Petition for Writ of Certiorari — Wallace v. Department of the Army

Supreme Court, U.S.

85 | , FILED

ae

114 3 | pgG as 1985

IN THE | JOSEPH F. SPANIOL, JR.

SUPREME COURT OF THE UNITED STA! CLERK

October Term, 1985 =

NO.

ALFRED O. WALLACE,

Petitioner,

Ve

DEPARTMENT OF THE ARMY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

CERTIFICATE

I, heing a member of the Bar of this Court,

certify that on this 138th day of December, 1985,

three copies of the petition for writ of certiorari

were tailed, postage prepaid to Michael T. Paul,

Commericial Litigation Branch, Civil Division, U.S.

Department of Justice, Washington, D.C. 205030, The

Solicitor General, Department of Justice,

Washington, D.C. 20530. I further certify that all

parties required to be served have been served.

ee ae cr

WZ or l rs Ly A

L {£ | (Ae >

Robert L. Bertram ™

Bertram & Wilson

One Monument Square

Jamestown, Kentucky 42

(502) 343-3101

fon)

NO

\O

Counsel for Petitioner

QUESTIONS PRESENTED

1. Whether or not the presiding official's

decision was based upon an erroneous application of

statute or regulation, whether the presiding

official correctly applied the law to facts, and

whether the decision of the presiding official was

based or. credible testimony of witnesses?

2. Whether it is within the accepted and usual

course of judicial proceedings for an appeals court

to virtually mandate that all determinations made by

a hearing officer (presiding official) as to facts

and credibility of witnessess be affirmed?

INDEX

page

th MCs ce cnc edeeeSeaccevceccecescesas oeed

DUBTBGRCCION. cccccccccccccccccncsccccccccccess 2

Questions Presented.........eeee- ceccesesccses i

Statutory Provisions Involved............eeee. 2-3

Statement of the Case... ..ccccccccccccccccceee dO

Reasons for Granting the Writ.......... ceceesc6°l13

1. The Presiding Official's Decision

was not based upon credible testimony of

witnesses, was based upon an incorrect.

application of the law to the fact......6-10

2. The decision raises significant

problems concerning determinations made

by hearing officers and whether they

CON HE OVEFCUMMEG. .ccccccccscccccceeeeclLM13

EEE re i

Appendix 1 (Opinion & Judgment of the Court

DE AED caceccccscsccceces encecseceedO™20

Appendix 2 (Decision of the Merit Systems

ED SEED nn cacecscacececscesess 20-51

CITATIONS

Cases: Page

Universal Camera Corporation v.

National Labor Relations Board,

340 U.S. 474 71 S.Ct. 456, 95

Great Northern R Railway Company v.

Weeks, 297 U.S. 135 56 S. Ct. 426,

BO Le BY. S32. cccccccccccccecccscescccccee 9

Phillips v. Bergland,

586 F. 2d 1007 (1978) (4th Cir.).......... 9

Brancadora v. Federal National Mortgage

Association, 344 F. 2d 933 (9th Cir.)

CR TEe 00006666 6600066660606065656460065065 10

Miscellaneous:

28 United States Code, Section 1254(1)......2

5 United States Code, Section 7701 (c) (i) (B).2-3

5 United States Code, Section 7703(c) (1)

tr ar Pererr re Tr Tere rT seeene a. 9

5 United States Code, Section 7512.......... 3

5 United States Code, Section 751i (a) (1) (A).4

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1985

NO.

ALFRED 0. WALLACE,

Petitioner,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

The petitioner, Alfred 0. Wallace, respectfully

prays that a writ of certiorari issue to review the

judgment and opinion of the United States Court of

Appeals for the Federal Circuit entered in this

proceeding on October 16, 1985.

OPINION BELOW

The opinion for the court of Appeals for the

Federal Circuit, not yet reported, appears in the

Appendix hereto. The order of the Merit Systems

Protections Board expeere in the Appendix also.

JURISDICTION

The decision of the United States Court of

Appeals for the Federal Circuit was decided on

October 16, 1985. A petition for rehearing was not

filed and rehearing en banc was not sought or asked

for. This petition for writ of certiorari was filed

within sixty (60) days from the date of the

decision. This court's jurisdiction is invoked

under 28 USC 1254 (1).

STATUTORY PROVISIONS INVOLVED

5 uSC § 7701 (c) (1) (B}:

Subject to paragraph (2) of this

subsection, the decision of the

agency shall be sustained under

subsection (b) only if the agency's

decision-

ate hei eee

(B) in any other case, is support by

a preponderance of the evidence.

5 USC § 7703 (c) (1) (2) (3):

In any case filed in the Court of

Appeals for the Federal Circuit, the

court shall review tiie record and

hold unlawful and set aside any

agency action, findings or

conclusions found 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.

STATEMENT OF THE CASE

The intial action was brought pursuant to 5 USC

§ 7512 by the respondent agency, Department of the

Army, Corps of Engineers, against Alfred O. Wallace,

petitioner, an employee of said agency as defined by

ore at

ae >

_

= A

Fi i Ness. .

a

A

+1 Se

op, a

—

ary be i “ft

5 USC § 751l{a) (1) (A) alleging that the Petitioner

assaulted his immediate supervisor at the agency,

Wolf Creek Dam, Russell County, Kentucky, thereby

justifying the removal of petitioner from employment

with the respondent agency. The petitioner was, in

fact, involved in a scuffle with a fellow employee

approximately 15 to 30 minutes after work time at

the above site, on a public parking lot. The

petitioner's attempt to obtain a hearing for a

presentation of facts and arguments before the Merit

Systems Protection Board in relation to removal was

denied. Upon appeal to the United States Court of

Appeals for the Federal Circuit it was remanded (No.

83-1425) ordering that the petitioner be granted a

hearing. The case was then heard by the Merit

System Protection Board on May 1-2, 1984.

A decision was rendered for the respondent by

the Board and a petition for review was denied. The

petitioner appealed to the United States Court of

Appeals for the Federal Circuit alleging that the

decision of the Merit Systems Protection Board was

incorrect, inasmuch as the decision was based on an

erronevuus interpretation of statute «> regulation

and was not based upon credible testimony of

witnesses. It was also alleged that it based upon

an incorrect application of the law to the facts.

The scuffle complained of by the agency

happened some 30 minutes after work time, wherein

the petitioner was having a conversation with a

fellow employee that also worked for the Department

of the Amy. A scuffle ensued; no one saw it except

the petitioner and the person involved. The

incident resulted in the dismissal of the

petitioner. It should also be noted that after an

extensive effort by the supervision of the agency, a

criminal warrant was issued for the petitioner. The

case was tried and resulted in a dismissal of all

charges, by the prosecution. It appears from the

record that the supervision was zealous in getting

petitioner, Wallace, fired.

The credibility of the witnesses which are

produced on behalf of the agency and were heard by

the hearing officer was appalling. This can only be

determined by reading the record. I would urge the

Court to read the transcript of the testimony of the

people involved which is in the record. The person

who was in the scuffle with Wallace, the petitioner,

was not hurt and only went to the doctor after

encouragement from the supervision in order to make

a record and attempt to make a case against Wallace,

the petitioner.

The record will show that the petitioner had

filed grievances against the supervision prior to

this scuffle and that he was not treated as other

employees were treated on this particular job.

REASONS FOR GRANTING THE WRIT

1. THE PRESIDING OFFICIAL'S DECISION WAS NOT

BASED UPON CREDIBLE TESTIMONY OF WITNESSES, WAS

BASED UPON AN INCORRECT APPLICATION OF THE LAW TO

THE FACTS.

First, it should be noted by this court that

the presiding official's opinion did not properly

apply the law to the facts and was not based upon

credible testimony, the United States Supreme Court

has held previously in Universal Camera Corp. v.

National Labor Relations Board, 340 U.S. 474, 71 S.

Ct. 456, 95 L. Ed. 456 as follows:

"While the findings of the National Labor

Relations Board are entitled to respect,

they must, nonetheless, be set aside when

the record before a Court of Appeals

Clearly precludes the board's decision

from being justified by fair estimate of

the worth of the testimony of witnesses or

by it's informed judgment on matters

within it's special confidence or by

both."

For the presiding officer in this case to enter

an opinion setting forth facts that are clearly

erroneous, the majority of those relating to the

reliance on testimony by the other person involved

in the scuffle, would be a clear abuse of discretion

by the presiding official. This case boils down to

an altercation between two (2) employees of the U.S.

Army, Corp of Engineers of the Wolf Creek Dam

facility “after hours." The U.S. Army, Corp of

Engineers through their employees and supervisors

indicated that Wallace was dismissed because he was

in a fight with a fellow employee.

However, it should be specifically noted by

this Honorable Court that this altercaltion took

place "after hours." The work day had ended and

both parties had completed their duties at the U.S.

Army, Corp of Engineers. The presiding official

gave credence to the testimony of a fellow employee

even though at the hearing of this action the fellow

employee admitted that he had taken government

property home with him and he had been a subject of

an investigation as a result of taking government

equipment home with hin.

The presiding official, in her findings, gave

overwhelming weight to the testimony of fellow

employee in regard to the facts of the altercation

with Wallace. This altercation that took place

between the petitioner, Wallace, and fellow employee

was one where no witnesses were present, other than

the two individuals and any reports that were made

as to either the initiation of contact by one or the

other would be solely a determination of the

credibility of the individual.

However, the presiding official failed to take

into account the several instances of grievances and

union activities in which the petitioner, Wallace,

had engaged.

The United States Supreme Court ruled in Great

Northern Railway oO. V- Weeks, 297 U.S. 135. 56 S.

Ct 426, 80 L. Ed. 532 as follows:

"Where it clearly appears that an

assessing board failed to give reasonable

weight to certain evidence, and the board

persistently disregarded nonconditions

essential to the jus assertainment of

value, the assess ~ 1t i: arbitrary and may

be relieved against."

It was apparent that no weight whatsoever was

given to any witnesses who testified for the

petitioner, all of which were overwhelming evidence

that the supervision was out to get Wallace in any

way possible and see that he no longer work for the

U.S. Army Corp of Engineers. The decision affirming

Wallace's removal did not comply with the statutes

set forth in 5 USC § 7703(c) (1) (2) (3).

This Honorable Court should take into

consideration the fact that the petitioner, Wallace,

and the fellow employee were “orf duty" at the time

the altercation took place. See Phillips v.

Bergland, 586 F. 2d 1007 (1978) (4th Cir.) There

was simply no showing that there was misconduct on

the part of the petitioner and, that if there was

10

misconduct, that it was severe enough to form a

basis for removal. There must be a showing that the

misconduct affected employee's performance on his

job. Brancadora v. Federal National Mortgage

Association, 344 F. 2d 933 (9th Cir.) (1975)

It is obvious that only one employee is

affected by the action of the Merit Systems

Protection Board and the United States Court of

Appeals for the Federal Circuit, but his rights are

valuable and he, in effect, will never be able to

get employment by reason of the black marks that

have been left on him by the U.S. Amny.

2. THE DECISION RAISES SIGNIFICANT PROBLEMS

CONCERNING DETERMINATIONS MADE BY HEARING OFFICERS

AND WHETHER THEY CAN BE OVERTURNED.

The decision and reasoning of the U.S. Court of

Appeals for the Federal Circuit is incorrect and

improper inasmuch as that decision follows the

virtually mandatory practice in that court of

affirming the findings of fact and determinations of

credibility as made by an hearing officer. This

procedure, in effect, gives practically

nonreversible, absolute discretionary power to the

11

hearing officer. Clearly, such a practice should

not be within the accepted and usual course of

judicial proceedings.

The Court stated that the petitioner had shown

no convincing reason to reject the principal that a

determination as to credibility

of witnesses should rest within the discretion of

the presiding official. Petitioner states that the

record discloses that the CREDIBILITY [emphasis

ours] of the witnesses produced by the respondent

agency was seriously questionable. However, the

testimony of such witnesses was the determining

factor in the decision in this case.

Petitioner further contends that as a result of

the credibility given and the undue reliance placed

upon the testimony of respondent agency supervisor,

the decision of the presiding official constituted

an abuse of discretion. Universal Camera Corp. v.

National Labor Relations Board, supra.

The Petitioner did not argue with the accepted

principle that wide discretion should be given a

presiding official in making a determination as to

12

facts and credibility of witnesses. However, the

tradition of the lower court in granting practically

absolute, nonreversible discretionary power to

presiding official in making such determinations

that is not within the accepted and usual course of

judicial proceedings.

To allow a hearing officer to exercise such

plenary power is, in effect, tanamount to estoppel

of an appeal based on such determinations made by

the presiding official. The carte blanche

application given to determinations made by an

hearing officer as to facts and credibility of

witnesses iS 2n approach which should not be

tolerated. It was stated by one of the judges at

the court of appeals level during the oral argument

that he had seen a thousand cases and none had ever

been reversed on the findings of fact by the

hearing officer. If this be the fact, then all

appeals should be stopped after the administrative

law.judge makes his findings of fact or it should be

determined and should be handed down by this court

that it should be set out plainly that whatever the

13

hearing officer findings are, this is all there is

going to be and you might as well not appeal from

it. This practice is open to serious question and

the refusal of the Federal Circuit Court of Appeals

to inquire into the facts and the worth of the

testimony of the witnesses is wrong and should not

be justified.

CONCLUSION

For these reasons, a writ of certiorari should

issue to review the judgment and opinion of the

United States Court of Appeals for the Federal

Circuit.

Respectfully submitted,

Robert L. Bertram

Bertram & Wilson

One Monument Square

Jamestown, Kentucky 42629

(502) 343-3101

Date: December 12, 1985

14

CERTIFICATE

I, being a member of the Bar of this Court,

certify that on this 18th day of December, 1985,

three copies of the petition for writ of certiorari

were mailed, postage prepaid to Michael T. Paul,

Commercial Litigation Branch, Civil Division, U.S.

Department of Justice, Washington, D.C. 205030, The

Solicitor General, Department of Justice,

Washington, D.C. 20530. I further certify that all

parties required to be served have been served.

Robert L. Bertram

Bertram & Wilson

One Monument Square

Jamestown, Kentucky 42629

(502) 343-3101

Counsel for Petitioner

APPENDIX

16

NOTE: This opinion will not published in a printed

volume because it does not add significantly to the

body of law and is not of widespread legal interest.

It is not citable as precedent. The decision will

appear in tables published periodically.

UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

ALFRED O. WALLACE,

Petitioner, Appeal No. 85-2062

)

)

)

)

Vv. )

)

DEPARTMENT OF THE ARMY, )

)

)

Respondent.

DHCIDED: October 16, 1985

Before FRIEDMAN and DAVID, Circuit Judges, and

COWEN, Senior Circuit Judge.

PER CURIAM.

DECISION

Alfred 0. Wallace appeals from the decision of

the Merit Systems Protection Board (MSPB or Board),

Docket No. AT07528310266, affirming his removal from

the Department of the Army, Corps of Engineers

(agency), based on a _ charge of striking and

inflicting bodily injury on a fellow employee. We

affirm.

17

OPINION ,

Petitioner primarily challenges the decision of

the presiding official on the ground that too much

weight was given to the testimony of his supervisor,

the other employee involved in the altercation. As

we have frequently held, the determination of the

credibility of witnesses rests within the discretion

of the presiding official. Petitioner has shown no

convincing reason for this court to reject that

determination in this’. case. See DeSarno v.

Department of Commerce, 761 F.2d 657, 661 (Fed. Cir.

1985); Griessenauer v. Department of Energy, 754

F.2d 361, 364 (Fed. Cir. 1985).

1. In his appeal to this court petitioner included

a claim of handicap discrimination. However, on

June 27, 1985, petitioner signed a statement which

was thereafter filed with the Clerk, in which he

abandoned the discrimination claim. Consequently,

this court has jurisdiction to decide the remaining

issues in his appeal.

18

credibility of witnesses rests within the discretion

of the presiding official. Petitioner has shown no

convincing reason for this court to reject that

determination in this’ case. See DeSarno v.

Department of Commerce, 761 F.2d 657, 661 (Fed. Cir.

1985); Griessenauer v. Department of Energy, 754

F.2d 361, 364 (Fed. Cir. 1985).

sks

Petitioner also argues that the presiding

official failed to give proper consideration to his

defense that his removal was a reprisal for his

participation in union activities. However, we find

“that the presiding official gave proper

consideration to petitioner's defense and found that

there was causal connection between petitioner's

protected activity and the adverse action proposed

against him. We agree with the presiding official

that: petitioner failed to carry his burden on this

issue,

19

iit.

Petitioner's third argument is that the

presiding official erred in sustaining his removal,

because the misconduct with which he was charged

occurred while he was not on duty. Therefore, he

contends that the efficiency of the service was not

hampered by. his off-duty conduct. However, the

presiding official found that although’ the

altercation occurred when petitioner and his

supervisor were off duty, it took place in a

Government parking lot shortly after their shiits

had ended. The presiding official also found that

the incident was work-related, since it involved the

striking and injuring of petitioner's supervisor

because of a disagreement over a work-related

matter. We agree that the evidence supports the

conclusion that there was a nexus between the

petitioner's conduct and the efficiency of the

service. Where the misconduct of the employee is

work-related, it is proper to presume that a nexus

exists. See Staton v. United States, 228 Cr. Cl.

797, 804 (1981).

po.

c

»

VA

a

<

2

20

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ATLANTA REGIONAL OFFICE

IN THE MATTER OF:

ALFRED O. WALLACE,

Appellant, DECISION NUMBER

AT07528310266

Date July 11, 1984

DEPARTMENT OF THE ARMY,

Agency,

*

INTRODUCTION

On December 15, 1982, Alfred O. Wallace (appellant)

appealed the decision of the Department of the Amy,

Corps of Engineers, Nashville, Tennessee (agency),

removing him from the position of Power Plant

Mechanic effective November 23, 1982. This decision

is based upon written submissions of the parties as

well as testimony and evidence presented at a

21

hearing conducted on May 1-2, 1984, in Nashville,

Tennessee. .

JURISDICTION

Pursuant to 5 U.S.C. § 1205(a) (1), the Board has

authoritv to hear and decide all matters within its

appellate jurisdiction, as conferred by law, rule or

regulation. At the time the agency action became

effective, appellant was an employee as defined by 5

U.S.C. § 7511 (a) (1) (A). The action taken by the

agency was initiated pursuant to 5 U.S.C. § 7512.

Therefore, this appeal is within the Board's juris-

Giction. 5 U.S.C. § 7513(d).

In previous decision, dated February 8, 1983, was

issued by a presiding official of the Atlanta

Regional Office dismissing the appeal as untimely

filed. That decision was appealed to the Board, but

was denied based on a determination that the

petition for review did not meet the criteria under

> CPR, § s201.485. That determination was

appealed to the United States Court of Appeals for

the Federal Circuit where it was found that the

appeals should have been considered timely filed.

It was accordingly remanded for a hearing on the

merits and was assigned to the undersigned presiding

official for adjudication.

Ciaran

L Mg

i]

j So a

iter eal ae Tey a

7 . =

7 —_

yy i: _—

- aL) al rilinen « 7 |

ie a es otal A |

- The —— Pe ae ——= - > a

— ea

— 2 a? oe a4

22

ANALYSIS OF EVIDENCE AND FINDINGS OF FACT

Appellant's removal was based on the agency's

allegation that he was absent without official leave

(AWOL) for five hours on October 27 and eight hours

on October 28, 1982. The agency's decision to

remove appellant was also based on a charge of

striking and inflicting bodily injury upon a fellow

employee.

Regarding the charge of AWOL, Howard Boatman, Chief

ot the Operations Division for the agency and

deciding official in this case, testified that

annual leave is granted in the discretion of super-

visors and consideration is given to the workload at

the power plant. He stated that on the dates

appellant was charged with AWOL there was a heavy

maintenance workload. He also noted the agency has

a particular policy in such instances. (See agency

response, tab 12a). that policy states that during

periods of heavy maintenance, such as annual in-

spections or emergency repairs, all leave is to be

23

approved by the superintendent. The recor? further

indicates that appellant received and read a copy of

that policy on February 8, 1982. Mr. Boatman also

testified that at the time appellant was absent

there waS a maintenance workload, During his

testimony he acknowledged that appellant's immediate

supervisor, Marshall Ooffey, had been allowed to

take leave on October 28 because the work had been

finished. He added, however, that appellant was

needed that day as a crane operator and someone else

had to be located to do the work.

Charles Grider, Superintendent of the Wolf Creek

Power Plant where appellant was employed, also

testified at the hearing. he stated that he made

the determination that appellant be considered AWOL

On October 27-28. He also noted that on October 25

appellant had requested annual leave for October

27-28, but that request was denied. He added that

it was a period of heavy maintenance and appellant

was needed as a crane operator. He states on on

October 27 appellant told Mr. Coffey that he was

aa eaeena aia iatemea

24

feeling sick and might have to go home. Mr. Grider

stated that he told Mr. Coffey another crane

operator could be used. Mr. Grider further noted

that appellant left the work site around 9:00 a.m.

that. day. The record indtowben appellant was also

absent on October 28. Mr. Grider stated that on

October 28 he told the timekeeper to allow the

appellant to take whatever sick leave he had avail-

able for both days and tentatively place him on

leave without pay for the remainder of the absence.

Mr. Grider also noted that Mr. Coffey did not have

the status to approve annual leave that week due to

the major maintenance.

Mr. Grider also testified that appellant returned to

work on Friday, October 29 and told the timekeeper

he wanted to take annual leave for his absence

instead of leave without pay (LWOP). Mr. Grider

added that appellant discussed the matter with him

several times that day, and Mr. Grider told appel-

lant that if he did not sign a leave form for LWOP

it would be changed to AWOL. Mr. Grider did ac-

25

knowledge, however, that he received a doctor's

statement from appellant which indicated that

appellant had seen a doctor on October 27 and "was

too sick to work." A copy of the statement is

included in the record. It also states that appel-

lant's physician advised him that he probably should

not work on October 28. Under cross-examination,

Mr. Grider also acknowledged that the major

maintenance was completed on October 27 and other

employees were granted annual leave on October 28.

His only explanation regarding his failure to grant

appellant annual leave was that appellant had no

Sick leave balance and annual leave could not be

granted in such a circumstance unless requested in

advance. He also noted appellant did not have

sufficient annual leave to cover those two days.

Mr. -Coffey, Power Plant Senior Mechanic and appel-

lant's immediate supervisor, testified regarding

appellant's leave request. He stated that he can

approve annual leave except during periods of heavy

maintenance. He also noted that he can authorize

26

sick leave. He explained that on October 27 appel-

lant told him he was sick and had to leave and he

told him that was fine and he should go home if he

was sick. He noted that appellant said he would

have to take annual leave since he did rot have

sufficient sick leave. Mr. Coffey stated that he

responded "we'll have to work out the leave."

Appellant testified that when he informed Mr. Coffey

on October 27 that he felt sick and might not be

able to remain at work all day Mr. Coffey told him

that was all right. He added that later that

morning appellant mentioned to Mr. Coffey that he

did not have enough sick leave and would have to

take annual leave. He stated that Mr. Coffey

responded that it would be fine if that is what he

had to do. Appellant also noted that Mr. Coffey had

granted his annual leave requests previously and was

his immediate supervisor. he also testified that he

was instructed to get his leave approved by Mr.

Coffey, Mr. Grider or Mr. Brown even though there

was a policy to have annual leave approved by the

=

27

superintendent during periods of heavy maintenance.“

In evaluating the evidence regarding the AWOL

charge, I note that Mr. Grider's testimony was

somewhat inconsistent regarding why appeliant was

charged with AWOL. At one point he indicated that

the annual leave request was denied because appel-

lant did not request it in advance, but appellant's

advance request had been denied. Mr. Grider also

acknowledged that the heavy maintenance was complet-

ed on October 27 and other employees were allowed to

take leave on the subsequent day. In addition, I

note that he told Mr. Coffey another crane operator

could be made available. Thus, the need for appel-

lant's presence seems to have been less urgent that

the agency claims.

?appellant also complained that he was required to

bring in a doctor's statement regardless of the

length of sick leave, while other employees were

required to do so only when they were absent more

than three days. Nevertheless, I do not find that

fact indicative of any different treatment of the

appellant in light of the fact that he had been

reprimanded previously for AWOL.

28

I further note that appellant understood that Mr.

Coffey had granted him leave for his illness. Even

though Mr. Coffey may not have had the authority to

grant annual leave on October 27 due to the heavy

maintenance, it appeals he would have had that

authority on October 28 when the workload was

finished. In any event, he would have had the

authority to grant sick leave. By Mr. Coffey's own

admission he stated he told appellant that they

would work out the leave and permitted appellant to

go home. In light of the fact that Mr. Coffey was

appellant's immediate supervisor, I find appellant's

reliance on the permission to leave to be sufficient

to excuse his absence. Moreover, there is no

dispute that appellant was sick on October 27-28.

Here, appellant has provided a legitimate reason for

his absence and the agency has failed to show that

it waS-not valid. Thus, the facts here are compara-

ble to those presented in Hockman v. American Battle

Monuments Commission, 11 MSPB 246 (1982). In

Hockman, the Board stated that where appellant

submitted a valid reason, it was incumbent on the

29

agency to show that the reason offered was not bona

fide. Since the agency did not do so, a waiver of

the leave requirements was found warranted. Based

on the foregoing reasons, I find that the agency has

not supported its charge of AWOL by a preponderance

of the evidence. 5 U.S.C. § 7701 (c) (1) (B). Accord-

ingly, the charge of AWOL alleged by the agency is

not sustained.

Mr. Coffey testified regarding the charges of

striking and inflicting bodily injury on a fellow

employee. He stated that on October 29 he was in

the office, with Mr. Grider and Henrietta Leveridge,

at approximately 3:15 p.m. to discuss something when

appellant entered. He added that appellant told him

to tell Mr. Grider and Ms. Leveridge that he had

actually approved appellant's annual leave request.

Mr. Coffey, however, told them he had not. Mr.

Coffey testified that subsequently he left the

office and went into the parking lot. He stated

that appellant approached him and wanted to discuss

leave matters again and accused Mr. Coffey of lying

30

to him. Mr. Coffey noted that they discussed the

matter for awhile, Mr. Coffey walked toward his

truck, and they continued their discussion. Mr.

Coffey added that as he turned to get into his truck

appellant grabbed him, holding his forearm around

fr. Coffey's neck and choking him. Mr. Coffey

stated that he reached into the back of the truck

and found a stick of wood approximately three inches

in diameter and 16 inches long. he said that

appellant was choking and beating him and pulling

his hair at the time. He added chat he tried to

call for help but could not. Mr. Coffey stated that

then he said to appellant, "let's talk," and appel-

lant responded he would if Mr. Coffey put down the

piece of wood. He stated that he put the wood down

and appellant stopped holding him.

Mr. Coffey further testified that then he went into

the control room and rested. He stated he was

nervous and hurt. He noted he was worried about his

neck because he had had surgery on it previously.

He added that one arm was num and hurting. He

31

stated he then went to a hospital to have x-rays

made. A copy of the emergency room report is

included in the record and indicates that Mr. Coffey

received outpatient treatment on October 29 for head

contusions, neck abrasions, cuts, bruises. and

stains. He was provided a soft cervical collar for

his neck and given two medications, apparently for

pain.

Mr. Coffey also testified that in supervising

appellant they had to work closely together due to

the work involved and appellant was required to take

directions from Mr. Coffey. he added that due to

the October 29 incident he did not have confidence

in appellant, and noted that he could not trust him

and would to keep "a guard up." He also stated that

he had seen appellant throw his hard hat and slam

doors: when he was upset, and he appeared to get more

upset than most people. He added that appellant

Operated dangerous equipment and cranes as part of

his job.

32

Appellant testified that he say mr. Coffey in Mr.

Grider's office the afternoon of October 29 and

asked Mr. Coffey to tell Mr. Grider that he had

approved the leave for him, but Mr. Coffey denied it

had been granted. Appellant further testified that

he left the office and went to his car to wait for

Mr. Coffey to talk to him again. He noted that on

the way he saw Phillip Herrin, another employee, who

asked him why he had "that look in his eye."

Appellant testified that he responded: "Because it

. belongs there." He stated that in the parking lot

Mr. Coffey walked up to him, they talked further

about his leave and Mr. Coffey again denied he had

approved it. He stated that when Mr. Coffey walked

to his truck to put something in it and then walked

back toward appellant. Appellant testified that he

told Mr. Coffey that he (Mr. Coffey) was afraid of

"supervision" and that he had lied about the leave.

He added that Mr. Coffey then explained that he had

to work there, appellant responded "I do too," and

Mr. Coffey said "not for long." He stated that Mr.

Coffey then swung at him but missed. Appellant

33

added that he blocked Mr. Coffey's punch, hit him

twice on the side of his head, and pushed him up

against his truck while trying to hold him. He

stated that then Mr. Coffey hit him with piece of

wood and appellant wrestled with him and was able to

hold him from behind, putting his arm around Mr.

Coffey's neck. he added that Mr. Coffey bit him on

the hand and appellant jerked Mr. Coffey's neck and

hit his left cheek. Appellant testified that Mr.

Coffey told him to let him go and appellant agreed

to do so if he would drop the stick. At that time

Mr. Coffey dropped the stick and appellant released

him. Appellant also testified that he saw Mr. Coffey

go back into the power house by himself.

Mr. Herrin testified at the hearing that he saw

appellant at approximately 3:30 p.m. on October 29

and asked appellant: "Why do you have an upset look

in your eye?" He stated that appellant responded:

3That's where it belongs." Mr. Herrin further

testified that appeilant said he was going outside

to wait for Marshall Coffey and he noted appellant

34

was upset. He stated that later he heard Mr. Grider

Ms. Leveridge state that they needed to go outside.

He added that when they returned they were assisting

Mr. Coffey and his arms were around their shoulders.

Mr. Grider testified that appellant came to his

office several times on October 29 and seemed angry.

Mr. Grider testified that appellant left his office

around 3:30 p.m. on that day and went to Ms.

Leveridge's office where Mr. Coffey was. He noted

that there as a loud discussion, by he only remer-

bered appellant, and not Mr. Coffey, talking in a

loud voice. he stated he later saw appellant and

Mr. Coffey talking in the parking lot. He added

that then Ms. Leveridge came and got him because she

thought there might be trouble. He added that Mr.

Coffey's shirt, collar and pockets and were torn, he

was a mess and his cheek was bruised. He said Mr.

Coffey complained he could not breathe and he had

lumps on his head. He added that he drove Mr.

Coffey to the hospital and noted that the lumps and

bruises were still visible the following Monday,

35

three days later. Mr. Grider also testified that

appellant and Mr. Coffey need to work well together

since they were the only two employees in the

machine shop and Mr. Coffey assigned tasks to

appellant.

Ms. Leveridge testified that on October 29 she saw

appellant and Mr. Coffey in her office that after-

noon. She noted that during their conversation

appellant looked upset. She stated that she later

observed them in the parking lot and at one point

Mr. Coffey appeared to be leaning or slumping on a

car. She added that she and Mr. Grider then went

outside and Mr. Coffey headed toward the plant. She

also noted that appellant got into his car and drove

away. She added that Mr. Coffey's shirt was open

and torn in several places and the pocket was torn

from it. Ms. Leveridge also testified that lying on

the ground beside Mr. Coffey's truck were Mr.

Coffey's cigarettes, comb, pen and paper.

36

Appellant also presented evidence of his claim that

the real motivation behind the agency's action was

his prior union activity. That evidence is being

discussed here since appellant also offered it to

show that Mr. Coffey felt animosity toward appellant

and that appellant and Mr. Coffey did not get along.

Mr. Grider stated that appellant had filed griev-

ances against him at another plant during 1979. He

noted that appellant had also complained that Mr.

Coffey had made derogatory comments about him in a

log book. He added that appellant had asked to be

transferred several times because he and Mr. Coffey

did not get along well.

Mr. Coffey stated that appellant had filed griev-

ances against him also, but added they were at

Laurel, another plant where Mr. Coffey worked during

1976-1981. He noted that one grievance involved

written derogatory conments he made about appel-

lant due to the grievance the remarks were not

placed in his personnel file. He also had com

plained about working through the lunch hour without

. .

37

a break but he did not think a grievance was filed.

Marvin Antle, an agency employee, testified that Mr.

Coffey required appellant to «5 to his office

frequently to question him about something.

Carlon Brown, superintendant at the Laurel Plant

where appellant worked prior to his employment at

the Wolf Creek Plant where the incident occurred,

testified that appellant filed three grievances at

Laurel. He added that they were directed against

himself, Mr. Coffey and Mr. Grider. Henry York, an

employee at Laurel when appellant and Mr. Coffey

worked there, testified that the grievances filed by

appellant at Laurel were filed in 1978 and 1979. He

noted that although Mr. Coffey was appellant's

immediate supervisor, he was not considered to be

part of "supervision" during that period. Another

employee, Jack Clayton, worked at both Wolf Creek

and Laurel Plants. He stated that Mr. Coffey

"picked on" appellant and once told him to make sure

appellant worked, but that he was only a maintenance

worker and could not tell appellant what to do.

——— } |

oe!

t

a ee on

Nee ie ie

ad — _ hoa sn — ‘ch =. a , yas a

> a

i

-

.

On SS hom) -

ae

ae

oy oe ee

7a an i ion ee poe

38

"Appellant testified that he had filed grievances at

' the Laurel Plant. He added that had complained at

Wolf Creek during the week before the incident

- involved here about not getting his breaks and lunch

- hour on time, but his complaint was not a grievance.

In evaluation the charge of striking and inflicting

bodily injury on a fellow employee, I note that the

record in undisputed that there was animosity

between appellant and Mr. Coffey. I do not; howev-

er, find that grievances filed several years previ-

ously or a complaint registered during the preceding

~ week provoked Mr. Coffey to initiate a fight. They

are too remote in time. The record does contain

evidence, however, that appellant was angry with Mr.

Coffey that day. He had complaineu repeatedly to

Mr. Grider and accused Mr. Coffey of lying. In

addition, the record shows that he spoke in a loud

voice to Mr. Coffey that afternoon, looked upset,

and, by his own admission, when to the parking lot

to wait for him. I find that the facts indicate

that appellant initiated the fighting incident. In

ores

39

that regard, I note that Mr. Coffey received the

brunt of the blows even though he was armed with a

Shes Wen et Ra

large stick. Although appellant alleges Mr. Coffey

hit him with the stick, the evidence does indicate

he was injured. In addition, appellant admitted

Pag pae Walaa tek rotate ee SkS

striking Mr. Coffey who was clearly injured as a

wy

Re cee

result of the altercation. I also note that appel-

lant stated that he saw Mr. Coffey walk into the

power house by himself while Ms. Leveridge, who I

found to be very credible, state that she and Mr.

Grider assisted him inside. I also note that

appellant, who was apparently uninjured, drove away

and left Mr. Coffey who was shaken and injured. I

do not find that behavior indicative of someone who

had entered into a fight only in self-defense.

PSek Berm ae Caan

The facts presented here are far different from

those present in Williams v. United States Postal

Service, 5 MSPB 88 (1981). there, a finding of

self-defense was made where an employee pushed

another employee who had struck him more than once.

Based on the reasons noted above which tend to

er

nn ) ae ;

Cae er

ee _

‘s 7 ba =

>

® : * - z . a |

ae CL aire Sara

aio : 4 *. —_ > i a

: —- sit

40

support Mr. Coffey's version of the facts, I am

' resolving the credibility question as to who in-

3 stigated the fight in favor of Mr. Coffey. Accord-

ingly, I find that appellant initiated the violent

3 contact. Based on the foregoing reasons, I find

that the agency's charge of striking and inflicting

bodily injury upon a fellow employee is supported by

a preponderance of the evidence and accordingly

sustain that charge. 5 U.S.C. § 7701 (c) (1) (B).

Although appellant entered into the fight because he

felt he was erroneously charged with AWOL and I have

not sustained the AWOL charge, such a fact does not

excuse appellant's conduct. Striking a supervisor

is not an appropriate method of dispute resolution.

In evaluating appellant's claim of reprisal, I note

that the Board considers such a claim to be an

affirmative defense to the agency's action. A claim

of reprisal for filing grievances or other legiti-

mate union activities constitutes an allegation of a

prohibited personnel practice under 5 U.S.C. §

2302 (b) (9). Gerlach v. Federal Trade Conmission, 8

41

MSPB 599 (1981); Bodinus_v. Department of thr

Treasury, 7 MSPB 385-86 (1981). Even if any agence

action is otherwise supportable, it cannot b

sustained if it was based upon a prohibited person:

nel practice such as reprisal for union activity.

U.S.C. §§ 7701 (c) (2) (B) and 2302(b) (9); 5 C.F.R

1201.56(b). To the prohibited personnel practice o

reprisal for union activity in violation of 5 U.S.C

3202 (b) (9), the burden is on the appellant t

establish, by a preponderance of the evidence, tha

he engaged in an activity protected by that section

that the he subsequently was treated in an advers

fashion by the agency, and that the proposing and/o

deciding official had actual or constructive knowl

edge that the employee was engaged in the protecte

activity. The appellant must also demonstrate tha

there is a causal connection between the protecte

activity and the adverse action and that the pro

tected activity was the motivating factor in th

taking of the adverse action. Gerlack, 8 MSPB a

601; Bodinus, 7 MSPB at 387.

%

42

Here, appellant established that he had previously

filed grievances and thus engaged in a protected

activity. He also established that his grievances

occurred prior to his proposed termination. It is

not clear, however, that C.L. Brown, the proposing

official or Howard Boatman, the deciding official,

had knowledge of the prior protected activity.

Moreover, I do not find that there was a causal

connection between grievances appellant filed in

1978 and 1979 and the adverse action which was

proposed in 1982. The grievances are too remote in

time to be considered the reason for the removal.

Although appellant also made a complaint the week

fore the incident, nothing indicates any relation of

that complaint to the adverse action. In addition,

it is not clear that such a verbal complaint con-

stituted protected activity. Moreover, the record

overwhelmingly indicates that the primary reason for

the agency's charge was striking another employee,

which I find to be sustained. Although I have found

that the AWOL charge was not sustained, that fact

does not compel a finding that reprisal for union

7 <->

aieears haath aliaemetnine

ae

;

}

;

|

t

U

}

43

any handicapping condition of appellant, however,

but noted appellant had mentioned previously that he

was receiving counseling.

Appellant had alleged in his petition that he had

been going to a psychiatrist on a regular basis and

that is why he was terminated. He has not, however,

offered any proof to support that allegation. He

has not shown that he was suffering from a handicap-

ping condition at the time the action occurred or

what effect his having had counseling may have had

in the decision to remove him. See 29 C.F.R. §

1632.702(f£). Thus, appellant has not shown that the

agency's action was "based on" handicap discrimina-

tion. 5 U.S.C. § 7701(c) (2) (B). Accordingly, I

find his claim of handicap discrimination to be

without merit.

There are some circumstances where the nexus between

the adverse action and the efficiency of the

services is apparent based on the employee's con-

duct. And , it is difficult to imagine a nore

{

:

44

disruptive effect on the efficiency of the service

than that cause by striking and injuring another

employee. The question of the nexus between fight-

ing and the efficiency of the service was discussed

by the Board in Grandison v. Department of the Navy,

7 MSPB 194 (1981). In that decision, the Board

noted tnat the agency has an obligation to provide a

safe and secure work site during duty hours. Based

on that fact, the Board found that appellant's

conduct was serious and had a direct effect on the

efficiency of the service. Although here the

fighting was technically not “on duty" it occurred

on the work site parking lot at approximately 3:30

p.m. Moreover, it involved striking and injuring a

supervisor regarding a disagreement over a decision

made about a work-related matter. I also note that

appellant was employed at a power plant where

dangerous equipment was used. It is particularly

important in such circumstances for employees to be

able to work together and not engage in such disrup-

tive activity. Based on the foregoing reasons, I

find that the agency has shown the requisite nexus.

—

ictk: ek & Sala

45

The Board will modify an agency's imposed penalty

only when it finds that the agency's judgment

clearly exceeded the limits of reasonableness.

Douglas v. Veterans Administration, 5 MSPB 313

(1981). Qe factor considered in this case is

appellant's prior disciplinary records. Under

Douglas it is appropriate to consider such a factor.

In this case, appellant received a reprimand on

October 19, 1982, for eight hours of AWOL on Septem-

ber 24, 1982.

The Board has stated it will limit its review of a

past disciplinary record to the record itself when,

at the time the past conduct occurred, t(1) the

employee was informed of the action in writing; (2)

he was given an opportunity to dispute the action by

having it reviewed by an authority difference from

the one taking it; and (3) the action was made a

matter of record. Bolling v. Department of the Air

Force, 8 MSPB 658 (1981). In this case, the record

demonstrates that those criteria were met. The

appellant did not clearly state a challenge to the

in At

46

past record. Even if he had, my review, which is

limited to the record itself, indicates that the

agency's decisions regarding the reprimand was note

"clearly erroneous." Thus, I find that the agency

acted properly in considering the reprimand in order

to determine the appropriate penalty. See Bumette

v. U.S. Posittal Service, 10 MSPB 760 (1982).

In reviewing the penalty, I note that the Board has

previously found that removal may be appropriate for

striking another employee. Johnson v. Department of

the Air Force, 9 MSPB 625 (1982). Here, based on

the facts surrounding appellant's behavior inmedi-

ately prior to the incident, I find that appellant's

attack was premeditated. I also note that Mr.

Coffey received injuries, although they were minor.

In addition, the Board has previously affirmed the

penalty of removal for striking a _ supervisor.

Nordell v. Department of Health and Human Services,

MSPB Dkt. No. DC0O7528110557 (Apr. 13, 1983); Harris

v. Department of the Treasury, 9 MSPB 821 (1982).

Moreover, in Nordell the facts were far less fla-

47

grant than presented here. There, the enployee

merely struck her supervisor in the face with some

papers after receiving a negative redetermination

decision on a within-grade increase. Thus, even

though I have only sustained the charge of striking

and injuring another employee and did not sustain

the AWOL charge, the former charge is sufficient to

support appellant's removal. Accordingly, I find

the penalty of removal here to be proper. Appellant

also complained that no action was taken against Mr.

Coffey regarding the fight. In light of my findings

that appellant initiated the fighting and Mr. Coffey

was the victim, I do not consider such a fact to

constitute evidence of disparate treatment.

I find that based on (1) the sustained charge, (2)

the nexus between the appellant's conduct and its

effect on the efficiency of the service, and (3) the

reasonableness of the penalty, this removal was for

such cause as will promote the efficiency of the

service.

48

DECISION

The action taken by the agency in renoving the

appellant is hereby AFFIRMED.

NOTI@

This decision is an initial decision and will becone

a final decision of the Merit Systems Proteccion

Board on August 15, 1984 unless a petition for

review is filed with the Board or the Board reopens

the case on its motion.

Any part to the proceeding, the Director of the

Office of Personnel Management, and the Special

Counsel may file a petition for review. The Direc-

tor may request review only if he/she is of the

opinion that the decision is erroneous and will have

a substantial impact on any civil service law,

rules, or regulation under the jurisdiction of the

OPM. The Board may grant a petition for review, aft

providing an opportunity for response by other

- . 1

So

Si jlo

et ee

49

parties, when it is established that:

(a) New and material evidence is available

that, despite due diligence, was not available

when the record was closed; or

(b) The decision of the presiding official is

based upon an erroneous interpretation of

statute or regulation.

All petitions for review shail set forth objections

to the initial decision, supported by references to

applicable laws or regulations, and with specific

reference to the record. The petition for review

must be filed with the Secretary of the Merit System

Protection Board, 1120 Vermont Avenue, N.W.,

Washington, D.C. 20419, on later than the date shown

above.

The appellant has the right to petition the Office

of Review and Appeals, Equal Employment Opportunity

Commission, 2401 E. Street, N.W.. Washington, D.C.

20507, to consider the Board's final decision on the

issue of discrimination. The appellant also has the

50

right to file a civil action under the

antidiscrimination laws in any appropriate United

States district court. Either a petition a a civil

action may be filed, but not both, no later than 30

days after the Board decision become final. Appel-

lants who choose to file an action in a district

court also have the right to request the court to

appoint a lawyer to represent them, and to request

that prepayment of fees, costs or security be

waived.

Any appellant adversely affected or aggrieved by the

Board's final decision may obtain judicial review by

filing a petition with the U.S. Court of Appeals for

the Federal Circuit, 717 Madison Place, N.W.,

Washington, D.C. 20439. Such a petition may not be

filed while the case is pending before the Board.

To be timely, the petition for judicial review must

be received by the court within 30 days of the final

Board decision. 5 US.C. § 7703(b) (1).

51

For the Board:

Jessica L. Parks

Presiding Official]