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
06-3089
WILBERT T. CHARITY,
Petitioner,
v.
GENERAL SERVICES ADMINISTRATION,
Respondent.
__________________________
DECIDED: May 4, 2006
__________________________
Before MAYER, BRYSON, and PROST, Circuit Judges.
PER CURIAM.
Petitioner Wilbert T. Charity petitions for review of the final order of the Merit
Systems Protection Board (“Board”), sustaining the General Service Administration’s
action removing him from his position of Transportation Operations Specialist (Motor),
GS-11, effective September 2, 2003. We affirm.
BACKGROUND
At the time of his removal, Mr. Charity was employed by the General Service
Administration (“GSA” or the “agency”) Accident Management Center as a
transportation operations specialist (motor) (“TOS”).
During his tenure in the TOS position, Mr. Charity was the subject of several
disciplinary actions. These include a Record of Infraction in August 2002, a Warning
Notice in September 2002, an Official Reprimand in December 2002, and a suspension
without pay in February 2003.
On July 2, 2003, the agency provided Mr. Charity with a Notice of Proposal to
Remove him from service. The notice charged Mr. Charity with neglect of duty under
two specifications. For each specification, the agency stated the requirements of the
Accident Management Center (“AMC”) Standard Operating Procedures (“SOP”)
performance measure at issue and why Mr. Charity did not meet that measure. The
first specification alleged a failure to follow requirements of the SOP and instructions
from his team leader and supervisor. Under this specification, the agency listed seven
instances in which Mr. Charity allegedly failed to follow the SOP requirements for timely
processing of estimates, purchase orders, and bill-backs. The second specification
alleged a failure to meet the SOP Performance Measure for Average Days Open for
Accidents. Subsequently, the agency issued a Letter of Decision on Proposed Removal
Notice on August 14, 2003, removing Mr. Charity from federal service as of September
2, 2003 and informing him of his appeal rights.
On September 29, 2003, Mr. Charity filed an appeal with the Board from the
agency’s removal action. After being twice dismissed without prejudice, the appeal was
timely refiled on October 9, 2004. In his May 20, 2005 initial decision, the administrative
judge held that the agency proved both specifications of its charge. Charity v. Gen.
Serv. Admin., No. AT0752040003-I-3 (M.S.P.B. May 20, 2005) (“Initial Decision”), slip
op. at 5-9. The administrative judge also held that Mr. Charity failed to prove a violation
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of due process or harmful procedural error. Id., slip op. at 9-10. Finally, the
administrative judge found that the GSA’s removal action promoted the efficiency of the
service. Id., slip op. at 10-11.
Mr. Charity 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. Charity v. Gen. Serv. Admin., No.
AT0752040003-I-3 (M.S.P.B. Nov. 7, 2005), slip op. at 2. Mr. Charity 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 his pro se appeal, Mr. Charity both filed an informal brief and appended a brief
filed by his counsel in proceedings before the administrative judge. Mr. Charity made
three arguments before the administrative judge: 1) that the agency failed to provide
him with access to all of the evidence relied upon for his removal; 2) that he did not in
fact violate the SOP and performance measures in the manner alleged; and 3) that the
agency had an ulterior motive for removing him from his position. In his informal brief,
Mr. Charity makes one primary argument: that the removal was not justified because
he could have been reassigned or provided with additional training or counseling.
06-3089 3
Although it is unclear whether this argument was also raised before the Board, we
address it, along with Mr. Charity’s other arguments.
Mr. Charity first argues that the penalty of removal was overly harsh and he could
have been reassigned or provided with additional training or counseling. The
administrative judge found that the agency proved that removal was reasonable under
the circumstances of the case. Initial Decision, slip op. at 11. In his decision, the
administrative judge found that the deciding official properly considered the appropriate
factors in selecting removal as the appropriate remedy, that Mr. Charity received
numerous complaints from customers regarding his job performance, and that he had
been previously reprimanded and suspended. Id. The Board’s decision was therefore
supported by substantial evidence and does not merit reversal.
Before the Board, Mr. Charity also argued that the agency deprived him of
access to all of the evidence relied upon for his removal. This argument centered on
Mr. Charity’s claim that by failing to include copies of the SOP or performance
measures in its proposal letter or before the board, the agency deprived him of his
opportunity to fully understand and respond to the charges against him. Mr. Charity
alternatively argued that this was a violation of his constitutional due process rights or
constituted a harmful procedural error which mandates reversal of the agency’s action.
The Board held that the record showed that the agency offered Mr. Charity access to
the evidence it relied on in its charges but that there was no showing that Mr. Charity
requested and was denied such access. Id., slip op. at 9. Further, the record shows
that in previous disciplinary notices he was made aware that the SOP was posted on
the web and was required to be followed. The Proposed Notice of Removal further
06-3089 4
includes the specific measures against which his performance was compared.
Therefore, the Board’s holding that the appellant failed to show either a violation of due
process or harmful procedural error is supported by substantial evidence and does not
warrant reversal.
Mr. Charity also argued before the Board that he did not in fact violate the SOP
and performance measures in the manner alleged. Based on testimony from Mr.
Charity’s team leader, the Board found that the seven instances of violations of the first
specification were well founded and sustained the charge. Id., slip op. at 6-7. As to the
second specification, the Board found “a systematic failure on the appellant’s part to
perform his duties” based on data in the record indicating his average open days
statistic over a half year period were consistently much higher than the performance
measure of thirty days. Id., slip op. at 8. In addition, the administrative judge rejected
Mr. Charity’s arguments that he was unaware of the performance measures of the
specifications or that they were merely goals. Id., slip op. at 7-9. The administrative
judge concluded that Mr. Charity was on notice of the performance standards because
he had been notified of them when he accepted employment, put on notice of them
during prior reprimands, and the standards were available for him to review on his
computer. Id. The Board’s conclusion that Mr. Charity did violate the specifications and
that the agency proved the charge of neglect of duty was therefore supported by
substantial evidence.
Finally, Mr. Charity argued before the Board that the agency may have had an
ulterior motive for removing him from his position. Specifically, Mr. Charity speculated
that it was possible that his signature on a petition by employees at the AMC to
06-3089 5
reinstate their former supervisor to their unit gave him a reputation as a troublemaker
and was the real motivation for his removal. Although this argument was not addressed
in the Board’s decision, the Board did have evidence before it that retaliation was not
the motivation for the removal. The regional administrator who made the final decision
to remove Mr. Charity testified in an affidavit that the removal decision was not at all
impacted by Mr. Charity’s participation in the petition. Given this evidence and the
speculative nature of Mr. Charity’s argument, it was not erroneous for the Board to
dismiss the argument that Mr. Charity’s removal was retaliatory.
CONCLUSION
For the foregoing reasons, we affirm the decision of the Board.
No costs.
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