifically, the AJ found that Young – the deciding
    official in this case – weighed the relevant factors articu-
    lated in Douglas and that, in light of those factors, re-
    moval was appropriate. Young testified that the Postal
    Service has a “Zero Tolerance” policy for workplace vio-
    lence and that the agency gives periodic talks on the
    issue. Id. at *10. Because Davis struck a co-worker
    “while on duty and in the presence of his supervisor and
    union steward, [the AJ] found the misconduct unequivo-
    cally duty related.” Id. at *11. Looking to the evidence as
    a whole, the AJ concluded that Davis’ removal did not
    exceed the bounds of reasonableness and that it would
    “advance the efficiency of the service.” Id. at *12.
    Davis filed a petition for review, requesting that the
    Board reconsider the AJ’s initial decision. Davis subse-
    quently submitted several documents for the first time,
    including: (1) a 1994 arbitrator’s decision and award; (2) a
    1995 arbitrator’s award summary; and (3) a 2009 arbitra-
    tor’s award summary.
    On November 21, 2011, the Board issued a final deci-
    sion denying Davis’ petition for review. In its decision,
    the Board noted that Davis failed to explain how the
    newly-submitted arbitration awards “are of sufficient
    weight to warrant a different outcome from the remand
    DAVIS   v. USPS                                             6
    initial decision.” Final Decision, 2011 MSPB LEXIS 6950,
    at *3. And, because Davis failed to show that the docu-
    ments were previously unavailable before the record
    closed, the Board concluded that it need not consider
    them. Id. (citing Avansino v. U.S. Postal Serv., 
    3 M.S.P.R. 211
    , 214 (1980)). The Board found that Davis failed to
    either: (1) present new or previously unavailable evidence;
    or (2) show that the AJ made an error interpreting the
    law or regulation. Accordingly, the Board denied Davis’
    petition for review, and the AJ’s initial decision became
    the final decision of the Board, “[e]xcept as modified by
    th[e] [Board’s] Final Order.” 
    Id.
    Davis timely appealed to this court. We have jurisdic-
    tion pursuant to 
    28 U.S.C. § 1295
    (a)(9).
    DISCUSSION
    To sustain an adverse action against an employee, an
    agency such as the USPS must: (1) prove, by a preponder-
    ance of the evidence, that the charged misconduct oc-
    curred; (2) establish a nexus between that misconduct and
    the efficiency of the service; and (3) demonstrate that the
    penalty imposed is reasonable. Malloy v. U.S. Postal
    Serv., 
    578 F.3d 1351
    , 1356 (Fed. Cir. 2009). The Board
    gives plenary review to the agency’s decision as to each of
    the three factors. Our review of final Board decisions is
    limited, however. By statute, we 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.” 
    5 U.S.C. § 7703
    (c).
    On appeal, Davis argues that the Board erred in af-
    firming the USPS’s decision removing him from employ-
    ment because it failed to consider certain facts and
    applied the wrong law. With respect to the facts, Davis
    7                                              DAVIS   v. USPS
    argues that the Board failed to consider evidence he
    submitted after the AJ rendered the initial decision. With
    respect to the law, Davis appears to argue that: (1) the
    Board failed to consider his status as a preference eligible
    veteran; and (2) the penalty of removal was unreasonable.
    For the reasons explained below, each of these arguments
    is without merit.
    A. Untimely Evidentiary Submissions
    First, Davis claims that Board erred by failing to con-
    sider the three arbitration awards he submitted. Accord-
    ing to Davis, if the AJ and the Board “had taken these
    documents into consideration the outcome maybe would
    have been different.” In response, the agency argues that
    the Board “properly ruled that it need not consider the
    three arbitration decisions” because they: (1) were un-
    timely introduced; and (2) ”involved unrelated arbitration
    proceedings for other parties.” Respondent’s Informal Br.
    11. Because we agree with the agency on the first point,
    we need not address the second.
    Pursuant to the Board’s rules, “[o]nce the record
    closes, no additional evidence or argument will be ac-
    cepted unless the party submitting it shows that the
    evidence was not readily available before the record
    closed.” 
    5 C.F.R. § 1201.114
    (i). The rules further provide
    that the Board has discretion to grant a petition for
    review where “[n]ew and material evidence is available
    that, despite due diligence, was not available when the
    record closed.” 
    5 C.F.R. § 1201.115
    (d)(2). Consistent with
    these principles, both this court and the Board have held
    that “a party submitting new evidence in connection with
    a petition for review must satisfy the burden of showing
    that the evidence is material and that it could not have
    been obtained earlier with the exercise of due diligence.”
    DAVIS   v. USPS                                           8
    Brenneman v. Office of Pers. Mgmt., 
    439 F.3d 1325
    , 1328
    (Fed. Cir. 2006) (citations omitted).
    Here, the Board found that Davis failed to explain the
    relevance of the arbitration decisions and further failed to
    show that they were previously unavailable “despite his
    due diligence.” Final Decision, 2011 MSPB LEXIS 6950,
    at *3. Based on the record, we find no error in the Board’s
    decision. As previously noted, the AJ gave the parties
    until February 14, 2011 to submit any additional post-
    hearing evidence. The AJ issued his initial decision on
    May 9, 2011, and Davis did not submit the arbitration
    awards until May 23, 2011 – over three months after the
    record closed for evidence. Davis failed to provide any
    explanation for this delay. And, because all three of the
    arbitration awards pre-date February 14, 2011 – the date
    the record closed for evidence – Davis cannot argue that
    his newly-submitted evidence “was not readily available
    before the record closed.” See 
    5 C.F.R. § 1201.114
    (i).
    Indeed, two of the three arbitration decisions were ren-
    dered in the mid-1990s, and the third was from 2009.
    Davis does not allege that he could not have obtained
    these documents earlier with the exercise of due diligence.
    Given these circumstances, and absent any explanation
    for the delay, we are unable to say that the Board abused
    its discretion by refusing to consider documents that were
    not part of the record before the AJ.
    B. Veterans’ Preference
    Davis also contends that the Board failed to consider
    his status as a preference-eligible veteran. To the extent
    Davis seeks to assert a claim under the Veterans Em-
    ployment Opportunities Act of 1998 (“VEOA”), that claim
    fails. Pursuant to 5 U.S.C. § 3330a, a preference-eligible
    veteran who alleges that an agency violated his rights
    under a statute or regulation relating to veterans’ prefer-
    9                                             DAVIS   v. USPS
    ence must first file a complaint with the Secretary of
    Labor before appealing the alleged violation to the Board.
    See 5 U.S.C. § 3330a(d)(1); see also 
    5 C.F.R. § 1208.2
    (b)
    (“[A] preference eligible . . . may file an appeal with the
    Board, provided that he has satisfied the statutory re-
    quirements for first filing a complaint with the Secretary
    of Labor and allowing the Secretary at least 60 days to
    attempt to resolve the complaint.”). Accordingly, to
    establish Board jurisdiction over an appeal brought under
    the VEOA, an appellant must show, among other things,
    that he exhausted his administrative remedies with the
    Department of Labor. Lazaro v. Dep’t of Veterans Affairs,
    
    666 F.3d 1316
    , 1319 (Fed. Cir. 2012).
    The record contains no evidence that Davis filed a
    VEOA complaint with the Department of Labor. Nor does
    Davis allege that he filed such a complaint. Indeed, on
    his handwritten MSPB Appeal Form dated May 25, 2010,
    Davis indicated that he was not asserting any other
    claims, including a veterans’ preference claim, in connec-
    tion with his appeal. A. 112. Davis’ preference-eligible
    status was not raised as an issue before the Board, and he
    does not explain how the agency violated his rights under
    the VEOA. Given these factors, we conclude that Davis’
    attempt to raise a VEOA claim for the first time on appeal
    is improper.
    C. The Penalty
    Finally, Davis argues that the AJ failed to consider
    certain mitigating factors in determining the appropriate
    penalty. Specifically, Davis claims that the AJ should
    have considered: (1) his twenty-one years of service with
    the agency and lack of prior disciplinary action;
    (2) provocation; (3) ”that the incident occurred off the
    workroom floor”; and (4) whether “other individuals”
    received a lesser penalty.
    DAVIS   v. USPS                                           10
    As a general rule, the penalty for employee miscon-
    duct is left to the agency’s discretion. Villela v. Dep’t of
    Air Force, 
    727 F.2d 1574
    , 1576 (Fed. Cir. 1984) (“The
    choice of penalty is generally left to agency discretion.”).
    Neither the Board nor this court has authority to deter-
    mine what penalty the agency should have selected.
    Instead, the Board must assess whether the agency
    balanced the relevant Douglas factors and selected a
    penalty that is within the “bounds of reasonableness.”
    Hayes v. Dep’t of Navy, 
    727 F.2d 1535
    , 1540 (Fed. Cir.
    1984) (quotations omitted). This court will “normally
    defer to the administrative judgment unless the penalty
    exceeds the range of permissible punishments specified by
    statute or regulation, or unless the penalty is so harsh
    and unconscionably disproportionate to the offense that it
    amounts to an abuse of discretion.” Villela, 727 F.2d at
    1576 (internal quotations and citation omitted).
    In sustaining the penalty of removal, the AJ noted
    that the deciding official considered the relevant Douglas
    factors, including: (1) the nature and seriousness of the
    offense; (2) the notoriety of the incident; (3) whether there
    were any mitigating circumstances; (4) the potential for
    rehabilitation; (5) the adequacy of alternative sanctions to
    deter future misconduct; and (6) the fact that Davis was
    on notice of the Postal Service’s Zero Tolerance Policy for
    workplace violence. The AJ found that removal was
    justified, particularly since Davis’ misconduct “occurred at
    work, while on duty, in the presence of his supervisor, and
    chief union steward.” Initial Decision, 2011 MSPB LEXIS
    2867, at *12. Because Davis “disrupted the workplace,
    and was verbally and physically abusive and threatening
    toward a co-worker,” the AJ found that his removal “does
    not exceed the bounds of reasonableness.” Id.
    On appeal, Davis seems to argue that the agency and
    the Board failed to consider his lack of prior disciplinary
    11                                             DAVIS   v. USPS
    history during his twenty-one years with the Postal
    Service. As this court has consistently noted, “[i]t is not
    reversible error if the Board fails expressly to discuss all
    of the Douglas factors. The Board need only determine
    that the agency considered the factors significant to the
    particular case.” Kumferman v. Dep’t of Navy, 
    785 F.2d 286
    , 291 (Fed. Cir. 1986) (internal citation omitted).
    Here, review of the deciding official’s removal decision
    reveals that he considered Davis’ past work record and
    disciplinary history in making his penalty determination.
    Indeed, in his decision letter, the deciding official dis-
    cussed all twelve of the Douglas factors and found that
    they weighed in favor of removal. Although the AJ’s
    initial decision does not reference Davis’ length of service
    and lack of prior disciplinary action, the AJ expressly
    found that the deciding official considered mitigating
    circumstances. Accordingly, we find that the Board and
    the agency considered and balanced all relevant Douglas
    factors – including mitigating factors – in assessing the
    appropriate penalty.
    With respect to provocation, the AJ expressly rejected
    Davis’ testimony and credited testimony from Montoya,
    Randazzo, and Lee. Specifically, the AJ credited Ran-
    dazzo’s testimony that Davis engaged in an “unprovoked
    attack on Lee.” Initial Decision, 2011 MSPB LEXIS 2867,
    at *7. It is well-established that credibility determina-
    tions are within the AJ’s discretion and are “virtually
    unreviewable” on appeal. Frey v. Dep’t of Labor, 
    359 F.3d 1355
    , 1361 (Fed. Cir. 2004) (quoting King v. HHS, 
    133 F.3d 1450
    , 1453 (Fed. Cir. 1998)); see also Griessenauer v.
    Dep’t of Energy, 
    754 F.2d 361
    , 364 (Fed. Cir. 1985) (“The
    determination of the credibility of the witnesses is within
    the discretion of the presiding official who heard their
    testimony and saw their demeanor.”). Davis has given no
    DAVIS   v. USPS                                           12
    reason for us to reject the AJ’s credibility determinations,
    and we decline to do so.
    Davis next argues that the Board should have consid-
    ered “that the incident occurred off the workroom floor.”
    Davis fails to explain how this fact is relevant to the
    penalty determination. The altercation occurred at the
    workplace, while Davis was on duty, and the AJ found
    that it was disruptive. As the AJ noted, moreover, the
    deciding official “considered the notoriety of the offense as
    a significant factor” and conducted a meeting with staff
    following the incident to discuss what had happened.
    Initial Decision, 2011 MSPB LEXIS 2867, at *10. Given
    these circumstances, the fact that the physical altercation
    took place in the station conference room, rather than on
    the workroom floor, does not render the Board’s decision
    unreasonable.
    Although Davis claims that “other individuals” re-
    ceived a lesser penalty, it is unclear which individuals he
    is referring to, and there is no evidence that Davis as-
    serted a claim for disparate treatment before the AJ. To
    the extent Davis is referring to the grievants involved in
    the three unrelated arbitration decisions previously
    discussed, those decisions were not properly before the
    Board, and we decline to consider them for the first time
    on appeal.
    Because the agency considered and balanced all of the
    relevant Douglas factors, the AJ did not err in finding
    that the penalty of removal was reasonable. Given the
    totality of the circumstances, we cannot say that the
    Board abused its discretion in sustaining Davis’ removal
    for unacceptable conduct.
    13                                         DAVIS   v. USPS
    CONCLUSION
    For the foregoing reasons, and because we find that
    Davis’ remaining arguments are without merit, we affirm
    the Board’s final decision.
    AFFIRMED
    COSTS
    No costs.