Webster v. Department of Army

• Decision Date: 09 August 1990
• Docket Number: No. 89-3369,89-3369
• Citation: 911 F.2d 679
• Parties: Alton T. WEBSTER, Petitioner, v. DEPARTMENT OF the ARMY, Respondent.
• Court: U.S. Court of Appeals — Federal Circuit

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911 F.2d 679 Alton T. WEBSTER, Petitioner,
v.
DEPARTMENT OF the ARMY, Respondent. No. 89-3369. United States Court of Appeals,
Federal Circuit. Aug. 9, 1990.
Suggestion for Rehearing In Banc Declined Feb. 25, 1991.

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Alton T. Webster, Fayetteville, N.C., pro se.

Randall J. Bramer, Dept. of Justice, Washington, D.C., for respondent.

Before NIES, Chief Judge, ^* and NEWMAN and MICHEL, Circuit Judges.

MICHEL, Circuit Judge.

The Merit Systems Protection Board (Board) sustained the removal of Alton Webster, a civilian postal clerk at an Army installation, finding an adequate basis therefor because of five incidents of "serious" misconduct involving insubordination, failure to follow his supervisor's instructions, open disrespect to his supervisor and to a military officer, and creating a disturbance. Webster v. Department of Army, Docket No. AT07528910316 (MSPB May 11, 1989). The initial decision became final on June 15, 1989, because Webster failed to file for review by the full Board; he then filed a timely appeal, pro se, under 5 U.S.C. Sec. 7703(b)(1) (1988), over which we have jurisdiction under 28 U.S.C. Sec. 1295(a)(9) (1988). Because the Administrative Judge (AJ) adequately considered all relevant Douglas factors as to alleged disproportionate penalty, properly applied correct legal standards and burdens in deciding the issue of alleged retaliation, and based his conclusions on findings supported by substantial evidence, we affirm.

BACKGROUND

Webster was employed by the Department of the Army as a civilian mail clerk charged to assist military mail clerks and units at Fort Bragg with regulatory compliance and training. Webster, slip op. at 15. He was removed, effective December 30, 1988, based on eleven specifications, including incidents of insubordination, creating a disturbance resulting in an adverse effect on morale and maintenance of proper discipline, disrespect towards his supervisor (all second offenses), discourtesy, willful violation of rules and regulations, and willful use of a government vehicle for other than official business. Id. at 1-2. His removal was recommended by his supervisor, Mr. Willie L. McCain, and ordered by Ms. Judith Bickford, who apparently was three levels above petitioner in the postal chain of command.

Webster appealed his removal to the Board. After a full evidentiary hearing on March 28, 1989, the AJ dismissed six specifications but sustained the following five, finding each supported by a preponderance of the evidence:

1. On September 13, 1988, Webster failed to report to his supervisor prior to turning in his government vehicle, contrary to his supervisor's express instructions. The other employees received the very same specific instruction, i.e., to report daily to the supervisor at the postal branch, in person or by phone, prior to 1615 hours and before turning in their vehicles. Statements of Annie G. McLaughlin, Edgar Chapman and Willie L. McCain, compiled in Webster, Docket No. AT07528910316 (Tab 4K-4) [hereinafter compiled in Board Record]. It is undisputed that all but Webster complied. Webster, slip op. at 6-7. Despite repeated reminders from McCain, on this occasion Webster plainly did not obey. Notice of Proposed Removal, by Judith Bickford, Chief, Operations/Systems Integration Division (Oct. 19, 1988) [hereinafter Notice of Proposed Removal (Oct. 19, 1988) ], compiled in Board Record (Tab 4J).

Webster argued as justification or excuse that he disagreed with the need to report to his supervisor, McCain, because, he said, "the policy did not make sense." Webster, slip op. at 7 (AJ Finding of Fact); Notice of Proposed Removal (Oct. 19, 1988) (Bickford quoting Webster's statement.). The AJ did not accept Webster's personal opinion about the lack of value of the instruction as a valid excuse. Webster's brief to us also argued that McCain had agreed to exempt him from compliance. He cited no testimony, however, in support of this contention. The AJ found the specification proven.

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2. On September 15, two days later, Webster failed to assemble and remain in front of the post office during a fire drill as instructed and as all the other postal employees did; instead, immediately upon departing the building, he left the area. Both not assembling out front and departing the area were contrary to supervisor McCain's explicit instructions. The AJ found McCain "instructed all employees to assemble on the lawn in front of the [building]." Webster, slip op. at 7. McCain stated he instructed all personnel to "fall out on the grass in front of the Postal Branch...." Disposition Form, by Willie L. McCain, Chief, Postal/Distribution Branch (Sept. 21, 1988), compiled in Board Record (Tab 4K-4). Other employees stated they were instructed to "go outside to the field located between the Post Office and [the road]" and to "assemble outside on the grass." Statements of Warren P. Basnight and Peggy E. Worcester (Sept. 16 & 23, 1988, respectively), compiled in Board Record (Tab 4K-4). It is undisputed that Webster neither assembled nor remained with the other employees. When Webster failed to appear, McCain went looking for him. The AJ found Webster "left the area to get some ice cream." Webster, slip op. at 7. Upon Webster's return, McCain told him he had not received permission to leave. The record reflects that McCain asked Webster why he did not stay for the fire drill. Webster stated he had vacated the building and that was all that was required. McCain reminded Webster he had instructed everyone "to assemble outside on the grass" and explained that he "was in charge of the assembly." Disposition Form, by Willie L. McCain, Chief, Postal/Distribution Branch (Sept. 21, 1988) compiled in Board Record (Tab 4K-4). Webster conceded he responded to McCain's statement that as supervisor he was in charge, saying, "In charge of what?" Webster, slip op. at 7.

Webster also testified, and now argues before us, that he was either on union time or break time during the fire drill assembly. As the AJ noted, "[Webster's] testimony on this issue is internally inconsistent." Id. The AJ also found it unsupported on both points. Id. The AJ therefore concluded, "I have rejected the appellant's testimony on this issue." Id. Rejecting Webster's other excuses, the AJ sustained a charge of insubordination and also one of disrespectful conduct.

3. On October 17, about one month later, Webster failed to follow a specific instruction from McCain to use a rubber stamp to mark mail to be forwarded and did not do so on three letters. Id. at 10. Before the AJ, Webster testified he was not told to use the stamp; however, the AJ found that Webster was so instructed but failed to follow the instruction. Id. at 10-11. The AJ sustained the specification for failure to follow the supervisor's stamping instruction.

The AJ also found Webster was disrespectful to McCain. Id. at 11. Webster argued with McCain, stating that this procedure was not required on another Army base. Id. Procedures at other Army bases were not viewed as controlling with regard to procedures required at Fort Bragg. Nor was it found sufficient that a Department of Defense mail manual did not require the procedure followed at Fort Bragg. The AJ found Webster stated that he knew more about mail procedures than his supervisor. Because of that statement, the AJ found Webster "intentionally challenged his supervisor's authority." Id.

4. About two weeks later, on November 1, 1988, Webster loudly interrupted a conversation inside the postal facility about complying with postal procedures that Lt. Michelle Perna and Sgt. Reese were conducting with Mr. Chapman, another civilian postal employee, with a "childish tirade." According to the AJ's findings, Webster yelled at Lt. Perna, used crude language, and "embarrassed and humiliated" the military personnel. Id. Lt. Perna, a platoon leader, reported the incident herself. At the hearing, according to the AJ, she testified "that the appellant was rude and disrespectful to her...." Id. (emphasis added). In his testimony, Webster conceded he intervened in Lt. Perna's meeting, which did not concern him, and referred to someone as a "jack asshole." Id. at 12. As the AJ

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noted, her account of the incident was corroborated by Mr. Chapman. Id.

The AJ sustained charges that Webster created a disturbance and was discourteous to the military personnel. Id.

5. On November 8, when McCain questioned whether Webster had sent certain mail on distribution, Webster responded, "Are you crazy?" Id. Webster contended he was provoked by his supervisor, but the AJ noted Webster "offered no evidence to support this assertion." Id. The AJ sustained a charge that Webster had been disrespectful to his supervisor. Id.

In addition to the five sustained specifications for misconduct in 1988, Webster had a prior disciplinary record for four charges of misconduct in 1987, for which he was reprimanded. In 1987 McCain had proposed a five-day suspension because Webster failed to heed his request that Webster stop dropping books on the floor, but instead responded that he "didn't 'give a fuck.' " Id. at 16. The record reflects that this incident occurred in the presence of Webster's co-workers. In responding to McCain's proposal to suspend Webster, Bickford, the deciding official, wrote, "Although there is no excuse for [Webster's August 24, 1987] behavior, Mr. Webster's supervisor is partially responsible for the turmoil in this branch." Disposition Form, by Judith Bickford, Acting Chief (Nov. 17, 1987) (Record of Prior Disciplinary Action), compiled in Board Record (Tab L). Consequently, Bickford determined Webster would receive a written reprimand rather than a suspension. He was reprimanded by letter of February 1, 1988, for "insubordination, disrespect toward his supervisor, creating a disturbance, and use of abusive and offensive language" in August, 1987. Webster, slip op. at 16.

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