NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

05-3339 CHARLES WHITE, Petitioner,

v. UNITED STATES POSTAL SERVICE, Respondent.

__________________________ DECIDED: April 10, 2006

__________________________

Before LINN, DYK, and PROST, Circuit Judges

. PER CURIAM. Charles White (“White”) appeals a decisi on of the Merit Systems Protection Board (“Board”) sustaining a charge of “impr oper conduct by participating in a verbal and physical altercation,” and affirming his removal from the United States Postal Service (“Postal Service”). White v. United Stat es Postal Serv. , No. AT-0752-05-0286-I1 (M.S.P.B. July 28, 2005) (“ Final Order ”). Because the Board’s decision sustaining the charge and the removal is s upported by substantial evi dence, is not an abuse of discretion, and does not otherwise contain reversible error, we affirm

.BACKGROUND On August 9, 2004, while White was attendi ng the Mail Handler’s Union picnic in Jacksonville, Florida, he and one of his co workers, Mr. John Sawyer (“Sawyer”), became involved in a fight involving deadly weapons. After conducting an investigation, the Postal Service removed White from dut y. White appealed to the Board, which affirmed the agency’s decision. See White v. United States Postal Serv. , No. AT-0752- 05-0286-I-1 (M.S.P.B. May 2, 2005) (“ Initial Decision ”). The administrative judge (“AJ”) found that, based on White’s admissions agains t interest that he brandished a knife against a co-worker, the Postal Service pr oved its charge of improper conduct. The AJ’s decision became the final decision of the Board after the Board denied White’s petition for review. See Final Order , slip op. at 1-2. White timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). DISCUSSION A. Standard of Review Pursuant to 5 U.S.C. § 7703(c) , this court must affirm the Board’s decision unless it is: (1) arbitrary, capricious, an abuse of di scretion, or otherwise not in accordance with law; (2) obtained without proc edures required by law, ru le or regulation having been followed; or (3) unsupported by substantial evidence. Chase-Baker v. Dep’t of Justice , 198 F.3d 843, 845 (Fed. Cir. 1999). The petit ioner bears the burden of establishing reversible error in reviewing a decision of an administrative agency such as the Board. Harris v. Dep’t of Veterans Affairs , 142 F.3d 1463, 1467 (Fed. Cir. 1998).

05-3339 2B. Analysis To succeed in an adverse action against an employee, an agency must establish that the conduct occurred, t hat there is a nexus between the conduct and the efficiency of the service, and that the penalty imposed by the agency was reasonable. Bryant v. Nat’l Sci. Found. , 105 F.3d 1414, 1416 (Fed. Cir. 1997). 1. Conduct White argues that, in sustaining the c onduct determination, the Board failed to take into account testimony of Ms. Kar en Goshay (who White claims was an eye witness) and an unidentified State Attorney (who White claims talked with the Postal Service regarding charges against Sawyer). Wh ite asserts that the testimony of these witnesses would help to show that he acted in self defense. As concerns the testimony of Ms. Gos hay, she wrote in her witness statement that she was “on kitchen duty” and “did not see the alleged event.” The AJ denied White leave to call Ms. Goshay as a witness, finding that her testimony would not be relevant. A determination to allow or exclude wit ness testimony is within the sound discretion of the adm inistrative judge. See Tiffany v. Dep’t of the Navy , 795 F.2d 67, 70 (Fed. Cir. 1986). White has not shown that the AJ abused his discretion by excluding Ms. Goshay as a witnesses on relevancy grounds. Since Ms. Goshay did not witness the event, she could not provi de relevant testimony as to whether White acted in self defense. Furthermore, because the AJ’s dec ision was based on White’s own admission that he brandished a knife, a fact which Wh ite admitted before the Postal Service and before the Board, and again admits before this court in his informal briefs, the Board did not abuse its discretion in excluding the testimony of Ms. Goshay.

05-3339 3Regarding the testimony of the State Attorney, although White asserts that the State Attorney might be able to proffer te stimony regarding the St ate’s charges against Sawyer, White does not explain how that te stimony would be relevant to show that White acted in self-defense. Moreover, White failed to list the State Attorney on his witness list. Our precedent is clear that facts not before the Board cannot be considered on appeal. “Our precedent clearly es tablishes the impropriety of seeking a reversal of the [B]oard’s decision on the bas is of assertions nev er presented to the presiding official or to the [B]oard.” Rockwell v. Dep’t of Transp. , 789 F.2d 908, 913 (Fed. Cir. 1986); see Oshiver v. Office of Pers. Mgmt. , 896 F.2d 540, 542 (Fed. Cir. 1990) (holding that this court will not considernew evidence that wa s not presented to the Board); Rockwell , 789 F.2d at 913 (explaining that Congress limited this court’s appellate review “to final orders and decis ions of the Board on the record”). In sum, White has not ident ified any reversible error in the Board’s decision to sustain the charge. 2. Nexus White argues that, because the fight o ccurred when he was off duty, the Board erred in finding that the nex us had been established. The Postal Service argues that the Board’s finding of nexus should be affirm ed and notes that this court has found that off-duty conduct can give rise to a presumpt ion of nexus. The Postal Service argues that White’s conduct was sufficiently egr egious that a nexus between the conduct and the efficiency of the service is presumed, as it was in Brown v. Department of the Navy , 229 F.3d 1356 (Fed. Cir. 2000) (off-duty affair with officer’s spouse), Brook v. Corrado , 999 F.2d 523, 527-28 (Fed. Cir. 1993) (off-duty drug trafficking), Allred v. Department of

05-3339 4Health & Human Services , 786 F.2d 1128, 1130 (Fed. Cir. 1986) (off-duty child molestation), Dominguez v. Department of Air Force , 803 F.2d 680, 683 (Fed. Cir. 1986) (assault against supervisor at an off-duty location), and Hayes v. Department of the Navy , 727 F.2d 1535, 1539 (Fed. Cir. 1984) (off- duty assault and battery against child ). In the present case, the Boar d held that “disciplining [White] clearly promotes the efficiency of the Federal service notwithst anding that the fight occurred off duty.” Initial Decision , slip op. at 7. The Board found that the misconduct had an adverse effect on the efficiency of the service because, al though the misconduct did occur off-duty, it involved two agency employees, occurred in t he presence of many postal employees who were attending a union-sanctioned event, troubled postal employees after the fact, and put postal employees in harm’s way. Id. , slip op. at 6-7. The facts clearly indicate that Whit e’s fellow employees remained concerned about what had happened and complained about the incident to their supervisor. We therefore agree with the Boar d’s findings and reasoning that White’s misconduct against his fellow employee, in front of many co-workers at a union-sanctioned event, had a chilling effect upon relationships at the work place which can only adversely impact the agency’s ability to fulfill its missi on with proper efficiency. W e find no error in the Board’s conclusion that the evidence was suffici ent to demonstrate the required nexus. 3. Penalty White also challenges the penalty, st ating that “[t]here could have been a suspension instead of a dismissal since the other party had already resigned from the Postal Service and the likelihood [sic] of th is incident spilling over at the workplace

05-3339 5would have been moot.” The “[d]eterminat ion of an appropriate penalty is a matter committed primarily to the sound discr etion of the employing agency.” Brook v. Corrado , 999 F.2d 523, 528 (Fed. Cir. 1993) (quoting Beard v. Gen. Servs. Admin. , 801 F.2d 1318, 1322 (Fed. Cir. 1986)). Accordingly, “we will not disturb a penalty unless it exceeds the range of permissible punishm ent 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 Air Force , 727 F.2d 1574, 1576 (Fed. Cir. 1984)). The Board found that White displayed no re morse and left the AJ with the distinct impression that he would have done ex actly the same thing again. Initial Decision , slip op. at 7. The Board also found that t he harm caused by White’s misconduct caused lingering concerns in the workplace in that employees were worried about the incident. Id. In light of these findings, White’s ar guments do not demonstrat e that his removal from the workplace was an abuse of di scretion by the Postal Service. CONCLUSION For the foregoing reasons, we conclude t hat the Board’s decision sustaining a charge of improper conduct and affirming t he penalty of removal is supported by substantial evidence, is not an abuse of discretion, and does not otherwise contain reversible error. Accordingly, we affirm the Board’s decision. COSTS No costs.

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