NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3135
JOHN W. ALLEN,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
John W. Allen, of Dallas, Texas, pro se.
Michelle A. Windmueller, Appellate Counsel, Office of the General Counsel,
United States Postal Service, of Washington, DC, for respondent. With her on the brief
were Lori J. Dym, Chief Counsel, and Jeffrey S. Bucholtz, Acting Assistant Attorney
General, Civil Division, United States Department of Justice, of Washington, DC.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3135
JOHN W. ALLEN,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
Petition for review of the Merit Systems Protection Board in DA0752070365-I-1.
_______________________
DECIDED: July 14, 2008
_______________________
Before MICHEL, Chief Judge, and LOURIE and LINN, Circuit Judges.
PER CURIAM.
John W. Allen appeals from the decision of the Merit Systems Protection Board
(“Board”) affirming the United States Postal Service’s (the “agency’s”) decision to
remove Allen from his position as a mail handler. Allen v. USPS, DA-0752-07-0365-I-1
(M.S.P.B. Dec. 5, 2007) (initial decision dated Aug. 15, 2007). Because the Board’s
decision was supported by substantial evidence and in accordance with law, we affirm.
BACKGROUND
Allen began working for the agency on February 9, 1985. At the time of his
removal, he was a full-time regular mail handler at the North Texas Processing and
Distribution Center in Coppell, Texas. Previously, in an agreement dated July 17, 2006,
the agency agreed to reduce a Proposed Notice of Removal dated April 12, 2006 to a
fourteen-day suspension in exchange for Allen’s agreement to “maintain [ac]ceptable
attendance.” Because of continued irregular attendance, Allen’s supervisor later issued
a new Notice of Proposed Removal dated March 29, 2007. The Notice stated that Allen
had accrued over 248 hours of unscheduled absences between November 1, 2006 and
March 13, 2007. The charge and proposed removal were sustained by a Letter of
Decision dated May 4, 2007.
Allen appealed his removal to the Board on May 9, 2007. In an Initial Decision
on August 15, 2007, the Administrative Judge (“AJ”) found that Allen had not disputed
that he had unscheduled absences and only contended that the penalty of removal was
inappropriate given that his absences resulted from medical conditions. Allen submitted
records of medical appointments relating to a colonoscopy, a prostate cancer diagnosis
and other urology appointments, psychotherapy, and treatment for substance abuse. In
a footnote, the AJ stated that Allen had not been charged unscheduled leave for some
of the dates corresponding to the submitted medical records. Although failing to clearly
state what impact the medical submissions had on her decision, the AJ apparently
determined that the medical evidence was inadequate to explain the large and
sustained number of unscheduled absences documented by the agency. The AJ
concluded that the agency had thus met its burden of proof to sustain the charge of
2008-3135 -2-
unsatisfactory attendance. The AJ went on to conclude that the nexus requirement was
met, that the deciding official had adequately considered the Douglas factors in deciding
on the penalty of removal, and that the penalty did not exceed the bounds of
reasonableness.
On December 5, 2007, the full Board denied Allen’s petition for review because it
found no new, previously unavailable evidence or error of law by the AJ. See 5 C.F.R.
§ 1201.115. The AJ’s initial decision thus became the final decision of the Board. See
5 C.F.R. § 1201.113. Allen timely appealed to this court, and we have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
Allen argues that the Board failed to consider his discrimination claim and that his
absences were due to serious medical conditions. The agency responds that Allen
failed to properly raise a discrimination claim below and, even if he had, this court lacks
jurisdiction to hear such a claim. The agency also argues that Allen failed to present
evidence that he had medical appointments or treatments on the days listed in the
Notice of Proposed Removal. The agency adds that the Board did not abuse its
discretion in sustaining the removal, given the clear nexus between regular attendance
and the efficiency of the agency and the agency’s proper consideration of all of the
Douglas factors.
The scope of our review in an appeal from a decision of the Board is limited. We
must affirm the Board’s decision unless it was “(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
2008-3135 -3-
substantial evidence.” 5 U.S.C. § 7703(c); see Briggs v. Merit Sys. Prot. Bd., 331 F.3d
1307, 1311 (Fed. Cir. 2003).
We agree with the agency that Allen does not appear to have raised a
discrimination claim before the AJ. The agency is also correct that even if Allen had
made such a claim, this court would lack jurisdiction to hear his “mixed” appeal. See
Williams v. Dep’t of the Army, 715 F.2d 1485 (Fed. Cir.1983).
We also agree with the agency that there is substantial evidence to support the
Board’s affirmance of the agency’s removal decision. Contrary to the agency’s
argument, some of the documentation offered by Allen does relate to dates included in
the Notice of Proposed Removal. Specifically, Allen submitted evidence of an
appointment with the Urology Associates of North Texas on November 16, 2006, and
treatment at Methodist Health System on December 27, 2006—both of which are dates
included in the Notice of Proposed Removal. However, Allen offered no evidence of the
extent or severity of his illnesses or their effect upon his ability to do his job and also
fails to account for the vast majority of his unscheduled absences. Also, there is a clear
nexus between a sustained pattern of unscheduled absences and the efficiency of the
agency. The deciding official considered each of the Douglas factors in determining the
appropriate penalty, and we cannot say that the penalty of removal amounts to an
abuse of discretion under the circumstances.
Because the Board’s decision was supported by substantial evidence and in
accordance with the law, we affirm.
COSTS
No costs.
2008-3135 -4-