Mertens v. United States Postal Service , 347 F. App'x 565 ( 2009 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3159
KEVIN P. MERTENS,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
Kevin P. Mertens, of Maize, Kansas, pro se.
Jeffrey A. Regner, Trial Attorney, Commercial Litigation 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 Mark A. Melnick, Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3159
KEVIN P. MERTENS,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
Petition for review of the Merit Systems Protection Board in SF0752080392-I-1.
__________________________
DECIDED: September 14, 2009
__________________________
Before LINN, DYK, and PROST, Circuit Judges.
PER CURIAM.
Kevin Mertens appeals a decision of the Merit Systems Protections Board
(“Board”) affirming the United States Postal Service’s decision to remove him from his
position as a mail carrier. Because the Board’s decision is supported by substantial
evidence, we affirm.
I. BACKGROUND
The Postal Service removed Mr. Mertens on a charge of Absence Without
Official Leave (“AWOL”) based on eleven specifications relating to absences between
January 8, 2008, and January 24, 2008. On appeal to the Board, Mr. Mertens argued
both that he requested and was entitled to leave for those days under the Family
Medical Leave Act (“FMLA”). He also alleged that the Postal Service committed harmful
procedural error by failing to notify him of discipline that was imposed against him in
October 2007. Additionally, he argued that his removal was in retaliation for his
whistleblowing activity in 2000 when he allegedly declined his supervisor’s invitation to
drive his postal vehicle on the sidewalk. Finally, he argued that there was no nexus
between his alleged misconduct and the efficiency of the service and that the penalty
should have been mitigated. In his initial decision, the administrative judge affirmed the
agency’s AWOL charge with respect to specifications 2, 3, 6, 7, 8, 9, and 10. The
administrative judge found that the agency failed to prove the remaining specifications
by preponderant evidence. Because seven of the specifications were sustained, the
administrative judge sustained the AWOL charge. Based on his review of the record,
the administrative judge rejected Mr. Mertens remaining arguments. Mr. Mertens filed a
petition for review with the full Board, which was denied making the initial decision of the
administrative judge the final decision of the Board. Mr. Mertens timely appealed. We
have jurisdiction under 28 U.S.C. § 1295(a)(9).
II. DISCUSSION
Our review of decisions of the Board is narrow and limited by statute. Under 5
U.S.C. § 7703(c), we may only set aside the Board’s decision if 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.”
When viewed in light of our standard of review, the arguments made by Mr.
Mertens on appeal do not give us a basis to reverse the Board’s decision. First, Mr.
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Mertens argues that the Postal Service failed to prove that his absences were
unauthorized or that his request for leave was properly denied. However, the
administrative judge cited affidavits from Mr. Herring and Mr. LaValley that provided
substantial evidence to support the administrative judge’s finding that Mr. Mertens did
not call in to say that he would be absent or otherwise request leave. It is not within our
authority to reweigh the evidence. Henry v. Dep’t of the Navy, 902 F.2d 949, 951 (Fed.
Cir. 1990). With respect to his argument that the administrative judge failed to consider
his health condition, we conclude that the administrative judge properly focused on the
specifications—i.e., whether Mr. Mertens sought authorization for his leave, either by
calling in prior to his absence or by filling out the proper paperwork afterwards—rather
than the nature of his health condition.
Mr. Mertens next alleges procedural error in the Postal Service’s failure to
produce during discovery or offer as evidence PS 3971 forms for the days on which he
was absent. However, as the government points out, the only PS 3971 forms that
would have been created under the circumstances of this case would have been filled
out by Mr. Mertens, who has not alleged that he ever filled out such a form.
Mr. Mertens also alleges that the Postal Service failed to notify him of previous
disciplinary proceedings. The administrative judge, however, considered this argument
and found that, in light of Mr. Mertens’s past actions, his assertion that he was unaware
of the prior proceedings was not credible. Credibility determinations are virtually
unreviewable on appeal. Hambsch v. Dep’t of the Treasury, 796 F.2d 430, 436 (Fed.
Cir. 1986).
2009-3159 3
Next, Mr. Mertens challenges the administrative judge’s rejection of his
whistleblowing claim, which is based on Mr. Mertens’s alleged refusal to drive his postal
vehicle on the sidewalks. The administrative judge concluded that Mr. Mertens failed to
prove that he was retaliated against for protected whistleblowing because he did not
identify a protected disclosure, failed to prove that the officials who allegedly took
retaliatory action had knowledge of a protected disclosure, and failed to prove any
nexus between the alleged disclosure and the removal. See Warren v. Dep’t of the
Army, 804 F.2d 654, 656 (Fed. Cir. 1986). On appeal, he alleges that he met his
burden of proof and the administrative judge failed to weigh the evidence properly.
Again, we cannot reweigh the evidence on appeal. See Henry, 902 F.2d at 951.
Mr. Mertens also challenges the administrative judge’s conclusion that the
agency proved that his misconduct burdened the agency and warranted removal. Once
again, his complaint is with respect to the administrative judge’s weighing of the
evidence, which, unless unsupported by substantial evidence, cannot be overruled on
appeal. See id. We conclude that Mr. LaValley’s affidavit provides sufficient evidence
to support the administrative judge’s conclusion.
Finally, Mr. Mertens argues that the administrative judge abused his discretion by
depriving him of a hearing and an opportunity for discovery as a sanction for his failure
to appear for several conferences. In light of the occasions on which Mr. Mertens failed
to attend the scheduled hearings, we conclude that the administrative judge’s chosen
sanction was within his discretion. We also conclude that the record indicates that Mr.
Mertens had ample opportunity to submit evidence and his arguments to the contrary
are without merit.
2009-3159 4
III. CONCLUSION
For the foregoing reasons, the Board’s decision is affirmed.
COSTS
Each party shall bear its own costs.
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