                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                      2007-3248



                                 LEON SINGLETON,

                                                            Petitioner,


                                          v.


                        UNITED STATES POSTAL SERVICE,

                                                            Respondent.

      Leon Singleton, of San Antonio, Texas, pro se.

       William P. Rayel, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Peter D. Keisler, Acting Attorney General, Jeanne E. Davidson, Director,
and Todd M. Hughes, Deputy Director.

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                       NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                        2007-3248

                                   LEON SINGLETON,

                                                         Petitioner,

                                               v.

                          UNITED STATES POSTAL SERVICE,

                                                         Respondent.

                            __________________________

                            DECIDED: December 6, 2007
                            __________________________

Before RADER, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and PROST, Circuit
Judge.

PER CURIAM.

       Leon Singleton appeals the final decision of the Merit Systems Protection Board

(“Board”) denying his petition for review of the initial decision of the administrative judge

affirming his removal by the United States Postal Service (“Postal Service”). Singleton

v. U.S. Postal Serv., No. DA0752060567-I-1 (M.S.P.B. Apr. 9, 2007). Because we find

no error in the Board’s decision, we affirm.

                                     BACKGROUND

       Mr. Singleton was employed for eight years as a Mail Processing Clerk at the

Postal Service’s Processing and Distribution Center in San Antonio, Texas.

       In June 2003, Mr. Singleton was given a Letter of Warning for unsatisfactory

attendance based on unscheduled absences between March and May 2003.
Thereafter, he was given seven-day and fourteen-day suspensions for unscheduled

absences. Mr. Singleton’s supervisor, Pedro Serna, met with Mr. Singleton and his

union steward on March 7, 2006, to discuss his unscheduled and unapproved

absences.

      On April 12, 2006, Mr. Singleton was given a Notice of Proposed Removal based

on fifteen days of unexcused absences between December 2005 and March 2006.

Specifically, unexcused absences were recorded on December 18, 2005; January 7,

2006; January 11-21, 2006; February 1-8, 2006; and March 4, 2006. On June 28, 2006,

the Plant Manager at the Processing and Distribution Center, Bruno Tristan, issued a

Letter of Decision removing Mr. Singleton from his position.       Mr. Singleton filed a

grievance, but the grievance was denied on August 4, 2006.

      Mr. Singleton also filed a timely appeal with the Board. During his testimony

before the Board, Mr. Singleton averred that his absences were legitimate because he

was ill. In particular, he asserted that he was sick with the flu on January 11-21 and

February 1-8, 2006.    Mr. Singleton submitted medical records from the Alamo City

Medical Group that indicated that he received medical care on various dates from 2002

to 2006. None of the medical records indicated that he had the flu or that he received

medical care on the dates specified in the June 28, 2006, Letter of Decision.

      On November 29, 2006, the administrative judge issued an initial decision,

finding that the Postal Service had proven the charge of unacceptable attendance by a

preponderance of the evidence and sustaining the penalty of removal. Singleton v. U.S.

Postal Serv., No. DA0752060567-I-1 (M.S.P.B. Nov. 29, 2006). Mr. Singleton filed a

timely petition for review. On April 9, 2007, the Board issued an order denying his




2007-3248                                  2
petition for review making the initial decision the final decision of the Board. This appeal

followed.

                                      DISCUSSION

       Our standard of review for decisions by the Board directs us to set aside

decisions found to be: “(1) arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law; (2) obtained without procedures required by law, rule, or

regulation having been followed; or (3) unsupported by substantial evidence.”             5

U.S.C. § 7703(c); Haebe v. Dep’t of Justice, 288 F.3d 1288, 1298 (Fed. Cir. 2002);

Walls v. Merit Sys. Prot. Bd., 29 F.3d 1578, 1581 (Fed. Cir. 1994).

       “Determination of an appropriate penalty is a matter committed primarily to the

sound discretion of the employing agency.” Hunt v. Dep’t of Health & Human Servs.,

758 F.2d 608, 611 (Fed. Cir. 1985). In determining the reasonableness of a penalty

imposed by an agency, the Board generally applies the twelve Douglas factors.

Douglas v. Veterans Admin., 5 M.S.P.R. 280, 305-06 (1981). Removal of an employee

is appropriate when it promotes the efficiency of the service. 5 U.S.C. § 7513(a); Zingg

v. Dep’t of the Treasury, 388 F.3d 839, 842 (Fed. Cir. 2004).

       The administrative judge determined that the Postal Service had demonstrated

by a preponderance of evidence that Mr. Singleton’s absences were unscheduled and

unapproved, and that he lacked a reasonable explanation for the absences.              The

administrative judge thoroughly reviewed the testimony of Mr. Tristan regarding his

Letter of Decision and application of the Douglas factors to Mr. Singleton’s case. The

administrative judge concluded that Mr. Tristan had acted reasonably in determining




2007-3248                                    3
that removal was an appropriate penalty and that Mr. Singleton’s removal promoted the

efficiency of the service.

       On appeal, Mr. Singleton argues that the Board erred in its analysis by not

recognizing that the Postal Service committed procedural errors by giving him the

Notice of Proposed Removal on the last day of his Tour 1 shift and by not granting his

request for a union steward. Mr. Singleton, however, does not explain how either was a

procedural violation and provides no evidence to show that the Board likely would have

reached a different conclusion had either alleged procedural error not been committed.

5 C.F.R. 1201.56(c)(3) (2006). Mr. Singleton next argues that the Board erred in not

considering documentation that was not available at the hearing; however, the Board

cannot be required to consider evidence that is not before it. Finally, Mr. Singleton

contends that the Postal Service committed procedural error by refusing to negotiate

with him after the Letter of Decision issued. Specifically, he avers that although Mr.

Tristan suggested that he meet with Sarah Mock in Human Relations for alternative

dispute resolution, Ms. Mock would not meet with him. This issue was, however, not

raised before the administrative judge and therefore the court need not consider it.

Bosley v. Merit Sys. Prot. Bd., 162 F.3d 665, 668 (Fed. Cir. 1998).

       We find that the Board properly applied the Douglas factors to Mr. Singleton’s

case and determined that the removal action by the Postal Service was reasonable and

would promote the efficiency of service. We find no error in the Board’s analysis.

                                     CONCLUSION

       For the foregoing reasons, we affirm the decision of the Board.

       No costs.




2007-3248                                   4
