                     NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                      2009-3050

                                JUAN R. CABRERA,

                                                               Petitioner,

                                          v.

                        UNITED STATES POSTAL SERVICE,

                                                               Respondent.


      Juan R. Cabrera, of Castro Valley, California, pro se.

        Morgan E. Rehrig, Attorney, Civil Practice Section, Law Department, United
States Postal Service, of Washington, DC, for respondent. With her on the brief was
Lori J. Dym, Chief Counsel, Appellate Division. Also on the brief was Michael F. Hertz,
Acting Assistant Attorney General, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC. Of counsel was Russell A. Shultis,
Attorney.

Appealed from: Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                      2009-3050

                                 JUAN R. CABRERA,

                                               Petitioner,

                                          v.

                        UNITED STATES POSTAL SERVICE,

                                               Respondent.


    Petition for review of the Merit Systems Protection Board in SF0752080122-I-1.

                          ___________________________

                          DECIDED: June 8, 2009
                          ___________________________


Before BRYSON, GAJARSA, and PROST, Circuit Judges.

PER CURIAM.

                                      DECISION

      Juan R. Cabrera petitions for review of a final decision of the Merit Systems

Protection Board sustaining his removal from his position with the United States Postal

Service. We affirm.

                                   BACKGROUND

      Mr. Cabrera worked as a mail carrier in the Hayward-Castro Valley Post Office in

Castro Valley, California. On October 24, 2007, the agency issued a notice removing

him from his position based on two charges: unacceptable conduct and deviation from

his postal route. Mr. Cabrera appealed his removal to the Merit Systems Protection
Board. After conducting a two-day hearing, the administrative judge assigned to the

case sustained both charges and affirmed the agency’s decision to remove Mr. Cabrera

from his position.

       The unacceptable conduct charge contained a single specification alleging that

Mr. Cabrera had engaged in inappropriate sexual contact with a postal customer. The

evidence showed that on June 13, 2007, Mr. Cabrera parked his mail truck across the

street from Mandy Ilmberger’s home on Lamson Road in Castro Valley. Mr. Cabrera

then crossed the street, approached Ms. Ilmberger’s house, and hand-delivered the

mail to Ms. Ilmberger. According to Ms. Ilmberger, Mr. Cabrera handed her the mail in

the doorway of her home, then stepped into the house, grabbed her by her right arm,

and pushed her behind the front door. Ms. Ilmberger testified that while Mr. Cabrera

held her by the arm, he kissed her with his mouth open and “shoved his tongue down

my throat.”

       Ms. Ilmberger stated that after she pushed him away, Mr. Cabrera handed her a

wrapped condom. Ms. Ilmberger gave the condom back to Mr. Cabrera and told him to

leave. As Mr. Cabrera was walking away he stopped on the porch, turned to face Ms.

Ilmberger, and said, “I’ll see you tomorrow morning.”      Mr. Cabrera drove off in his

delivery vehicle, but returned to Ms. Ilmberger’s house about two minutes later and told

her that she was “looking good” and reiterated that he would “definitely” see her the next

morning. Ms. Ilmberger’s neighbor, Kathy Christensen, testified that later that afternoon

Ms. Ilmberger told her about the alleged incident involving Mr. Cabrera.

       On the morning of June 14, 2007, Ms. Ilmberger placed a telephone call to a

coffee shop owned and operated by her husband’s family. Although she could not




2009-3050                                   2
reach her husband, Ms. Ilmberger told another employee at the coffee shop about the

alleged incident; Ms. Ilmberger’s brother-in-law also learned of the matter at that time.

Shortly thereafter, Ms. Ilmberger’s brother-in-law came to her house, picked up an

aluminum baseball bat, and set out to find Mr. Cabrera. Mr. Cabrera stated that he was

taking a break in his mail truck near Lamson Road when Ms. Ilmberger’s brother-in-law

drove up, exited his pickup truck brandishing the baseball bat, and accused Mr. Cabrera

of “molest[ing]” Ms. Ilmberger. At the request of Ms. Ilmberger’s brother-in-law, Mr.

Cabrera followed him back to Ms. Ilmberger’s house to speak with the police.

       Meanwhile, Ms. Ilmberger called the Hayward Post Office and spoke with Dante

Datu, a customer service manager. She told him that Mr. Cabrera had kissed her while

delivering her mail the day before.        Mr. Datu stated that during that telephone

conversation, he heard yelling in the background; he therefore told Ms. Ilmberger to call

the police, and he immediately left the Post Office to go to her home. Four sheriff’s

deputies were dispatched to Ms. Ilmberger’s house. The deputies arrived there to find

Mr. Cabrera, Ms. Ilmberger’s brother-in-law, and Ms. Ilmberger. Mr. Datu then arrived,

along with two other supervisors from the Post Office. Mr. Datu informed one of the

deputies that Mr. Cabrera would be placed on administrative leave until the agency had

completed its investigation into the matter.

       Although Mr. Cabrera admitted that he had crossed Lamson Road to deliver the

mail to Ms. Ilmberger on June 13, he testified that he stood on her front lawn and

handed her the mail while she was on her porch. Mr. Cabrera asserted that he did not

kiss Ms. Ilmberger or enter her house, but rather talked with her briefly about a piece of




2009-3050                                      3
misdirected mail and then proceeded along his postal route without any further contact

with Ms. Ilmberger that day.

       The administrative judge credited Ms. Ilmberger’s version of events.              He

explained that he had observed Ms. Ilmberger at the hearing and found her testimony to

be convincing, specific, highly detailed, and based on personal knowledge. He added

that her testimony was consistent with the statements she had made to the Sheriff’s

Office, to Mr. Datu, and to the supervisor of customer services at Hayward Post Office.

In contrast, the administrative judge was “unconvinced by the appellant’s presentation”

and found Mr. Cabrera’s testimony to be inconsistent with the statement he had made

to the Sheriff’s Office.   The administrative judge therefore sustained the agency’s

unacceptable conduct charge against Mr. Cabrera.

       The agency also charged Mr. Cabrera with two specifications of deviating from

his postal route in connection with the alleged sexual assault on Ms. Ilmberger. The

first specification alleged that Mr. Cabrera had deviated from his route on June 13,

2007, when he crossed Lamson Road to hand-deliver the mail to Ms. Ilmberger

immediately before the alleged assault. To maximize efficiency, the Postal Service

automatically sorts mail according to a delivery point sequence corresponding to a mail

carrier’s prescribed delivery route. Typically, the delivery point sequence prearranges

mail for delivery to one side of a street at a time so that mail carriers do not traverse the

street in a criss-cross fashion when making their deliveries. Carriers are prohibited from

deviating from their assigned route for any reason without specific managerial

authorization.




2009-3050                                    4
      Before Mr. Cabrera delivered the mail to Ms. Ilmberger on June 13, his vehicle

was parked in front of 18124 Lamson Road, which was delivery number 176 along Mr.

Cabrera’s assigned postal route.     Although Ms. Ilmberger’s house was located just

across the street at 18131 Lamson Road, her house was delivery number 240 on Mr.

Cabrera’s route. Mr. Cabrera therefore deviated from his postal route when he crossed

the street to hand Ms. Ilmberger her mail.

      Mr. Cabrera conceded that he had deviated from his route on June 13, but he

argued that mail carriers routinely do so in order to hand-deliver mail to postal

customers. Such deviations, Mr. Cabrera claimed, result in better customer service

while adding only a negligible amount of time to the carrier’s overall route.          The

administrative judge explained that while he had “no reason to doubt that individual

carriers believe that specific customers are better served by such deviations, it is

undisputed that the appellant’s actions on June 13, 2007 with regard to 18131 Lamson

involved a deviation from his known route.”        The administrative judge therefore

concluded that Mr. Cabrera had deviated from his postal route without authorization.

      The second specification to the charge alleged that Mr. Cabrera had deviated

from his assigned route on June 14, 2007. After the alleged incident with Ms. Ilmberger,

Mr. Cabrera’s supervisor removed Lamson Road from his postal route, instructed him to

remove any mail addressed to Lamson Road from his mail truck, and assigned those

deliveries to another mail carrier. Because Lamson Road was not on Mr. Cabrera’s

postal route for that day, Mr. Cabrera had no reason to be on Lamson Road. However,

Ms. Christensen testified that on the morning of June 14, she observed Mr. Cabrera

make repeated U-turns in front of Ms. Ilmberger’s house. Mr. Cabrera then parked his




2009-3050                                    5
truck nearby, where his subsequent run-in with Ms. Ilmberger’s brother-in-law occurred.

Mr. Cabrera returned to Lamson Road when he was forced to accompany Ms.

Ilmberger’s brother-in-law back to her house.

      Mr. Cabrera did not contest that he deviated from his route on June 14. Rather,

he testified that he inadvertently drove by Ms. Ilmberger’s house after becoming

disoriented while attempting to deliver two letters to another address on Lamson Road.

The administrative judge discounted that explanation, noting that Mr. Cabrera should

not have even possessed—much less tried to deliver—any mail to Lamson Road

because Lamson Road was not on his postal route for that day. To the extent that Ms.

Christensen’s testimony that Mr. Cabrera made multiple U-turns in front of Ms.

Ilmberger’s house conflicted with Mr. Cabrera’s story, the administrative judge credited

Ms. Christensen’s testimony, which he found to be unequivocal, specific, and detailed.

      Mr. Cabrera further argued that he later returned to Ms. Ilmberger’s house

involuntarily because he was forced to do so by Mr. Ilmberger’s brother-in-law, who had

threatened him with a baseball bat.     The administrative judge found Mr. Cabrera’s

explanation that he felt compelled to comply with the demands of Ms. Ilmberger’s

brother-in-law “questionable” in light of the fact that Mr. Cabrera was in a separate car

and could readily have called the police or simply driven away if he was afraid. The

administrative judge therefore concluded that Mr. Cabrera deviated from his route on

June 14, 2007, first when he circled in front of Ms. Ilmberger’s house, and then again

when he returned to her house at the behest of her brother-in-law.

      In addition to sustaining both charges against Mr. Cabrera, the administrative

judge found that the agency demonstrated a nexus between the sustained charges and




2009-3050                                  6
the employee’s ability to perform his duties satisfactorily. See Pope v. U.S. Postal

Serv., 114 F.3d 1144, 1147 (Fed. Cir. 1997).          Noting that the deciding official had

considered the relevant Douglas factors, the administrative judge also found that the

agency reasonably exercised its discretion in imposing the penalty of removal. See id.;

Douglas v. Veterans Admin., 5 M.S.P.R. 280, 305-07 (1981). After the full Board denied

Mr. Cabrera’s petition for review, he filed a petition for review by this court.

                                       DISCUSSION

       Mr. Cabrera has failed to demonstrate any error in the Board’s decision

sustaining his removal. He asserts that the administrative judge erred by concluding

that he had “lied about being on break and delivering the mail” and in finding that only

his testimony, and not that of the other witnesses, was inconsistent.              As we have

frequently stated, however, the credibility determinations of an administrative judge are

“virtually unreviewable on appeal.” Bieber v. Dep't of the Army, 287 F.3d 1358, 1364

(Fed. Cir. 2002). With respect to the unacceptable conduct charge, the administrative

judge specifically noted that he had observed Ms. Ilmberger’s demeanor at the hearing

and found her testimony to be more convincing than that of Mr. Cabrera. As to the

charge that Mr. Cabrera deviated from his postal route, the administrative judge

similarly explained that he found Ms. Christensen’s testimony that Mr. Cabrera made

several U-turns in front of Ms. Ilmberger’s home to be more credible than Mr. Cabrera’s

conflicting testimony. We have no reason to second-guess the administrative judge’s

decision to credit the testimony of other witnesses over that of Mr. Cabrera.

       Mr. Cabrera’s contention that the administrative judge “ignored the fact that the

other party was also inconsistent in their separate statements to the police and the




2009-3050                                     7
postal service” is without merit.     In support of that assertion, Mr. Cabrera points to a

single alleged inconsistency:       Mr. Cabrera alleges that Ms. Ilmberger “told the Ms.

Sheriff and the USPS that she was going to the dentist,” but that according to Ms.

Christensen, Ms. Ilmberger had told Mr. Cabrera that she was going swimming. It is not

clear from the record that the two alleged statements are inconsistent, but in any event

any possible inconsistency in the statements is not remotely sufficient to undermine the

administrative judge’s credibility judgment regarding the witnesses’ version of the

events of June 13.

       Mr. Cabrera further argues that the administrative judge refused to consider

testimony that other carriers often deviate from their routes without authorization. But it

was undisputed that other carriers sometimes deliver mail out of sequence. In fact, the

administrative judge acknowledged that practice “may indeed be common” and

characterized Mr. Cabrera’s argument that out-of-sequence deliveries often result in

better customer service as “plausib[le].” Nonetheless, the administrative judge noted

that agency regulations specify that carriers may not deviate from their route for any

purpose absent prior managerial authorization.         The agency, moreover, introduced

evidence that such deviations “result in a measurable increase in work hours at the

management level.” The administrative judge therefore found that the agency showed

that Mr. Cabrera improperly deviated from his postal route, and we discern no error in

that conclusion.

       In a pre-hearing order, the administrative judge denied the agency’s request to

call several witnesses because other percipient witnesses more directly involved in the

events at issue were already approved to testify. The administrative judge also rejected




2009-3050                                     8
Mr. Cabrera’s request to call several witnesses based on Mr. Cabrera’s failure to show

how their testimony would be relevant. Mr. Cabrera contends that the administrative

judge erred in refusing to allow him to call those witnesses. However, a “determination

to allow or exclude witness testimony is within the sound discretion of the administrative

judge.” Guise v. Dep't of Justice, 330 F.3d 1376, 1379 (Fed. Cir. 2003). After denying

the witness requests, the administrative judge granted Mr. Cabrera and the agency

leave to resubmit their requests along with a detailed proffer that described the

relevance of each witness requested. Mr. Cabrera did not resubmit any of the witness

requests. He has not shown that the administrative judge abused his discretion in

requiring that the parties explain the relevance of requested witnesses, and he has

failed to demonstrate that the administrative judge’s ruling, even if erroneous, could

have affected the outcome of the case. See Curtin v. Office of Pers. Mgmt., 846 F.2d

1373, 1378-79 (Fed. Cir. 1988).

       Mr. Cabrera’s other allegations of procedural error are also unpersuasive. He

argues that the Board failed to consider his “bid award of Route # 4527.” Mr. Cabrera

did not raise that issue in the administrative proceedings and thus waived it, but in any

event he has failed to show how the “bid award” evidence is relevant to the charges

against him. Mr. Cabrera also asserts that he received inadequate assistance from his

union representative during his “just cause” interview, but he presents no evidence

suggesting that that the union representative failed to ensure that his rights were not

violated during that interview.

       Finally, Mr. Cabrera argues that the penalty of removal was excessive in light of

the charges that were sustained against him. According to Mr. Cabrera, other agency




2009-3050                                   9
employees received lesser penalties for similar violations, and the agency should have

considered re-training as an alternative to removal. We will not disturb an agency’s

choice of penalty so long as the agency considered the relevant factors and exercised

discretion within tolerable limits of reasonableness. Douglas, 5 M.S.P.R. at 306; see

O'Neill v. Dep't of Hous. & Urban Dev., 220 F.3d 1354, 1365 (Fed. Cir. 2000) (court will

defer to agency’s judgment unless the penalty is “so harsh and unconscionably

disproportionate to the offense that it amounts to an abuse of discretion”).      As the

administrative judge explained, the deciding official in this case considered the relevant

Douglas factors, including the nature and seriousness of the offenses, Mr. Cabrera’s

lengthy service with the agency, the notoriety of the offenses, the fact that Mr. Cabrera

was on notice of the agency’s standards of conduct, and the consistency of the penalty

with those imposed on similarly situated employees.

      As for the consistency of the penalty, Mr. Cabrera’s assertion that he was “held

to a higher standard” than other agency employees is without merit because the cases

on which Mr. Cabrera relies are distinguishable. For example, in one case cited by Mr.

Cabrera, Tryon v. United States Postal Service, 108 M.S.P.R. 148, 151 (2008), the full

Board mitigated the penalty given to a mail carrier from removal to suspension because

the administrative judge had rejected the most serious allegations of misconduct

(kissing and making sexually inappropriate comments toward a postal customer) and

because the agency had enhanced the penalty based on misconduct that was not cited

in the notice of proposed removal.       Those circumstances are not present in Mr.

Cabrera’s case. We therefore see no error in the administrative judge’s determination

upholding the agency’s decision to remove Mr. Cabrera.




2009-3050                                  10
