Davis v. United States Postal Service, 061212 FEDFED, 2012-3069

Docket Nº:2012-3069
Opinion Judge:PER CURIAM.
Party Name:LONDER B. DAVIS, Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent.
Attorney:Londer B. Davis, of Dallas, Texas, pro se. Ryan M. Majerus, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With him on the brief were Stuart F. Delery, Assistant Attorney General, Jeanne E. Davidson, Director, ...
Judge Panel:Before Linn, Moore, and O'Malley, Circuit Judges.
Case Date:June 12, 2012
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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LONDER B. DAVIS, Petitioner,

v.

UNITED STATES POSTAL SERVICE, Respondent.

No. 2012-3069

United States Court of Appeals, Federal Circuit

June 12, 2012

This disposition is nonprecedential

Petition for review of the Merit Systems Protection Board in case no. DA0752100459-B-1.

Londer B. Davis, of Dallas, Texas, pro se.

Ryan M. Majerus, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, for respondent. With him on the brief were Stuart F. Delery, Assistant Attorney General, Jeanne E. Davidson, Director, and Claude Burke, Assistant Director.

Before Linn, Moore, and O'Malley, Circuit Judges.

PER CURIAM.

Londer B. Davis ("Davis") appeals from the final decision of the Merit Systems Protection Board ("the Board") which: (1) denied his petition for review of the administrative judge's ("AJ") initial decision on grounds that he failed to show any new, previously unavailable, evidence; and (2) adopted the AJ's initial decision affirming the United States Postal Service's ("USPS" or "the agency") decision to remove him from employment for unacceptable conduct. Davis v. U.S. Postal Serv., No. DA-0752-10-0459-B-1, 2011 MSPB LEXIS 6950 (M.S.P.B. Nov. 21, 2011) (reported in table format at 117 M.S.P.R. 107) ("Final Decision"); Davis v. U.S. Postal Serv., No. DA-0752-10-0459-B-1, 2011 MSPB LEXIS 2867 (M.S.P.B. May 9, 2011) ("Initial Decision"). For the reasons explained below, we affirm.

Background

Davis began working for the Postal Service on June 12, 1993. Prior to his removal, Davis was a full-time letter carrier assigned to the Robert E. Price Station in Dallas, Texas. On September 26, 2009, Davis was involved in an altercation with another carrier, Tat Lee. The altercation took place in a conference room at the station and occurred in the presence of two witnesses: Hilario Montoya, the Acting Supervisor for the station, and Biagio Randazzo, the Chief Union Steward for that shift. Montoya and Randazzo later testified that they were in the conference room to investigate an earlier argument that Davis and Lee had on the workroom floor. It is undisputed that Davis used profanity during that verbal altercation.

While in the conference room, Davis and Lee continued to exchange profanity, and Lee slammed his fist into the conference room table. At that point, Davis left his end of the table, walked toward the end of the table where Lee was standing, and punched Lee in the head. Although testimony from Montoya and Randazzo and a written statement from Lee confirmed this sequence of events, Davis denied hitting Lee.

In a letter dated September 30, 2009, Montoya notified Davis that he was being placed on "non-duty status, non-pay, effective September 26, 2009." Appendix ("A.") 83. The letter informed Davis that his conduct during the altercation was unacceptable, and that an investigation was underway to determine whether corrective action was warranted.

On October 23, 2009, Montoya sent Davis a Notice of Proposed Removal for unacceptable conduct stemming from the September 26, 2009 incident. By letter dated November 9, 2009, George Young, the Postal Service's deciding official for this case, informed Davis that he would be removed from employment effective November 29, 2009. In the letter, Young: (1) explained that he considered the factors listed in Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306-07 (1981) ("the Douglas factors") to assess whether the penalty of removal is appropriate; and (2) walked through each of the twelve Douglas factors as they applied to Davis.

Davis appealed his removal to the Board, and the AJ conducted an evidentiary hearing on August 12, 2010. During the hearing, the AJ heard testimony from several individuals, including Montoya, Randazzo, Davis, and Young. On August 13, 2010, the AJ issued an initial decision dismissing Davis' removal appeal as untimely filed. Davis v. U.S. Postal Serv., No. DA-0752-10-0459-I- 1, 2010 MSPB LEXIS 4783 (M.S.P.B. Aug. 13, 2010). Davis petitioned the Board for review and, in a decision dated January 7, 2011, the Board granted the petition and reversed, finding that the regional office had improperly rejected Davis' filing as premature, thereby contributing to his untimeliness. Davis v. U.S. Postal Serv., 116 M.S.P.R. 329, 2011 MSPB LEXIS 223 (M.S.P.B. Jan. 7, 2011). The Board remanded the case to the AJ to render an initial decision on the merits of Davis' claims.

On February 3, 2011, the AJ conducted a conference...

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