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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

ROBBIE NEARING, 

Plaintiff,

v.

MERIT SYSTEMS PROTECTION BOARD,

STEPHEN PERRY, ADMINISTRATOR,

U.S. GENERAL SERVICES

ADMINISTRATION,

Defendants. 

CIV-S-04-1880 DFL GGH 

MEMORANDUM OF OPINION

AND ORDER

Plaintiff Robbie Nearing was fired from her position at the

General Services Administration (“GSA”). She appealed her

dismissal to an administrative judge and to the Merit Systems

Protection Board (“MSPB”), without success. The parties crossmove for partial summary judgment on Nearing’s claim that the

decision of the administrative judge, upholding her removal, was

erroneous. 

I.

Nearing is an African American female with 24 years of

employment in the federal government. (Pl.’s Mot. at 1.) At the

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time of her dismissal, Nearing was a GS-6 purchasing agent at the

Sacramento Real Estate Management Field Office of the GSA. (Id.) 

On May 17, 2001, plaintiff was given a notice of proposed action,

which recommended her termination based on the following six

charges: (1) insubordination; (2) rudeness to GSA customers; (3)

rudeness to GSA contractors; (4) failure to deliver messages to

her supervisor; (5) discourteous treatment of job applicants; and

(6) rudeness to co-workers. (Id. at 3.) These charges are based

on incidents that took place from December 26, 2000 to May 8,

2001. (Id.) Nearing filed a reply to the proposed action on

June 14, 2001, but the proposed action was sustained on July 11,

2001. (Defs.’ Mot. at 2.) Nearing was removed from her

position, effective July 13, 2001.

Nearing appealed the decision and, beginning on June 24,

2002, an administrative judge held a three-day evidentiary

hearing on the charges. (Id.) The administrative judge

sustained charges (1), (2), (5), and (6) in their entirety. 

(Id.) She also sustained one of the specifications in charge (4)

of failure to deliver messages. (Id.) She did not sustain

charge (3). (Id.) Nearing appealed the decision to the MSPB

which, on August 5, 2004, denied the petition for review. (Id.)

Nearing filed this suit on September 9, 2004, raising two

claims: (1) that the MSPB decision to sustain her removal was

erroneous; and (2) that her termination was motivated by racial

prejudice. (Compl. ¶¶ 6-8.) The parties cross-move for summary

judgment only as to the first claim.

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II.

A federal employee removed from her position may appeal that

decision and is entitled to a hearing before an administrative

law judge or the MSPB. 5 U.S.C. § 7701. At the hearing, the

agency has the burden to prove, with substantial evidence, that

the employee actually committed the conduct complained of and

that removal based on the misconduct will promote the efficiency

of the service. Id. § 7701(c); McLeod v. Dep’t of the Army, 714

F.2d 918, 920 (9th Cir. 1983); King v. Nazelrod, 43 F.3d 663,

666-67 (Fed. Cir. 1994). 

If the administrative judge determines that the agency has

carried its burden of proof and upholds the removal, the employee

is entitled to judicial review of that decision. 5 U.S.C. §

7703. However, at the district court level, the employee bears

the burden of proof to establish that the decision of the

administrative judge is: (1) arbitrary, capricious, or an abuse

of discretion; (2) obtained without the required procedures; or

(3) unsupported by substantial evidence. 5 U.S.C. § 7703(c). 

Substantial evidence is “such relevant evidence as might be

accepted by a reasonable mind as adequate to support the

conclusion reached.” Weston v. Dep’t of Hous. and Urban Dev.,

724 F.2d 943, 948-49 (Fed. Cir. 1983). 

If the “substantial evidence” determination required the

weighing of competing evidence, the court should defer to the

credibility findings of the administrative judge, which are

“virtually unreviewable.” Frey v. Dep’t of Labor, 359 F.3d 1355,

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1361 (Fed. Cir. 2004); Brown v. United States Postal Serv., 860

F.2d 884, 887 (9th Cir. 1988); Bieber v. Dep’t of the Army, 287

F.3d 1358, 1364 (Fed. Cir. 2002). It is not the role of the

district court to re-weigh conflicting evidence. Bieber, 287

F.3d at 1364. 

In this case, the administrative judge held a three-day

evidentiary hearing and issued a thirty-nine page decision that

evaluated the evidence presented for each of the charges. (AR

1391-1430.) In sustaining charges (1), (4), (5), and (6), and

the specifications underlying these charges, the administrative

judge made credibility determinations and articulated her reasons

for crediting the agency’s witnesses. (Id. at 1392-96, 1401-18.) 

In making these determinations, the administrative judge took

into account Nearing’s allegations of bias. (Id.) 

Likewise, the decision of the administrative judge in

sustaining charge (2) and its two specifications was based on

substantial evidence. In sustaining this charge, the

administrative judge evaluated the evidence and determined that

Nearing did not dispute the substance of the charges. (Id. at

1397-1400.) Instead, Nearing offered justifications for her

behavior -- she was overwhelmed with work or others were rude to

her -- that the administrative judge correctly rejected. (Id.) 

The administrative judge relied on credibility

determinations that the court will not disturb. Nor will the

court, as Nearing requests, re-weigh evidence of bias or the

justifications that were presented to the administrative judge. 

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The administrative judge’s decision in sustaining the charges is

supported by substantial evidence.

Nearing also challenges the severity of the penalty. (Pl.’s

Mot. at 30.) The agency has the burden of proving that the

adverse action will promote the efficiency of the service. 5

U.S.C. § 7513. The administrative judge’s determination of the

appropriate penalty is reviewed for abuse of discretion. Id. §

7703(c); McClaskey v. Dep’t of Energy, 720 F.2d 583, 586 (9th

Cir. 1983). The court should defer to the administrative

decision unless its “severity appears totally unwarranted.” 

Brown, 860 F.2d at 888, quoting Brewer v. United States Postal

Serv., 648 F.2d 1093, 1098 (Ct. Cl. 1981). Dismissal is an

“excessively harsh” penalty only when the offense committed is

extremely minor. McClaskey, 720 F.2d at 586. 

In determining the appropriate penalty, the agency must

weigh, as appropriate, the twelve “Douglas factors.” Douglas v.

Veteran’s Admin., 5 M.S.P.B. 313, 332 (1981); McClaskey, 720 F.2d

at 587-88. In this case, the administrative judge weighed these

factors. (AR 1424-26.) The administrative judge emphasized

that: (1) the incidents of misconduct were numerous and serious;

(2) Nearing had been disciplined in the past for similar conduct;

(3) Nearing had conflicts with all of her supervisors; and (4)

Nearing refused to accept any responsibility for her actions. 

(Id.) These factors favoring removal were weighed against

Nearing’s long employment with the federal government and her

claims of overwork. (Id.) The administrative judge found that

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these mitigating factors were insufficient to disturb the

agency’s decision. (Id.) 

Nearing offers her own evaluation of the Douglas factors,

arguing that the decision of the administrative judge was

arbitrary and capricious. (Pl.’s Mot. at 30-32.) Without

addressing each of the factors, the record reveals sufficient

evidence to uphold the penalty imposed. Numerous cases have held

that insubordination alone is a serious offense meriting removal. 

See, Mazares v. Dep’t of the Navy, 302 F.3d 1382, 1386 (Fed. Cir.

2002); Webster v. Dep’t of Army, 911 F.2d 679, 688 (Fed. Cir.

1998). 

Here, in addition to a charge of insubordination, the

administrative judge sustained 10 other specifications against

Nearing for rudeness and disrespect to her co-workers, customers,

supervisors, and the public. Nearing’s insistence that she can

perform her job if she does not have to deal with these

individuals does not assist her, because these interactions are

part of her assigned duties. Similarly, Nearing’s argument that

she was only responding to the hostile work environment of the

Sacramento Field Office cannot explain or excuse her rudeness to

others outside of the agency, including customers and members of

the public. The finding of the administrative judge that removal

was an appropriate penalty is not arbitrary or capricious.

\\\

\\\

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III.

For the reasons set forth above, defendant’s motion for

summary judgment on claim one is GRANTED.

IT IS SO ORDERED.

Dated: 7/25/2005

DAVID F. LEVI

United States District Judge

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