U.S. Court of Appeals, Federal Circuit
February 10, 1999
JOSEPH D. FONTENOT, PETITIONER,
UNITED STATES POSTAL SERVICE, RESPONDENT.
Before Rich, Circuit Judge, Smith, Senior Circuit Judge, and Gajarsa, Circuit Judge.
The opinion of the court was delivered by: Per Curiam
Mr. Joseph D. Fontenot appeals from a decision of the Merit Systems Protection Board (Board), which became final on July 28, 1998, sustaining the action of the United States Postal Service (USPS) demoting Mr. Fontenot from a supervisor of customer services to a part- time flexible clerk because he had created a hostile work environment while a supervisor. We affirm.
After a hearing, the Board rendered its decision, crediting four witnesses who testified about Mr. Fontenot's recurring use of profane language, suggestive jokes, inappropriate touching, and suggestive comments directed toward fellow employees including at least two women whom he supervised. Based on this evidence, the Board sustained the agency's charge of unsatisfactory work performance in creating a hostile work environment.
The Board held that Fontenot's demotion and reassignment by the USPS promoted the efficiency of the service and was reasonable. Specifically, the Board stated that:
"[Mr. Fontenot's] conduct involved more than inappropriate comments, it included physical touching. Further, [Mr. Fontenot] was on notice that the use of profanity was inappropriate and that his continued involvement with such activities might lead to discipline. Upon consideration of the evidence, I find that the mitigating factors do not outweigh the seriousness of the sustained charge. Further, [Mr. Fontenot's] inability to recognize that his conduct was improper and his failure to conform his behavior, even after he was put on notice that such behavior would not be tolerated, does not show much promise for rehabilitation. Under the circumstances, I find no basis to alter the penalty imposed by the agency." Fontenot v. United States Postal Serv., DA-075-96-0592-I-1, slip op. at 19 (MSPB Dec. 31, 1997).
We may set aside the Board's decision only if we find its findings 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) (1994).
Mr. Fontenot argues on appeal that the Board erred when it noted that he did not raise the issue of harmful error when the Board allowed statements of witnesses given to investigators after the USPS denied Mr. Fontenot requested copies. Mr. Fontenot asserts that he did raise harmful error in a prehearing submission regarding the USPS's denial of the copies.
Although the Board did state that Mr. Fontenot had not raised harmful error, the Board addressed the merits of his harmful error complaint and did not deem the objection to the admission of the statements waived. The Board stated:
"[Mr. Fontenot's] allegation that he was denied witnesses' statements is without merit. The record contains a summary of the interview statements that were made to the investigator but it does not appear that the witnesses actually made written statements. [Mr. Fontenot] was afforded the opportunity to review the material on which the agency relied and he specifically replied to the allegations contained in the notice of proposed action. Under the circumstances, I find that [Mr. Fontenot] did not establish that the agency committed any error nor did he show that there was any error that harmed or prejudiced him." Fontenot, slip op. at 15, n.5.
Mr. Fontenot does not take issue with the Board's factual finding that he had the opportunity to review the material in question and respond to the allegations in the notice of proposed action. Mr. Fontenot has not shown that the Board acted in an arbitrary or capricious manner, or that it abused its discretion in making the determination that Mr. Fontenot was not prejudiced when the USPS denied his requests for copies of witness statements.
Mr. Fontenot also complains about the Board's weighing of evidence in light of allegedly contradictory statements and the Board's management of one of his trial witnesses relating to credibility. Credibility determinations, however, are virtually unreviewable. Hambsch v. Department of the Treasury, 796 F.2d 430, 426 (Fed. Cir. 1986).