Morales v. Merit System Protection Bd.
| Decision Date | 06 May 1991 |
| Docket Number | No. 90-15151,90-15151 |
| Parties | 55 Fair Empl.Prac.Cas. 1282, 56 Empl. Prac. Dec. P 40,724 Alfredo MORALES, Plaintiff-Appellant, v. MERIT SYSTEM PROTECTION BOARD, Edward C. Aldridge, Jr., Secretary of the Air Force, Thomas Clarence, Chairman of the EEOC, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Carlos M. Alcala, Sacramento, Cal., for plaintiff-appellant.
Edmund F. Brennan, Asst. U.S. Atty., Sacramento, Cal., for defendants-appellees.
Appeal from the United States District Court for the Eastern District of California.
Before PREGERSON, NOONAN and THOMPSON, Circuit Judges.
Alfredo Morales appeals the district court's grant of summary judgment affirming the decision of the Merit System Protection Board (the Board) upholding his discharge from the Air Force. We affirm the judgment of the district court in part, reverse in part, and remand.
Morales was a civilian employee of the United States Air Force. He had worked for the federal government for over twenty-eight years. In 1986 he was the leader of a crew of jet engine mechanics at Travis Air Force Base. The crew's primary responsibility was to conduct various maintenance, test, and overhaul procedures. Morales' role as leader was to teach the new members of the crew and to oversee the pace and quality of their work. On May 21, 1986 Morales met with a superior, Sergeant Fitzgerald, and complained that people with less education and less experience than he were being promoted before he was; that he was being denied "writing opportunities"; and that he was not being given temporary duty assignments he deserved. He concluded by saying that he was being treated unfairly and would bring an "EEO lawsuit" to redress these wrongs.
From July 1 to July 14, 1986 Morales was on leave. During this period his crew was assigned to mopping and cleaning--he declares in retaliation for his threat of a lawsuit before the Equal Employment Opportunity Commission (EEOC). When he returned from leave he requested a meeting with his superiors to complain about this treatment. Instead, he was suspended for fourteen days for misconduct.
The formal notice of suspension was to be served on August 18, 1986. Morales avoided service of the notice by scheduling a hospital appointment--the Board later found the appointment to be a means to evade service; Morales declares it was made because of a medical need. In any event, he was served and remained suspended until September 2, 1986.
On his return to work Morales had a conversation with a new member of his crew which was later construed by the Board as an interference with an enlisted man's right to approach higher authority with a legitimate complaint; Morales had an innocuous explanation.
Two days later, on September 4, Morales engaged in a verbal and physical tussle with his assistant crew chief that Morales says was a joke and the Board found to be demeaning to the crew member.
The next day, September 5, Morales had a sharp exchange with his civilian superior, Lukens. Morales says he got mad because Lukens verbally mistreated him; the Board believed Lukens' account that Morales verbally threatened him.
On October 19, 1986, Morales was fired for the misconduct found to have occurred on August 18, September 2, September 4, and September 5, 1986.
Morales appealed his termination to the Board. After an evidentiary hearing, an administrative law judge found that each charge of misconduct was established by a preponderance of the evidence. He also found that the penalty of dismissal was not excessive given the seriousness of the offenses both individually and cumulatively; that the penalty was consistent with agency practices and in accord with the agency's table of offenses; and that Morales had failed to establish that the discharge was discriminatory or retaliatory.
Morales appealed the decision of the Board to the federal district court and brought a claim of retaliatory discharge. The district court granted the Board summary judgment on every issue.
Morales appeals.
Petitions for review of Merit System Protection Board actions that do not contain discrimination claims are filed in the Court of Appeals for the Federal Circuit, but if the action is a "mixed case" involving a claim under Title VII, the case is filed in the district court and the district court has jurisdiction to hear the entire claim. Romain v. Shear, 799 F.2d 1416 (9th Cir.1986), cert. denied, 481 U.S. 1050, 107 S.Ct. 2183, 95 L.Ed.2d 840 (1987). The claims involving discrimination are reviewed de novo by the district judge. The nondiscrimination claims, however, are reviewed on the administrative record under 5 U.S.C. Sec. 7703(c):
[T]he court shall review the record and hold unlawful and set aside any agency action, findings, or conclusions found to be--
(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.
5 U.S.C. Sec. 7703(c)(1)-(3).
The difference in the judicial treatment that must be accorded the two types of claims accounts for the result we reach in this case.
The crew's letters supported the four charges against Morales; so did sworn testimony from his crew members and supervisors. Substantial, credible evidence supported the Board's decision as to each charge.
Testimony of two of the witnesses was unavailable due to a taperecorder malfunction. Unavailability of a transcript need not, however, be harmful error. Harp v. Dept. of Army, 791 F.2d 161 (Fed.Cir.1986). Remand or reversal is unnecessary where the existing record is sufficient for meaningful review and the petitioner has not alleged that any particular testimony was either inconsistent or misconstrued by the administrative judge. Id. at 163. The record in the present case contains substantial evidence supporting the charges addressed by the unavailable testimony. The administrative law judge's findings identify the specific testimony on which he relied. Morales does not argue that the decision is an inaccurate reflection of the testimony. The district judge did not err in determining that the...
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