U.S. Court of Appeals, Federal Circuit
September 17, 1999
UNITED STATES POSTAL SERVICE,
Newman, Circuit Judge, Skelton and Archer, Senior Circuit Judges.
The opinion of the court was delivered by: Per Curiam.
NOTE: Pursuant to Fed. Cir. R. 47.6, this Disposition is not citable as precedent. It is a public record. The Disposition will appear in tables published periodically.
Carolyn Brown appeals the decision of the Merit Systems Protection Board (Board) affirming the decision of the United States Postal Service (Postal Service) to remove Ms. Brown from her position as a Distribution Clerk. *fn1 We affirm.
Ms. Brown was removed from her position on December 26, 1997 for rifling *fn2 Express Mail. On the basis of several reports of rifled Express Mail on May 29, 1997 and June 2 and 3, 1997, Postal Inspectors instigated a surveillance, on June 9, 1997, of the shift during which the rifling was determined to have occurred. As a result of the surveillance and additional investigation of Ms. Brown by the Postal Inspectors, the Postal Service decided to remove her for rifling mail on June 9, 1997. Ms. Brown appealed her removal to the Board on January 5, 1998, and a hearing was held on April 15, 1998.
In the April 24, 1998 Initial Decision, the administrative Judge (AJ) considered the charge against Ms. Brown, and found that the direct and circumstantial evidence was sufficiently strong to conclude that Ms. Brown rifled mail on June 9, 1997. *fn3 The AJ determined that the Postal Inspector's testimony was persuasive and credible, noting that he had no reason to falsely accuse Ms. Brown of rifling mail. The AJ found that his Conclusions were based on personal observations and professional investigative methods of deduction.
The AJ rejected Ms. Brown's testimony as not credible because it was inconsistent and implausible. The AJ carefully considered Ms. Brown's allegations that other employees were responsible for the rifling, that the mail was already open when it arrived at Ms. Brown's work area, and that others were in her work area on June 9, 1997. The AJ found these allegations improbable based on Ms. Brown's own testimony regarding the work procedures concerning open mail and the fact that she testified she had not observed her co-workers rifling mail. Consequently, the AJ sustained the charge against Ms. Brown with respect to the rifling of mail on June 9, 1997.
The AJ also reviewed the penalty imposed by the Postal Service to determine whether the Postal Service considered all the relevant facts and whether the penalty was reasonable in view of the fact that the Postal Service did not specify, until the hearing, that the charge was limited to June 9, 1997. The AJ considered the penalty determination as if any allegations related to the other dates referred to in the Notice of Proposed Removal had not been sustained.
The AJ found no basis for disturbing the penalty imposed because she concluded that rifling of Express Mail was a gravely serious charge, and it "strikes at the very heart of the agency's mission and breaches the trust that the agency must have in those employees who handle the mail." Initial Decision at 9. The AJ concluded that, although the charge related only to 13 pieces of mail on one day, Ms. Brown was in direct control of the items at issue, and that she had a special duty to protect the sanctity of the mail.
The AJ also noted that the Postal Service considered the relevant Douglas *fn4 factors, including Ms. Brown's nineteen years of satisfactory service and her previously unblemished disciplinary record. The Postal Service's Conclusion, however, was that given its mission and the seriousness of the misconduct, a lesser penalty was not feasible because Ms. Brown would still have access to the mail. The AJ also noted that the Postal Service considered Ms. Brown's lack of candor during her oral reply and her refusal to accept responsibility for her actions as aggravating factors that precluded a finding that she had rehabilitation potential. The AJ affirmed the Postal Service's Conclusion that the seriousness of Ms. Brown's misconduct outweighed the mitigating factors, and concluded that the removal decision was reasonable and promoted the efficiency of the service. The AJ therefore sustained the Postal Service's action.
Ms. Brown makes several arguments in support of her contention that the evidence was not sufficient to support the charge. She contends that the Board failed to consider all the facts, that the testimony of the postal inspector was inconsistent, that the Postal Service did not prove she had an intent to steal, and that the AJ erred in assessing her credibility. She also contends that the penalty was not reasonable.
We may only set aside a decision of the Board when 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). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a Conclusion. See Frederick v. Department of Justice, 73 F.3d 349, 352 (Fed. Cir. 1996) (citing Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229 (1938).
Ms. Brown's arguments essentially challenge the factual findings of the Board. "We do not substitute our judgment for that of the Board as to the weight of the evidence or the inferences to be drawn therefrom." Cross v. Department of Transp., 127 F.3d 1443, 1448-49 (Fed. Cir. 1997) (citing Consolo v. Federal Maritime Comm'n, 383 U.S. 607, 620 (1966) (stating that "the possibility of drawing two inconsistent Conclusions from the evidence does not prevent [the fact finder's] findings from being supported by substantial evidence")). The AJ found that the direct and circumstantial evidence was sufficiently strong to conclude that Ms. Brown rifled the mail on June 9, 1997, which was the only charge against her. In so doing, the AJ credited the testimony of the postal inspectors over that of Ms. Brown. The AJ's findings are supported by substantial evidence. Moreover, the AJ's credibility determinations are virtually unreviewable by this court. See Hambsch v. Department of the Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986).
With respect to Ms. Brown's contention that the penalty was unreasonable, we cannot disturb the penalty chosen by the Postal Service unless it is so "outrageously disproportionate" to the charged offense in light of all relevant factors as to constitute an abuse of discretion. See Bryant v. National Science Found., 105 F.3d 1414, 1416 (Fed. Cir. 1997). The record in this case establishes that both the Postal Service and the AJ properly considered the relevant Douglas factors, including mitigating factors. In view of this evidence, we cannot say that the penalty chosen is so "outrageously disproportionate" to the offense so as to constitute an abuse of discretion. The decision of the Board is affirmed.