N OTE : This disposition is nonprecedential.



# United States **Court of Appeals**  **for the Federal Circuit**

______________________

JOHN JOSEPH NAGLE,
Petitioner

v.

UNITED STATES POSTAL SERVICE, Respondent

______________________

2022

- 1306

______________________

Petition for review of the Merit Systems Protection
Board in No. PH

- 0752

- 20

- 0313 -I- 2.

______________________

Decided: July 7, 2022

______________________

J OHN J OSEPH N AGLE , South Boston, MA, pro se.

A NDREW J AMES H UNTER
, Commercial LitigationBranch, Civil Division, United States Department of Justice , Washington, DC, for respondent. Also represented by
B RIAN M. B OYNTON

, D EBORAH A NN B YNUM
, P ATRICIA M.
M C C ARTHY

.

______________________

Before R EYNA

, L INN
, and H UGHES

, Circuit Judges

. Case: 22-1306 Document: 32 Page: 1 Filed: 07/07/2022NAGLE v. USPS 2

P ER C URIAM

.Petitioner John Joseph Nagle appeals the Merit Systems Protection Board’s affirmance of the U.S. Postal Service’s decision to remove Nagle from employment. For the
follow ing reasons, we affirm.

B ACKGROUND

Nagle worked for the United States Postal Service (“USPS”) as a full

- time regular mail handler and equipment operator. App’x 1– 2. 1 Around August 2018, the USPS instructed Nagle to complete recertification training
with a Driver Safety Instructor (“DSI”) from the American Postal Workers Union (“APWU”), which was required for
operat i ng a forklift

. See App’x 4– 5, 45

– 46. Nagle refused to complete the training, and o n August 22, 2018, he filed a report with the Occupationa l Safety and Health Administration (“OSHA”) alleging that the USPS had instruct ed
him to complete training with an unqualified instructor

, which constituted a hazardous condition. Id.

On August 23, 2018, the USPS revoked Nagle’s equipment operating license, which prompted him to leave work in protest. S. App’x 111. 2 On Friday, August 24, 2018, Nagle was absent from work without leave (“AWOL”).
S. App’x 112. On Monday, August 27, 2018, Nagle did report to work

. But because he refused to undergo the training required for his equipment operator position, the USPS reassigned Nagle to operate a high

- speed mail sorter. Id. Nagle rejected the reassignment and thenceforth chose to
be AWOL from work

. See App’x 5.

1 The citation reference “App’x” herein refers to the appendix materials filed by Respondent, the USPS.

2 The citation reference “S. App’x” herein refers tothe supplemental appendix materials that Nagle submitted with his Reply brief. Case: 22-1306 Document: 32 Page: 2 Filed: 07/07/2022NAGLE v. USPS 3

On November 8, 2018, the USPS issued Nagle a letter of warning, advising him that his absences without leave would lead to disciplinary action

, which could includ e discharge

. App’x 37

– 38 . On February 1, 2019, the USPS issued Nagle a seven

- day suspension du e to his AWOL
absences. App’x 39

– 40. On March 18, 2019, the USPS issued Nagle a fourteen

- day suspension, again due to his refusal to report to work without leave. App’x 41

– 42. On May 23, 2019, the USPS issued Nagle another fourteen

day suspension for his continued AWOL status. App’x 43

– 44.

On October 23, 2019, the USPS sent Nagle a
Pr e- Disciplinary Interview (“PDI”) letter addressing his refusal to report to work

. See App’x 29. In the letter, the USPS ordered Nagle to (1) report for work on his next scheduled workday or provide documentation to support his absence; and (2) attend a telephonic pre

- disciplinary
interview o n October 29, 2019. See App’x 3 , 29 . The letter
warned that failure to comply with its instructions could
lead to discipline “up to and including discharge from the
Postal Service.” See App’x 3–4 , 29

. On January 13, 2020, the USPS issued Nagle a Notice of Proposed Removal (“NOPR”) based on the following three charges of misconduct: (1) failure to comply with leave pr ocedure; (2) failure to follow instructions

— namely, the two instructions set forth in the PDI letter; and (3) 75 instances of AWOL spanning from September 3, 2019, to December 20, 2019. App’x 28– 29

. On February 12, 2020, Nagle met with the deciding offici al to orally respond to the NOPR, and he maintained that his actions were fully justified because he had been subjected to an unsafe work condition by being ordered to report for training. App’x 45. Nagle further contended
that his absence should be medi cally excused due to high blood pressure. App’x 46. And he argued that the NOPR
and the USPS’s revocation of his equipment operator Case: 22-1306 Document: 32 Page: 3 Filed: 07/07/2022NAGLE v. USPS 4

license were both retaliations against him for (1) his filing of an OSHA complaint for unsafe work conditions, and (2)
the fact that he had assisted another mail handler on August 28, 2019, with a complaint before the National Labor Relations Board (“NLRB”). App’x 46.

On June 1, 2020, the USPS issued a l etter of decision upholding the NOPR charges against Nagle and sustaining his removal from employment. App’x 45. The USPS determined that Nagle’s claim of an unsafe workplace was unfounded, that his claim of high blood pressure was untimely raised and unsupported, and that Nagle’s beliefs about whether the USPS had retaliated against him did not entitle him to be AWOL or disregard the PDI letter. App’x 45

– 46.

On June 4, 2020, Nagle filed an appeal with the Merit System s Protection Board (“Board”). During proceedings before the Board, Nagle repeatedly failed to comply withdiscovery requirements and deadlines, despite the Administrative Judge (“AJ”) hearing multiple motions to compel and suspending proceedings multiple times for Nagle’s
benefit . App’x 57

– 84. On June 11, 2021, the AJ granted a pending request by the USPS for sanctions against Naglefor failing to file a prehearing submission, failing to disclose any witnesses he intended to call, and failing to respond to the USPS’s discovery requests in violation of an order compelling responses. App’x 93. Specifically, the AJ refused to further suspend proceedings and barred Nagle from producing additional documents or witnesses not yet disclosed. App’x 93

– 94.

On Ju ne 28, 2021, the AJ held a hearing on the merits regarding charges 1 and 3 of the NOPR. 3 App’x 1. Nagle did not dispute that he committed the alleged conduct.

3 The USPS withdrew charge 2 of the NOPR (failure to follow instructions) , so that became moot . App’x 95. Case: 22-1306 Document: 32 Page: 4 Filed: 07/07/2022NAGLE v. USPS 5

App’x 5– 6. Instead, he argued that the USPS committed harmful procedural errors when it (1) assigned DSI from
the APWU to conduct his training; (2) reassigned him to amail sorting machine when he refused to complete training; and (3) failed to provide him with a pre

- disciplinary interview before proposing his removal. App’x 6– 7. He also argued that he was entitled to whistleblower protection because the USPS had retaliated against him for protected disclosures. App’x 8.

On September 27, 2021, the AJ issued an initial decision affirming the USPS’s decision to remove Nagle. App’x 1. The AJ rejected Nagle’s contentions of harmful procedural error because (1) the USPS presented evidence that it was obligated by the terms of an arbitration award
to hire APWU DSIs to conduct recertification training; (2) the USPS had the right to instruct Nagle to work on amail sorting machine after he refused to undergo his forklift recertification training; and (3) the USPS did provide Nagle the opportunity for a PDI. App’x 7– 8. The AJ also rejected Nagle’s whistleblower contentions because (1) Nagle failed to show that any officials were aware of his protected activity; and (2) the agency sufficiently showed that it would have removed him regardless of the protected disclosures, due to his 75

- day AWOL period. App’x 8– 10.

Nagle appeals the AJ’s decision. We ha ve jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

S TANDARD OF R EVIEW

The scope of our review of B oard decisions is limited by

statute , and we must affirm unless we find the Board’s decision to be : (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); Bennett v. Merit Sys. Prot. Bd. , 635 F.3d 1215, 1218 (Fed. Cir. 2011). We review the Board ’s legal
determinations de novo. Welshans v. U.S. Postal Serv.

, Case: 22-1306 Document: 32 Page: 5 Filed: 07/07/2022NAGLE v. USPS 6

550 F.3d 1100, 1102 (Fed. Cir. 2008). The petitioner bears the burden of establishing that the board committed reversible error. Link v. Dep’t of Treasury , 51 F.3d 1577,

1581 (Fed. Cir. 1995).

D ISCUSSION

Nagle raises several arguments on appeal . We address
each argument in turn, below.

Nagle’s overall and primary contention on appeal is that the AJ erred in determining that he wa s not entitledto corrective action as a protected whistleblower. We discern no error in the AJ’s application of the whistleblower
laws in this case. Instead, s ubstantial evidence supports the AJ’s finding that agency officials had no knowledge of Nagle’ s protected disclosures. See App’x 9; see also, e.g.

, S. App’x 111

– 13, 114

– 16 (declaration testimony by Nagle’s supervisor). And substantial evidence supports the AJ’sfinding that the USPS would have removed Nagle regardless of his protected disclosures , due to his 75

- day AWOL period. See App’x 9– 10 (“He literally walked off the job and has not returned.”). Nagle offers no contrary evidence that warrants disturbing the AJ’s decision.

Nagle additionally argues that the AJ erred by imposing discovery san ctions on him without further warning.
He contends that the AJ should have instead suspended the case for another 30 days and issued a warning to Naglethat he would be sanctioned if he did not comply with discovery orders. Pet.’s Br. 3. T he record beli es Nagle’s argument. The AJ suspended proceedings multiple times on Nagle’s behalf and repeatedly ordered him to comply with discovery orders. Thus, we do not agree that the AJ Case: 22-1306 Document: 32 Page: 6 Filed: 07/07/2022NAGLE v. USPS 7

committed any abuse of discretion by imposing discovery
sanctions. 4

Nagle also argues that the AJ failed to appreciate that the USPS withdrew charge 2 of the NOPR. Pet.’s Br. 3– 4. However, the AJ’s decision makes clear that charges 1 and 3 independently supported the USPS’s decision to remove Nagle. Nagle fails to expla in how or why the AJ’s mention of charge 2, even if superfluous, resulted in any harmful

error.
Lastly, Nagle contend s that he was deprived of due process, i.e., notice and an opportunity to respond, with respect to the NOPR. Pet.’s Br. 9– 10. Again, the record belies Nagle’s position. Nagle received several notice s of potential disciplinary action , including multiple suspensions and a PDI letter setting a date and time for a pre

disciplinary interview. App’x 28

– 33, 37

– 44

. C ONCLUSION

We hold that Nagle f ails to show that the AJ’s decisionwas arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. We have considered the remainder ofthe arguments raised on appeal and find them unpersuasive. The AJ’s decision is affirmed.

AFFIRMED

C O STS

No costs.

4 “Procedural ma tters relative to discovery and evidentiary issues fall within the sound discretion of the board
and its officials.” Curtin v. Off. of Pers. Mgmt. , 846 F.2d 1373, 1378

– 79 (Fed. Cir. 1988) (citations omitted). “This
court will not overturn the board on su ch matters unless
an abuse of discretion is clear and is harmful .” Id. (citation omitted). Case: 22-1306 Document: 32 Page: 7 Filed: 07/07/2022