Grainger v. Social Security Administration

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
04-3303
ESTELLE GRAINGER,
Petitioner,
v.
SOCIAL SECURITY ADMINISTRATION,
Respondent.
__________________________
DECIDED: January 5, 2005
__________________________
Before NEWMAN, CLEVENGER, and GAJARSA, Circuit Judges.
PER CURIAM.
Estelle Grainger seeks judicial review of the decision of the Merit Systems Protection
Board, Docket No. PH0752020351-I-1, affirming the agency's thirty-day suspension from
August 5, 2002 through September 3, 2002. We affirm.
BACKGROUND
Ms. Grainger was employed by the Social Security Administration as a Social
Insurance Claims Examiner (Foreign Benefit Technical Examiner) at the agency
headquarters in Woodlawn, Maryland. The events that led to the suspension are reported
to have occurred between July 2001 and April 2002. During this period Ms. Grainger's
supervisors became increasingly concerned about her allegedly eccentric and disruptive
behavior; she was referred to the Employee Assistance Program, and in October 2001 she
was placed on paid administrative leave for two weeks in order to obtain medical review of
her psychological and physical condition. Her management reported a "noticeable
improvement," and the agency's medical officer reviewed the medical documentation
provided by her physician and concluded that Ms. Grainger "has a treatable medical
condition that should not interfere with her performing her job satisfactorily." However, the
record records further incidents of eccentric or disruptive behavior, and on June 26, 2002
the agency proposed to suspend Ms. Grainger for thirty days, charging her with
inappropriate and disruptive behavior in the workplace, uncooperative behavior toward her
supervisors, failure to follow instructions, and abuse and misuse of official materials. The
administrative judge affirmed the suspension on December 10, 2002, and the full Board
denied review. This appeal followed.
DISCUSSION
The Board's decision must be affirmed unless it was 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); see
Kewley v. Dep't of Health & Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).
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Ms. Grainger argues that the penalty was disproportionately severe, and that the
Board failed to take into account the "Douglas factors," as set forth in Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981). However, the AJ reviewed these factors,
and found the penalty of a thirty-day suspension to be reasonable in light of the events that
occurred. We agree that the agency's action was reasonable in the circumstances that
were shown to have existed, and discern no abuse of discretion or error of law in the action
taken.
Ms. Grainger raises additional arguments on this appeal, stating that she was a
whistleblower, that the Board failed to take into account various tort claims and other
wrongs including discrimination, that she was not afforded a presumption of innocence, and
that her constitutional rights were violated. These issues were not discussed by the Board,
and do not appear to have been developed at the hearing before the administrative judge.
See Bosley v. MSPB, 162 F.3d 665, 668 (Fed. Cir. 1998) ("A party in an MSPB proceeding
must raise an issue before the administrative judge if the issue is to be preserved for review
in this court.") Ms. Grainger does not identify any protected disclosures as a whistleblower,
5 U.S.C. §2302 (b)(8)(A), which may have been a contributing factor in the suspension.
To the extent Ms. Grainger alleges a violation of constitutional due process, we
discern none. Ms. Grainger was provided notice by the agency and an opportunity to
respond, Stone v. Fed. Deposit Insurance Corp., 179 F.3d 1368, 1376 (Fed. Cir. 1999), and
no irregularities have been shown in the Board's review of the agency's action.
04-3303 3