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Ramey v. United States Postal Service

U.S. Court of Appeals, Federal Circuit


January 08, 1999

DOUGLAS RAMEY, PETITIONER,
v.
UNITED STATES POSTAL SERVICE, RESPONDENT.

Before Michel, Plager, and Rader, Circuit Judges.

The opinion of the court was delivered by: Per Curiam.

DECISION

Mr. Douglas Ramey petitions for review of a decision of the Merit Systems Protection Board ("Board"). See Ramey v. United States Postal Serv., No. CH-0752-94-0469-B-1, slip op. (M.S.P.B. Nov. 7, 1996). He was removed from his position with the United States Postal Service ("agency") for failure to maintain a regular work schedule. The Board determined that Mr. Ramey's unscheduled absences from work justified his removal, and it therefore upheld the agency's action. We affirm.

DISCUSSION

On appeal to this court, Mr. Ramey bears the burden of establishing reversible error by the Board. See Cheeseman v. Office of Personnel Management, 791 F.2d 138, 140 (Fed. Cir. 1986). In this regard, Mr. Ramey raises three arguments.

He first asserts that he was "removed in 29 days" and that that was "too early" and "not in accordance with MSPB Guidelines, MSPB Booklet P4." The agency objects to this argument on the ground that it was not raised below. The agency is correct in that, absent extraordinary circumstances, new issues generally cannot be raised for the first time on appeal. See Sanders v. United States Postal Serv., 801 F.2d 1328, 1331-32 (Fed. Cir. 1986). Because the circumstances do not justify departing from this rule, we do not consider Mr. Ramey's argument that he was removed too quickly.

As a second argument, Mr. Ramey asserts that the agency violated 29 C.F.R. §§ 825.300, .302, and .303, which require employers to post notice of employees' rights and other information under the Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601-2654 ("FMLA"). This issue was considered by the Board. See Ramey, slip op. at 5-6. In fact, the Board found that the agency failed to post the required notice. And, based on this finding, the Board excluded from its consideration those periods of unscheduled leave during which Mr. Ramey was eligible under FMLA (48.69 hours). See id. However, the Board determined that the remaining unscheduled absences (190 hours) justified his removal. See id. at 7. Accordingly, Mr. Ramey was not prejudiced by the regulatory violation.

Finally, Mr. Ramey asserts that an employee cannot be removed for efficiency of the service when the agency has itself violated the employee's rights. In making this argument, he does not point to any specific rights that were allegedly violated. We assume he refers to his other two arguments that we have already addressed, i.e., that he was removed too early and that the agency failed to provide adequate notice of FMLA. Because these two arguments do not warrant disturbing the Board's decision, and because we have not identified any other violation of his rights, this third argument raised by Mr. Ramey fails.

Accordingly, the Board's decision is affirmed.

COSTS

Each party shall bear its own costs.

19990108


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