NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

CECIL J. WARREN, 

Petitioner, 

v. 

UNITED STATES POSTAL SERVICE, 

Respondent. 

__________________________ 

2012-3147 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in MSPB Docket No. DC0752100530-B-1. 

____________________________ 

Decided: November 9, 2012 

____________________________ 

CECIL J. WARREN, of Andrews, North Carolina, pro se. 

WILLIAM P. RAYEL, 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, Acting Assistant Attorney General, JEANNE E. DAVIDSON, Director, and DONALD 

E. KINNER, Assistant Director. 

__________________________ 
CECIL WARREN v. USPS 2

Before LOURIE, DYK, and MOORE, Circuit Judges. 

PER CURIAM. 

Cecil J. Warren (“Warren”) appeals from the final decision of the Merit Systems Protection Board (“the Board”) 

dismissing his petition for review. See Warren v. U.S. 

Postal Serv., No. DC-0752-10-0530-I-1 (M.S.P.B. Aug. 23, 

2010) (“Initial Decision”); (M.S.P.B. Jul. 26, 2011) (“Remand Order”); No. DC-0752-10-0530-B-1 (M.S.P.B. Oct. 

14, 2011) (“Initial Decision on Remand”); (M.S.P.B. Apr. 

18, 2012) (“Final Order”). Because the Board’s decision is 

supported by substantial evidence, we affirm. 

BACKGROUND

Warren was employed as a Rural Carrier with the 

United States Postal Service (“USPS”) and was removed 

in 2009 for unsatisfactory work performance. Warren 

appealed his removal to the Board, alleging that it was 

the product of age and race discrimination, as well as 

retaliation for filing a grievance. In August 2010, the 

administrative judge (“AJ”) issued an initial decision 

affirming the removal action. Initial Decision at 13. The 

AJ concluded that USPS had proven Warren’s unsatisfactory work performance by a preponderance of the evidence, finding he had violated an important safety policy 

about which he had received specific and extensive training. Id. at 4–6. However, the AJ also found that the 

agency’s deciding official, Postmaster Kevin Claus 

(“Claus”), erred by relying upon Warren’s “poor performance, inability to get along with [others], and ‘bad attitude’” as aggravating factors, because these factors were 

not articulated in the USPS’s proposed removal notice. 

Id. at 12. The AJ then conducted a new analysis of the 

reasonableness of the penalty in light of the factors delineated in Douglas v. Veterans Administration, 5 
3 CECIL WARREN v. USPS

M.S.P.R. 280, 305–06 (1981),1 disregarding any consideration of Warren’s general performance, attitude, or interpersonal relations, and nevertheless concluded that 

removal was warranted. Id. at 12–13. The AJ also concluded that Warren failed to prove his removal was the 

product of age discrimination, that there was no evidence 

supporting a finding that race was a factor, and that there 

was no merit to his retaliation claim. Id. at 6–10. 

Warren petitioned for reconsideration by the full 

Board, contesting for the first time the merits of his prior 

disciplinary actions that supported the removal decision. 

Remand Order at 2. The Board affirmed the AJ’s findings, found no clear error in the USPS’s or the AJ’s consideration of the prior disciplinary actions, and agreed 

that Warren failed to establish a claim of disparate penalty. Id. at 2–3. The Board sua sponte addressed the AJ’s 

finding that Claus improperly relied upon the fourth 

Douglas factor and held that, although the AJ’s assessment was consistent with the Board’s case law at the time 

of the initial decision, that law was no longer correct in 

light of our decision in Ward v. United States Postal 

Service, 634 F.3d 1274 (Fed. Cir. 2011) (holding that 

appellant’s right to due process may be violated if deciding official considers new and material information when 

determining whether to impose enhanced penalty). 

Accordingly, the Board remanded the August 2010 decision with instructions to consider whether Claus’s consideration of aggravating factors violated Warren’s due 

 1 The Board’s opinion in Douglas outlines factors 

that supervisors must consider in determining an appropriate penalty to impose for an act of employee misconduct, the fourth of which is “the employee’s past work 

record, including length of service, performance on the 

job, ability to get along with fellow coworkers, and dependability.” 5 M.S.P.R. 280, 305–06. 
CECIL WARREN v. USPS 4

process rights, and, if those rights were not violated, 

whether USPS committed harmful error. Id. at 6–7. 

On remand and further hearing, the AJ reaffirmed 

the removal decision, concluding that USPS did not err 

with respect to its penalty determination. Initial Decision 

on Remand at 7–9. The AJ found that, even if the proposal notice was somehow defective because it did not 

specifically state that USPS was considering the substance of misconduct listed in prior disciplinary letters, 

such defect did not deprive Warren of due process. In 

particular, the AJ found the information was cumulative 

because Warren was specifically notified that his prior 

disciplinary history would be considered and was given 

opportunity to respond. Id. at 7–8. Similarly, the AJ 

concluded that, even if Warren could demonstrate a 

procedural defect, such error was harmless because Claus 

credibly testified that he would have taken the same 

action regardless of considering the fourth Douglas factor. 

Id. at 8. Warren again petitioned for reconsideration by 

the full Board, which was denied. Final Order at 3–4. 

The initial decision of the AJ thus became the decision of 

the Board. 

Warren appealed to this court. We have jurisdiction 

pursuant to 5 U.S.C. § 7703(b)(1) and 28 U.S.C. 

§ 1295(a)(9). 

DISCUSSION

The scope of our review in an appeal from a Board decision is limited. We can only set aside the Board’s decision if it was “(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); see Briggs v. 

Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003). 
5 CECIL WARREN v. USPS

The Board’s decision is supported by substantial evidence 

“if it is supported by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Brewer v. U.S. Postal Serv., 647 F.2d 1093, 1096 

(Ct. Cl. 1981) (internal quotation marks omitted). 

We agree that the Board did not abuse its discretion 

in dismissing Warren’s petition because substantial 

evidence shows that Warren violated an important safety 

policy relating to use of delivery vehicles in conducting 

USPS business, for which he had attended three training 

sessions in the six months prior to his removal. The 

Board considered the relevant facts and evidence in 

sustaining the charge of unsatisfactory work performance. 

Warren argues that his direct line supervisor provided 

false testimony and falsified documents; however, even if 

Warren had denied the factual testimony concerning his 

misconduct before the AJ, he has provided no basis for us 

to overturn the AJ’s findings. The AJ observed the supervisor’s demeanor as she testified and concluded that she 

was a credible witness. Initial Decision at 5–10. See

Griessenauer v. Dep’t of Energy, 754 F.2d 361, 364 (Fed. 

Cir. 1985) (“The determination of the credibility of the 

witnesses is within the discretion of the presiding official 

who heard their testimony and saw their demeanor.”); 

Hambsch v. Dep’t of Treasury, 796 F.2d 430, 436 (Fed. 

Cir. 1986) (holding that a “presiding official’s credibility 

determinations...are virtually unreviewable”). 

The Board also correctly held that there was no violation of Warren’s right to due process. We have set forth 

three factors relevant to whether a due process violation 

has occurred because of consideration of information not 

included in the notice of proposed removal: 1) whether the 

information is new or merely cumulative; 2) whether the 

employee knew of the error and had an opportunity to 

respond; and 3) whether information was of the type 
CECIL WARREN v. USPS 6

likely to result in undue pressure on the deciding official 

to rule in a particular manner. Stone v. FDIC, 179 F.3d 

1368, 1377 (Fed. Cir. 1999). Warren has provided no 

basis for overturning the Board’s conclusion that, contrary 

to its initial findings, the deciding official, Claus, “did not 

consider any ‘information or documentation’ that was 

outside of the proposal and materials supporting the 

proposal notice.” Initial Decision on Remand at 5; Final 

Order at 3. Based on the record before us, we agree with 

the Board’s determination that the AJ did not err in 

finding that the information regarding Warren’s work 

record was only cumulative of the information contained 

in the letters recording three separate disciplinary actions 

prior to his removal, that Warren had notice of this information, and that there was no evidence that the information resulted in undue pressure on Claus to decide in a 

certain way. See Initial Decision on Remand at 7–8; Final 

Order at 3. 

The Board also correctly held that there was no harmful procedural error. The Board’s regulations define 

“harmful error” as an “[e]rror by the agency in the application of its procedures that is likely to have caused the 

agency to reach a conclusion different from the one it 

would have reached in the absence or cure of the error.” 5 

C.F.R. § 1201.56(c)(3); see Ward, 634 F.3d at 1281. We 

have no basis to overturn the AJ’s conclusion that Claus 

credibly testified that the removal action would have been 

taken notwithstanding any improper consideration of 

aggravating factors. Thus, even if the USPS committed 

procedural error in violation of 5 C.F.R. § 752.404(f) by 

relying on matters without providing Warren with adequate notice, the AJ concluded that Claus would have 

reached the same conclusion. The Board properly held 

that any procedural error was therefore harmless. See

Ward, 634 F.3d at 1282. There was also no error in the 
7 CECIL WARREN v. USPS

conduct of the hearing. Warren had opportunity to question Claus on the due process and harmful error issues, 

but asked questions only on the merits of the removal 

action, which were outside the scope of review on remand. 

Moreover, the Board correctly found that the AJ did not 

err on remand in limiting Claus’s testimony on his decision-making process regarding the removal determination. In sum, Warren has failed to show that the Board 

abused its discretion in denying his petition. 

We have considered Warren’s remaining arguments 

and conclude that they are without merit. For the foregoing reasons, the decision of the Board is 

AFFIRMED 

COSTS

No costs.