             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
                                       04-3222

                               CINDY ANN COLDIRON,

                                                Petitioner,

                                           v.

                     ENVIRONMENTAL PROTECTION AGENCY,

                                                Respondent.

                            _________________________

                             DECIDED: January 18, 2005
                            _________________________

Before LOURIE, SCHALL, and PROST, Circuit Judges.

PER CURIAM.

      Cindy Ann Coldiron appeals from the final decision of the Merit Systems

Protection Board sustaining her removal by her employing agency. Coldiron v. EPA,

No. DC-0752-03-0050-I-1 (M.S.P.B. Mar. 15, 2004) (“Final Order”). We affirm.

                                   BACKGROUND

      Cindy Ann Coldiron was an Attorney/Advisor, GS-0905-14, in the International

Enforcement and Compliance Division, Office of Enforcement and Compliance

Assurance, Office of Federal Activities, at the Environmental Protection Agency (“EPA”).

Coldiron v. EPA, No. DC-0752-03-0050-I-1 (M.S.P.B. Feb. 19, 2003) (“Initial Decision”).

On October 4, 2002, Coldiron was removed from her position for disrespectful conduct

towards a supervisor and for making inaccurate, misleading, or disrespectful statements
regarding a supervisor. On October 12, 2002, she timely appealed her removal to the

Merit Systems Protection Board.

       After conducting a hearing, the Administrative Judge (“AJ”) sustained the

dismissal on the grounds stated by EPA. With respect to the allegation of disrespectful

conduct towards a supervisor, the AJ considered 15 e-mail messages and one personal

encounter between Coldiron and Thomas Maslany, Coldiron’s supervisor.               Initial

Decision, slip op. at 28. Each of the cited incidents occurred between October 16, 2001

and April 18, 2002. With the exception of one e-mail message, the AJ agreed with EPA

that Coldiron had on numerous occasions behaved in a manner that a reasonable

person would find disrespectful, disparaging, or inappropriate for a subordinate

employee towards her supervisor. Id. at 3-28.

       The AJ also sustained EPA’s second charge that Coldiron made inaccurate,

misleading, or disrespectful statements regarding a supervisor. Id. at 36. The AJ found

the charge supported by four incidents occurring between February 22, 2002 and April

22, 2002. In each incident, the AJ concluded that Coldiron sent e-mails to coworkers

that improperly criticized Maslany’s work performance and conduct as a supervisor. Id.

at 29-36.

       Coldiron petitioned the full Board for review of the Initial Decision. Concluding

that there was no new, previously unavailable evidence and that the AJ made no error

in law or regulation that affected the outcome of the appeal, the Board denied Coldiron’s

petition, rendering the Initial Decision final. Final Order, slip op. at 1-2.

       Coldiron timely appealed to this court.        We have jurisdiction pursuant to 28

U.S.C. § 1295(a)(9).




04-3222                                       -2-
                                      DISCUSSION

       Congress has expressly limited the scope of our review in an appeal from the

Board. 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

unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000); Ellison v. Merit Sys.

Prot. Bd., 7 F.3d 1031, 1034 (Fed. Cir. 1993). “Under the substantial evidence standard

of review, a court will not overturn an agency decision if it is supported by ‘such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.’”

Jacobs v. Dep’t of Justice, 35 F.3d 1543, 1546 (Fed. Cir. 1994) (quoting Consol. Edison

Co. of N.Y. v. NLRB, 305 U.S. 197, 299 (1938)). Moreover, the Supreme Court has

explained that “the possibility of drawing two inconsistent conclusions from the evidence

does not prevent an administrative agency’s findings from being supported by

substantial evidence.” Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966).

       On appeal, Coldiron contends that the AJ committed several errors, both factual

and legal, in sustaining her removal. Coldiron argues that the AJ erred in finding that

the aforementioned e-mails and her personal encounter with Maslany demonstrated

disrespectful conduct towards a supervisor.1        Coldiron also asserts that the AJ’s

decision is tantamount to finding that a subordinate employee cannot communicate with



       1
              We do not need to address EPA’s removal based on Coldiron’s
purportedly disrespectful statements regarding a supervisor because we affirm the
Board’s decision on EPA’s charge of disrespectful conduct towards a supervisor. The
AJ found that the charge of disrespectful conduct alone “would be more than sufficient .
. . to sustain the penalty in this case.” Initial Decision, slip op. at 56. Under the
circumstances of this case, the penalty of removal is not grossly disproportionate to that
proven charge. Yeschick v. Dep’t of Transp., 801 F.2d 383, 384-85 (Fed. Cir. 1986).


04-3222                                     -3-
her supervisor concerning work-related issues without being exposed to disciplinary

action, and therefore, constitutes legal error.      Finally, Coldiron argues that the AJ

abused her discretion in excluding certain witnesses and exhibits at the hearing.

       The Board’s denial of Coldiron’s petition for review is supported by substantial

evidence. A reasonable fact finder could certainly conclude that the e-mails sent by

Coldiron to her supervisor, filled with confrontational language, were disrespectful in

both their tone and content.      Moreover, Coldiron does not dispute that she was

responsible for the e-mails cited in the AJ’s decision.

       The AJ also did not commit legal error in chastising Coldiron for the disrespectful

manner in which she presented her opinions to supervisor Maslany—as opposed to the

mere act of disagreeing with a supervisor. Coldiron overstates the AJ’s decision and

the impact it will have, if any, on employee-supervisor relations. There is no basis for

believing that affirming the Board’s denial will suppress legitimate communication

between supervisors and their subordinate employees.

       Finally, the AJ did not abuse her discretion in excluding Coldiron’s witnesses or

exhibits at the hearing. For the most part, Coldiron sought to rely on the excluded

witnesses and exhibits to demonstrate that the statements made in her e-mails

regarding supervisor Maslany were true. As the AJ explained in her decision, however,

the truth of the statements made in Coldiron’s e-mails was not critical. Initial Decision,

slip op. at 8. Coldiron’s disrespectful conduct, which ultimately led to her removal, was

premised on the manner in which she presented her opinions.

       We    have   considered    Coldiron’s      remaining   arguments   and   find   them

unconvincing.




04-3222                                     -4-
                                  CONCLUSION

     For the foregoing reasons, we affirm the Board’s decision.




04-3222                                 -5-
