Kalwa v. United States Postal Service

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
04-3366
ERIC L. KALWA,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
__________________________
DECIDED: January 13, 2005
__________________________
Before CLEVENGER, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and RADER
Circuit Judge.
PER CURIAM.
Eric L. Kalwa seeks review of the final decision of the Merit Systems Protection
Board ("Board") sustaining the decision of the United States Postal Service ("agency")
to remove him from his job as a letter carrier. Kalwa v. United States Postal Serv.,
No. PH0752030193-I-1 (M.S.P.B. May 18, 2004). We affirm.
I
Mr. Kalwa served as a letter carrier in the agency's Loch Raven Post Office in
Baltimore, Maryland. On January 21, 2001, Mr. Kalwa lost a registered letter. Contrary
to regulations, he then obtained a Form 3867 (accountable mail matter received for
delivery) and then falsified an address and forged a signature on a Form 3849 to show
that he had in fact delivered the registered letter. On January 27, 2003, the agency
proposed to remove Mr. Kalwa from his job for improper conduct. The charging letter
outlined the facts alleged, as stated above. In a letter of decision, dated March 3, 2003,
the agency concluded that the charges as stated were true. In the words of the agency:
"Honesty is an essential requirement of your position. Failure to be honest has a
negative effect on the efficiency of operations. The Postal Service requires an honest
and efficient work force. You have failed to meet this very basic requirement. The
Postal Service is required by law to provide prompt, efficient and reliable service to its
customers. Your removal would promote the efficiency of the service."
II
Mr. Kalwa appealed his removal to the Board and received a hearing before the
Administrative Judge ("AJ") to whom his case was assigned. The AJ heard the
evidence presented and concluded that the charges were true as stated: Mr. Kalwa lost
a piece of registered mail and sought to cover up that fact by falsification and improper
use of agency forms. The AJ held that the agency proved its charges by a
preponderance of the evidence. The AJ also reviewed the agency's consideration of
the Douglas factors and decided that removal was an appropriate penalty.
Mr. Kalwa sought review from the full Board. The Board declined his petition for
review and thus rendered the AJ's decision sustaining the removal action the final
decision of the Board. Mr. Kalwa timely sought review in this court, and we have
jurisdiction under 28 U.S.C. § 1295(a)(9) (2000).
III
We must affirm the final decision of the Board unless we determine that it is
arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.
04-3366 2
5 U.S.C. § 7703(c)(1) (2000). When the Board's final decision rests on findings of fact,
those findings must be supported by substantial evidence. Id. § 7703(c)(3).
We have reviewed the final decision of the Board and the record submitted to this
court. We agree with the Board that the agency proved by a preponderance of the
evidence that Mr. Kalwa lost a registered letter and falsified the record regarding the
disappearance of the letter. Substantial evidence supports the fact-findings that
underlie this conclusion. We further agree that the agency was within the bounds of
reason when it decided that removal is an appropriate remedy for the proven
misconduct. We detect no error of fact or law in the Board's final decision. We
therefore have no choice but to affirm.
04-3366 3