NOTE: This disposition is nonprecedential.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 Decision
NOTE: This disposition is nonprecedential.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 arbitrator'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 Security Administration's ("SSA") removal of 

Ms. Zamudio from her position as a Bi-lingual Service Representative. Because Ms. 

Zamudio failed to show that the arbitrator's decision was arbitrary, capricious, 

unsupported by substantial evidence, or otherwise not in accordance with law, and 

because the penalty of removal was not outrageously 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 public; (2) failure to follow established work 

procedures; (3) poor public service; and (4) disrespectful treatment of a supervisor. Ms. 

Kathy Oboikovitz, Ms. Zamudio’s North Riverside 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 under 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 arbitrate under Article 25 of the National 

Agreement. The decision to remove Ms. Zamudio was sustained by arbitrator Nancy D. 

Powers on August 14, 2007. 

The arbitrator found that the SSA had proven 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 occurred—they were all properly 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 2
II 

Ms. Zamudio struggled with disciplinary 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. Oboikovitz, attempted 

to discuss the error with her. Instead of consenting to a discussion, Ms. Zamudio 

responded with extremely inappropriate, profane, and hostile comments, which were 

overheard by others. [RB 10]. This incident led to the charge of supervisor disrespect. 

[A 5] 

Another incident involved the destruction of an application for a social security 

number. Ms. Zamudio, instead of processing Mr. Haurota'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 sufficient 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 ensure that their mother's social security checks would 

continue for their benefit. The two children had just experienced the loss of their mother 

a few days prior and reportedly were quite disturbed by Ms. Zamudio's treatment of 

them. Ms. Robinette Velders and Mr. Moriarity also submitted similar written 

complaints. 

2008-3073 3
Two other instances involve 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 instances 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, with 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 capricious, an abuse of discretion, or otherwise not in accordance 

with the law; (2) obtained without procedure required by law, rule, or regulation having 

been followed; or (3) unsupported by substantial 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 conclusion." Brewer v. United States Postal 

Service, 647 F.2d 1093, 1096 (Ct. Cl. 1981). The standard 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 arbitrator did not consider all of the relevant facts. 

To the contrary, the arbitrator considered each of the nine specific instances which 

resulted in the four charges. The arbitrator correctly concluded that Ms. Zamudio was 

2008-3073 4
2008-3073 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 arbitrator complied with 

all legal requirements. RB 16]. The arbitrator properly noted that to sustain a removal, 

the agency must demonstrate a nexus between the misconduct and the need for 

discipline to promote the 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, unreasonable, 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 factors. An agency's choice of 

penalty should not be disturbed unless it appears "outrageously disproportionate" in 

light of all the factors. Lachance v. Devall, 178 F.3d 1246, 1251 (Fed. Cir. 1999). 

V 

In summary, because the arbitrator's decision was not arbitrary, capricious, 

unsupported by substantial evidence, and because the penalty of removal was not 

outrageously disproportionate to the proven charges, this court affirms.