NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-3319

CHARLES D. GRIFFIN, Petitioner,

v.

DEPARTMENT OF DEFENSE, Respondent.

Charles D. Griffin , of Pensacola, Florida, pro se. Marla T. Conneely , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Ju stice, for respondent. On the brief were Peter D. Keisler , Assistant Attorney General, Jeanne E. Davidson , Director, and Steven J. Gillingham , Assistant Director. Appealed from: United States Merit Systems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-3319

CHARLES D. GRIFFIN, Petitioner,

v. DEPARTMENT OF DEFENSE, Respondent.

__________________________ DECIDED: August 17, 2007

__________________________

Before NEWMAN, RADER, and PROST, Circuit Judges

. PER CURIAM.

Mr. Charles D. Griffin petitions for revi ew of the decision of the Merit Systems Protection Board, Docket No . AT0752040574-I-1, sustaining the Agency's action removing him from federal employment for misu se of government equipment. We affirm the decision of the Board.2006-3319 2 BACKGROUND Mr. Griffin was employed as a financia l clerk with the Defense Finance and Accounting Service in Pensacola, Florida fr om 1996 until his removal on April 6, 2004. His difficulties began in January 2003, when fellow em ployees complained that he was using "loud" and "foul" language during personal telephone calls. His supervisor's efforts to solve the problem began with an informal discussion in late January. In March 2003 Mr. Griffin was reprimanded for misusing government tel ephones after telephone logs indicated that he had made over 650 personal calls between De cember 28, 2002 and February 1, 2003, and that he spent an average of 13 minutes on the telephone out of ev ery hour, despite the reprimand. Agency records s howed that in April 2003 Mr. Griffin made 623 calls in a 47 hour period. In May, Mr. Griffin's super visor recommended a fourteen-day suspension, which occurred from July 16, 2003 to July 30, 2003. Following his suspension and a period of leave at his physician's recommendation, Mr. Griffin returned to work in September 2003. His telephone abuse continued, and the Agency fi nally removed him, effective April 6,

2003. Mr. Griffin appealed to the Board. He stipul ated that his job did not require that he use the telephone, that any use by him of the telephone would have been for personal calls, and that none of the calls he was accu sed of making were made by any other employee. Before the Board, Mr. Griffin argued that the testimony of his supervisors about his telephone usage and their meeti ng with him regarding the problem were untruthful. The Administrative Judge determined that Mr. Gri ffin's testimony was not credible, based on inconsistencies in his testimony, extreme evasiv eness, and his failure to identify any motive his supervisors might have to provide dis honest testimony. The Board sustained the2006-3319 3 removal, finding that it promoted the efficien cy of the service and was a reasonable penalty under the circumstances. This petition followed. DISCUSSION We must uphold decisions of the MSPB unless the decision is found to be arbitrary, capricious, an abuse of discretion, or other wise not in accordance with law; obtained without procedures required by law, rule or regulation having been fo llowed; or unsupported by substantial evi dence. 5 U.S.C. ' 7703(c); Covington v. Dep't of Health and Human Services , 750 F.2d 937, 941 (Fed. Cir. 1984). Mr. Griffin does not now argue that he is innocent of the Agency's charges or that there is no relationship between his telephone use and other conduct and the efficiency of the service. He argues only that the Board failed to take into account his "prior performance and tenure with the Agency and Civ il Service Employment" and failed to consider less severe disciplinary actions. The Board did specifically note his history of satisfactory employment and numerous servic e awards. The Board also evaluated the severity of the removal in light of the factors set forth in Douglas v. Veterans Admin. , 5 M.S.P.R. 280, 307-08 (1981). T he Board discussed Mr. Griffin's lack of remorse for his conduct, and the failure of repeat ed efforts on the part of the Agency to solve the problem with less drastic means than removal. Consi dering all the circumst ances, the Board found that removal was a reasonable penalty for t he charges the Agency established. We conclude that substantial evidence supports the Board's findings and determinations, and that the decision must be affirmed.