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

06-3048 MARION FLEMING, Petitioner,

v. UNITED STATES POSTAL SERVICE, Respondent.

______ ____________________ DECIDED: April 11, 2006

______ ____________________ Before LOURIE, Circuit Judge , CLEVENGER, Senior Circuit Judge , and BRYSON, Circuit Judge

. PER CURIAM.
Marion Fleming seeks review of the final de cision of the Merit Systems Protection Board (“Board”) affirming the dec ision of the United States Postal Service (“agency”) to remove Mr. Fleming from his job as a part-time flexible letter carrier. Fleming v. U.S. Postal Serv. , No. DC0752050026-I-1 (S ept. 14, 2005). We affirm

. I The agency removed Mr. Fleming from his job for alleged improper conduct, consisting of refusal to follow a super visor’s order and physically attacking the supervisor. Mr. Fleming appealed his removal to the Board. His case was heard by anAdministrative Judge ( “ AJ”). At the heari ng, the agency called Mr. Fleming’s supervisor and another agency witness. Mr. Fleming testif ied, but called no witness to support his

case. Mr. Fleming admitted that he had refused to comply with the order of his supervisor, but defended his refusal on the ground that the extra half-hour he was ordered to work exc eeded his eight-hour wo rk day requirement . This defense was rejected by the AJ because the record show ed that Mr. Fleming had not completed his required work day when asked to perform an additional half-hour, and that the extra half-hour would not have exceed ed the eight-hour limit. As for the charge of physical abuse of t he supervisor, the testimony was in conflict. T he supervisor testified that Mr. Fl eming thrust himself against the supervis o r, and that testimony was corrobor ated by the other agency witness. Mr. Fleming testified that the supervisor, not he, initiated the contact. The AJ found that the preponderanc e of the evidence showed that Mr. Fleming pushed into the supe rvisor, and on that findin g of fact the AJ concluded that the second as pect of t he improper conduct charge had been proved. With respect to the penalty of removal, the agency’s deciding o fficial c onsidered the physic a l contact issue significant as Mr. Fleming is a much larger person than the supervisor, such that there wa s an element of intimidation. The deciding of ficial als o considered the refusal to follow an order a se rious matter. The deciding official als o noted previous counsel and discipline given to Mr. Fl eming for past aggressiv e behavior, including intimidati on of customers on his route. Further, Mr. Fl eming had been disc iplined previously for being rude and in subordinate to his supervisor. Based

06-3048 2on the deciding official’s explanation for t he penalty im posed, the AJ conclud ed that the penalty of removal was justified. The AJ thus affirmed the agency’s decis i on to remove Mr. Fleming. Mr. Fleming’s appeal to the full Board was rejected, thus converting the initial decision of the AJ into the final decision of the Bo ard. Mr. Fleming timely s o ught review in this court. We have jurisdic tion under 28 U.S.C. § 1295(a)(9) (2000). II We must affirm a fi nal dec ision of t he Board unles s we determine that the decision is arbitrary, capric ious, an abuse of discretion or otherwise not in accordance with law. 5 U.S.C. § 7703(c) (2000). Any finding of fact underlying the final decision of the Board must be supported by substantial evidenc e. Id. Mr. Fleming concedes that he did not fo llow the order to per form another halfhour of work. His defense, that he had already worked his full day, was rejected by the Board, and substantial ev i dence supports the Board’s f i ndi ng that the ad ditional halfhour of work was within his allotted work-day time. Mr. Fleming reargues the facts as to w hether he, or the s upervisor, pushed first in the undisputed pushing match. But again, substantial evidenc e supports the factfinding that Mr. Fleming struck fi rst in the pushing match. In his briefs to this court, M r . Flemi ng argues that he was refused access to the workplace after the pushing inc i dent, and t hat he was thus prevented from getting witnesses and docum ents that would have suppor ted his version of the epis ode. Ther e is no indic a tion that this argum ent was raised before t he Board, and as such the argument would be to no avai l in this c ourt. But even assuming the argument had been

06-3048 3preserved, Mr. Flemi ng offers no specific s to support the general proposition that his lack of acc e ss to the workplac e hindered his defense. He po ints to no pers o n, and no documents, that he would hav e been able to access were he present, that were otherwise inaccessible to him. We thus re ject this arg u ment. In addition, Mr. Fleming’s briefs compla in that the B o ard did not give proper account for his past performance or let him defend his past performance. This argument fails, because Mr. Fleming indeed wa s afforded the opportunity to present his case in full. He was afforded a hearing, but he chose to call no witnesses other than himself. He presented no grounds upon which t he Board, or we, coul d conclude that his defense was impaired by action of the agency or the Board. We have considered the ot her arguments Mr. Fleming presents, and we find them unpersuasive. Since s ubs tantial ev idence supports the final dec ision of the Boar d sustaining the penalty of removal, we affirm.

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