NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3073 JOSEPHINE ZAMUDIO, Petitioner,

v. SOCIAL SECURITY ADMINISTRATION, Respondent. Josephine Zamudio , of Berwyn, Illinois, pro se. Phyllis Jo Baunach , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With her on the brief were Jeffrey S. Bucholtz , Acting Assistant Attorney General; Jeanne E. Davidson , Director; and Donald E. Kinner , Assistant Director. Of counsel on the brief was David Skidmore , Assistant Regional Counsel, Office of the Regional Chief Counsel, Social Security Administration, of Chicago, Illinois. Appealed from: Arbitration DecisionNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3073 JOSEPHINE ZAMUDIO, Petitioner,

v. SOCIAL SECURITY ADMINISTRATION, Respondent.

Petition for review of the arbi trator's decision in CH200R0013.

__________________ _________ DECIDED: May 9, 2008

__________________ _________ Before RADER, Circuit Judge , PLAGER, Senior Circuit Judge , and BRYSON, Circuit Judge

. RADER, Circuit Judge

. An arbitrator sustained the Social Secu rity Administration's ("SSA") removal of Ms. Zamudio from her position as a Bi-lin gual Service Representative. Because Ms. Zamudio failed to show that the arbitrator's decision was arbitrary, capricious, unsupported by substantial ev idence, or otherwise not in accordance with law, and because the penalty of removal was not ou trageously disproportionate to the proven charges, this court affirms

.I Ms. Josephine Zamudio was removed from her position with the SSA for four reasons: (1) discourteous treatment of the publ ic; (2) failure to follow established work procedures; (3) poor public service; and (4) disr espectful treatment of a supervisor. Ms. Kathy Oboikovitz, Ms. Zamudio’s North River side Operations Supervisor, proposed her removal. On February 11, 2002, the North Riverside District Manager, Mr. Dale Coonda, issued the decision to remove Ms. Zamudio. Ms. Zamudio's challenged her removal und er the grievance procedures outlined in Article 24 of the National Agreement Between American Federation of Government Employees and Social Security Administration (April 6, 2000) ("National Agreement "). Her first challenge was denied. Instead of appealing to the Merit Systems Protection Board (MSPB), Ms. Zamudio decided to arbi trate under Article 25 of the National Agreement . The decision to remove Ms. Zamudio was sustained by arbi trator Nancy D. Powers on August 14, 2007. The arbitrator found that the SSA had pr oven each of the four charges within nine specific incidents which occurred in the summer and fall of 2001. "There is no question that the incidents o ccurred—they were all proper ly documented by Zamudio's supervisor or observed by her and other employees." Arbitration Decision at 11; [A 12]. The arbitrator described Ms. Zamudio's behavior as totally unacceptable and held that the SSA had just cause to discipline Ms . Zamudio and that termination was the appropriate form of discipline.

2008-3073 2II Ms. Zamudio struggled with disciplinar y problems throughout her employment with the SSA. [A 4-5]; [A 42-43]. In fact she had been suspended three times previously. Most of these prior events involved similar discourteous behavior towards the public or supervisors. The incidents that led to removal, however, began with the failure to correctly process a reinstatement action after a claimant's retirement benefits had been improperly terminated. Ms. Zamudio' s supervisor, Ms. O boikovitz, attempted to discuss the error with her . Instead of consenting to a discussion, Ms. Zamudio responded with extremely inapp ropriate, profane, and host ile comments, which were overheard by others. [RB 10]. This incident led to the char ge of supervisor disrespect. [A 5] Another incident involved the destruction of an applicati on for a social security number. Ms. Zamudio, instea d of processing Mr. Haurot a's application, vehemently ripped it up and threw it in the trash while cursing. Both Ms. Oboikovitz and Mr. Coonda testified that this alone was su fficient basis for removal. The next three incidents involve written complaints from customers. Ms. Kimberly Pounders had just lost her sister. She brought her sister's two children (Terra and Troy) to the agency to ens ure that their mother's so cial security checks would continue for their benefit. The two children had just experienc ed the loss of their mother a few days prior and reportedly were quite di sturbed by Ms. Zamu dio's treatment of them. Ms. Robinette Velders and Mr. Mori arity also submitted similar written complaints.

2008-3073 3Two other instances involv e immigrant legal aliens who were seeking social security numbers. Ms. Zamudio's incorrect actions led to unnecessary delays in the processing of the workers' applications. One of these in stances left the applicant, who was simply applying for a name change, with the impression that she was being refused help based on her nationality. Another instance left a claimant, Ms. Colapietro, the wife of a disabled man who was just released from the hospital, wi th the impression that it was too late to appeal the denial of his disability benefits. III This court must affirm any agency action, findings, or conclusions not found to be: (1) arbitrary or capric ious, an abuse of discretion, or otherwise not in accordance with the law; (2) obtained withou t procedure required by law, rule, or regulation having been followed; or (3) unsupported by substantia l evidence. 5 U.S. C. § 7703(c) (1996); Hayes v. Dep’t of Navy , 727 F.2d 1535, 1537 (Fed. Cir. 1984) ; Kewley v. Dep’t of Health & Human Servs. , 153 F.3d 1357, 1361 (Fed. Cir. 1998). A court will not overturn an agency decision if it is supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclu sion." Brewer v. Un ited States Postal Service , 647 F.2d 1093, 1096 (Ct. Cl. 1981). The sta ndard of review is the same for the decision of an arbitrator as for a decision of the Merit Systems Protection Board. IV Mr. Zamudio alleges that the ar bitrator did not consider a ll of the relevant facts. To the contrary, the arbitrat or considered each of the ni ne specific instances which resulted in the four charges. The arbitrator correctly c oncluded that Ms. Zamudio was

2008-3073 42008-3073 5 discourteous to the public; failed to follow proper work procedures; provided poor public service; and treated her supervisor with disrespect. The administrator's conclusions were far from arbitrary and capricious. Further, despite Ms. Zamudio's allegations, this court perceives that the arbi trator complied with all legal requirements. RB 16]. The arbitrator proper ly noted that to sustain a removal, the agency must demonstrate a nexus between the misconduct and the need for discipline to promote t he efficiency of the service. Pope v. United States Postal Serv. , 114 F.3d 1144, 1147 (Fed. Cir. 1997). The arbitrator also correctly determined that the punishment was not clearly excessive, unr easonable, or arbitrary and capricious. Douglas v. Veterans Administration , 5 M.S.P.R. 280, 299 (1981) . The arbitrator noted that Mr. Coonda, in his decision to remove Ms. Zamudio, considered the appropriate factors, including appropriate mitigating and aggravating factor s. An agency's choice of penalty should not be disturbe d unless it appears "outrageously disproportionate" in light of all the factor s. Lachance v. Devall , 178 F.3d 1246, 1251 (Fed. Cir. 1999). V In summary, because the arbitrator's dec ision was not arbitr ary, capricious, unsupported by substantial ev idence, and because the penalty of removal was not outrageously disproportionate to the proven charges, this court affirms.