                     NOTE: Pursuant to Fed. Cir. 47.6, this disposition
                      is not citable as precedent. It is a public record.

 United States Court of Appeals for the Federal Circuit
                                             06-3195

                                       SIDNEY WYCHE,

                                                         Petitioner,

                                               v.

                           UNITED STATES POSTAL SERVICE,

                                                         Respondent.

                              ___________________________

                              DECIDED: November 13, 2006
                              ___________________________


Before MICHEL, Chief Judge, RADER, and LINN, Circuit Judges.

PER CURIAM.


       The Merit Systems Protection Board (the Board) affirmed the United States

Postal Service’s (Agency’s) decision to remove Mr. Sidney Wyche. See Sidney Wyche

v. U.S. Postal Serv., No. DA-0752-05-0639I-1 (M.S.P.B., Feb. 8, 2006) (Initial Decision).

Mr. Wyche appealed the Board’s Initial Decision directly to this court. For reasons set

forth in this opinion, this court affirms.

                                               I.

       Following his first suspension in April 2004, Mr. Wyche began filing various

grievances with the Agency claiming discrimination, harassment, and misappropriation

of Government funds by Agency management; a claim with Equal Employment
Opportunity Commission, wherein he claims discrimination due to race, sex, and

disability; and a request to the United States Postal Inspection Service for an

investigation, asserting that the Agency has “paid off” various attorneys he hired to

prosecute claims before the National Labor Relations Board, and asserting that the

entire management of the Agency has engaged in “falsifying officer documents,

embezzlement, bribery and conflict of interest.” Though raised again in Mr. Wyche’s

appeal papers, these claims are not before this court.

       Before this court is Mr. Wyche’s appeal of the Agency’s August 20, 2005 decision

to remove him from his position as a mail processing clerk at the Baton Rouge,

Louisiana Processing and Distribution Center. The Agency removed Mr. Wyche for

“failure to follow instructions.” Following a heart catheterization procedure in January

26, 2004, Mr. Wyche was told to “take it easy for a couple of days.” After three days,

Mr. Wyche sought permission to return to work, citing mild soreness in his groin as the

only complaint. Thereafter, though Mr. Wyche was cleared to fully return to work, he

started refusing to perform his assigned duties.

       In April 2004, Mr. Wyche refused to perform work on a Delivery Bar Code Sorter

(DBCS) machine, claiming that working alone on the machine violated his doctor’s

instructions. Initial Order, slip op. at 2. At that time, Mr. Wyche would clock in to work,

but refuse to perform his assigned duties on the DBCS machine.            As a result, on

April 30, 2004, he was given notice of a seven-day suspension for refusing to perform

his assigned duties. Two months after his seven-day suspension, Mr. Wyche provided

a letter from a staff physician at the Department of Veterans’ Affairs Outpatient Clinic,

Yolanda O’Rourke, M.D., in which the physician stated that Mr. Wyche “mentioned that




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he believes job-related stress accounts for much of his chest pain . . . which he believes

is precipitated by stress created by operating a machine on the job which is meant to be

operated by two persons.” (Emphasis added.) The physician concluded her letter by

stating “it seems as though the most logical solution would be to provide an additional

person to assist Mr. Wyche.” Mr. Wyche admitted, however, that Dr. O’Rourke is not a

heart specialist or qualified to address his heart condition. Initial Decision, slip op. at

10-11.

         Regardless, after receipt of the physician letter, the Agency sought clarification

from Mr. Wyche regarding his physical condition and whether Mr. Wyche was

requesting a reasonable accommodation or light duty. Mr. Wyche never responded. As

a result, the Agency referred Mr. Wyche’s situation to the District Regional

Accommodation Committee (DRAC).             Despite DRAC’s multiple written and oral

invitations to submit medical documentation and to appear before the committee to

review his physical condition under the Rehabilitation Act, Mr. Wyche ignored these

requests. Initial Decision, slip op. at 5. Thus, though given opportunities, both formally

and informally, to request light duty or reasonable accommodation or, alternatively, to

participate in the DRAC’s proceedings to identify other suitable work, Mr. Wyche

refused to participate, and continued to refuse to follow his supervisor’s instructions to

operate the DCBS machine alone.

         As a result, on March 23, 2005, Mr. Wyche received a second notice of a

suspension, for fourteen-days, for refusing to follow instructions to perform his assigned

duties. In the second suspension letter, the Agency pointed out that Mr. Wyche never

submitted evidence of a medical condition or disability that would prevent him from




06-3195                                      3
performing his duties, to include working on the DCBS machine alone. Mr. Wyche

continued to disregard instructions.

       Therefore, on July 18, 2005, the Agency served a Notice of Proposed Removal

on Mr. Wyche, citing his refusal to perform his duties, and his refusal to participate in

the reasonable accommodation process before the DRAC. Despite being instructed to

respond to the Notice of Proposed Removal, Mr. Wyche did not.                Therefore, on

August 11, 2005, the Agency removed Mr. Wyche for failure to follow instructions,

serving him with the Letter of Decision.

       Though given multiple opportunities to prove some kind of medical condition or

disability that would prevent him from working on the DCBS machine alone, Mr. Wyche

never provided any such evidence. Furthermore, though the DCBS machine is normally

staffed with two people, Mr. Wyche was repeatedly told during his employment, and the

Board received testimony from multiple witnesses, for both the Agency and Mr. Wyche,

that when the mail volume is low or during “first pass” it is acceptable and routine to

staff only one person on the DCBS machine because a “sweeper” is not needed. Initial

Decision, slip op. 5-9. Mr. Wyche even called the United States Postal Service’s labor

union’s President, Ms. Cheryl Brown, to testify on his behalf, and she testified that

staffing only one person on the DCBS machine when mail volume is low or during “first

pass” is in compliance with the union contract. Id., slip op. at 8-9. Mr. Wyche never

complained that he was staffed on the machine alone when mail volume was high.

                                             II.

       This court has a narrow scope of review for Board decisions. This court affirms a

Board decision unless it is: (1) arbitrary, capricious, an abuse of discretion, or otherwise




06-3195                                      4
not in accordance with the 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); Hayes v. Dep’t of Navy, 727 F.2d 1535, 1537 (Fed Cir. 1984). Based on this

standard of review, this 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.” Brewer v. United States Postal Serv., 647 F.2d 1093, 1096 (Ct. Cl. 1981).

Regarding penalties, “the choice of penalty is committed to the sound discretion of the

employing Agency and will not be overturned unless the Agency’s choice of penalty is

wholly unwarranted in light or all relevant factors.” Guise v. Dep’t of Justice, 330 F.3d

1376, 1381 (Fed. Cir. 2003).

      Factually, the Board found that Mr. Wyche: (1) did not to follow instructions to

operate the DBCS machine alone when doing a “first pass” or when mail volume was

low; (2) did not identify any specific safety procedure that was violated by the

instructions he refused to follow; and (3) though offered multiple opportunities to submit

medical evidence of some condition or disability that would prevent him from performing

his assigned duties, did not submit medical evidence that he required an

accommodation. Initial Decision, slip op. at 11.

      The Board concluded the Agency did not discriminate on the basis of disability,

as Mr. Wyche did not establish he was a “qualified individual with a disability” pursuant

to 29 C.F.R. § 1630.2(g). Id., slip op. at 12-13. The Board also concluded that the

Agency complied with the union contract or a settlement agreement, which clearly

states that staffing the DCBS machine with one person during limited volume, i.e. low

volume or “first pass,” is proper. Id., slip op. at 13-14. It also found Mr. Wyche’s




06-3195                                     5
removal proper, as employee misconduct is left to the sound discretion of the agency,

LaChance v. Devall, 178 F.3d 1246, 1251 (Fed. Cir. 1999), and that the Agency gave

due and proper consideration to the factors set out in Douglas v. Veterans’

Administration, 5 M.S.P.R. 280, 306 (1981).

      An employee does not have an unfettered right to disregard an order merely

because there is substantial reason to believe that the order is not proper. Meads v.

Veterans Admin., 36 M.S.P.R. 574, 578-79 (1988); see also Ingram v. Dep’t of Justice,

44 M.S.P.R. 578, 582 (1990), aff'd, 925 F.2d 1479 (Fed. Cir. 1991). The employee

must first comply with the order and then register his complaint or grievance, except in

limited circumstances where obedience would place the employee in a clearly

dangerous situation. Id. Thus, the Board’s ruling is in accordance with the law and

supported by substantial evidence. Accordingly, this court affirms.




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