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 decision of the Merit Systems Protection 

Board (“Board”) affirming the decision 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 (Sept. 14, 2005). We affirm. 

I 

The agency removed Mr. Fleming from his job for alleged improper conduct, 

consisting of refusal to follow a supervisor’s order and physically attacking the 

supervisor. Mr. Fleming appealed his removal to the Board. His case was heard by an 
Administrative Judge (“AJ”). At the hearing, the agency called Mr. Fleming’s supervisor

and another agency witness. Mr. Fleming testified, 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 exceeded his eight-hour work day requirement. This defense was

rejected by the AJ because the record showed 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 exceeded the eight-hour limit. 

As for the charge of physical abuse of the supervisor, the testimony was in 

conflict. The supervisor testified that Mr. Fleming thrust himself against the supervisor, 

and that testimony was corroborated by the other agency witness. Mr. Fleming testified

that the supervisor, not he, initiated the contact. The AJ found that the preponderance

of the evidence showed that Mr. Fleming pushed into the supervisor, and on that finding

of fact the AJ concluded that the second aspect of the improper conduct charge had 

been proved. 

With respect to the penalty of removal, the agency’s deciding official considered 

the physical contact issue significant as Mr. Fleming is a much larger person than the 

supervisor, such that there was an element of intimidation. The deciding official also

considered the refusal to follow an order a serious matter. The deciding official also

noted previous counsel and discipline given to Mr. Fleming for past aggressive

behavior, including intimidation of customers on his route. Further, Mr. Fleming had 

been disciplined previously for being rude and insubordinate to his supervisor. Based 

06-3048 2 
on the deciding official’s explanation for the penalty imposed, the AJ concluded that the 

penalty of removal was justified. The AJ thus affirmed the agency’s decision 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 Board. Mr. Fleming timely sought review 

in this court. We have jurisdiction under 28 U.S.C. § 1295(a)(9) (2000). 

II 

We must affirm a final decision of the Board unless we determine that the 

decision is arbitrary, capricious, 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 evidence. Id. 

Mr. Fleming concedes that he did not follow the order to perform another halfhour of work. His defense, that he had already worked his full day, was rejected by the 

Board, and substantial evidence supports the Board’s finding that the additional halfhour of work was within his allotted work-day time. 

Mr. Fleming reargues the facts as to whether he, or the supervisor, pushed first 

in the undisputed pushing match. But again, substantial evidence supports the factfinding that Mr. Fleming struck first in the pushing match. 

In his briefs to this court, Mr. Fleming argues that he was refused access to the 

workplace after the pushing incident, and that he was thus prevented from getting 

witnesses and documents that would have supported his version of the episode. There 

is no indication that this argument was raised before the Board, and as such the

argument would be to no avail in this court. But even assuming the argument had been 

06-3048 3 
preserved, Mr. Fleming offers no specifics to support the general proposition that his

lack of access to the workplace hindered his defense. He points to no person, and no 

documents, that he would have been able to access were he present, that were 

otherwise inaccessible to him. We thus reject this argument. 

In addition, Mr. Fleming’s briefs complain that the Board did not give proper 

account for his past performance or let him defend his past performance. This

argument fails, because Mr. Fleming indeed was 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 the Board, or we, could conclude that his 

defense was impaired by action of the agency or the Board. 

We have considered the other arguments Mr. Fleming presents, and we find 

them unpersuasive. 

Since substantial evidence supports the final decision of the Board sustaining the 

penalty of removal, we affirm. 

 

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