Before Mayer, Chief Judge, Rader and Bryson, Circuit Judges. Mayer, Chief Judge.
Appealed from: Merit Systems Protection Board
Douglas M. Wright appeals the decision of the Merit Systems Protection Board, Docket No. CH0752950916-B-1 (December 1, 1997), which became final on May 20, 1998, and affirmed his removal from the United States Postal Service. Because the board improperly discredited testimony, we reverse in part, vacate in part and remand.
Wright began working as a mailhandler in Kalamazoo, Michigan, in 1993. On March 6, 1995, Supervisor of Delivery Operations Laura Vasquez, against whom Wright, a union steward, had filed labor grievances in the past, questioned him about his absence from his work area. They began to argue and, according to Vasquez, Wright shoved a mail hamper into her as she turned to leave. Wright denies this allegation and a co-worker who observed the argument, Randall James, testified that he did not see Wright hit Vasquez with a hamper.
Wright and Vasquez went to the office of Kathleen Blodgett, the Acting Manager of Distribution Operations, where they continued to argue. Leroy Robinson, another supervisor, escorted Wright out of Blodgett's office and Vasquez left to call the Postal Inspection Service from her office. While Wright was talking to his wife, Anita Wright, also a postal worker, in the corridor outside the offices, Robinson summoned him to return. Wright then followed Robinson back to Blodgett's office. Vasquez also began walking to Blodgett's office, following Wright. Robinson testified that he heard Vasquez call out his name and, after turning around, saw her leaning against the wall.
Vasquez states that after she began walking behind Wright he slowed down and hit her on her side, forcing her into the wall. Wright asserts that he did not slow down or initiate contact with Vasquez; rather, she tried to force her way past him and lightly bumped him. Anita Wright, the only other eyewitness to this incident, testified that Vasquez brushed up against Wright in an attempt to squeeze by him, but did not hit the wall.
The Postal Service charged Wright with improper conduct for engaging in a verbal and physical altercation with a supervisor, and for creating an unpleasant work environment. On June 3, 1995, the Postal Service removed him. In an October 31, 1995 initial decision, the administrative Judge affirmed his removal under the altercation charge, but denied the charge of creating an unpleasant work environment. The administrative Judge fully credited Vasquez' account and found it to be consistent with the testimony of Robinson and James.
The Postal Service also presented evidence that Wright had failed to fully disclose criminal convictions on his employment application. The administrative Judge concluded that he had intentionally falsified his application and therefore rejected his testimony as lacking credibility. Moreover, the administrative Judge discredited Anita Wright's testimony because of her "vested interest" as Wright's wife and because she testified that she only wrote one statement, although there were two in her handwriting. The administrative Judge also rejected Wright's disparate treatment defense because, inter alia, his evidence consisted of disciplinary action resulting from a settlement.
Wright filed a petition for review, arguing in part that the administrative Judge did not consider evidence that Vasquez falsified a workers' compensation claim and that she had a criminal arrest record. In refusing to consider the character evidence against Vasquez, the board found that Wright did not present it to the administrative Judge and that it was not material. See id. at 19. However, the board concluded that Anita Wright's two statements did not undermine her credibility because she was justifiably confused at the hearing. See id. at 21. The board also held that a familial interest cannot, by itself, discredit a witness' testimony. See id. at 22. The board vacated the initial decision and remanded to the administrative Judge. See Wright v. United States Postal Serv., 72 M.S.P.R. 12 (1996).
On remand, the administrative Judge affirmed Wright's removal in a December 1, 1997 decision that was virtually identical to the one in 1995. However, in continuing to refuse Anita Wright's testimony, the administrative Judge held that she was not a credible witness because her testimony differed from Vasquez' and Robinson's and, as Wright's spouse, she had a pecuniary interest in the outcome. The board denied Wright's petition for review and he appeals.
We must affirm the board's decision unless it is: "(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). On that standard, we cannot affirm here.
Wright argues that the board's finding that he intentionally falsified his employment application violates his right to due process. He is correct that "[t]he core of due process is the right to notice and a meaningful opportunity to be heard." Lachance v. Erickson, 522 U.S. 262, 266 (1998). Nevertheless, evidence of the falsification was clearly in the record; indeed, he testified about it before the administrative Judge. Impeaching Wright's credibility with this evidence was not a violation of due process.
The board's refusal to consider evidence impeaching Vasquez' credibility is another matter, however. Wright objects that the board completely discredited his version of the events, yet accepted Vazquez' testimony in its entirety despite evidence of her criminal record, fraudulent workers' compensation claim, and bias against him. There appears to be a discrepancy about when Wright attempted to introduce evidence of her arrests and fraudulent claim. He contends in his brief that the administrative Judge refused to admit the evidence at a prehearing conference. Although the Postal Service does not challenge this assertion, the board's 1996 opinion, see 72 M.S.P.R. at 19, and Wright's 1996 petition for review suggest that he learned of this evidence after the first initial decision. Therefore, we ...