Zamudio v. Social Security Administration

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
2008-3073

JOSEPHINE ZAMUDIO,

Petitioner,

v.

SOCIAL SECURITY ADMINISTRATION,

Respondent.

Josephine Zamudio, of Berwyn, Illinois, pro se.

Phyllis Jo Baunach, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General; Jeanne E.
Davidson, Director; and Donald E. Kinner, Assistant Director. Of counsel on the brief
was David Skidmore, Assistant Regional Counsel, Office of the Regional Chief Counsel,
Social Security Administration, of Chicago, Illinois.

Appealed from: Arbitration Decision
 NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit

2008-3073

JOSEPHINE ZAMUDIO,

Petitioner,

v.

SOCIAL SECURITY ADMINISTRATION,

Respondent.

Petition for review of the arbitrator's decision in CH200R0013.

___________________________

DECIDED: May 9, 2008
___________________________

Before RADER, Circuit Judge, PLAGER, Senior Circuit Judge, and BRYSON, Circuit
Judge.

RADER, Circuit Judge.

An arbitrator sustained the Social Security Administration's ("SSA") removal of

Ms. Zamudio from her position as a Bi-lingual Service Representative. Because Ms.

Zamudio failed to show that the arbitrator's decision was arbitrary, capricious,

unsupported by substantial evidence, or otherwise not in accordance with law, and

because the penalty of removal was not outrageously disproportionate to the proven

charges, this court affirms.
 I

Ms. Josephine Zamudio was removed from her position with the SSA for four

reasons: (1) discourteous treatment of the public; (2) failure to follow established work

procedures; (3) poor public service; and (4) disrespectful treatment of a supervisor. Ms.

Kathy Oboikovitz, Ms. Zamudio’s North Riverside Operations Supervisor, proposed her

removal. On February 11, 2002, the North Riverside District Manager, Mr. Dale

Coonda, issued the decision to remove Ms. Zamudio.

Ms. Zamudio's challenged her removal under the grievance procedures outlined

in Article 24 of the National Agreement Between American Federation of Government

Employees and Social Security Administration (April 6, 2000) ("National Agreement").

Her first challenge was denied. Instead of appealing to the Merit Systems Protection

Board (MSPB), Ms. Zamudio decided to arbitrate under Article 25 of the National

Agreement. The decision to remove Ms. Zamudio was sustained by arbitrator Nancy D.

Powers on August 14, 2007.

The arbitrator found that the SSA had proven each of the four charges within

nine specific incidents which occurred in the summer and fall of 2001. "There is no

question that the incidents occurred—they were all properly documented by Zamudio's

supervisor or observed by her and other employees." Arbitration Decision at 11; [A 12].

The arbitrator described Ms. Zamudio's behavior as totally unacceptable and held that

the SSA had just cause to discipline Ms. Zamudio and that termination was the

appropriate form of discipline.

2008-3073 2
 II

Ms. Zamudio struggled with disciplinary problems throughout her employment

with the SSA. [A 4-5]; [A 42-43]. In fact she had been suspended three times

previously. Most of these prior events involved similar discourteous behavior towards

the public or supervisors. The incidents that led to removal, however, began with the

failure to correctly process a reinstatement action after a claimant's retirement benefits

had been improperly terminated. Ms. Zamudio's supervisor, Ms. Oboikovitz, attempted

to discuss the error with her. Instead of consenting to a discussion, Ms. Zamudio

responded with extremely inappropriate, profane, and hostile comments, which were

overheard by others. [RB 10]. This incident led to the charge of supervisor disrespect.

[A 5]

Another incident involved the destruction of an application for a social security

number. Ms. Zamudio, instead of processing Mr. Haurota's application, vehemently

ripped it up and threw it in the trash while cursing. Both Ms. Oboikovitz and Mr. Coonda

testified that this alone was sufficient basis for removal.

The next three incidents involve written complaints from customers. Ms.

Kimberly Pounders had just lost her sister. She brought her sister's two children (Terra

and Troy) to the agency to ensure that their mother's social security checks would

continue for their benefit. The two children had just experienced the loss of their mother

a few days prior and reportedly were quite disturbed by Ms. Zamudio's treatment of

them. Ms. Robinette Velders and Mr. Moriarity also submitted similar written

complaints.

2008-3073 3
 Two other instances involve immigrant legal aliens who were seeking social

security numbers. Ms. Zamudio's incorrect actions led to unnecessary delays in the

processing of the workers' applications. One of these instances left the applicant, who

was simply applying for a name change, with the impression that she was being refused

help based on her nationality. Another instance left a claimant, Ms. Colapietro, the wife

of a disabled man who was just released from the hospital, with the impression that it

was too late to appeal the denial of his disability benefits.

III

This court must affirm any agency action, findings, or conclusions not found to

be: (1) arbitrary or capricious, an abuse of discretion, or otherwise not in accordance

with the law; (2) obtained without procedure required by law, rule, or regulation having

been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1996);

Hayes v. Dep’t of Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984); Kewley v. Dep’t of Health

& Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998). A court will not overturn an

agency decision if it is supported by "such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion." Brewer v. United States Postal

Service, 647 F.2d 1093, 1096 (Ct. Cl. 1981). The standard of review is the same for the

decision of an arbitrator as for a decision of the Merit Systems Protection Board.

IV

Mr. Zamudio alleges that the arbitrator did not consider all of the relevant facts.

To the contrary, the arbitrator considered each of the nine specific instances which

resulted in the four charges. The arbitrator correctly concluded that Ms. Zamudio was

2008-3073 4
discourteous to the public; failed to follow proper work procedures; provided poor public

service; and treated her supervisor with disrespect.

The administrator's conclusions were far from arbitrary and capricious. Further,

despite Ms. Zamudio's allegations, this court perceives that the arbitrator complied with

all legal requirements. RB 16]. The arbitrator properly noted that to sustain a removal,

the agency must demonstrate a nexus between the misconduct and the need for

discipline to promote the efficiency of the service. Pope v. United States Postal Serv.,

114 F.3d 1144, 1147 (Fed. Cir. 1997). The arbitrator also correctly determined that the

punishment was not clearly excessive, unreasonable, or arbitrary and capricious.

Douglas v. Veterans Administration, 5 M.S.P.R. 280, 299 (1981). The arbitrator noted

that Mr. Coonda, in his decision to remove Ms. Zamudio, considered the appropriate

factors, including appropriate mitigating and aggravating factors. An agency's choice of

penalty should not be disturbed unless it appears "outrageously disproportionate" in

light of all the factors. Lachance v. Devall, 178 F.3d 1246, 1251 (Fed. Cir. 1999).

V

In summary, because the arbitrator's decision was not arbitrary, capricious,

unsupported by substantial evidence, and because the penalty of removal was not

outrageously disproportionate to the proven charges, this court affirms.

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