                     NOTE: This disposition is nonprecedential.


     United States Court of Appeals for the Federal Circuit

                                      2006-3405


                                  RAY W. BAGBEE,

                                                             Petitioner,

                                          v.


                        UNITED STATES POSTAL SERVICE,

                                                             Respondent.


      Ray W. Bagbee, of San Francisco, California, pro se.

       Michelle A. Windmueller, Attorney, Law Department, Civil Practice, United States
Postal Service, of Washington, DC, for respondent. With her on the brief were Peter D.
Keisler, Assistant Attorney General, and Lori J. Dym, Chief Counsel, Law Department
Civil Practice, United States Department of Justice, of Washington, DC.

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                           NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                        2006-3405

                                     RAY W. BAGBEE,

                                                                        Petitioner,

                                             v.

                          UNITED STATES POSTAL SERVICE,

                                                                        Respondent.

                          ___________________________

                          DECIDED: February 6, 2007
                          ___________________________


Before MICHEL, Chief Judge, and NEWMAN and DYK, Circuit Judges.

PER CURIAM.

      Ray W. Bagbee appeals from the decision of the Merit Systems Protection Board

(“Board”) in SF0752060336-I-1, affirming the United States Postal Service’s (“USPS”)

decision to remove him. We affirm.

                                     BACKGROUND

      Bagbee began working with the USPS as a Laborer, Custodial, in 1985. He was

assigned on a rotational basis to three agency stations in San Francisco until an

incident in January 2004 where he allegedly threatened an employee at one of those

stations. After that incident, Bagbee was assigned to work exclusively at the USPS

Processing and Distribution Center in San Francisco.

      On May 19, 2005, during the course of a meeting with his supervisor, Elizabeth

Ramos, and her supervisor, John Daniels, Bagbee made several specific threats. Ms.
Ramos and Mr. Daniels later testified that Bagbee threatened to rape and kill Mr.

Daniels’s wife, daughter and son, and also to go to Ms. Ramos’s house while her

husband was working and rape and kill Ms. Ramos’s children and then slash Ms.

Ramos’s throat.

      On June 15, 2005, the USPS issued a notice of proposed removal to Bagbee,

citing “Unacceptable Conduct / Failure to Follow Instructions,” charging him with

“Engaging in Violent and Threatening Behavior” in violation of the USPS’s “zero

tolerance policy on workplace violence.” The USPS’s zero tolerance policy states that

“threats, assaults, or other acts of violence committed against other postal employees or

customers will result in severe disciplinary action, up to and including removal from the

Postal Service.” Resp’t App. 29.

      Bagbee was removed effective August 26, 2005. He filed a timely “mixed case

complaint of discrimination” challenging his removal and alleging that his removal was

the result of discrimination based on race, color, age and disability.       The USPS

dismissed his complaint on the merits. Bagbee timely appealed to the Board.

      After a hearing, the Board sustained Bagbee’s removal on the merits.           The

administrative judge (“AJ”) held (1) that the agency had proven the factual basis for the

misconduct charged by a preponderance of the evidence, based on his finding that the

testimony of the government witnesses was more credible than Bagbee’s denials; (2)

that the USPS met its burden of proving that Bagbee violated the zero tolerance policy,

and also that it met the standard of proof for adverse actions based on threats, as

articulated in Metz v. Dep’t of Treasury, 780 F.2d 1001, 1002 (Fed. Cir. 1986); (3) that

the USPS showed that Bagbee’s removal promoted the efficiency of the service



2006-3405
                                        2
because there existed a nexus between the removal and the USPS’s interest in

protecting its employees and their families from threats of bodily harm; and (4) that the

USPS properly balanced factors under Douglas v. Veterans Admin. in determining that

the appropriate penalty was removal. 5 M.S.P.R. 280, 305-06 (1981). The AJ also

rejected Bagbee’s claims of discrimination and retaliation on the merits.

      Bagbee petitioned for review of the AJ’s decision by the full Board. The full

Board denied review. An appeal to this court followed. We have jurisdiction pursuant to

28 U.S.C. § 1295(a)(9) (2000).

                                     DISCUSSION

      The Board’s decision must be affirmed unless it 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; or unsupported by substantial

evidence. 5 U.S.C. § 7703(c) (2000); Yates v. Merit Sys. Prot. Bd., 145 F.3d 1480,

1483 (Fed. Cir. 1998). The Board’s credibility determinations are questions of fact, and

are “virtually unreviewable” on appeal. See Hambsch v. Dep’t of Treasury, 796 F.2d

430, 436 (Fed. Cir. 1986).

      We hold that the Board’s findings that the charged misconduct occurred, that the

termination promoted the efficiency of the service, and that the penalty imposed is

within tolerable limits of reasonableness are supported by substantial evidence. No

other findings of fact were necessary to affirm the removal. See Pope v. U.S. Postal

Serv., 114 F.3d 1144, 1147 (Fed. Cir. 1997).         We have also held that absolute

performance standards, such as the USPS’s zero tolerance policy, are permissible

under the Civil Service Reform Act of 1978. Pub. L. No. 95-454, 92 Stat. 1111 (Oct. 13,



2006-3405
                                         3
1978) (codified in scattered sections of 5 U.S.C.); Guillebeau v. Dep’t of Navy, 362 F.3d

1329, 1335 (Fed. Cir. 2004) (“[N]either the statute nor the regulations bar absolute

performance standards.”).

       On appeal Bagbee refers to his medical problems (apparently, back problems)

and desire for workers’ compensation. Those facts are not relevant to determining

whether he made the threats. Nor do they demonstrate that the penalty of removal was

unreasonable in this case.       To the extent Bagbee attempts to assert claims of

discrimination or retaliation on appeal, Bagbee waived those claims as a condition of

filing this appeal. See Fed. Cir. R. 15(c).

       Accordingly, we affirm the Board’s decision.

       No costs.




2006-3405
                                          4
