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
2006-3207
PATRICIA J. PENNEY-GUZMAN,
Petitioner,
v.
SOCIAL SECURITY ADMINISTRATION,
Respondent.
__________________________
DECIDED: October 6, 2006
__________________________
Before BRYSON and PROST, Circuit Judges, and SARIS, District Judge.∗
PER CURIAM.
Petitioner Patricia J. Penney-Guzman petitions for review of the final order of the
Merit Systems Protection Board (“Board”) sustaining the decision of the Social Security
Administration (the “agency”) to remove Ms. Penney-Guzman from service. We affirm.
BACKGROUND
At the time of her removal, Ms. Penney-Guzman was employed as a legal
assistant (senior case technician) with the agency’s Office of Hearings and Appeals,
∗ Honorable Patti B. Saris, District Judge, United States District Court for
the District of Massachusetts, sitting by designation.
and she had been a federal employee for twenty one years. Ms. Penney-Guzman was
disciplined on three occasions prior to her removal from service. In July 1996, she was
suspended for three days for rude and discourteous conduct toward coworkers. In
March 2000, she was suspended for five days for rude and discourteous conduct
toward a coworker and failure to follow the rules for requesting leave. And in October
2003, she was suspended for thirty days for failure to follow instructions, false or
misleading statements in matters of official interest, and rude and discourteous conduct
toward a supervisor.
On February 15, 2005, the agency gave Ms. Penney-Guzman a Notice of
Proposal to Remove her from service. The notice charged Ms. Penney-Guzman with
“Rude and Discourteous Conduct towards a Supervisor.” Specifically, the notice alleged
that on December 6, 2004, Ms. Penney-Guzman repeatedly spoke to her supervisor,
Paul Luna, in a loud and discourteous tone. Ms. Penney-Guzman and her union
representative provided an oral response to the charge on March 14, 2005, and her
union representative submitted a written response to the charge on March 15, 2005.
The agency issued a decision on the proposal on March 24, 2005, and removed Ms.
Penney-Guzman from federal service effective March 28, 2005. The decision letter
informed her of her appeal rights.
On May 9, 2005, Ms. Penney-Guzman filed an appeal with the Board. In his
September 9, 2005, initial decision, the administrative judge held that the agency
proved the charge of “Rude and Discourteous Conduct towards a Supervisor.” Penney-
Guzman v. Soc. Sec. Admin., No. SF0752050628-I-1, slip op. at 3-6 (M.S.P.B. Sept. 9,
2005) (“Initial Decision”). The administrative judge also held that there was a nexus
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between Ms. Penney-Guzman’s misconduct and the efficiency of the service and
concluded that the penalty of removal was reasonable. Id., slip op. at 14-19. In
addition, the administrative judge rejected Ms. Penney-Guzman’s affirmative defenses
of disability discrimination and retaliation. Id., slip op. at 8-14.
Ms. Penney-Guzman petitioned for full board review of the administrative judge’s
decision. The Board denied the petition for review, making the administrative judge’s
initial decision the final decision of the Board. Penney-Guzman v. Soc. Sec. Admin.,
No. SF0752050628-I-1, slip op. at 2 (M.S.P.B. Jan. 27, 2006). Ms. Penney-Guzman
timely petitioned this court for review of the Board’s final decision.
DISCUSSION
This court has jurisdiction to review a final order or decision of the Board under 5
U.S.C. § 7703(b)(1). In reviewing the Board’s decision, this court
shall review the record and hold unlawful and set aside any agency action,
findings, or conclusions found to be
(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 substantial evidence . . . .
5 U.S.C. § 7703(c) (2000).
In her pro se appeal, Ms. Penney-Guzman makes, in essence, three arguments:
(1) the incident leading to her termination never took place, (2) the administrative judge
improperly relied on hearsay testimony, and (3) the administrative judge improperly
considered Ms. Penney-Guzman’s prior thirty-day suspension in determining that the
penalty of removal was within the tolerable limits of reasonableness.
2006-3207 3
With regard to the incident leading to her termination, Ms. Penney-Guzman
raises several issues with respect to the administrative judge’s factual determination
that she was rude and discourteous toward her supervisor, Paul Luna. The
administrative judge found that on December 6, 2004, Ms. Penney-Guzman yelled at
Mr. Luna when he was attempting to interact with her regarding a work issue. Initial
Decision, slip op. at 6. In support of his finding, the administrative judge cited testimony
from Mr. Luna himself and from Nancy Caldwell, another employee who testified that
she personally witnessed the incident. The administrative judge had the opportunity to
observe Mr. Luna and Ms. Caldwell testify and found both to be “highly credible.” Id.,
slip op. at 6-7. In addition, the administrative judge had before him written statements
of three other employees, all of whom stated that they overheard Ms. Penney-Guzman
yelling at Mr. Luna. Id., slip op. at 6. The administrative judge’s conclusion that Ms.
Penney-Guzman yelled at Mr. Luna was therefore supported by substantial evidence.
Nevertheless, Ms. Penney-Guzman makes several arguments that implicate the
administrative judge’s finding that she yelled at Mr. Luna. She first argues that the
administrative judge “failed to consider the totality of the circumstances.” She cites 29
C.F.R. § 1604.11(b) in support of this argument. This regulation, however, applies to
the Equal Employment Opportunity Commission, and states that the Commission will
look at the totality of the circumstances when determining whether conduct constitutes
sexual harassment. 29 C.F.R. § 1604.11(b) (2006). This regulation is not relevant to
this case.
Next, Ms. Penney-Guzman argues that the administrative judge erred in not
giving more weight to her own account of the incident. Specifically, she argues that the
2006-3207 4
administrative judge’s “reasoning” was “flawed” in connection with his citation of Suarez
v. Department of Housing & Urban Development, 96 M.S.P.R. 213, 229 (2004), aff’d,
125 F. App’x 1010 (Fed. Cir. 2005). In his decision, the administrative judge cited
Suarez for the proposition that “uncorroborated and self-serving testimony is entitled to
little weight.” Initial Decision, slip op. at 6. Because the administrative judge found that
Ms. Penney-Guzman’s testimony was uncorroborated and self-serving, the
administrative judge assigned it less weight. In addition, the administrative judge found
that Ms. Penney-Guzman’s account was contradicted by the testimony of Mr. Luna and
Ms. Caldwell and the written statements of three other employees, all of whom stated
that they witnessed Ms. Penney-Guzman yell at Mr. Luna. Id. The administrative
judge’s conclusion that Ms. Penney-Guzman yelled at Mr. Luna was therefore
supported by substantial evidence.
Ms. Penney-Guzman also alleges that there are inconsistencies between the
statements provided by certain witnesses. As noted above, however, the administrative
judge’s finding that Ms. Penney-Guzman yelled at Mr. Luna was supported by
substantial evidence and thus will not be disturbed by this court.
Ms. Penney-Guzman also appears to allege that a written statement made by
one of the witnesses to the incident, Administrative Law Judge Mason Harrell, was
altered and that his statement was fabricated in order to “get rid of” Ms. Penney-
Guzman so that Judge Harrell “could hire his own friends and promote them.” Ms.
Penney-Guzman has pointed to no evidence in the record to support these allegations
and thus fails to establish that the administrative judge’s conclusions were unsupported
by substantial evidence.
2006-3207 5
Ms. Penney-Guzman’s second argument is that the administrative judge
improperly relied on “hearsay testimony.” Hearsay evidence, however, may be used in
Board proceedings. Kewley v. Dep’t of Health & Human Servs., 153 F.3d 1357, 1364
(Fed. Cir. 1998). As a result, it was not error for the administrative judge to consider the
written statements of three employees in conjunction with the testimony of Mr. Luna and
Ms. Caldwell.
Finally, Ms. Penney-Guzman argues that under Gregory v. United States Postal
Service, 212 F.3d 1296 (Fed. Cir. 2000), the administrative judge improperly relied on
Ms. Penney-Guzman’s prior thirty-day suspension in determining whether the penalty of
removal was reasonable because her prior suspension was being appealed. Because
Ms. Penney-Guzman did not make this argument below, it is waived and this court will
not consider it for the first time on appeal. Bosley v. Merit Sys. Prot. Bd., 162 F.3d 665,
668 (Fed. Cir. 1998). We note, however, that Gregory was vacated by the Supreme
Court, which rejected the rule that the Board can never rely on prior disciplinary actions
subject to ongoing grievance procedures. U.S. Postal Serv. v. Gregory, 534 U.S. 1, 7-8
(2001). In any event, Ms. Penney-Guzman’s appeal of the thirty-day suspension was
dismissed by the Board by final order on June 5, 2006.
Ms. Penney-Guzman does not raise her affirmative defenses of disability
discrimination and retaliation on appeal, but we have considered the record on those
issues and we conclude that the administrative judge did not err in rejecting Ms.
Penney-Guzman’s affirmative defenses.
For the foregoing reasons, we affirm the decision of the Board.
No costs.
2006-3207 6