NOTE: This disposition is nonprecedential.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 Protection 

Board in No. CH-0752-13-0029-I-1.

______________________ 

Decided: June 12, 2014

______________________ 

JEAN A. MONTGOMERY, of Oak Park, Illinois, pro se. 

BENJAMIN MARK MOSS, Trial Attorney, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With 

him on the brief were STUART F. DELERY, Assistant Attorney General, BRYANT G. SNEE, Acting Director, and 

DEBORAH A. BYNUM, Assistant Director. Of counsel on the 

brief was DAVID C. BELT, Appellate Attorney, Office of 

General Counsel, United States Postal Service, of Washington, DC.
2 MONTGOMERY v. USPS

______________________ 

Before PROST, Chief Judge, DYK and WALLACH, Circuit 

Judges.

PER CURIAM. 

The United States Postal Service (“agency”) removed 

Petitioner Jean A. Montgomery 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. 

BACKGROUND

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 notice from the agency proposing her removal. 

The proposed removal was based on charges including a 

failure to report an accident and multiple failures to 

perform assigned duties. 

The notice 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, 

rather 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 instructions from

her manager. 
MONTGOMERY v. USPS 3

The agency, on August 30, 2012, sustained the charges 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 serious offense, especially given [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 delivered on time, and attendance reviews and disciplinary 

actions were properly 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 employee’s safety and health by sending the carrier back to the 

streets after his injury. The agency also noted Ms. Montgomery’s failure to follow her manager’s instructions. 

R.A. 26, 58. The agency further noted that Ms. Montgomery was disciplined on October 26, 2011 for failure to 

perform managerial duties and for failure to cooperate 

during an investigatory interview. Those earlier allegations overlapped substantially with the charges here. 

Based on this record, the agency found the charges sufficient to support her removal. Ms. Montgomery’s fortyfour years of service, while a mitigating factor, did not 

overcome the “seriousness of [her] misconduct.” R.A. 58.

Ms. Montgomery appealed the agency’s decision to the 

Board. 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 employed in an important supervisory position requiring 

high standards of conduct. The allegations raised against 

her addressed the same type of disciplinary issues covered 

by a prior disciplinary action. As a result, the AJ consid-
4 MONTGOMERY v. USPS

ered Ms. Montgomery to have “poor rehabilitative potential.” R.A. 31. The AJ therefore found the penalty within 

the agency’s disciplinary discretion under Douglas v. 

Veterans Administration, 5 M.S.P.R. 280, 306 (1981) 

(listing “Douglas factors” used in determining the appropriateness of a penalty). 

 Ms. Montgomery petitioned for a full Board review. 

On October 28, 2013, the Board affirmed the AJ’s initial 

decision, which became the Board’s final decision. The 

Board did not find error in the AJ’s findings and rejected 

any new arguments 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 positions of trust and responsibility.” R.A. 11.

Ms. Montgomery petitions for review.1 We have 

jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2012).

DISCUSSION

Our scope of review in an appeal from a decision of 

the Board is limited. 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 evidence. 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 “submit addition information.” Pet.’s Req. to Submit Additional Information, ECF. No. 14. The motion is granted, 

and in writing this opinion, this court has considered the 

materials she submitted.

 
MONTGOMERY v. USPS 5

The Board’s decision is supported by substantial evidence. 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 provided 

testimony that he returned to the station soon after the 

incident and reported the injuries directly to Ms. Montgomery. According to Mr. Ford, Ms. Montgomery did not 

complete an injury report and did not recommend that he 

seek medical attention. Rather, Mr. Ford testified that 

Ms. Montgomery instructed him to return to his route and 

to continue delivering mail. 

Mr. Ford took leave the following day to seek medical 

treatment, and the medical treatment report indicated

the extent of Mr. Ford’s injuries. The record also 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 complaining of “blood all over their

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 supported by substantial evidence, the AJ reasonably resolved conflicting testimony and evidence 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 credibility determinations are “virtually unreviewable” on appeal). 

As to the Board sustaining the agency’s finding of Ms. 

Montgomery’s failure to perform assigned duties, this 

court also discerns no error. The AJ found evidence

supporting allegations that Ms. Montgomery did not 

comply with multiple agency requirements and instructions from her manager. For example, the AJ determined 
6 MONTGOMERY v. USPS

the evidence showed Ms. Montgomery did not conduct the 

necessary attendance reviews and did not take the necessary disciplinary actions to correct employees with attendance 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 the record shows that Ms. 

Montgomery screamed at her manager during an “all-city 

meeting.” R.A. 27. The record also supports the AJ’s 

determination that Ms. Montgomery refused to discuss 

her failure to open her postal station for the holiday 

dispatch schedule. Additionally, it was uncontroverted 

that Ms. Montgomery’s manager discovered packages of 

mail in unlocked cabinets and domestic money orders that 

were not secured. Furthermore, evidence supports the 

AJ’s finding that Ms. Montgomery failed to properly 

respond to an investigatory interview. 

With respect to the penalty of removal, the AJ’s determination was in accordance with the law. The AJ was 

faithful to the Douglas factors in evaluating the appropriate 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 petition 

for review to the full Board, Ms. Montgomery attempts to 

present evidence 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. See
MONTGOMERY v. USPS 7

5 C.F.R. § 1201.115(d) (2012) (allowing for “new and 

material evidence or legal argument” if they were not 

available when the record closed despite the petitioner’s 

due diligence). This court discerns no error in that decision, and to the extent Ms. Montgomery similarly raises 

new issues here, we find 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.”). 

CONCLUSION

This court does not overlook Ms. Montgomery’s long 

tenure as a federal employee and appreciates her decades 

of federal service. 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

COSTS

No costs.