                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                       2006-3319



                                CHARLES D. GRIFFIN,

                                                            Petitioner,

                                            v.


                            DEPARTMENT OF DEFENSE,

                                                            Respondent.


      Charles D. Griffin, of Pensacola, Florida, pro se.

       Marla T. Conneely, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, for respondent. On the brief were Peter D. Keisler,
Assistant Attorney General, Jeanne E. Davidson, Director, and Steven J. Gillingham,
Assistant Director.

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                     NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit


                                     2006-3319



                               CHARLES D. GRIFFIN,

                                                    Petitioner,

                                          v.

                           DEPARTMENT OF DEFENSE,

                                                    Respondent.



                           __________________________

                          DECIDED: August 17, 2007
                          __________________________



Before NEWMAN, RADER, and PROST, Circuit Judges.

PER CURIAM.




      Mr. Charles D. Griffin petitions for review of the decision of the Merit Systems

Protection Board, Docket No. AT0752040574-I-1, sustaining the Agency's action removing

him from federal employment for misuse of government equipment. We affirm the decision

of the Board.
                                      BACKGROUND

        Mr. Griffin was employed as a financial clerk with the Defense Finance and

Accounting Service in Pensacola, Florida from 1996 until his removal on April 6, 2004. His

difficulties began in January 2003, when fellow employees complained that he was using

"loud" and "foul" language during personal telephone calls. His supervisor's efforts to solve

the problem began with an informal discussion in late January. In March 2003 Mr. Griffin

was reprimanded for misusing government telephones after telephone logs indicated that

he had made over 650 personal calls between December 28, 2002 and February 1, 2003,

and that he spent an average of 13 minutes on the telephone out of every hour, despite the

reprimand. Agency records showed that in April 2003 Mr. Griffin made 623 calls in a 47

hour period. In May, Mr. Griffin's supervisor recommended a fourteen-day suspension,

which occurred from July 16, 2003 to July 30, 2003. Following his suspension and a period

of leave at his physician's recommendation, Mr. Griffin returned to work in September 2003.

His telephone abuse continued, and the Agency finally removed him, effective April 6,

2003.

        Mr. Griffin appealed to the Board. He stipulated that his job did not require that he

use the telephone, that any use by him of the telephone would have been for personal

calls, and that none of the calls he was accused of making were made by any other

employee. Before the Board, Mr. Griffin argued that the testimony of his supervisors about

his telephone usage and their meeting with him regarding the problem were untruthful. The

Administrative Judge determined that Mr. Griffin's testimony was not credible, based on

inconsistencies in his testimony, extreme evasiveness, and his failure to identify any motive

his supervisors might have to provide dishonest testimony. The Board sustained the


2006-3319                                     2
removal, finding that it promoted the efficiency of the service and was a reasonable penalty

under the circumstances. This petition followed.

                                      DISCUSSION

       We must uphold decisions of the MSPB unless the decision is found 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); Covington v. Dep't of Health and Human

Services, 750 F.2d 937, 941 (Fed. Cir. 1984).

       Mr. Griffin does not now argue that he is innocent of the Agency's charges or that

there is no relationship between his telephone use and other conduct and the efficiency of

the service.   He argues only that the Board failed to take into account his "prior

performance and tenure with the Agency and Civil Service Employment" and failed to

consider less severe disciplinary actions. The Board did specifically note his history of

satisfactory employment and numerous service awards. The Board also evaluated the

severity of the removal in light of the factors set forth in Douglas v. Veterans Admin., 5

M.S.P.R. 280, 307-08 (1981). The Board discussed Mr. Griffin's lack of remorse for his

conduct, and the failure of repeated efforts on the part of the Agency to solve the problem

with less drastic means than removal. Considering all the circumstances, the Board found

that removal was a reasonable penalty for the charges the Agency established. We

conclude that substantial evidence supports the Board's findings and determinations, and

that the decision must be affirmed.




2006-3319                                    3
