NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

VICTOR J. TATE, 

Petitioner, 

v. 

UNITED STATES POSTAL SERVICE, 

Respondent. 

__________________________ 

2012-3066 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in DA0752110123-I-1. 

___________________________ 

Decided: October 9, 2012 

___________________________ 

VICTOR J. TATE, of Houston, Texas, pro se. 

DELISA M. SANCHEZ, Trial Attorney, Civil Division, 

Commercial Litigation Branch, United States Department 

of Justice, of Washington, DC, for respondent. With her 

on the brief were STUART F. DELERY, Acting Assistant 

Attorney General, JEANNE E. DAVIDSON, Director, and 

REGINALD T. BLADES, JR., Assistant Director. 

__________________________ 
TATE v. USPS 2

Before BRYSON, DYK, and PROST, Circuit Judges. 

PER CURIAM. 

DECISION

Victor Tate appeals from an order of the Merit Systems Protection Board upholding the decision of the 

United States Postal Service to remove him. We affirm. 

BACKGROUND

Mr. Tate was employed as a letter carrier with the 

Postal Service in Houston, Texas. Starting in 2009, the 

Postal Service charged him with repeated instances of 

tardiness and absence without authorized leave. The 

Postal Service took several steps to address the problem, 

including issuing a letter of warning and issuing notices 

of proposed suspension on five occasions, the last of which 

was issued on June 7, 2010. In September 2010, the 

Postal Service proposed to remove Mr. Tate for failing to 

maintain a regular work schedule between late June and 

mid-August 2010. The charge specified five occasions 

during that period on which Mr. Tate was either late or 

absent without leave, including a period of 31 hours and 

40 minutes of absence without leave between August 5 

and August 14, 2010. After concluding that Mr. Tate had 

not provided a satisfactory explanation for his failure to 

maintain a regular work schedule during that two-month 

period, the Postal Service terminated him. 

Mr. Tate appealed his removal to the Merit Systems 

Protection Board. Before the Board, Mr. Tate argued that 

he had applied for authorization to be absent from work 

pursuant to the Family and Medical Leave Act (“FMLA”) 

and that he was “awaiting the return of the paperwork.” 

He also argued that some of his absences related to an 
3 TATE v. USPS

injury he had sustained in an automobile accident and 

treatment he had received for that injury. Following a 

hearing, the administrative judge who was assigned to 

the case ruled that the absences with which Mr. Tate was 

charged were unauthorized and were sufficient to establish the charge of failure to maintain a regular schedule. 

The administrative judge noted that Mr. Tate was absent 

for more than 60 hours during a period of less than three 

months and that the absences occurred after the agency 

had previously disciplined him for similar misconduct on 

several occasions. The administrative judge further found 

that all of the charged absences were unscheduled. 

According to the administrative judge, Mr. Tate stipulated that three of the five charged absences were unscheduled and that he had neither sought nor obtained 

approval in advance for any of those absences. As to the 

remaining absences, the administrative judge noted that 

on cross-examination, Mr. Tate had not contested that he 

did not request leave in advance for those periods, including the period between August 5 and August 14 during 

which he was absent without leave for almost 32 hours. 

With respect to the FMLA, the administrative judge 

stated that the only absence for which Mr. Tate claimed 

to have sought FMLA leave was his absence on July 13, 

2010. The administrative judge found, however, that Mr. 

Tate did not request FMLA leave on that occasion and 

that he did not seek medical attention on that day but 

instead used his time away from work to obtain a rental 

vehicle. 

With respect to Mr. Tate’s challenge to the penalty of 

removal, the administrative judge found that removal was 

a reasonable penalty under the circumstances. The 

administrative judge noted that the Postal Service had 

considered Mr. Tate’s lengthy service with the agency as a 

mitigating factor but had found that factor to be out-
TATE v. USPS 4

weighed by factors favoring the penalty of removal, an 

assessment with which the administrative judge agreed. 

Those factors included the seriousness of the offense, Mr. 

Tate’s past disciplinary record, and the clear notice given 

to Mr. Tate warning him that his failure to maintain a 

regular attendance schedule would not be tolerated. 

Mr. Tate petitioned the full Board for review, which 

issued an opinion addressing some of Mr. Tate’s arguments and denying his petition for review. 

DISCUSSION

1. Mr. Tate’s principal argument before this court is 

that the Postal Service failed to give proper weight to the 

factors bearing on the choice of penalty, which are set 

forth in Douglas v. Veterans Administration, 5 M.S.P.R. 

280 (1981). In particular, Mr. Tate alleges that the 

agency failed to consider, or misapplied, the following 

factors: consistency of the penalty with penalties imposed 

on other employees for the same or similar offenses; the 

employee’s potential for rehabilitation; mitigating circumstances; and the adequacy of alternative sanctions to 

deter similar conduct in the future by the employee or 

others. 

While Mr. Tate fails to make specific allegations of error as to each of those factors, the administrative judge 

found that the agency had considered the relevant Douglas factors, including Mr. Tate’s lengthy time in service, 

the absence of mitigating circumstances, the unlikelihood 

that lesser sanctions would be effective, and the poor 

prospects for rehabilitation in Mr. Tate’s case. The administrative judge found that the agency had considered 

Mr. Tate’s period of more than 20 years of service with 

the Postal Service as a factor in his favor, but that the 
5 TATE v. USPS

agency had concluded that the length of his service was 

outweighed by the factors supporting removal. In particular, the administrative judge noted that the agency 

regarded the offense of failing to maintain a regular work 

schedule as a serious one and that the agency had disciplined Mr. Tate on numerous occasions for failing to 

maintain a regular work schedule. Those prior disciplinary actions, the administrative judge found, put Mr. 

Tate on notice that his failure to maintain a regular 

attendance schedule would not be tolerated. The administrative judge also cited the testimony of the agency’s 

representative, who stated that Mr. Tate’s failure to 

conform his attendance to the agency’s expectations in the 

face of progressive disciplinary measures showed that Mr. 

Tate was a poor candidate for rehabilitation and that a 

lesser sanction was not likely to be effective. As to Mr. 

Tate’s argument that the agency had not taken into 

consideration the lesser penalties imposed on other, 

similarly situated employees for similar offenses, the 

administrative judge found that the employee identified 

by Mr. Tate was not similarly situated, because he had 

requested leave for his absence, while Mr. Tate had not. 

The full Board subsequently modified the administrative 

judge’s decision by noting that the agency had not provided the other employee “with paperwork regarding 

lesser disciplinary sanctions prior to issuing the proposed 

removal,” which the Board found to be a substantially 

different situation from that of Mr. Tate, who “received 

six notices of disciplinary action prior to his receipt of the 

notice of proposed removal.”1

 1 In his informal brief, Mr. Tate refers to a Mr. Armando Sanchez, whose proposed removal for unsatisfactory attendance was reduced to a 14-day suspension. The 

evidence relating to Mr. Sanchez was not before the 

administrative judge, as the disparate treatment claim 
TATE v. USPS 6

The determination of an appropriate penalty is a matter committed primarily to the sound discretion of the 

employing agency. Brook v. Corrado, 999 F.2d 523, 528 

(Fed. Cir. 1993). This court will not reverse a decision of 

the Board upholding an agency’s penalty decision unless 

the penalty “exceeds the range of permissible punishment 

or is ‘so harsh and unconscionably disproportionate to the 

offense that it amounts to an abuse of discretion.’” Gonzales v. Def. Logistics Agency, 772 F.2d 887, 889 (Fed. Cir. 

1985), quoting Villela v. Dep’t of the Air Force, 727 F.2d 

1574, 1576 (Fed. Cir. 1984). Moreover, in reviewing an 

agency’s choice of penalty, the Board’s role “is not to insist 

that the balance be struck precisely where the Board 

would choose to strike it if the Board were in the agency’s 

shoes in the first instance,” but rather “to assure that the 

agency did conscientiously consider the relevant factors 

and did strike a responsible balance within tolerable 

limits of reasonableness.” Norris v. S.E.C., 675 F.3d 

1349, 1355 (Fed. Cir. 2012) (citations omitted). In this 

case, we are satisfied that the penalty of removal was not 

unconscionably disproportionate to the offense, and that 

the Board properly found that the agency had considered 

the relevant mitigating and aggravating factors in reaching its penalty determination. 

2. Mr. Tate makes the separate argument that it was 

improper for the agency and the administrative judge to 

consider his past violations of the Postal Service’s attendance policy because the disciplinary actions related to 

those violations had been informally settled. The Board 

 

that Mr. Tate raised before the administrative judge 

involved a different individual. In any event, Mr. Tate 

has not shown that the circumstances surrounding Mr. 

Sanchez’s case were similar to his. The full Board found 

the allegedly new disparate treatment evidence was not 

material to Mr. Tate’s appeal, and we agree. 
7 TATE v. USPS

properly found, however, that “whether [Mr. Tate] settled 

his prior disciplinary actions is irrelevant” because those 

prior disciplinary actions, although settled, gave Mr. Tate 

notice that the conduct at issue—tardiness and absence 

without leave—was in violation of the Postal Service’s 

attendance policy and that possible punishment for future 

violations included removal. See Jinks v. Dep’t of Veterans Affairs, 106 M.S.P.R. 627, 637 (2007). Because the 

Postal Service may take disciplinary action against an 

employee if he has notice of his attendance obligations 

and the likelihood of discipline for continued violations, 

see Williams v. U.S. Postal Serv., 68 M.S.P.R. 150, 155 

(1995), it was proper for the agency to consider Mr. Tate’s 

prior history of attendance problems for that purpose. 

The prior incidents were not used as the bases for the 

charge of failure to maintain a regular work schedule that 

is the subject of Mr. Tate’s appeal. 

3. Mr. Tate next alleges that the administrative judge 

relied on testimony from Postal Service employees that 

was “clearly erroneous.” In particular, he contends that 

the agency representative was untruthful when he stated 

that Mr. Tate did not provide documentation to show the 

reasons for his absences. The administrative judge, 

however, reviewed in detail Mr. Tate’s arguments that 

several of his absences were justified by illness or injury. 

Following that review, the administrative judge found, 

based in part on stipulations by Mr. Tate, that he had not 

properly requested leave for the charged absences. Mr. 

Tate has not offered any persuasive rebuttal to that 

finding. In particular, although Mr. Tate focuses in his 

brief on his short periods of absence in June and July 

2010 due to an illness and an automobile accident, he has 

failed to provide any sufficient explanation for his lengthy 

period of absence between August 5 and August 14, 2010, 
TATE v. USPS 8

during which he was charged with almost 32 hours of 

unauthorized leave.2

4. Mr. Tate argues that the agency breached relevant 

labor agreements by removing him even though he complied with the leave procedures set out in those agreements. That argument, however, was not presented to 

the administrative judge, and in any event Mr. Tate has 

provided no evidence showing what the leave requirements were and what steps he took to ensure compliance 

with those requirements. We therefore reject his claim 

relating to the labor agreements. 

5. Finally, Mr. Tate argues that prior to his removal 

his immediate supervisor told him that if he sought 

assistance from the employee assistance program no 

further disciplinary action would be forthcoming. Such a 

statement from Mr. Tate’s immediate supervisor, assuming it was made, would not bind the agency with respect 

to disciplinary actions absent evidence—not offered 

here—that the supervisor was authorized to make such 

disciplinary determinations on behalf of the agency. See

Wesselhoft v. Dep’t of the Interior, 46 M.S.P.R. 594 (1991). 

No costs. 

AFFIRMED 

 2 Although the administrative judge noted that “the 

record supports that at least one of the appellant’s absences during the period between August 5-14, 2010, was 

for treatment for the injury he sustained to his ribs,” Mr. 

Tate has not pointed to any evidence justifying his absence during the rest of that period, and the administrative judge found that Mr. Tate did not request leave for 

any of his absences during that time.