NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3234 DON JUAN GRAHAM, Petitioner,

v. COMMODITY FUTURES TR ADING COMMISSION, Respondent.

Don Juan Graham , of Washington, DC, pro se. Lauren S. Moore , Trial Attorney, Commercial Liti gation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With her on the brief were Michael F. Hertz , Acting Assistant Attorney General, Jeanne E. Davidson , Director, and Brian M. Simkin , Assistant Director. Appealed from: Merit S ystems Protection BoardNOTE: This disposit ion is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2007-3234

DON JUAN GRAHAM, Petitioner,

v. COMMODITY FUTURES TR ADING COMMISSION, Respondent.
Petition for review of the Merit Syst ems Protection Board in DC0752060238-I-2.

___________________________ DECIDED: October 8, 2009

___________________________ Before MICHEL, Chief Judge, NEWMAN, and DYK Circuit Judges.
NEWMAN, Circuit Judge. Don Juan Graham, pro se , appeals the decision of th e Merit Systems Protection Board affirming his removal from a posit ion with the Commodity Futures Trading Commission. Graham v. Commodity Futures Trading Comm’n , 2007 M.S.P.R. 100 (2007). We affirm

. BACKGROUND Mr. Graham was employed at the Co mmodity Futures Trading Commission (“CFTC”) in Washington, D.C. from 1994 until his removal on January 18, 2006. During the period of this employment he served in the United States Army Reserves, and was periodically called to active duty. On Au gust 5, 2004, when he held the position ofSupport Services Assistant, CT- 05, in the CFTC’s Office of Management Operations, he was ordered to report for duty at Fort Bragg the next day, Augus t 6, 2004. The CFTC placed Mr. Graham on leave without pay. Mr . Graham served in Af ghanistan, returned from active duty on August 12, 2005, and re turned to his position at the CFTC on September 6, 2005. During the week that followed, the C FTC states that Mr. Graham engaged in various acts of misconduct. In a Notice of Proposed Removal dated November 30, 2005, Mr. Graham’s supervisor, Tamrah A. Semega, described the history of Mr. Graham’s employment at the CFTC, including his disc iplinary history, and stated t hat removal was proposed in view of present and past mi sconduct. The Notice stated that Mr. Graham had been placed on a Performance Im provement Plan (“PIP”) in February 2000, after his performance review showed deteriorating performance during the 1999-2000 rating period. The Notice stated that during that prior period Mr. Graham did not complete certain tasks in a timely manner, did not update contact information provided to customers who called the agency with compla ints, and did not respond to a request for a status report. Mr. Graham’s performance was rated successful during the 2002 PIP. However the Notice of Proposed Removal stat ed that in June and Ju ly of 2004 he was counseled by his new supervisor, Ms. D eedra Jones, several times about misconduct, including several incidents of rude and disrespectful conduct and failure to follow instructions. The Notice stated that on Ju ly 6, 2004 Mr. Graham received a letter of reprimand, which described several incident s and advised Mr. Graham that his conduct was impeding the ability of his division to carry out its mi ssion, warning that further misconduct could result in more severe disc iplinary action, up to and including removal

2007-3234 2from federal service. The Notice stated th at “Ms. Jones also advi sed you that if you were experiencing a health or personal proble m that you felt may be contributing to your misconduct, you could contact an Employee As sistance Program (EAP) counselor to seek advice or assistance.” The Notice furtherstated that after the letter of reprimand, Mr. Graham’s conduct failed to improve, including after July 15, 2004 when a new supervisor, Ms. Candace Turner, took charge. The Notice cited several additional incidents of rude and disrespectful conduct and failure to follow instructions that occurred on July 27 and 28, 200 4, shortly before Mr. Graham was called to active duty to serve in Afghanistan. The Notice stated that because of this misconduct, Ms. Turner had decided to take more se vere disciplinary action based on the additional instances of unacceptabl e conduct. However, after careful consideration, Ms. Turner decided not to take additional disciplinary action because you were scheduled to leave the CFTC to go on active duty with the U.S. Army for one year . . . . Ms . Turner reasoned that since you would be away from the office for one year , taking more severe discipline action before you left the CFTC would not effectively deter your unacceptable conduct. Furthermore, Ms. Turner hoped that being away from the office would provide you the opportunity to refl ect and return to work with a fresh outlook. The Notice of Proposed Removal stated t hat Mr. Graham, upon his return from service in Afghanistan, immediately engaged in similar unacceptable conduct. The Notice identified four classes of misconduct during this period th at were said to justifiy Mr. Graham’s removal in light of his disciplinary history: First, Ms. Semega cited four instances of rude and disrespectful conduct, t hat occurred (1) on September 8, 2005 at a staff meeting; (2) on September 12, 2005 in a confrontation with another employee involving Mr. Graham’s failure to perform an assignment properly; (3) on September 14, 2005 when Mr. Graham refused to open and distribute mail; and (4) on September 14, 2005, when Mr. Graham failed to perform proper ly the assignment of posting a “Tip-of2007-3234 3the-Month” document. Of the last instance, the Notice stated that after Mr. Graham’s co-worker notified hi m of his error: You became agitated; tensed up your shoulders and started waving your arms; then you lunged forth from yourchair, sat down forcefully, and pushed your seat back. At this point you started to shake and stared at [the co-worker] in a hostile manner. In a disgusted and hostile tone, you yelled, “What is it? What do you w ant?” You turned away from [the coworker], faced your computer, mutte red to yourself and proceeded to ignore [the other employee]. The Notice stated that as a result of t he incident, his co-worker was reduced to tears and immediately contacted Ms. Semega. Ther eafter, the Notice stated that Mr. Graham left the office for three-and-a-half hours wit hout notifying anyone, and upon his return informed Ms. Semega that he was “at [his] br eaking point” and “needed to leave or have time off because [he] was about to explode, and that [he] did not know what [he] was capable of doing.” Second, Ms. Semega charged Mr. Graham with six instances of failure to follow instructions, stating that he (1) failed to meet with her as ordered; (2) failed to initial and return instructions after performing tasks, as had been ordered; (3) left the office for three-and-a-half hours after th e aforementioned confrontat ion with a co-worker on September 14, 2005 without notifying a staff member as he had been instructed; (4) failed to follow instructions on how to perform a routine offi ce task; (5) failed properly to perform the task of registeri ng an employee for the fitness center; and (6) failed to provide his current contact information as he was ordered to do on September 14, 2005. Third, Ms. Semega charged Mr. Graham with three instances of failure to complete work assignments, including (1) failure to complete a telephone tree; (2) failure to prepare an Excel spreadsheet; and (3) failure on September 14, 2005 to

2007-3234 4distribute the “Tip-of-the-M onth” document in the request ed locations. Fourth, Ms. Semega charged Mr. Graham with being absent without leav e (AWOL) from September 19 to 28, 2005 after she placed him on admi nistrative leave on September 14, because he did not provide her with his current contact information, as she had ordered him to do as a condition precedent to leave. The Notice of Proposed Removal conclud ed with a Summary, which stated that on several occasions, including in letters dated September 16, 2005 and September 27, 2005, the CFTC provided Mr. Graham with “information regarding the EAP, and encouraged [him] to use the services of t he EAP, to assist [him] with any family, personal or work-related problem s that [he] might have.” The Notice also cited various efforts Mr. Graham’s supervisors had made to counsel him regardi ng his unacceptable conduct, noting that these efforts had prov ed unsuccessful, and that Mr. Graham’s conduct had been disruptive to th e efficient operations of the office and damaging to the working relationships of office staff. The Notice stated that in proposing removal rather than a lesser penalty, Ms. Semega consider ed the entire poor patte rn of performance shown by Mr. Graham since 1999. The Notice informed Mr. Graham of his right to reply eitherorally or in writing, and the agency extended the time for Mr. Gr aham to respond. He did not respond, either orally or in writing. The agency removed Mr. Graham from his position effective January 18, 2006. Mr. Graham subsequently file d a complaint with the D epartment of Labor (DOL), stating that his removal violated the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERR A”), 38 U.S.C. §§4301- 4333. Mr. Graham

2007-3234 5also filed an appeal with the Merit Systems Protection Board, stat ing that he wished to overturn his AWOL status and his removal, and that his removal was improper because it was “based largely on things that occurred from 1999-2000.” The Board’s administrative judge (AJ) initially dismissed the appeal without prejudice, to allow the DOL time to consider Mr. Graham’s complain t; the order of dismi ssal stated that the Board would refile the appeal if Mr. Graham had not done so after 60 days. Consistent with that statement, the AJ refiled Mr. Gra ham’s appeal on June 14, 2006, although there had not yet been a dec ision by the DOL. The AJ then held a one-day hearing to co nsider Mr. Graham’s appeal, including his USERRA claim, and issued an initial decision on August 31, 2006 sustaining all of the charges against Mr. Graham and denying his USERRA defense. Graham v. CFTC , No. DC-0752-06-0238-I-2 (M.S.P.B. A ug. 31, 2006) (“Initial Decision ”). The AJ discussed the individual instances of misconduct alleged of each of th e four charges. In particular, the AJ discussed the events t hat occurred on September 14, 2005 at some length. The AJ recounted the Notice of Pr oposed Removal’s descripti on of the incident in which, following his failure to post the “Tip-of-the-Month” doc ument correctly, Mr. Graham had a tense and agitat ed confrontation with a co-worker. The AJ cited testimony of three witnesses for the agency in support of this char ge, noting that their testimony was consistent with the charge as described in the Notice. The AJ also stated that “[f]or his part, the appellant denies that this conf rontation took place. He claims that at all times during his conversation with [the co-worker], he was calm and respectful.” Initial Decision at 7. The AJ noted this “fundamental disagreement between the appellant and the agency witnesses as to what transpired” on September

2007-3234 614, 2005, and made credibility determinations to resolve the factual dispute. Id. at 7-8. In particular, the AJ conclu ded that the co-worker to w hom Mr. Graham’s reaction was directed was a “credible and persuasive witne ss,” and that her testimony was confirmed by the other agency witnesses and document ary evidence, whereas Mr. Graham’s account “lack[ed] documentary support orany other corroboration” and was incompatible with the fact that he left the workplace for severa l hours after the incident. Id. at 8. The AJ similarly re jected Mr. Graham’s explanati ons for the other charges of misconduct. The AJ also ruled that Mr. Graham had failed to prove that the CFTC had violated USERRA, and had failed to establish that hi s removal had any connection to his recent military service. In this regard, the AJ stated: [T]he record contains no evidence of, and the appellant has failed to identify, any statements or actions or anything at all that reflected a negative attitude on the part of any agency personnel directed toward his service in the military or toward any one who served in the military. And, the appellant has presented no ot her evidence whatsoever that demonstrates that he was tr eated differently because of his participation in the military. Rather, t he appellant’s theory of U SERRA discrimination is based on his assumption that becaus e he served the military and was removed, his participation in the milit ary must have been the motivation. The appellant’s theory is totally unco rroborated and I find it falls far short of establishing that the appellant’s serv ice in the military was a substantial or motivating factor in the agen cy’s action removing him for his misconduct. Id. at 19-20. The AJ stated t hat the agency had presented evidence that it “was in the process of proposing the appellant’s suspens ion for similar misc onduct when his unit was called up to service,” and that the only reason it had not suspended him at that earlier time was “a hope that time in the m ilitary might ‘turn hi m around’ and correct his behavior and attitude.” Id. at 20.

2007-3234 7The AJ also ruled in the alternative that “even if the appellant had shown that his military service had played any role in his re moval, the agency has presented more than preponderant evidence that it would have remov ed him. In addition, I find that the agency presented evidence that the appellant ’s employment was extended by his military service and not abr idged by it.” Id. The AJ stated that the agency’s decision to remove him was “totally unrelated to his military service,” id. , and accordingly rejected Mr. Graham’s USERRA defense. As to the penalty, the AJ determined t hat removal was within the bounds of reasonableness for the sustained charges and pr omoted the efficiency of the service. The AJ noted that the deciding official had testified that remova l was warranted because of the serious nature of the char ges, including the disruptions to the office that resulted from the misconduct. The AJ al so cited the deciding officia l’s testimony that although the incidents all took place within a seven-day period after his return from service, the behavior was “so continual, disruptive and intens e, and so like what his behavior had been before his year in the milit ary, that a week was suffici ent for [the deciding official] to realize that the appellant should be removed.” Id. at 22. The AJ stated that the deciding official had been “thorough in her evaluation of releva nt factors” outlined in Douglas v. Veterans Admin. , 5 M.S.P.R. 280 ( 1981), and the AJ affirmed that removal was appropriate under the circumstances presented. Initial Decision at 23. Mr. Graham petitioned for review by the full Board. The Board concentrated on the procedural aspects of the copending DOL appeal. The Board observed that although an employee may file a USERRA comp laint directly with t he Board without first filing a complaint with the DOL pursuant to 38 U.S.C. §4324(b)(1), when the employee

2007-3234 8does file a USERRA complaint with the DO L, he must exhaust that procedure before appealing the USERRA issue to the Board. 38 U.S. C. §4324(b); see Milner v. Dep’t of Justice , 77 M.S.P.R. 37, 47 (1997) . Exhaustion is achieved upon notification from the DOL that the Secretary’s efforts di d not resolve the complaint. See §4324(b)(2). The Board found that Mr. Graham received such notification from the DOL on November 3, 2006, after the AJ had reinstated Mr. Graham ’s appeal and after the AJ had rendered the initial decision on August 31, 2006. T he Board ruled that al though the MSPB did not have jurisdiction over Mr. Graham’s USERRA def ense at the time of the AJ’s initial decision, it acquired jurisdicti on at the time of DO L’s notification on November 3, 2006. The Board found that Mr. Gr aham had had a full and fair opportunity to present his USERRA defense to the AJ, a nd concluded that the procedural error was harmless. The Board concluded that Mr. Graham had show n no error in the AJ’s analysis of his USERRA defense and that he ha d failed to establish a basis to reverse or modify the AJ’s findings with respect to any other i ssue on appeal. The Boar d accordingly adopted the findings in the AJ’s initial decision regarding the USERRA defense, affirmed the initial decision, and sustai ned Mr. Graham’s removal. This appeal followed. DISCUSSION The Board’s decision is revi ewed on the standard of whether it was “(1) arbitrary, capricious, an abuse of discretion, or otherwis e not in accordance with law; (2) obtained without procedures required by law, rule, orregulation having been followed; or (3) unsupported by substantial evid ence.” 5 U.S.C. §7703(c); see Kochanny v. Bureau of Alcohol, Tobacco, & Firearms , 694 F.2d 698, 700 n.3 (Fed. Cir. 1982).

2007-3234 9Mr. Graham argues that t he Board incorrectly found facts and ignored important aspects relevant to his return to the CFTC after service in Afghani stan. He argues that the responsibilities assigned to him were not appropriate to his experience and prior federal service, that the workload imposed upon him was too great, that he never failed to complete any tasks for his direct supervisor, Ms. Semega, and that the charges relating to other work assignments came fr om persons not in hi s direct chain of command. He states that he was given very little time upon his return from a combat theater to “decompress before I was immediately swamped with numerous assignments” and that he was “d ealing with Post Traumatic Stress from my experience from tour of duty in Afghanistan.” Pet’r Br. ¶4. In a supplemental memorandum, Mr. Graham explains how he held a variety of po sitions within the CFTC between 1994 and his removal in 2006, and he suggests that his various transfers and his ultimate removal were the result of incompetent management at the agency rather than his own conduct. Concerning the events on Se ptember 14, 2005, Mr. Graham states in his brief that upon being told by his co-worker that he performed a task improperly, he “stood up from [his] desk and told her, ‘Get away fr om me,’” and then walked away from his workstation. He states that he “became agitated and spoke loudly” to his co-worker, but he argues that this behavior cannot be char acterized as “insubordination” because his co-worker was not in his supervisory hierarchy. We observe that this account conflicts with the AJ’s account of Mr. Graham’s testimony at his hear ing, in which he denied any confrontation with his co-wor ker on September 14, 2005. Mr. Graham’s representations on this appeal do not answer the charge agai nst him, for the charge was rude and disrespectful conduct, not insubordination.

2007-3234 10Mr. Graham also argues that the AWOL c harge was improper. He states that his contact information had been routinely provided to the Human Resources Department on his return to work, and was readily availa ble during the period of administrative leave that Ms. Semega converted to AWOL. The government responds that Mr. Graham’s arguments relate to factual matters that were fully considered by the Board. For inst ance, the AJ’s initial decision states that Mr. Graham “repeatedly t[ook ] the position that he is ent itled to more challenging work and that he finds the work assigned to him to be humiliating, custodial in nature and beneath him. In addition, the appellant has shown no understanding that his personal sense of dissatisfact ion with his position interferes with his coworkers’ need for and right to security and peace in t he workplace.” Initial Decision at 23. Thus the government contends that Mr. Graham’s dissatisfaction with the work assigned to him was fully presented to the Board, and wa s properly rejected as a defense for his misconduct. See Boyle v. United States , 515 F.2d 1397, 1401- 02 (Ct. Cl. 1975) (plaintiffs’ failures to perform job duties were not excused by their dissatisfaction with management). The government contends that Mr. Graham has shown no reason to disturb the Board’s findings on these issues. As to the difficulty or amount of work given Mr. Graham upon his return from military service, the government does not dispute that he was given simple office tasks, such as two-hole punching documents, at tending meetings, and placing documents on bulletin boards. The governmen t contends that this evidence was carefully considered by the Board, and that substantial eviden ce supports the Board’s rejection of Mr. Graham’s explanation for why he failed to perform certain of these tasks. The

2007-3234 11government points out that Mr. Graham’s removal was based not only on his failure to perform certain routine tasks, but also on ot her serious misconduct, including repeated incidents of rude behavior and refusal to follow instructions. Many of these incidents were unrebutted by Mr. Graham before the Board, and are unrebutted on this appeal. We conclude that substantial evidence supports the Board’ s determinations with respect to these charges. The government contends that Mr. Gr aham’s arguments with respect to the events on September 14, 2005 si milarly provide no basis fo r disturbing the Board’s decision. While Mr. Graham now admits t hat a confrontation with his co-worker occurred (although he describes the encounter in more subdued terms than did the AJ), the government states that the AJ heard testimony from both sides concerning this incident, including Mr. Graham’s denial that the incident occurred at all, and made credibility findings to resolve th e conflicting stories. Such credibility determinations are within the discretion of the Board and are “virtually unre viewable” on appeal. Clark v. Dep’t of the Army , 133 F.3d 1450, 1453 (Fed. Cir. 1998). Mr. Graham’s current version does not support rejection of the AJ ’s findings as to this incident. As to the AWOL charge, Mr. Graham st ates that he should have been treated as on administrative leave and that he did not provide his current address when he met with his supervisor following the September 14, 2005 conf rontation (the basis for treating him as AWOL) because his address was already on file. The government points out that the AJ considered and reject ed this argument, finding it was irrelevant that the address could have been discov ered on certain doc uments because Mr. Graham’s refusal to provide his address when it was requested consti tuted a failure to

2007-3234 12follow his supervisor’s direct in struction. Reversible erro r has not been shown in the Board’s ruling sustaining the charges stem ming from his behavior on September 14,
2005. Mr. Graham’s comment in his appellate brief that he suffered from “Post Traumatic Stress” upon his return from Afg hanistan appears to be the first reference to this medical cause or condition. The AJ did not mention this aspect, and it does not appear to have been presented to the employing agency as an explanation of Mr. Graham’s behavior; indeed Mr. Graham did not re spond at all to t he agency’s Notice of Proposed Removal. Nor does Mr. Graham focus on such a defense on appeal, although he mentions the term “Post Trauma tic Stress” in his argument that he was given too much work in too short a period of time upon his return from military service. The government contends that, even were such an argument entertained for the first time on appeal, it could not provide a basis for disturbing the findings of the Board, particularly in view of Mr. Graham’s le ngthy history of similar misconduct even preceding his period of service in Afghanistan. The government points out that Mr. Graham made no al legation to either the CFTC or to the Board that any mental orphysical condition caused his recurring rude and disobedient workplace behavior. The record indicates that Mr. Graham’s supervisors advised him to seek counseli ng through the Employee Assistance Program, both before his term of service in Afghanis tan and afterwards. There is no record support for Mr. Graham’s reference on this appea l to “Post Traumatic Stress” at one line of his appellate brief, whereas the agency showed a continuing pattern of workplace

2007-3234 132007-3234 14 misconduct. On this record, a sufficient predicate has not been established for questioning the factual findings of the Board. Reversible error has not been shown in the Board’s determination that Mr. Graham did not show a connection between his military service and his removal. The Board’s conclusion sustaining his removal wa s supported by substantial evidence, and is affirmed. No costs.