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

 United States Court of Appeals for the Federal Circuit

                                         05-3339

                                   CHARLES WHITE,

                                                       Petitioner,

                                            v.

                         UNITED STATES POSTAL SERVICE,

                                                       Respondent.



                           __________________________

                               DECIDED: April 10, 2006

                           __________________________



Before LINN, DYK, and PROST, Circuit Judges.

PER CURIAM.

      Charles White (“White”) appeals a decision of the Merit Systems Protection

Board (“Board”) sustaining a charge of “improper conduct by participating in a verbal

and physical altercation,” and affirming his removal from the United States Postal

Service (“Postal Service”). White v. United States Postal Serv., No. AT-0752-05-0286-I-

1 (M.S.P.B. July 28, 2005) (“Final Order”). Because the Board’s decision sustaining the

charge and the removal is supported by substantial evidence, is not an abuse of

discretion, and does not otherwise contain reversible error, we affirm.
                                     BACKGROUND

       On August 9, 2004, while White was attending the Mail Handler’s Union picnic in

Jacksonville, Florida, he and one of his coworkers, Mr. John Sawyer (“Sawyer”),

became involved in a fight involving deadly weapons. After conducting an investigation,

the Postal Service removed White from duty. White appealed to the Board, which

affirmed the agency’s decision. See White v. United States Postal Serv., No. AT-0752-

05-0286-I-1 (M.S.P.B. May 2, 2005) (“Initial Decision”). The administrative judge (“AJ”)

found that, based on White’s admissions against interest that he brandished a knife

against a co-worker, the Postal Service proved its charge of improper conduct. The

AJ’s decision became the final decision of the Board after the Board denied White’s

petition for review. See Final Order, slip op. at 1-2. White timely appealed. We have

jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

                                       DISCUSSION

                                  A. Standard of Review

       Pursuant to 5 U.S.C. § 7703(c), this court must affirm the Board’s decision unless

it is: (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. Chase-Baker v. Dep’t of Justice,

198 F.3d 843, 845 (Fed. Cir. 1999). The petitioner bears the burden of establishing

reversible error in reviewing a decision of an administrative agency such as the Board.

Harris v. Dep’t of Veterans Affairs, 142 F.3d 1463, 1467 (Fed. Cir. 1998).




05-3339                                   2
                                       B. Analysis

      To succeed in an adverse action against an employee, an agency must establish

that the conduct occurred, that there is a nexus between the conduct and the efficiency

of the service, and that the penalty imposed by the agency was reasonable. Bryant v.

Nat’l Sci. Found., 105 F.3d 1414, 1416 (Fed. Cir. 1997).

                                       1. Conduct

      White argues that, in sustaining the conduct determination, the Board failed to

take into account testimony of Ms. Karen Goshay (who White claims was an eye

witness) and an unidentified State Attorney (who White claims talked with the Postal

Service regarding charges against Sawyer). White asserts that the testimony of these

witnesses would help to show that he acted in self defense.

      As concerns the testimony of Ms. Goshay, she wrote in her witness statement

that she was “on kitchen duty” and “did not see the alleged event.” The AJ denied

White leave to call Ms. Goshay as a witness, finding that her testimony would not be

relevant. A determination to allow or exclude witness testimony is within the sound

discretion of the administrative judge. See Tiffany v. Dep’t of the Navy, 795 F.2d 67, 70

(Fed. Cir. 1986). White has not shown that the AJ abused his discretion by excluding

Ms. Goshay as a witnesses on relevancy grounds. Since Ms. Goshay did not witness

the event, she could not provide relevant testimony as to whether White acted in self

defense. Furthermore, because the AJ’s decision was based on White’s own admission

that he brandished a knife, a fact which White admitted before the Postal Service and

before the Board, and again admits before this court in his informal briefs, the Board did

not abuse its discretion in excluding the testimony of Ms. Goshay.




05-3339                                 3
       Regarding the testimony of the State Attorney, although White asserts that the

State Attorney might be able to proffer testimony regarding the State’s charges against

Sawyer, White does not explain how that testimony would be relevant to show that

White acted in self-defense. Moreover, White failed to list the State Attorney on his

witness list.   Our precedent is clear that facts not before the Board cannot be

considered on appeal. “Our precedent clearly establishes the impropriety of seeking a

reversal of the [B]oard’s decision on the basis of assertions never presented to the

presiding official or to the [B]oard.” Rockwell v. Dep’t of Transp., 789 F.2d 908, 913

(Fed. Cir. 1986); see Oshiver v. Office of Pers. Mgmt., 896 F.2d 540, 542 (Fed. Cir.

1990) (holding that this court will not consider new evidence that was not presented to

the Board); Rockwell, 789 F.2d at 913 (explaining that Congress limited this court’s

appellate review “to final orders and decisions of the Board on the record”).

       In sum, White has not identified any reversible error in the Board’s decision to

sustain the charge.

                                        2. Nexus

       White argues that, because the fight occurred when he was off duty, the Board

erred in finding that the nexus had been established. The Postal Service argues that

the Board’s finding of nexus should be affirmed and notes that this court has found that

off-duty conduct can give rise to a presumption of nexus. The Postal Service argues

that White’s conduct was sufficiently egregious that a nexus between the conduct and

the efficiency of the service is presumed, as it was in Brown v. Department of the Navy,

229 F.3d 1356 (Fed. Cir. 2000) (off-duty affair with officer’s spouse), Brook v. Corrado,

999 F.2d 523, 527-28 (Fed. Cir. 1993) (off-duty drug trafficking), Allred v. Department of




05-3339                                  4
Health & Human Services, 786 F.2d 1128, 1130 (Fed. Cir. 1986) (off-duty child

molestation), Dominguez v. Department of Air Force, 803 F.2d 680, 683 (Fed. Cir.

1986) (assault against supervisor at an off-duty location), and Hayes v. Department of

the Navy, 727 F.2d 1535, 1539 (Fed. Cir. 1984) (off-duty assault and battery against

child).

          In the present case, the Board held that “disciplining [White] clearly promotes the

efficiency of the Federal service notwithstanding that the fight occurred off duty.” Initial

Decision, slip op. at 7. The Board found that the misconduct had an adverse effect on

the efficiency of the service because, although the misconduct did occur off-duty, it

involved two agency employees, occurred in the presence of many postal employees

who were attending a union-sanctioned event, troubled postal employees after the fact,

and put postal employees in harm’s way. Id., slip op. at 6-7.

          The facts clearly indicate that White’s fellow employees remained concerned

about what had happened and complained about the incident to their supervisor. We

therefore agree with the Board’s findings and reasoning that White’s misconduct against

his fellow employee, in front of many co-workers at a union-sanctioned event, had a

chilling effect upon relationships at the workplace which can only adversely impact the

agency’s ability to fulfill its mission with proper efficiency.    We find no error in the

Board’s conclusion that the evidence was sufficient to demonstrate the required nexus.

                                          3. Penalty

          White also challenges the penalty, stating that “[t]here could have been a

suspension instead of a dismissal since the other party had already resigned from the

Postal Service and the likelihood [sic] of this incident spilling over at the workplace




05-3339                                    5
would have been moot.” The “[d]etermination of an appropriate penalty is a matter

committed primarily to the sound discretion of the employing agency.”           Brook v.

Corrado, 999 F.2d 523, 528 (Fed. Cir. 1993) (quoting Beard v. Gen. Servs. Admin., 801

F.2d 1318, 1322 (Fed. Cir. 1986)). Accordingly, “we will not disturb a penalty unless it

exceeds the range of permissible punishment or is ‘so harsh and unconscionably

disproportionate to the offense that it amounts to an abuse of discretion.’” Gonzales v.

Def. Logistics Agency, 772 F.2d 887, 889 (Fed. Cir. 1985) (quoting Villela v. Dep’t of Air

Force, 727 F.2d 1574, 1576 (Fed. Cir. 1984)).

      The Board found that White displayed no remorse and left the AJ with the distinct

impression that he would have done exactly the same thing again. Initial Decision, slip

op. at 7. The Board also found that the harm caused by White’s misconduct caused

lingering concerns in the workplace in that employees were worried about the incident.

Id. In light of these findings, White’s arguments do not demonstrate that his removal

from the workplace was an abuse of discretion by the Postal Service.

                                     CONCLUSION

      For the foregoing reasons, we conclude that the Board’s decision sustaining a

charge of improper conduct and affirming the penalty of removal is supported by

substantial evidence, is not an abuse of discretion, and does not otherwise contain

reversible error. Accordingly, we affirm the Board’s decision.

                                         COSTS

      No costs.




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