Flores v. United States Postal Service

78 F. App'x 126
CourtCourt of Appeals for the Federal Circuit
DecidedOctober 14, 2003
DocketNo. 03-3151
StatusPublished

This text of 78 F. App'x 126 (Flores v. United States Postal Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Flores v. United States Postal Service, 78 F. App'x 126 (Fed. Cir. 2003).

Opinion

DECISION

LOURIE, Circuit Judge.

Adan R. Flores appeals from the decision of the Merit Systems Protection [127]*127Board sustaining his demotion. Flores v. U.S. Postal Serv., No. DA-0752-01-0146-1-2 (M.S.P.B. Dec.18, 2002) (“Final Decision”); Flores v. U.S. Postal Serv., No. DA-0752-01-0146-1-2 (M.S.P.B. Dec.20, 2001) (“Initial Decision”). Because the Board’s decision is supported by substantial evidence and is not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, we affirm.

DISCUSSION

Mr. Flores held the position of Manager, Business Mail Entry, EAS-20, until the United States Postal Service (“the agency”) demoted him, effective November 18, 2000, to the position of Clerk, PS-05. The demotion was a penalty for his misuse of a government vehicle, erroneous completion of a PS Form 1260, denial of overtime pay to a subordinate employee, and failure to follow instructions. Initial Decision, slip op. at 1-2.

Briefly set out, the events giving rise to those charges were as follows: First, on July 26, 2000, Flores requested that Albert Barrera, his subordinate, report for duty at 7:30 AM the following day, a half hour before Barrera’s scheduled shift began, to accompany him on a visit to a political mailer. Id. at 3. Rather than visiting a political mailer, Flores traveled with Barrera in a government vehicle to a Veterans Hospital where Barrera (a veteran who was familiar with the hospital system) gave Flores a tour of the facilities, Flores obtained a new Veterans Administration (‘VA”) card, and Flores applied for increased veteran’s disability benefits during a two-hour discussion with a VA counselor. Id. at 3-4. Barrera did not seek overtime compensation for his early arrival and presented to Flores a PS 1260 Form stating that he began working at 8:00 AM that day, even though he had met Flores at work by at least 7:15 AM. Id. Flores further misused a government vehicle on another occasion to visit personal property that had been damaged by a tornado. Id. at 12. Also, in August 2000, while Flores was on extended sick leave, the agency twice instructed him not to call agency employees, yet he did so on numerous occasions. Id. at 13.

The agency issued to Flores a Notice of Proposed Reduction in Grade setting forth two charges. The first charge was based on misuse of a government vehicle, denial of overtime, and erroneous completion of a PS Form 1260. The second charge was for failure to follow instructions. The agency sustained both charges and, as a penalty, demoted him to a non-supervisory position. In determining an appropriate penalty, the agency took account of his tenure of service, his low likelihood of rehabilitation, the need to put him in a position where he could not abuse his authority, and the effect of the penalty on agency efficiency and employee morale.

Flores appealed to the Board, which affirmed the agency’s decision. The administrative judge (“AJ”) assigned to the case heard testimony from Flores, Barrera, several other agency employees, and the VA counselor. The AJ consistently found Flores’s testimony to be less credible than contrary testimony from others. Id. at 7-10, 12, 16. Moreover, the AJ found no merit to the affirmative defenses Flores had raised and found that the penalty of demotion was reasonable. Id. at 17-24. The AJ’s decision became the Board’s final decision pursuant to 5 C.F.R. § 1201.113 (2001). Flores v. U.S. Postal Serv., No. DA-0752-01-0146-1-2, 2002 WL 31875088 (M.S.P.B. Dec.18, 2002). Flores timely appealed to this court, and we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2000).

The scope of our review in an appeal from a decision of the Board is limited. [128]*128We must affirm the Board’s decision unless it was: “(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) (2000); Jennings v. MSPB, 59 F.3d 159, 160 (Fed.Cir.1995).

On appeal, Flores argues that the AJ failed to take into account the fact that Flores had merely signed the PS Form 1260 prepared by Barrera and that Barrera refused to accept overtime compensation. He also contends that he conducted postal business with the VA counselor and that the AJ erroneously determined that he was there solely for personal matters. Finally, Flores argues that the Board should have mitigated his penalty, in light of his physical condition at the time of the infractions, his thirty years of “unblemished” service, and 31 U.S.C. § 1349(b).

Flores’s arguments are unpersuasive. First, his argument drawing a distinction between completing the PS 1260 Form and signing it is specious. While it is true that Barrera completed the form and that Flores merely signed the form Barrera completed, the fact remains that Flores knowingly signed and thereby approved a form that incorrectly recorded Barrera’s time on duty, with the effect that Barrera was not paid overtime that he deserved. Even though Barrera said he was not entitled to overtime compensation, he was entitled to it, and Flores, as Barrera’s supervisor, should have recognized that fact.

Flores’s next argument is a challenge to the AJ’s factual determination that Flores met with VA counselor Vallen Fox on July 27, 2000, to discuss personal business. Flores contends that they discussed a nonprofit mailing permit application and points to supporting documentation in the record. On this matter, the AJ made credibility determinations. Initial Decision, slip op. at 7 (“I find the testimony of Fox and the appellant on this issue to be less credible than the testimony of Barrera and [another].”). Because the AJ is in the best position to evaluate credibility, her credibility determinations are “virtually unreviewable” on appeal, see Hambsch v. Dep’t of the Treasury, 796 F.2d 430, 436 (Fed.Cir.1986), and will not be disturbed unless inherently improbable, discredited by undisputed evidence, or contrary to physical facts, Hanratty v. Dep’t of Transp., 819 F.2d 286, 288 (Fed.Cir. 1987). Flores has not met that high burden to disturb the AJ’s credibility determinations. At best, his evidence shows that he and Fox may have discussed postal business, but it does not negate the fact that they primarily discussed Flores’s personal matters. See Initial Decision, slip op. at 9 (“[I]t is undisputed that Fox helped the appellant fill out his disability application on [July 27, 2000].”) Accordingly, we will not disturb the AJ’s factual determination that Flores attended to personal matters while on duty.

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