N OTE : This disposition is nonprecedential.


# United States **Court of Appeals**  **for the Federal Circuit**

______________________

JEAN A. MONTGOMERY, Petitioner,

v.

UNITED STATES POSTAL SERVICE, Respondent.

______________________

2014

- 3049

______________________
Petition for review of the Merit Systems Protectio n Board in No. CH

- 0752

- 13

- 0029 -I- 1.

______________________

Decided: June 12, 2014

______________________

J EAN A. M ONTGOMERY , of Oak Park, Illinois, pro se.

B ENJAMIN M ARK M OSS , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Depar tment of Justice, of Washington, DC, for respondent. With
him on the brief were S TUART F. D ELERY , Assistant Atto rney Ge neral, B RYANT G. S NEE , Acting Director, and
D EBORAH A. B YNUM , Assistant Director. Of counsel on the
brief was D AVID C. B ELT
, Appellate Attorney, Office of General Counsel, United States Postal Service, of Was hington, DC.MONTGOMERY v. USPS 2

______________________

Before P RO ST

, Chief Judge

, D YK and W ALLACH

, Circuit Judges.

P ER C URIAM

. The United States Postal Service (“agency”) removed
Petitioner Jean A. Mont gomery for failure to report an accident and for multiple failures to perform assigned duties. Ms. Montgomery appealed the agency’s decision to the Merit Systems Protection Board (“Board”) , and the Board affirmed. Because the Board’s decision was in accordance with the law and supported by substantial evidence, this court affirms.

B ACKGROUND

Ms. Montgomery was a Customer Services Manager , a supervisory position, at the Englewood Postal Station in Chicago, Illinois. On April 2, 2012, Ms. Montgomery
received a not ice from the agency proposing her removal. The proposed removal was based on charges including a
fai lure to report an accident and multiple failures to perform assigned duties.

T he not ice alleged that Ms. Montgomery failed to report an injury as a result of dog bites to one of the postal carriers incurred during his delivery route. In particular,
rath er than filing a report and instructing the carrier to seek medical attention, Ms. Montgomery is alleged to
have instructed the carrier to continue with his route despite his injuries.

The notice also detailed multiple allegations of Ms. Montgomery’s failure to perform assigned duties. Ms. Montgomery was warned on several occasions about complying with agency procedures and processes . The
notice further points out several instances where Ms. Montgomery failed to follow particular instruc tions from
he r manager

.MONTGOMERY v. USPS 3

The agency

, on August 30, 2012

, sustained the char ges specified in the notice against Ms. Montgomery. The agency found that the “failure to report the dog bite accident suffered by [the carrier] was an extremely ser ious offens e, especially giv en [her] position as Station Manager.” Resp’t’s App. (“R .A .”) 57. In addition, the agency determined that Ms. Montgomery failed to ensure
the postal station scanned mail properly, mail was deli vered on time , and attendance reviews and disciplinary
action s were p roperly submitted. R .A. 57.

Having found the charges supported by the record

, the agency then determined that the penalty of removal

was appropriate. The agency described the charges as “extremely serious.” R .A. 58. In particular, the agency found that Ms. Montgomery failed to assure her emplo yee’s safety and health by sending the carrier back to the streets after his injury. The agency also noted Ms. Mon tgomery’s failure to follow her manager’s instruc tions.
R .A. 26, 58. The agency further noted that Ms. Montgo mery was disciplined on October 26, 2011 for failure to perform managerial duties and for failure to cooperate during an investigatory inter view. Those earlier alleg ations overlap ped substantially with the charges here.
Based on thi s record, the agency found the charges sufficient to support her removal. Ms. Montgomery’s forty

four years of service, while a mitigating factor, did not
overcome the “seri ousness of [her] misconduct.” R .A. 58.

Ms. Montgomery appealed the agency’ s decis ion to the
B oard. In an initial decision dated February 1, 2013, the
administrative judge (“ AJ ”) affirmed the removal decision. After a hearing, the AJ found that the charges were supported by preponderant evidence. As to the penalty of removal, the AJ noted that Ms. Montgomery was e mployed in an important supervisory position requiring high stand ard s of conduct . T he allega tions raised against
her addressed the same type of disciplinary issues cov ered by a prior disciplinary action . As a result, the AJ consid-MONTGOMERY v. USPS 4

ered Ms. Montgomery to have “poor rehabilita tive pote ntial .” R .A. 31. The AJ therefore found the penalty within the agency’s disciplinary discretion under Douglas v.
Veterans Admin istration , 5 M.S.P.R. 280, 306 (1981) ( listing “ Douglas factors” used in determining the appr opriateness of a penalty)

.
M s. Montgomery petitioned for a full Board review. On October 28, 2013, the Board affirmed the AJ ’s i nitial
decision , which became the Board’s final decision. The
Board did not find error in the AJ ’s findings and rejected any new argument s or evidence that Ms. Montgomery could have presented to the AJ

. In addition, the Board found the penalty of removal sufficient especially in light of the Board’s long

- standing position that “agencies are
entitled to hold supervisors, like the appellant, to a higher standard of conduct than nonsupervisors because they occupy position s of trust and responsibility.” R .A. 11.

Ms. Montgomery petitions for review. 1 We have jurisdiction pur suant to 28 U.S.C. § 1295(a)(9) (2012).

D ISCUSSION
Our scope of review in an appeal from a decision of
the Board is li mited. We must affirm the Board’ s decision unless we find it 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 evid ence. 5 U.S.C. § 7703(c) (2012) ; Kewley v. Dep ’ t of Health & Human Servs ., 153 F.3d 1357, 1361 (Fed. Cir. 1998).

1 Ms. Montgomery filed a motion for leave to “su bmit addition information.” Pet.’s Req. to Submit Add itional Information, ECF. No. 14. The motion is granted, and in writing this opinion, this court has considered the
material s she submitted.MONTGOMERY v. USPS 5

The Board’s decision is supported by substantial ev idence. With respect to the charge of Ms. Montgomery’s failure to report an accident, the AJ heard testimony and admitted evidence regarding the dog bites suffered by the carrier, Mr. Ford

. Although Ms. Montgomery testified
that she became aware of the incident more than two weeks after the date of the incident, Mr. Ford provide d testimony tha t he returned to the station soon after the incident and reported the injuries directly to Ms. Mon tgomery. According to Mr. Ford, Ms. Montgomery did not complete an injury report and did not recommend that he
seek medical attention. Rath er, Mr. Ford test ified that Ms. Montgomery instructed him to return to his route and to continue delivering mail.

Mr. Ford t ook leave the following day to seek medical

treatment

, and the medical treatment report indicated
the extent of Mr. Ford’s injuries. Th e record al so reflects that Mr. Ford informed other witnesses, who also testified that they advised Ms. Montgomery of Mr. Ford’s injuries. In addition, there was testimony regarding the residents
on the delivery route com plaining of “blood all over the ir
mail .” R.A. 67. Based on this record, the AJ determined that Ms. Montgomery must have been aware of Mr. Ford’s injuries

. In reaching this determination , which is su pported by substantial evidence , the AJ reasonably r esolved conflicting testimony and evi dence in the agency’s favor. As a result, we discern no error related to this charge. See King v. Dep’t of Health & Human Servs ., 133 F.3d 1450, 1453 (Fed. Cir. 1998) ( noting witness credibi lity determinations are “virtually unreviewable” on a ppeal ).

As to t he Board sustaining the agency’s finding of Ms. Montgomery’s failure to per form assigned duties, this

court also discern s no error

. The AJ found evidence supporting allegations that Ms. Montgomery did not comply with multiple agency requirements and instr u ctions from her manager. For example, the AJ determinedMONTGOMERY v. USPS 6

the evidence showed Ms. Montgomery did not conduct the necessary attendance reviews and did not take the nece ssary disciplinary actions to correct employees with a ttendance deficiencies

. When Ms. Montgomery had the opportunity to come forward with any evidence indicating otherwise, she failed to do so.

Likewise, documentary evidence shows that many carriers under Ms. Montgomery’s supervision did not complete their assigned routes by 5:00 pm as her manager
had instructed. Emails also show Ms. Montgomery ’s general sarcasm in responding to her manager, which at times was derogatory. The situation does not seem to have been better in person as t he record shows that Ms. Montgomery screamed a t her manager during an “all

- city meeting.” R .A. 27. The record also supports the AJ ’s determination that Ms. Montgomery r efused to discuss
her failure to open her postal station for the holiday dispatch schedule

. Additionally, it was uncontroverted
tha t Ms. Montgomery’s manager discovered pack ages of
mail in unlocked cabinets and domestic money orders that

were not secured. Further more, evidence supports the
AJ ’s finding that Ms. Montgomery failed to properly respond to an investigatory interview.

Wi th respect to the penalty of removal, t he AJ ’s d etermination was in accordance with the law. The AJ was faithful to the Douglas factors in evaluating the appropr iate penalty in this case. See Douglas

, 5 M.S.P.R. at 305 (listing “the employee’ s past work record, including length of service” as an appropriate factor to consider).

Ms. Montgomery on appeal does not challenge these findings as erroneous, but rather, similar to her peti tion
for review to the full Board

, Ms. Montgomery at tempts to present evid ence and arguments not raised before the AJ during the initial Board proceeding

. The Board rejected

new evidence and arguments that were not unavailable when the record was closed in the prior proceedings

. SeeMONTGOMERY v. USPS 7

5 C.F.R. § 1201.115(d) (2012) (allowing for “n ew and material evidence or legal argument” if they were not

a vailable when the record closed despite the petitioner’ s due dili gence). This court discerns no error in that dec ision , and to the extent Ms. Montgomery similarly raises new issues here, we f ind no basis to find error in the AJ ’s findings. Brenneman v. Office of Pers. Mgmt. , 439 F.3d 1325, 1328 (Fed. Cir. 2006) (“Both this court and the Board have held that a party submitting new evidence in connection with a petition for review must satisfy the burden of showing that the evidence is material and that
it could not have been obtained earlier with the exercise of due diligence.”).

C ONCLUSION

This court does not overlook Ms. Montgomery’s long tenure as a federal employee and appreciate s her decades of federal ser vice. We, like the Board, however, are bound to apply the law as written. The Board correctly applied
the law

, and its decision was not arbitrary or capricious and was supported by the record. This court affirms the
Board’s decision.

AFFIRMED

C O STS

No costs

.