United States Court of Appeals for the Federal Circuit
December 2, 1999
CHARLES K. POUST, PETITIONER,
DEPARTMENT OF DEFENSE, RESPONDENT.
Before Newman, Circuit Judge, Friedman, Senior Circuit Judge, and Rader,
The decision of the Merit Systems Protection Board (Board) (Docket NO. AT-0752-97-0658-I-2) affirming the Defense Commissary Agency (Agency)'s removal of the petitioner Poust, is affirmed.
The Agency removed Poust as an Assistant Commissary Officer for twice "threatening to use a firearm to do bodily harm" to his fellow employees. Poust appealed his removal to the Board. After an evidentiary hearing, the Board's administrative Judge affirmed the removal. In a lengthy initial decision, which became final when the Board refused to review it, the administrative Judge discussed the testimony in detail and found that the government's witnesses were more credible than Poust's testimony that contradicted their testimony.
There were two separate occasions on which the administrative Judge found that Poust had threatened his fellow employees. On the first occasion, he found, Poust stated "in the presence of other employees, . . . because of all the job-related stress he was under, he hoped he would not become a postal worker," and that he "felt like he wanted to get his gun and just start shooting." Employees who had heard the statements testified that Poust had made them, and that the statements frightened them about their safety.
Poust testified that he had said that "he hoped he would not become a postal worker." On cross examination, he stated that he had said that "with all the stress I am under, I can understand how people become postal workers." The administrative Judge stated that "[t]his inconsistency [in Poust's testimony] caused me to question the appellant's credibility with respect to his testimony regarding the statement." The administrative Judge found the testimony of the other witnesses to be "straightforward and unimpeached." Based on the testimony and his credibility determinations, the administrative Judge concluded that Poust made the first statement "that he felt like he wanted to get his gun and just start shooting."
The second threat was made a few weeks later, during a conversation between Poust and one of his subordinates, in which Poust "became visibly angry and tense," and said that he felt like "going home, getting a gun, coming back and going crazy." Fellow employees who heard the statement testified that Poust had made it, and also that it made them fear for their safety. Poust's supervisor, who did not himself hear this statement testified that Poust told him he had made it. Poust admitted saying "I hope I don't end up becoming a postal worker," but denied stating that he felt like "going home, getting a gun, coming back and going crazy." The administrative Judge again found Poust to be much less credible than the other witnesses, one of whom he found to be "exceedingly credible." He concluded that Poust did "indeed make the statement . . . that because of all the stress he `felt like going home, getting his gun, coming back and going crazy.'"
Applying the standards for determining whether a statement constitutes a threat that this court announced in Metz v. Department of the Treasury, 780 F.2d 1001 (Fed. Cir. 1986), the Board found that Poust's statements were threats. It pointed out that the employees who heard the statements reacted with apprehension and took precautions against Poust's return with a gun. It also found that "the evidence overwhelmingly supports that the appellant indeed possessed the requisite intent to threaten to harm his co-workers with a firearm." The Board found that the "attendant circumstances," particularly Poust's anger over alleged betrayal by his subordinates and false accusations of marital infidelity, supported the Conclusion that the statements constituted threats. Finally, the Board upheld the penalty of removal as "not exceed[ing] the tolerable limits of reasonableness given the facts of this case."
Poust primarily challenges the Board's factual findings, particularly the administrative Judge's credibility determinations. Those determinations, however, are for the trier of fact (who heard and saw the witnesses), not for the appellate court. See Griessenauer v. Dep't of Energy, 754 F.2d 361, 364 (Fed. Cir. 1985). We will not disturb them unless they are "inherently improbably or discredited by undisputed evidence or physical fact." Dittmore-Freimuth Corp. v. United States, 390 F.2d 664, 685 (Ct. Cl. 1968).
Here the administrative Judge carefully evaluated the credibility of each witness, including the allegations that some were biased against Poust, and found their testimony to be consistent and credible. He found Poust's testimony, however, to be internally inconsistent, and not credible. Those credibility determinations were not "inherently improbable or discredited by undisputed evidence or physical fact," and we have no basis to overturn either those determinations or the factual findings that were based upon them.
Poust also contends that he was prejudiced because he could not call a witness who was present during the first incident. He was barred from speaking to the witness, he claims, by a state court order. As a remedy, he asks us to consider an unsworn transcript of a telephone conversation between Poust and this witness.
Poust does not state what this transcript would add to the existing evidence or attempt to show how it would be likely to change the result in this case. In any event, since the purported transcript is not part of the record, we will not consider it. See SMS Data Prods. Grp., Inc. v. United States, 900 F.2d 1553, 1558 (Fed. Cir. 1990).
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