NOTE: This disposition is nonprecedential.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NOTE: This disposition is nonprecedential.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.
2008-3073 5