Noble v. United States Postal Service , 556 F. App'x 941 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DAVID NOBLE, JR.,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
______________________
2013-3045
______________________
Petition for review of the Merit Systems Protection
Board in Nos. DC0752110880-I-1 and DC0752120054-I-1.
______________________
Decided: September 18, 2013
______________________
DAVID NOBLE, JR., of Gaithersburg, Maryland, pro se.
MARTIN M. TOMLINSON, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were STUART F. DELERY, Acting Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
STEVEN J. GILLINGHAM, Assistant Director.
______________________
2 NOBLE, JR. v. USPS
Before DYK, O’MALLEY, and TARANTO, Circuit Judges.
PER CURIAM.
David Noble, Jr. petitions for review of a final decision
of the Merit Systems Protection Board that upheld his
removal from his job with the United States Postal Ser-
vice. Because the Board did not abuse its discretion or
otherwise err, we affirm the Board’s decision.
BACKGROUND
Mr. Noble worked as a letter carrier for the Postal
Service. In December 2010, he stopped regularly report-
ing for work. The Postal Service sent him a letter on
January 31, 2011, informing him that, according to its
records, he had been Absent Without Leave since Decem-
ber 14, 2010. The letter said that it served as “official
notice for [Mr. Noble] to report to work or provide appro-
priate medical documentation no later than five (5) days
from receipt of this letter” and that failure to comply with
those instructions could result in disciplinary action,
including removal from the Postal Service. Mr. Noble
responded with a letter dated February 8, 2011, disagree-
ing that he had been AWOL since December 14. He
stated that (1) he had reported for work on December 26,
2010, and January 13, 2011, and (2) he had submitted a
request for medical leave for the period January 1, 2011,
to January 12, 2011, which his supervisor had approved
on January 13th. He also asserted that his absence since
January 13th was justified: “I have been constructively
suspended from employment because [my] management
team and other management representatives have made
my working conditions completely intolerable.”
On February 16, 2011, the Postal Service contacted
Mr. Noble to schedule an investigatory interview “to
afford [him] an opportunity to explain why [he had] been
absent without approved leave since January 14, 2011.”
The interview occurred on February 23rd. It did not go
NOBLE, JR. v. USPS 3
smoothly. Mr. Noble left before it ended, asserting that
he would return only after the Postal Service corrected
some of the working conditions that he said caused his
constructive suspension.
On March 3rd, Mr. Noble’s supervisor, Bill French,
recommended his removal, listing “Attendance Issues –
AWOL” as the reason for his recommendation. That same
day, the Postal Service provided Mr. Noble another letter,
again providing notice that Mr. Noble would be consid-
ered AWOL, and face possible disciplinary action, if,
within five days, he did not report to work or provide
medical documentation justifying his continued absence.
On April 28th, the Postal Service sent him a “Notice of
Proposed Removal” based on his absence from work since
February 24th. Mr. Noble did not respond to the “Notice
of Proposed Removal”; the Postal Service officially re-
moved him from employment in July 2011.
Mr. Noble appealed his removal to the MSPB. On De-
cember 14, 2011, an administrative judge upheld the
removal, finding that the Postal Service established that
Mr. Noble was AWOL. The administrative judge rejected
Mr. Noble’s argument that he was not AWOL but, rather,
constructively suspended by intolerable working condi-
tions. In the decision, the administrative judge treated
the argument as an affirmative defense in Mr. Noble’s
removal appeal, but later granted his request to try to
litigate it as a separate appeal. On February 24, 2012,
the administrative judge dismissed the separate construc-
tive-suspension appeal as untimely. Subsequently, Mr.
Noble petitioned the Board for review of the administra-
tive judge’s decisions in both the removal appeal and the
constructive-suspension appeal.
On October 25, 2012, the Board issued a final order
that both upheld Mr. Noble’s removal and dismissed the
constructive-suspension appeal for lack of jurisdiction.
The Board considered all of Mr. Noble’s allegations and
4 NOBLE, JR. v. USPS
determined that the administrative judge made no error
that affected the outcome of the removal appeal. The
Board modified the administrative judge’s decision, but
only to indicate that the Postal Service justifiably rested
Mr. Noble’s removal entirely on his AWOL status after
February 24, 2011, not on any earlier irregular attend-
ance at work. Noble v. U.S. Postal Serv., No. DC-0752-11-
0880-I-1, slip op. at 4-5 (M.S.P.B Oct. 25, 2012). For Mr.
Noble’s constructive-suspension appeal, the Board ruled
that the administrative judge erred in dismissing the
appeal as untimely. Instead, it concluded that Mr. Noble
failed to demonstrate that Postal Service conditions were
so severe that a reasonable person would not come to
work and, therefore, did not amount to a constructive
suspension within the Board’s jurisdiction.
Mr. Noble timely petitioned for review by this court
under 5 U.S.C. § 7703. We have jurisdiction under 28
U.S.C. § 1295(a)(9).
DISCUSSION
Our review is limited by statute. We must affirm the
Board’s decision in this case unless the decision is arbi-
trary, capricious, an abuse of discretion, or otherwise not
in accordance with law; obtained without procedures
required by law, rule, or regulation having been followed;
or unsupported by substantial evidence. 5 U.S.C.
§ 7703(c); Carreon v. Office of Pers. Mgmt., 321 F.3d 1128,
1130 (Fed. Cir. 2003). We find none of these defects.
The sole charge against Mr. Noble was that he was
AWOL from the Postal Service beginning on February 24,
2011. “In order to prove a charge of AWOL, an agency
must show by preponderant evidence that the employee
was absent, and that his absence was not authorized or
that his request for leave was properly denied.” Wesley v.
U.S. Postal Serv., 94 M.S.P.R. 277, 283 (2003). Mr. Noble
does not dispute that he was absent from work after
February 24, 2011. He does argue that certain pay stubs
NOBLE, JR. v. USPS 5
and a Notification of Personnel Action show that he was
on an authorized long-term leave without pay (LWOP).
Brief for Appellant at 27-28. But Mr. Noble’s supervisor
testified that, when an employee is AWOL, his pay stubs
will always say “LWOP” because the computer system
used for these purposes does not have an AWOL column.
The Board found that the Notification of Personnel Ac-
tion, by itself, “does not outweigh the other considerable
evidence of his AWOL status,” including the testimony of
several of Mr. Noble’s supervisors and his time and at-
tendance records. Noble v. U.S. Postal Serv., No. DC-
0752-11-0880-I-1, slip op. at 4 (M.S.P.B Oct. 25, 2012).
We see no evidentiary or other error in that determina-
tion. See 5 U.S.C. § 7703.
Nor do we see error in the Board’s determination that
removal was an appropriate penalty for Mr. Noble’s
unauthorized absence. After fully considering Mr. Noble’s
arguments to the contrary, the Board concluded that he
failed to establish either (1) that his collective-bargaining
agreement prohibited the Postal Service from removing
him until after it had tried less severe measures or (2)
that the Postal Service treated him differently from a
similarly situated employee, Mr. Poe, who also was
AWOL but was not removed. Substantial evidence sup-
ports both determinations. See 5 U.S.C. § 7703.
First, Mr. Noble relies for his progressive-discipline
argument on Article 16 of the applicable collective-
bargaining agreement, which provides generally that
discipline must be corrective rather than punitive. He
recognizes, however, that the provision, whatever it
requires, applies only to “most” offenses, not all. Brief for
Appellant at 33. The collective-bargaining agreement
does not preclude the immediate removal of an employee
who engages in serious misconduct, as long as the “agency
[can] show that the penalty imposed will increase the
efficiency of the service and that it is not arbitrary or
capricious.” Graybill v. U.S. Postal Serv., 782 F.2d 1567,
6 NOBLE, JR. v. USPS
1574 (Fed. Cir. 1986); see also Thomas v. Dep't of Def., 66
M.S.P.R. 546, 553 (1995). The administrative judge
found, and the Board affirmed, that Mr. Noble’s AWOL
status warranted removal. Noble v. U.S. Postal Serv., No.
DC-0752-11-0880-I-1, slip op. at 5 (M.S.P.B Oct. 25, 2012).
Because an employee’s AWOL status “seriously impede[s]
the function of an agency” by “impos[ing] burdens on
other employees and, if tolerated, destroy[ing] the morale
of those who meet their obligations,” Davis v. Veterans
Admin., 792 F.2d 1111, 1113 (Fed. Cir. 1986), substantial
evidence supports the Board’s determination that removal
was a reasonable penalty.
Second, to establish that the Postal Service engaged
in improper disparate treatment in removing him, Mr.
Noble had to establish sufficient similarity of circum-
stances but disparity of treatment. The Board found the
evidence insufficient to do so. Mr. Noble testified that
another employee in his work area, Leonard Poe, was not
removed despite being AWOL on some occasions, but
other testimony left the length of his absences and sur-
rounding circumstances uncertain. In these circumstanc-
es, the Board could conclude that Mr. Noble had not
sufficiently established the premise for his disparate
treatment claim. See Facer v. Dep’t of the Air Force, 836
F.2d 535, 539 (Fed. Cir. 1988) (inference of willful dispari-
ty required); Kohl v. U.S. Postal Serv., 115 F. App’x 49, 52
(Fed. Cir. 2004).
The Board also did not err in dismissing Mr. Noble’s
constructive-suspension appeal for lack of jurisdiction.
The Board ruled that Mr. Noble was not subjected to an
appealable action, and thus it had no jurisdiction, because
Mr. Noble “ha[d] not shown that the actions the agency
took were so harassing or so severe as to compel a reason-
able person in his position to absent himself and remain
absent.” Noble v. U.S. Postal Serv., No. DC-0752-11-0880-
I-1, slip op. at 9-10 (M.S.P.B Oct. 25, 2012). For example,
the administrative judge found, and the Board affirmed,
NOBLE, JR. v. USPS 7
that the evidence did not support Mr. Noble’s assertion
that the Postal Service failed to follow his physician’s
recommendations regarding work limitations. Under our
limited standard of review, and given the presumption of
voluntariness, we cannot say that the Board erred in
finding that this objective standard of intolerability—
which requires more than a choice between two unpleas-
ant alternatives, Schultz v. U.S. Navy, 810 F.2d 1133,
1136 (Fed. Cir. 1987)—was not met by Mr. Noble’s array
of complaints, some of them not contemporaneous with
the time he stopped coming to work.
Nor do we think that Mr. Noble lacked an adequate
opportunity to establish that his working conditions were
objectively intolerable. In this case, “at the hearing on
[Mr. Noble’s] removal, witnesses testified at length about
the issues related to [his] constructive suspension.” Noble
v. U.S. Postal Serv., No. DC-0752-11-0880-I-1, slip op. at 9
(M.S.P.B Oct. 25, 2012). Further, as evidenced by his
prior declaration addressing the issue, at the hearing Mr.
Noble was fully aware of the correct legal standard and
the burden he carried to establish Board jurisdiction.
Mr. Noble raises numerous other challenges to the
Board’s decision upholding his removal, including that the
administrative judge should have recused himself, that
the administrative judge abused his discretion by interfer-
ing with discovery, and that both the Board and the
administrative judge made prejudicial errors of fact. We
find none of those arguments to require disturbing the
Board’s decision.
The decision of the Board is affirmed.
No costs.
AFFIRMED