                 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


                                        05-3268


                                   JAMES R. HITE,

                                                             Petitioner,

                                           v.


                         UNITED STATES POSTAL SERVICE,

                                                             Respondent.


                           _________________________

                           DECIDED: February 21, 2006
                           _________________________



Before SCHALL, Circuit Judge, CLEVENGER, Senior Circuit Judge, and DYK, Circuit
Judge.

PER CURIAM.


                                      DECISION

      James R. Hite petitions for review of the final decision of the Merit Systems

Protection Board (“Board”) that affirmed the decision of the United States Postal Service

(“Postal Service” or “agency”) removing him from his position as a Part-time Regular
Mail Processing Clerk for unsatisfactory attendance. Hite v. U.S. Postal Serv., No. AT-

0752-04-0598-I-1, slip op. (M.S.P.B. June 2, 2005) (“Final Decision”). We affirm.

                                       DISCUSSION

                                             I.

        Mr. Hite was employed at the Lutz Post Office in Lutz, Florida. Between October

of 2002 and February of 2003, he received three disciplinary letters on account of

unscheduled absences and tardiness. Hite v. U.S. Postal Serv., No. AT-0752-04-0598-

I-1, slip op. at 3 (M.S.P.B. Aug. 9, 2004) (“Initial Decision”). All three letters warned Mr.

Hite that unscheduled leave, even if later approved, could result in disciplinary action.

Id., slip op. at 3, 9.

        On March 26, 2004, the agency issued Mr. Hite a letter notifying him that he

would be removed from his position as a result of further unscheduled absences. The

letter listed twenty-six occasions on which the agency alleged Mr. Hite had been late or

absent between March of 2003 and February of 2004. Id., slip op. at 3-4. Like the

previous letters, the March 26, 2004 letter noted that even though most of the absences

were approved for pay purposes, the unscheduled absences were grounds for

discipline.

        The agency issued a decision letter on April 21, 2004, in which it declined to

mitigate the removal of Mr. Hite from the Postal Service. In the letter, John F. Nangle,

the Manager of the agency’s Tampa District Operations, wrote that Mr. Hite’s continued

unsatisfactory attendance hurt productivity, increased cost, and was detrimental to

employee morale. Mr. Nangle found that because of the time sensitive nature of Mr.

Hite’s duties, his absences negatively impacted the timely processing of mail and




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required other employees to work overtime to compensate for his absences. Further,

Mr. Nangle wrote that through the prior disciplinary letters, Mr. Hite had received notice

that removal might result from his absences. Nothing in the record, Mr. Nangle noted,

showed that Mr. Hite could be rehabilitated. Finally, Mr. Nangle reasoned that removal

was appropriate because similar attendance deficiencies had resulted in removal in

other cases.

       Mr. Hite was removed from his position as a Part-time Regular Mail Processing

Clerk for unsatisfactory attendance effective April 30, 2004. Id., slip op. at 1. He timely

appealed to the Board for review of the decision to remove him.

                                              II.

       On appeal, the administrative judge (“AJ”) affirmed the Board’s decision to

remove Mr. Hite, finding that the agency made a reasonable decision based on its

consideration of the relevant factors. Id., slip op. at 10.

       As a preliminary matter, the AJ examined each of the twenty-six absences listed

in the March 26, 2003 letter. The AJ concluded that all but ten of the absences should

not have been relied upon by the agency in its decision to remove Mr. Hite because

they were approved under the Family Medical Leave Act (“FMLA”) or approved in

advance by Mr. Hite’s supervisor. Id., slip op. at 4-5. However, the AJ found that the

agency properly considered ten absences due to Mr. Hite’s car trouble, non-FMLA

approved illness, illness for which Mr. Hite did not timely file medical documentation,

and jail time. Id., slip op. at 4-7.

       After identifying the absences which could properly be considered by the agency,

the AJ listed four relevant factors in cases for removal because of irregular attendance:




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(1) the employee’s history of attendance problems; (2) the employee’s past disciplinary

record; (3) the clarity of the notice provided to the employee that the employee’s

attendance was unacceptable; and (4) evidence showing misconduct was deliberate.

Id., slip op. at 8 (citing Byers v. U.S. Postal Serv., 78 M.S.P.R. 456, 464 (1998)). The

AJ found that the relatively short duration of Mr. Hite’s employment with Postal Service

(five to six years) and the notice provided by the agency that his unscheduled absences

could result in discipline weighed in favor of upholding the agency’s decision to remove

Mr. Hite.   Id., slip op. at 9.   Although the AJ found that Mr. Hite’s absences were not

deliberate, he noted that Mr. Hite failed to use good judgment in resolving the problems

that allegedly caused his absences. Id., slip op. at 10. The AJ noted that Mr. Hite’s

long history of absences and his failure to show remorse demonstrated that he would

likely continue to have attendance problems. Id. Finally, the AJ found that satisfactory

attendance was very important to the successful operation of the Postal Service.

Considering the foregoing factors, the AJ found that removal was reasonable. Id.

      Because the Board declined to grant Mr. Hite’s petition for review, the Initial

Decision became the final decision of the Board. 5 C.F.R. § 1201.113; Final Decision,

slip op. at 2. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

                                             III.

      Our scope of review in an appeal from a decision of the Board is limited.

Specifically, we must affirm the Board’s decision unless we find it to be arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; obtained

without procedures required by law, rule or regulation having been followed; or




05-3268                                       4
unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000); Kewley v. Dep’t of

Health & Human Servs., 153 F.3d 1357, 1361 (Fed. Cir. 1998).

       An agency’s penalty determination should only be overturned when “the agency

failed to weigh the relevant factors, or . . . the agency’s judgment clearly exceeded the

limits of reasonableness.” Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306;

Lachance v. Devall, 178 F.3d 1246, 1251 (Fed. Cir. 1999) (“We will not disturb a choice

of penalty within the agency’s discretion unless the severity of the agency’s action

appears totally unwarranted in light of all factors” (quoting Mings v. Dep’t of Justice, 813

F.2d 384, 390 (Fed. Cir. 1987))). In Douglas, the Board identified twelve factors that

may be considered in determining the reasonableness of a penalty. 5 M.S.P.R. at 305.

The Board noted, however, that not all of the Douglas factors are pertinent in every

case. Id. at 306. Thus, failure to recite irrelevant factors in a particular case is not an

error. However, “failure to consider a significant mitigating circumstance constitutes an

abuse of discretion.” VanFossen v. Dep’t of Hous. & Urban Dev., 748 F.2d 1579, 1581

(Fed. Cir. 1984).

       Mr. Hite challenges the decision of the Board not to mitigate the penalty imposed

on him by the agency.      He alleges that the Board erred by failing to consider the

relevant Douglas factors for mitigating an agency penalty. Specifically, he claims that

the Board failed to consider whether he was aware that his absences would lead to

discipline and whether his absences were approved scheduled absences.              He also

challenges the Board’s reasoning that his lack of remorse demonstrated that he would

continue to be absent from work. Instead, Mr. Hite argues, he showed no remorse

because he was unaware that he was doing anything wrong.




05-3268                                      5
       We conclude that the Board did not fail to consider either of the Douglas factors

identified by Mr. Hite in his brief and therefore, did not abuse its discretion in upholding

the agency’s decision to remove Mr. Hite. The first Douglas factor that Mr. Hite alleges

that the Board did not consider is whether he was aware that his absences were not

approved scheduled absences that would lead to discipline. We reject this argument

because the AJ specifically found that the three letters Mr. Hite received between

October of 2002 and February of 2003 apprised Mr. Hite that his absences were

unscheduled and therefore considered grounds for discipline. Initial Decision, slip op. at

3. Further, the AJ identified “the clarity with which the appellant was placed on notice

that his attendance was unacceptable” as a relevant Douglas factor and specifically

found that Mr. Hite was “placed on notice in connection with his prior disciplinary actions

that unscheduled leave, even if approved, could result in disciplinary action.” Id., slip

op. at 8-9. In short, the AJ considered whether Mr. Hite was put on notice that his

unscheduled absences would lead to discipline.

       Mr. Hite identifies a second Douglas factor, “whether the absences were not

approved scheduled [absences],” that he claims the Board did not consider. Contrary to

Mr. Hite’s arguments that the AJ did not consider whether his absences were approved,

the AJ examined each of Mr. Hite’s absences individually and found, in fact, that the

agency had erred in considering sixteen of them in its decision to remove Mr. Hite. The

AJ determined that the remaining ten absences were unscheduled because Mr. Hite did

not deny that they were unscheduled and because he acknowledged that particular

absences were due to unforeseen events such as jail time and car trouble.             Initial




05-3268                                      6
Decision, slip op. at 6.   Based on the foregoing, we think it is clear that the AJ

considered whether or not Mr. Hite’s absences were approved scheduled absences.

      Further, the AJ did not err in upholding the agency’s decision to remove Mr. Hite

despite his finding that sixteen of the absences on which the agency’s original decision

was based should not have been considered by the agency. In Lachance v. Devall, 178

F.3d 1246 (Fed. Cir. 1999), we noted that when some of the original charges on which

an agency based its decision to discipline an employee are not sustained, the Board

must “independently balance the relevant Douglas factors with heightened sensitivity.”

Id. at 1257 (emphasis in original).   We find that Initial Decision contains a careful

balancing of the relevant Douglas factors and therefore, should not be overturned.

      Finally, we reject Mr. Hite’s argument that the Board erred when it cited his lack

of remorse as showing “that [he] had no knowledge of doing wrong.” The AJ found that

Mr. Hite’s lack of remorse and his feeling that he had done nothing wrong demonstrated

that Mr. Hite would do nothing to correct his attendance problems given the chance.

We do not find that this interpretation of the evidence was arbitrary, capricious, an

abuse of discretion, obtained without lawful procedures or unsupported by substantial

evidence.

      We therefore find that the AJ considered the relevant Douglas factors and did not

err in finding that the Postal Service’s decision to remove Mr. Hite from his position

based on his unsatisfactory attendance was within the bounds of reasonableness. For

the foregoing reasons, the decision of the Board upholding the agency’s decision to

remove Mr. Hite is affirmed.

      Each party shall bear its own costs.




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