NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-3405

RAY W. BAGBEE, Petitioner,

v.
UNITED STATES POSTAL SERVICE, Respondent.

Ray W. Bagbee , of San Francisco, California, pro se. Michelle A. Windmueller , Attorney, Law Department, Civil Practice, United States Postal Service, of Washington, DC, for res pondent. With her on the brief were Peter D. Keisler , Assistant Attorney General, and Lori J. Dym , Chief Counsel, Law Department Civil Practice, United States Department of Justice, of Washington, DC. Appealed from: United States Merit Systems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-3405 RAY W. BAGBEE, Petitioner,

v. UNITED STATES POSTAL SERVICE, Respondent.

___________________________ DECIDED: February 6, 2007

___________________________ Before MICHEL, Chief Judge , and NEWMAN and DYK, Circuit Judges

. PER CURIAM. Ray W. Bagbee appeals from t he decision of the Merit Systems Protection Board (“Board”) in SF0752060336-I-1, affirming the Un ited States Postal Service’s (“USPS”) decision to remove him. We affirm

. BACKGROUND Bagbee began working with the USPS as a Labor er, Custodial, in 1985. He was assigned on a rotational basis to three agen cy stations in San Francisco until an incident in January 2004 where he allegedly threatened an employee at one of those stations. After that incident, Bagbee was assigned to work exclusively at the USPS Processing and Distribution Center in San Francisco. On May 19, 2005, during the course of a meeting with his su pervisor, Elizabeth Ramos, and her supervisor, J ohn Daniels, Bagbee made several specific threats. Ms.Ramos and Mr. Daniels later testified t hat Bagbee threatened to rape and kill Mr. Daniels’s wife, daughter and son, and also to go to Ms. Ramos’s house while her husband was working and rape and kill Ms. Ra mos’s children and then slash Ms. Ramos’s throat. On June 15, 2005, the U SPS issued a notice of proposed removal to Bagbee, citing “Unacceptable Conduct / Failure to Fo llow Instructions,” charging him with “Engaging in Violent and Threatening Behavio r” in violation of the USPS’s “zero tolerance policy on workplace violence.” The USPS’s zero tolerance policy states that “threats, assaults, or other acts of violence committed against other postal employees or customers will result in severe disciplinary action, up to and including removal from the Postal Service.” Resp’t App. 29. Bagbee was removed effective August 26, 2005. He filed a timely “mixed case complaint of discrimination” challenging hi s removal and alleging that his removal was the result of discrimination based on race, color, age and disability. The USPS dismissed his complaint on the merits. Bagbee timely appealed to the Board. After a hearing, the Board sustained B agbee’s removal on the merits. The administrative judge (“AJ”) held (1) that the agency had proven the factual basis for the misconduct charged by a preponderance of the evi dence, based on his finding that the testimony of the government witnesses was more credible than Bagbee’s denials; (2) that the USPS met its burden of proving that Bagbee violated the zero tolerance policy, and also that it met the st andard of proof for adverse actions based on threats, as articulated in Metz v. Dep’t of Treasury , 780 F.2d 1001, 1002 (Fed. Cir. 1986); (3) that the USPS showed that Bagbee’s removal pr omoted the efficiency of the service

2006-3405 2because there existed a nexus between t he removal and the USPS’s interest in protecting its employees and thei r families from threats of bodily harm; and (4) that the USPS properly balanced factors under Douglas v. Veterans Admin. in determining that the appropriate penalty was removal. 5 M.S. P.R. 280, 305-06 (1981 ). The AJ also rejected Bagbee’s claims of discrimi nation and retaliation on the merits. Bagbee petitioned for review of the AJ’s decision by the full Board. The full Board denied review. An appeal to this court followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9) (2000). DISCUSSION The Board’s decision must be affirmed unless it is found to be arbitrary, capricious, an abuse of discretion, or other wise not in accordance with law; obtained without procedures required by la w, rule, or regulation; or unsupported by substantial evidence. 5 U.S. C. § 7703(c) (2000); Yates v. Merit Sys. Prot. Bd. , 145 F.3d 1480, 1483 (Fed. Cir. 1998). The Board’ s credibility determinations are questions of fact, and are “virtually unrev iewable” on appeal. See Hambsch v. Dep’t of Treasury , 796 F.2d 430, 436 (Fed. Cir. 1986). We hold that the Board’s findings that the charged misconduct occurred, that the termination promoted the efficiency of the service, and that t he penalty imposed is within tolerable limits of r easonableness are supported by substantial evidence. No other findings of fact were nece ssary to affirm the removal. See Pope v. U.S. Postal Serv. , 114 F.3d 1144, 1147 (Fed. Cir. 1997). We have also held that absolute performance standards, such as the USPS’s zero tolerance policy, are permissible under the Civil Service Reform Act of 1978. Pub. L. No. 95-454, 92 Stat. 1111 (Oct. 13,

2006-3405 31978) (codified in scattered se ctions of 5 U.S.C.); Guillebeau v. Dep’t of Navy , 362 F.3d 1329, 1335 (Fed. Cir. 2004) (“[N]ei ther the statute nor the regulations bar absolute performance standards.”). On appeal Bagbee refers to his medica l problems (apparently, back problems) and desire for workers’ compens ation. Those facts are not relevant to determining whether he made the threats. Nor do they demonstrate that the penal ty of removal was unreasonable in this case. To the extent Bagbee attempts to assert claims of discrimination or retaliation on appeal, Bagbee waived those claims as a condition of filing this appeal. See Fed. Cir. R. 15(c). Accordingly, we affirm the Board’s decision. No costs.

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