                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
                                       06-3048

                                 MARION FLEMING,

                                                                   Petitioner,

                                           v.

                        UNITED STATES POSTAL SERVICE,

                                                                   Respondent.

                           __________________________

                           DECIDED: April 11, 2006
                           __________________________


Before LOURIE, Circuit Judge, CLEVENGER, Senior Circuit Judge, and BRYSON,
Circuit Judge.

PER CURIAM.


      Marion Fleming seeks review of the final decision of the Merit Systems Protection

Board (“Board”) affirming the decision of the United States Postal Service (“agency”) to

remove Mr. Fleming from his job as a part-time flexible letter carrier. Fleming v. U.S.

Postal Serv., No. DC0752050026-I-1 (Sept. 14, 2005). We affirm.

                                           I

      The agency removed Mr. Fleming from his job for alleged improper conduct,

consisting of refusal to follow a supervisor’s order and physically attacking the

supervisor. Mr. Fleming appealed his removal to the Board. His case was heard by an
Administrative Judge (“AJ”). At the hearing, the agency called Mr. Fleming’s supervisor

and another agency witness. Mr. Fleming testified, but called no witness to support his

case.

        Mr. Fleming admitted that he had refused to comply with the order of his

supervisor, but defended his refusal on the ground that the extra half-hour he was

ordered to work exceeded his eight-hour work day requirement. This defense was

rejected by the AJ because the record showed that Mr. Fleming had not completed his

required work day when asked to perform an additional half-hour, and that the extra

half-hour would not have exceeded the eight-hour limit.

        As for the charge of physical abuse of the supervisor, the testimony was in

conflict. The supervisor testified that Mr. Fleming thrust himself against the supervisor,

and that testimony was corroborated by the other agency witness. Mr. Fleming testified

that the supervisor, not he, initiated the contact. The AJ found that the preponderance

of the evidence showed that Mr. Fleming pushed into the supervisor, and on that finding

of fact the AJ concluded that the second aspect of the improper conduct charge had

been proved.

        With respect to the penalty of removal, the agency’s deciding official considered

the physical contact issue significant as Mr. Fleming is a much larger person than the

supervisor, such that there was an element of intimidation. The deciding official also

considered the refusal to follow an order a serious matter. The deciding official also

noted previous counsel and discipline given to Mr. Fleming for past aggressive

behavior, including intimidation of customers on his route. Further, Mr. Fleming had

been disciplined previously for being rude and insubordinate to his supervisor. Based




06-3048                                  2
on the deciding official’s explanation for the penalty imposed, the AJ concluded that the

penalty of removal was justified. The AJ thus affirmed the agency’s decision to remove

Mr. Fleming.

       Mr. Fleming’s appeal to the full Board was rejected, thus converting the initial

decision of the AJ into the final decision of the Board. Mr. Fleming timely sought review

in this court. We have jurisdiction under 28 U.S.C. § 1295(a)(9) (2000).

                                             II

       We must affirm a final decision of the Board unless we determine that the

decision is arbitrary, capricious, an abuse of discretion or otherwise not in accordance

with law. 5 U.S.C. § 7703(c) (2000). Any finding of fact underlying the final decision of

the Board must be supported by substantial evidence. Id.

       Mr. Fleming concedes that he did not follow the order to perform another half-

hour of work. His defense, that he had already worked his full day, was rejected by the

Board, and substantial evidence supports the Board’s finding that the additional half-

hour of work was within his allotted work-day time.

       Mr. Fleming reargues the facts as to whether he, or the supervisor, pushed first

in the undisputed pushing match. But again, substantial evidence supports the fact-

finding that Mr. Fleming struck first in the pushing match.

       In his briefs to this court, Mr. Fleming argues that he was refused access to the

workplace after the pushing incident, and that he was thus prevented from getting

witnesses and documents that would have supported his version of the episode. There

is no indication that this argument was raised before the Board, and as such the

argument would be to no avail in this court. But even assuming the argument had been




06-3048                                  3
preserved, Mr. Fleming offers no specifics to support the general proposition that his

lack of access to the workplace hindered his defense. He points to no person, and no

documents, that he would have been able to access were he present, that were

otherwise inaccessible to him. We thus reject this argument.

      In addition, Mr. Fleming’s briefs complain that the Board did not give proper

account for his past performance or let him defend his past performance.           This

argument fails, because Mr. Fleming indeed was afforded the opportunity to present his

case in full. He was afforded a hearing, but he chose to call no witnesses other than

himself. He presented no grounds upon which the Board, or we, could conclude that his

defense was impaired by action of the agency or the Board.

      We have considered the other arguments Mr. Fleming presents, and we find

them unpersuasive.

      Since substantial evidence supports the final decision of the Board sustaining the

penalty of removal, we affirm.




06-3048                                4
