             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

                                       05-3324

                                HAROLD E. HUGHES,

                                               Petitioner,

                                          v.

                        DEPARTMENT OF THE TREASURY,

                                               Respondent.

                              _____________________

                              DECIDED: March 8, 2006
                              _____________________

Before LOURIE, GAJARSA, and DYK, Circuit Judges.

PER CURIAM.

      Harold E. Hughes petitions for review of the final decision of the Merit Systems

Protection Board (“Board”) sustaining his dismissal from the agency. Hughes v. Dep’t of

Treasury, No. AT-0752-04-0812-I-1 (M.S.P.B. June 20, 2005). We affirm.

                                   BACKGROUND

      Harold E. Hughes was formerly a Contact Representative, GS-8, Internal

Revenue Service (“IRS”), Chamblee, Georgia. Hughes v. Dep’t of Treasury, No. AT-

0752-04-0812-I-1, slip op. at 1 (M.S.P.B. November 8, 2004) (“Initial Decision”).

Effective July 2, 2004, the agency removed Hughes from his position based upon

charges that he (1) struck another employee in the workplace; (2) caused a disturbance
in the workplace; and (3) conducted unauthorized personal business during work hours.

Id., slip op. at 2. Hughes timely appealed his removal to the Board on August 2, 2004.

        All three charges stemmed from a single incident that purportedly occurred on

February 3, 2004.    In a hearing before the Administrative Judge (“AJ”), numerous

witnesses gave their account of what they witnessed that day. Neither party disputes

that on the day in question Hughes, who worked on the fourth floor, went up to the sixth

floor to visit another IRS employee, Charlene Gooden. Id. From that point on, however,

each party has its own account of what happened.         According to the AJ, Hughes

testified that he approached Gooden’s work cubicle and unintentionally frightened her.

Id., slip op. at 3. The AJ also recounted that Hughes testified that this caused Gooden

to scream, which in turn startled him and “caused him to fall into her.” Id. Gooden

testified to a much different sequence of events. According to the AJ, Gooden testified

that after Hughes approached her cubicle, she “motioned him away and turned her back

toward her computer. At this point in time, Gooden testified that [Hughes] struck her

with his fist in the shoulder area and in her underarm area.”       Id., slip op. at 3-4.

Moreover, the AJ noted Gooden’s testimony that the punches left bruises on her arm.

Id. at 4.

        In addition to Hughes’s and Gooden’s testimony, the AJ also heard testimony

from Levora Holmes and Pia Stringer. According to the AJ, Holmes testified that “she

heard ‘scuffle/wrestling’ followed by a ‘scream’ of ‘fear’ and ‘surprise’” emanating from

Gooden’s cubicle and then she saw Hughes “walking away quickly.” Id., slip op. at 5.

According to the AJ, Stringer testified that on the date of the incident, Hughes stopped

her at the elevator as she was going to the restroom. Id., slip op. at 7. Stringer then




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purportedly testified that Hughes asked her to go to Gooden and tell her that “he ‘was

sorry’ and ‘didn’t mean to hit her,’” and that “he was ‘crying’ and ‘very sorry.’” Id.

       After considering that testimony, the Administrative Judge (“AJ”) found, by a

preponderance of the evidence, that Hughes attacked Gooden, thereby sustaining the

first charge. Id. According to the AJ, Hughes was evasive when he was confronted by

Holmes on the day of the incident. The AJ found it particularly suspicious that Hughes

refused to tell Holmes on the day of the incident the events that he says occurred during

the hearing. The AJ also found persuasive Stringer’s testimony that he told her that he

was sorry he hit Gooden. Id. Finally, the AJ did not believe Hughes’s testimony that he

jumped back when Gooden screamed and then fell forward to unintentionally inflict the

injury. Id.

       Based on his conclusion that Hughes did in fact attack Gooden, the AJ also

surmised that the incident clearly caused a disruption in the office, thereby sustaining

the second charge of causing a disturbance in the workplace. Id. For example, the AJ

noted that Holmes left her office because of the incident and had to take steps to

remove Hughes from the building. Id. The AJ also determined that the third charge

was sustained because Hughes lacked permission to visit Gooden for the purpose of

conducting personal business during work hours. Id.

       In determining the reasonableness of the penalty of removal, the AJ accepted

Hughes’s counsel’s stipulation that “if one or more of the charges are sustained in whole

or in part, there is a causal relationship or nexus between that conduct and the

efficiency of the service.” Id., slip op. at 8. The AJ also concluded that based on the

seriousness of the offense, including Hughes’s counsel’s acknowledgment that if the




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first charge was sustained the penalty of removal was warranted, and Hughes’s prior

record of discipline, the penalty of removal was proper in this case.

       The Board denied Hughes’s petition to reconsider the AJ’s initial decision,

rendering that decision final.   Hughes timely appealed to this court, and we have

jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

                                      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). 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, the only errors of law or procedure by the Board that Hughes asserts

are that the Board failed to consider that the agency did not abide by its own guidelines

for penalty determinations and that he was denied an opportunity to write a statement

regarding the incident. Otherwise, Hughes’s appeal consists mostly of challenges to the

sufficiency of the Board’s findings that Hughes actually punched Gooden, e.g., that

there were no eyewitnesses to Hughes striking Gooden and that he had not been

provided with any pictures showing the injuries that Gooden allegedly suffered.




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       Regarding his claim assigning errors of law or procedure to the Board, we note

that the penalty guidelines that Hughes cites are only applicable when an attack is

provoked or if the person attacked suffers no injury. Hughes’s attack, however, was not

alleged to have been provoked, and the Board found that Gooden did suffer injuries

from the attack. Thus, the penalty guidelines that Hughes relies upon are inapplicable.

On the contrary, under the relevant guidelines, when an attack is unprovoked and the

victim suffers injury, removal is appropriate even if it is a first offense. There was also

no error of law or procedure in not allowing Hughes the opportunity to write a statement

concerning the alleged attack. Indeed, Hughes was afforded a hearing in which he was

given more than a sufficient opportunity to testify to his account of what had happened

on the date of the incident.

       As for the Board’s factual findings that Hughes punched Gooden and caused her

injury, we conclude that there was substantial evidence in the record to support those

findings.   Although there may not have been an eyewitness to Hughes punching

Gooden, other than Gooden, the testimony of Holmes and Stringer provided more than

adequate circumstantial evidence to support the Board’s factual finding. See Jacobs v.

Dep’t of Justice, 35 F.3d 1543, 1546 (Fed. Cir. 1994) (“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.’”) (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 299 (1938)).

Moreover, although Hughes may not have been provided with an actual photograph of

Gooden’s injuries, the hospital report in the record indicating that Gooden had bruises is

substantial evidence that she suffered injuries from her encounter with Hughes.




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      Finally, there is no basis for Hughes’s claim that the Board failed to consider

relevant factors in sustaining the penalty of removal, viz., that he was a twelve-year

veteran of military service, was regularly given high evaluation marks, and had more

than 18 years of service with the IRS. Hughes’s prior military service is not relevant to

this appeal.   Moreover, the Board did consider Hughes’ past work evaluations and

tenure at the agency, but concluded that those factors did not sufficiently mitigate the

seriousness of his offense. Initial Decision, slip op. at 8. We discern no error in the

Board’s evaluation of those factors. Accordingly, we affirm the Board’s decision.




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