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 decision of the Merit Systems Protection 

Board (“Board”) sustaining a charge of “improper conduct by participating in a verbal 

and physical altercation,” and affirming his removal from the United States Postal 

Service (“Postal Service”). White v. United States 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 supported by substantial evidence, is not an abuse of 

discretion, and does not otherwise contain reversible error, we affirm. 
BACKGROUND 

On August 9, 2004, while White was attending the Mail Handler’s Union picnic in 

Jacksonville, Florida, he and one of his coworkers, Mr. John Sawyer (“Sawyer”), 

became involved in a fight involving deadly weapons. After conducting an investigation, 

the Postal Service removed White from duty. 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 against interest that he brandished a knife 

against a co-worker, the Postal Service proved 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 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. Chase-Baker v. Dep’t of Justice, 

198 F.3d 843, 845 (Fed. Cir. 1999). The petitioner 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 2 
B. Analysis 

To succeed in an adverse action against an employee, an agency must establish 

that the conduct occurred, that 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 conduct determination, the Board failed to 

take into account testimony of Ms. Karen 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). White asserts that the testimony of these 

witnesses would help to show that he acted in self defense. 

As concerns the testimony of Ms. Goshay, 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 witness testimony is within the sound 

discretion of the administrative 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 provide relevant testimony as to whether White acted in self 

defense. Furthermore, because the AJ’s decision was based on White’s own admission 

that he brandished a knife, a fact which White 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. 

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Regarding the testimony of the State Attorney, although White asserts that the 

State Attorney might be able to proffer testimony regarding the State’s charges against 

Sawyer, White does not explain how that testimony 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 establishes the impropriety of seeking a 

reversal of the [B]oard’s decision on the basis of assertions never 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 consider new evidence that was not presented to 

the Board); Rockwell, 789 F.2d at 913 (explaining that Congress limited this court’s 

appellate review “to final orders and decisions of the Board on the record”). 

In sum, White has not identified any reversible error in the Board’s decision to 

sustain the charge. 

2. Nexus 

White argues that, because the fight occurred when he was off duty, the Board 

erred in finding that the nexus had been established. The Postal Service argues that 

the Board’s finding of nexus should be affirmed and notes that this court has found that 

off-duty conduct can give rise to a presumption of nexus. The Postal Service argues 

that White’s conduct was sufficiently egregious 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 4 
Health & 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 Board held that “disciplining [White] clearly promotes the 

efficiency of the Federal service notwithstanding 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, although the misconduct did occur off-duty, it 

involved two agency employees, occurred in the 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 White’s fellow employees remained concerned 

about what had happened and complained about the incident to their supervisor. We 

therefore agree with the Board’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 workplace which can only adversely impact the 

agency’s ability to fulfill its mission with proper efficiency. We find no error in the 

Board’s conclusion that the evidence was sufficient to demonstrate the required nexus. 

3. Penalty 

White also challenges the penalty, stating 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 this incident spilling over at the workplace 

05-3339 5 
would have been moot.” The “[d]etermination 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) (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 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 Air 

Force, 727 F.2d 1574, 1576 (Fed. Cir. 1984)). 

The Board found that White displayed no remorse and left the AJ with the distinct 

impression that he would have done exactly the same thing again. Initial Decision, slip 

op. at 7. The Board also found that the 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 arguments do not demonstrate that his removal 

from the workplace was an abuse of discretion by the Postal Service. 

CONCLUSION 

For the foregoing reasons, we conclude that the Board’s decision sustaining a 

charge of improper conduct and affirming the 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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