NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3050
JUAN R. CABRERA,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
Juan R. Cabrera, of Castro Valley, California, pro se.
Morgan E. Rehrig, Attorney, Civil Practice Section, Law Department, United
States Postal Service, of Washington, DC, for respondent. With her on the brief was
Lori J. Dym, Chief Counsel, Appellate Division. Also on the brief was Michael F. Hertz,
Acting Assistant Attorney General, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC. Of counsel was Russell A. Shultis,
Attorney.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3050
JUAN R. CABRERA,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
Petition for review of the Merit Systems Protection Board in SF0752080122-I-1.
___________________________
DECIDED: June 8, 2009
___________________________
Before BRYSON, GAJARSA, and PROST, Circuit Judges.
PER CURIAM.
DECISION
Juan R. Cabrera petitions for review of a final decision of the Merit Systems
Protection Board sustaining his removal from his position with the United States Postal
Service. We affirm.
BACKGROUND
Mr. Cabrera worked as a mail carrier in the Hayward-Castro Valley Post Office in
Castro Valley, California. On October 24, 2007, the agency issued a notice removing
him from his position based on two charges: unacceptable conduct and deviation from
his postal route. Mr. Cabrera appealed his removal to the Merit Systems Protection
Board. After conducting a two-day hearing, the administrative judge assigned to the
case sustained both charges and affirmed the agency’s decision to remove Mr. Cabrera
from his position.
The unacceptable conduct charge contained a single specification alleging that
Mr. Cabrera had engaged in inappropriate sexual contact with a postal customer. The
evidence showed that on June 13, 2007, Mr. Cabrera parked his mail truck across the
street from Mandy Ilmberger’s home on Lamson Road in Castro Valley. Mr. Cabrera
then crossed the street, approached Ms. Ilmberger’s house, and hand-delivered the
mail to Ms. Ilmberger. According to Ms. Ilmberger, Mr. Cabrera handed her the mail in
the doorway of her home, then stepped into the house, grabbed her by her right arm,
and pushed her behind the front door. Ms. Ilmberger testified that while Mr. Cabrera
held her by the arm, he kissed her with his mouth open and “shoved his tongue down
my throat.”
Ms. Ilmberger stated that after she pushed him away, Mr. Cabrera handed her a
wrapped condom. Ms. Ilmberger gave the condom back to Mr. Cabrera and told him to
leave. As Mr. Cabrera was walking away he stopped on the porch, turned to face Ms.
Ilmberger, and said, “I’ll see you tomorrow morning.” Mr. Cabrera drove off in his
delivery vehicle, but returned to Ms. Ilmberger’s house about two minutes later and told
her that she was “looking good” and reiterated that he would “definitely” see her the next
morning. Ms. Ilmberger’s neighbor, Kathy Christensen, testified that later that afternoon
Ms. Ilmberger told her about the alleged incident involving Mr. Cabrera.
On the morning of June 14, 2007, Ms. Ilmberger placed a telephone call to a
coffee shop owned and operated by her husband’s family. Although she could not
2009-3050 2
reach her husband, Ms. Ilmberger told another employee at the coffee shop about the
alleged incident; Ms. Ilmberger’s brother-in-law also learned of the matter at that time.
Shortly thereafter, Ms. Ilmberger’s brother-in-law came to her house, picked up an
aluminum baseball bat, and set out to find Mr. Cabrera. Mr. Cabrera stated that he was
taking a break in his mail truck near Lamson Road when Ms. Ilmberger’s brother-in-law
drove up, exited his pickup truck brandishing the baseball bat, and accused Mr. Cabrera
of “molest[ing]” Ms. Ilmberger. At the request of Ms. Ilmberger’s brother-in-law, Mr.
Cabrera followed him back to Ms. Ilmberger’s house to speak with the police.
Meanwhile, Ms. Ilmberger called the Hayward Post Office and spoke with Dante
Datu, a customer service manager. She told him that Mr. Cabrera had kissed her while
delivering her mail the day before. Mr. Datu stated that during that telephone
conversation, he heard yelling in the background; he therefore told Ms. Ilmberger to call
the police, and he immediately left the Post Office to go to her home. Four sheriff’s
deputies were dispatched to Ms. Ilmberger’s house. The deputies arrived there to find
Mr. Cabrera, Ms. Ilmberger’s brother-in-law, and Ms. Ilmberger. Mr. Datu then arrived,
along with two other supervisors from the Post Office. Mr. Datu informed one of the
deputies that Mr. Cabrera would be placed on administrative leave until the agency had
completed its investigation into the matter.
Although Mr. Cabrera admitted that he had crossed Lamson Road to deliver the
mail to Ms. Ilmberger on June 13, he testified that he stood on her front lawn and
handed her the mail while she was on her porch. Mr. Cabrera asserted that he did not
kiss Ms. Ilmberger or enter her house, but rather talked with her briefly about a piece of
2009-3050 3
misdirected mail and then proceeded along his postal route without any further contact
with Ms. Ilmberger that day.
The administrative judge credited Ms. Ilmberger’s version of events. He
explained that he had observed Ms. Ilmberger at the hearing and found her testimony to
be convincing, specific, highly detailed, and based on personal knowledge. He added
that her testimony was consistent with the statements she had made to the Sheriff’s
Office, to Mr. Datu, and to the supervisor of customer services at Hayward Post Office.
In contrast, the administrative judge was “unconvinced by the appellant’s presentation”
and found Mr. Cabrera’s testimony to be inconsistent with the statement he had made
to the Sheriff’s Office. The administrative judge therefore sustained the agency’s
unacceptable conduct charge against Mr. Cabrera.
The agency also charged Mr. Cabrera with two specifications of deviating from
his postal route in connection with the alleged sexual assault on Ms. Ilmberger. The
first specification alleged that Mr. Cabrera had deviated from his route on June 13,
2007, when he crossed Lamson Road to hand-deliver the mail to Ms. Ilmberger
immediately before the alleged assault. To maximize efficiency, the Postal Service
automatically sorts mail according to a delivery point sequence corresponding to a mail
carrier’s prescribed delivery route. Typically, the delivery point sequence prearranges
mail for delivery to one side of a street at a time so that mail carriers do not traverse the
street in a criss-cross fashion when making their deliveries. Carriers are prohibited from
deviating from their assigned route for any reason without specific managerial
authorization.
2009-3050 4
Before Mr. Cabrera delivered the mail to Ms. Ilmberger on June 13, his vehicle
was parked in front of 18124 Lamson Road, which was delivery number 176 along Mr.
Cabrera’s assigned postal route. Although Ms. Ilmberger’s house was located just
across the street at 18131 Lamson Road, her house was delivery number 240 on Mr.
Cabrera’s route. Mr. Cabrera therefore deviated from his postal route when he crossed
the street to hand Ms. Ilmberger her mail.
Mr. Cabrera conceded that he had deviated from his route on June 13, but he
argued that mail carriers routinely do so in order to hand-deliver mail to postal
customers. Such deviations, Mr. Cabrera claimed, result in better customer service
while adding only a negligible amount of time to the carrier’s overall route. The
administrative judge explained that while he had “no reason to doubt that individual
carriers believe that specific customers are better served by such deviations, it is
undisputed that the appellant’s actions on June 13, 2007 with regard to 18131 Lamson
involved a deviation from his known route.” The administrative judge therefore
concluded that Mr. Cabrera had deviated from his postal route without authorization.
The second specification to the charge alleged that Mr. Cabrera had deviated
from his assigned route on June 14, 2007. After the alleged incident with Ms. Ilmberger,
Mr. Cabrera’s supervisor removed Lamson Road from his postal route, instructed him to
remove any mail addressed to Lamson Road from his mail truck, and assigned those
deliveries to another mail carrier. Because Lamson Road was not on Mr. Cabrera’s
postal route for that day, Mr. Cabrera had no reason to be on Lamson Road. However,
Ms. Christensen testified that on the morning of June 14, she observed Mr. Cabrera
make repeated U-turns in front of Ms. Ilmberger’s house. Mr. Cabrera then parked his
2009-3050 5
truck nearby, where his subsequent run-in with Ms. Ilmberger’s brother-in-law occurred.
Mr. Cabrera returned to Lamson Road when he was forced to accompany Ms.
Ilmberger’s brother-in-law back to her house.
Mr. Cabrera did not contest that he deviated from his route on June 14. Rather,
he testified that he inadvertently drove by Ms. Ilmberger’s house after becoming
disoriented while attempting to deliver two letters to another address on Lamson Road.
The administrative judge discounted that explanation, noting that Mr. Cabrera should
not have even possessed—much less tried to deliver—any mail to Lamson Road
because Lamson Road was not on his postal route for that day. To the extent that Ms.
Christensen’s testimony that Mr. Cabrera made multiple U-turns in front of Ms.
Ilmberger’s house conflicted with Mr. Cabrera’s story, the administrative judge credited
Ms. Christensen’s testimony, which he found to be unequivocal, specific, and detailed.
Mr. Cabrera further argued that he later returned to Ms. Ilmberger’s house
involuntarily because he was forced to do so by Mr. Ilmberger’s brother-in-law, who had
threatened him with a baseball bat. The administrative judge found Mr. Cabrera’s
explanation that he felt compelled to comply with the demands of Ms. Ilmberger’s
brother-in-law “questionable” in light of the fact that Mr. Cabrera was in a separate car
and could readily have called the police or simply driven away if he was afraid. The
administrative judge therefore concluded that Mr. Cabrera deviated from his route on
June 14, 2007, first when he circled in front of Ms. Ilmberger’s house, and then again
when he returned to her house at the behest of her brother-in-law.
In addition to sustaining both charges against Mr. Cabrera, the administrative
judge found that the agency demonstrated a nexus between the sustained charges and
2009-3050 6
the employee’s ability to perform his duties satisfactorily. See Pope v. U.S. Postal
Serv., 114 F.3d 1144, 1147 (Fed. Cir. 1997). Noting that the deciding official had
considered the relevant Douglas factors, the administrative judge also found that the
agency reasonably exercised its discretion in imposing the penalty of removal. See id.;
Douglas v. Veterans Admin., 5 M.S.P.R. 280, 305-07 (1981). After the full Board denied
Mr. Cabrera’s petition for review, he filed a petition for review by this court.
DISCUSSION
Mr. Cabrera has failed to demonstrate any error in the Board’s decision
sustaining his removal. He asserts that the administrative judge erred by concluding
that he had “lied about being on break and delivering the mail” and in finding that only
his testimony, and not that of the other witnesses, was inconsistent. As we have
frequently stated, however, the credibility determinations of an administrative judge are
“virtually unreviewable on appeal.” Bieber v. Dep't of the Army, 287 F.3d 1358, 1364
(Fed. Cir. 2002). With respect to the unacceptable conduct charge, the administrative
judge specifically noted that he had observed Ms. Ilmberger’s demeanor at the hearing
and found her testimony to be more convincing than that of Mr. Cabrera. As to the
charge that Mr. Cabrera deviated from his postal route, the administrative judge
similarly explained that he found Ms. Christensen’s testimony that Mr. Cabrera made
several U-turns in front of Ms. Ilmberger’s home to be more credible than Mr. Cabrera’s
conflicting testimony. We have no reason to second-guess the administrative judge’s
decision to credit the testimony of other witnesses over that of Mr. Cabrera.
Mr. Cabrera’s contention that the administrative judge “ignored the fact that the
other party was also inconsistent in their separate statements to the police and the
2009-3050 7
postal service” is without merit. In support of that assertion, Mr. Cabrera points to a
single alleged inconsistency: Mr. Cabrera alleges that Ms. Ilmberger “told the Ms.
Sheriff and the USPS that she was going to the dentist,” but that according to Ms.
Christensen, Ms. Ilmberger had told Mr. Cabrera that she was going swimming. It is not
clear from the record that the two alleged statements are inconsistent, but in any event
any possible inconsistency in the statements is not remotely sufficient to undermine the
administrative judge’s credibility judgment regarding the witnesses’ version of the
events of June 13.
Mr. Cabrera further argues that the administrative judge refused to consider
testimony that other carriers often deviate from their routes without authorization. But it
was undisputed that other carriers sometimes deliver mail out of sequence. In fact, the
administrative judge acknowledged that practice “may indeed be common” and
characterized Mr. Cabrera’s argument that out-of-sequence deliveries often result in
better customer service as “plausib[le].” Nonetheless, the administrative judge noted
that agency regulations specify that carriers may not deviate from their route for any
purpose absent prior managerial authorization. The agency, moreover, introduced
evidence that such deviations “result in a measurable increase in work hours at the
management level.” The administrative judge therefore found that the agency showed
that Mr. Cabrera improperly deviated from his postal route, and we discern no error in
that conclusion.
In a pre-hearing order, the administrative judge denied the agency’s request to
call several witnesses because other percipient witnesses more directly involved in the
events at issue were already approved to testify. The administrative judge also rejected
2009-3050 8
Mr. Cabrera’s request to call several witnesses based on Mr. Cabrera’s failure to show
how their testimony would be relevant. Mr. Cabrera contends that the administrative
judge erred in refusing to allow him to call those witnesses. However, a “determination
to allow or exclude witness testimony is within the sound discretion of the administrative
judge.” Guise v. Dep't of Justice, 330 F.3d 1376, 1379 (Fed. Cir. 2003). After denying
the witness requests, the administrative judge granted Mr. Cabrera and the agency
leave to resubmit their requests along with a detailed proffer that described the
relevance of each witness requested. Mr. Cabrera did not resubmit any of the witness
requests. He has not shown that the administrative judge abused his discretion in
requiring that the parties explain the relevance of requested witnesses, and he has
failed to demonstrate that the administrative judge’s ruling, even if erroneous, could
have affected the outcome of the case. See Curtin v. Office of Pers. Mgmt., 846 F.2d
1373, 1378-79 (Fed. Cir. 1988).
Mr. Cabrera’s other allegations of procedural error are also unpersuasive. He
argues that the Board failed to consider his “bid award of Route # 4527.” Mr. Cabrera
did not raise that issue in the administrative proceedings and thus waived it, but in any
event he has failed to show how the “bid award” evidence is relevant to the charges
against him. Mr. Cabrera also asserts that he received inadequate assistance from his
union representative during his “just cause” interview, but he presents no evidence
suggesting that that the union representative failed to ensure that his rights were not
violated during that interview.
Finally, Mr. Cabrera argues that the penalty of removal was excessive in light of
the charges that were sustained against him. According to Mr. Cabrera, other agency
2009-3050 9
employees received lesser penalties for similar violations, and the agency should have
considered re-training as an alternative to removal. We will not disturb an agency’s
choice of penalty so long as the agency considered the relevant factors and exercised
discretion within tolerable limits of reasonableness. Douglas, 5 M.S.P.R. at 306; see
O'Neill v. Dep't of Hous. & Urban Dev., 220 F.3d 1354, 1365 (Fed. Cir. 2000) (court will
defer to agency’s judgment unless the penalty is “so harsh and unconscionably
disproportionate to the offense that it amounts to an abuse of discretion”). As the
administrative judge explained, the deciding official in this case considered the relevant
Douglas factors, including the nature and seriousness of the offenses, Mr. Cabrera’s
lengthy service with the agency, the notoriety of the offenses, the fact that Mr. Cabrera
was on notice of the agency’s standards of conduct, and the consistency of the penalty
with those imposed on similarly situated employees.
As for the consistency of the penalty, Mr. Cabrera’s assertion that he was “held
to a higher standard” than other agency employees is without merit because the cases
on which Mr. Cabrera relies are distinguishable. For example, in one case cited by Mr.
Cabrera, Tryon v. United States Postal Service, 108 M.S.P.R. 148, 151 (2008), the full
Board mitigated the penalty given to a mail carrier from removal to suspension because
the administrative judge had rejected the most serious allegations of misconduct
(kissing and making sexually inappropriate comments toward a postal customer) and
because the agency had enhanced the penalty based on misconduct that was not cited
in the notice of proposed removal. Those circumstances are not present in Mr.
Cabrera’s case. We therefore see no error in the administrative judge’s determination
upholding the agency’s decision to remove Mr. Cabrera.
2009-3050 10