                 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

                                       2006-3207


                           PATRICIA J. PENNEY-GUZMAN,

                                                       Petitioner,


                                            v.


                        SOCIAL SECURITY ADMINISTRATION,

                                                       Respondent.

                           __________________________

                           DECIDED: October 6, 2006
                           __________________________

Before BRYSON and PROST, Circuit Judges, and SARIS, District Judge.∗

PER CURIAM.

      Petitioner Patricia J. Penney-Guzman petitions for review of the final order of the

Merit Systems Protection Board (“Board”) sustaining the decision of the Social Security

Administration (the “agency”) to remove Ms. Penney-Guzman from service. We affirm.

                                    BACKGROUND

      At the time of her removal, Ms. Penney-Guzman was employed as a legal

assistant (senior case technician) with the agency’s Office of Hearings and Appeals,


       ∗        Honorable Patti B. Saris, District Judge, United States District Court for
the District of Massachusetts, sitting by designation.
and she had been a federal employee for twenty one years. Ms. Penney-Guzman was

disciplined on three occasions prior to her removal from service. In July 1996, she was

suspended for three days for rude and discourteous conduct toward coworkers. In

March 2000, she was suspended for five days for rude and discourteous conduct

toward a coworker and failure to follow the rules for requesting leave. And in October

2003, she was suspended for thirty days for failure to follow instructions, false or

misleading statements in matters of official interest, and rude and discourteous conduct

toward a supervisor.

      On February 15, 2005, the agency gave Ms. Penney-Guzman a Notice of

Proposal to Remove her from service. The notice charged Ms. Penney-Guzman with

“Rude and Discourteous Conduct towards a Supervisor.” Specifically, the notice alleged

that on December 6, 2004, Ms. Penney-Guzman repeatedly spoke to her supervisor,

Paul Luna, in a loud and discourteous tone.       Ms. Penney-Guzman and her union

representative provided an oral response to the charge on March 14, 2005, and her

union representative submitted a written response to the charge on March 15, 2005.

The agency issued a decision on the proposal on March 24, 2005, and removed Ms.

Penney-Guzman from federal service effective March 28, 2005. The decision letter

informed her of her appeal rights.

      On May 9, 2005, Ms. Penney-Guzman filed an appeal with the Board. In his

September 9, 2005, initial decision, the administrative judge held that the agency

proved the charge of “Rude and Discourteous Conduct towards a Supervisor.” Penney-

Guzman v. Soc. Sec. Admin., No. SF0752050628-I-1, slip op. at 3-6 (M.S.P.B. Sept. 9,

2005) (“Initial Decision”). The administrative judge also held that there was a nexus




2006-3207                                  2
between Ms. Penney-Guzman’s misconduct and the efficiency of the service and

concluded that the penalty of removal was reasonable.              Id., slip op. at 14-19.   In

addition, the administrative judge rejected Ms. Penney-Guzman’s affirmative defenses

of disability discrimination and retaliation. Id., slip op. at 8-14.

       Ms. Penney-Guzman petitioned for full board review of the administrative judge’s

decision. The Board denied the petition for review, making the administrative judge’s

initial decision the final decision of the Board. Penney-Guzman v. Soc. Sec. Admin.,

No. SF0752050628-I-1, slip op. at 2 (M.S.P.B. Jan. 27, 2006). Ms. Penney-Guzman

timely petitioned this court for review of the Board’s final decision.

                                        DISCUSSION

       This court has jurisdiction to review a final order or decision of the Board under 5

U.S.C. § 7703(b)(1). In reviewing the Board’s decision, this court

       shall review the record and hold unlawful and set aside any agency action,
       findings, or conclusions 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) (2000).

       In her pro se appeal, Ms. Penney-Guzman makes, in essence, three arguments:

(1) the incident leading to her termination never took place, (2) the administrative judge

improperly relied on hearsay testimony, and (3) the administrative judge improperly

considered Ms. Penney-Guzman’s prior thirty-day suspension in determining that the

penalty of removal was within the tolerable limits of reasonableness.




2006-3207                                      3
       With regard to the incident leading to her termination, Ms. Penney-Guzman

raises several issues with respect to the administrative judge’s factual determination

that she was rude and discourteous toward her supervisor, Paul Luna.                   The

administrative judge found that on December 6, 2004, Ms. Penney-Guzman yelled at

Mr. Luna when he was attempting to interact with her regarding a work issue. Initial

Decision, slip op. at 6. In support of his finding, the administrative judge cited testimony

from Mr. Luna himself and from Nancy Caldwell, another employee who testified that

she personally witnessed the incident. The administrative judge had the opportunity to

observe Mr. Luna and Ms. Caldwell testify and found both to be “highly credible.” Id.,

slip op. at 6-7. In addition, the administrative judge had before him written statements

of three other employees, all of whom stated that they overheard Ms. Penney-Guzman

yelling at Mr. Luna. Id., slip op. at 6. The administrative judge’s conclusion that Ms.

Penney-Guzman yelled at Mr. Luna was therefore supported by substantial evidence.

       Nevertheless, Ms. Penney-Guzman makes several arguments that implicate the

administrative judge’s finding that she yelled at Mr. Luna. She first argues that the

administrative judge “failed to consider the totality of the circumstances.” She cites 29

C.F.R. § 1604.11(b) in support of this argument. This regulation, however, applies to

the Equal Employment Opportunity Commission, and states that the Commission will

look at the totality of the circumstances when determining whether conduct constitutes

sexual harassment. 29 C.F.R. § 1604.11(b) (2006). This regulation is not relevant to

this case.

       Next, Ms. Penney-Guzman argues that the administrative judge erred in not

giving more weight to her own account of the incident. Specifically, she argues that the




2006-3207                                    4
administrative judge’s “reasoning” was “flawed” in connection with his citation of Suarez

v. Department of Housing & Urban Development, 96 M.S.P.R. 213, 229 (2004), aff’d,

125 F. App’x 1010 (Fed. Cir. 2005). In his decision, the administrative judge cited

Suarez for the proposition that “uncorroborated and self-serving testimony is entitled to

little weight.” Initial Decision, slip op. at 6. Because the administrative judge found that

Ms.   Penney-Guzman’s       testimony    was     uncorroborated      and    self-serving,   the

administrative judge assigned it less weight. In addition, the administrative judge found

that Ms. Penney-Guzman’s account was contradicted by the testimony of Mr. Luna and

Ms. Caldwell and the written statements of three other employees, all of whom stated

that they witnessed Ms. Penney-Guzman yell at Mr. Luna.              Id.   The administrative

judge’s conclusion that Ms. Penney-Guzman yelled at Mr. Luna was therefore

supported by substantial evidence.

       Ms. Penney-Guzman also alleges that there are inconsistencies between the

statements provided by certain witnesses. As noted above, however, the administrative

judge’s finding that Ms. Penney-Guzman yelled at Mr. Luna was supported by

substantial evidence and thus will not be disturbed by this court.

       Ms. Penney-Guzman also appears to allege that a written statement made by

one of the witnesses to the incident, Administrative Law Judge Mason Harrell, was

altered and that his statement was fabricated in order to “get rid of” Ms. Penney-

Guzman so that Judge Harrell “could hire his own friends and promote them.” Ms.

Penney-Guzman has pointed to no evidence in the record to support these allegations

and thus fails to establish that the administrative judge’s conclusions were unsupported

by substantial evidence.




2006-3207                                    5
       Ms. Penney-Guzman’s second argument is that the administrative judge

improperly relied on “hearsay testimony.” Hearsay evidence, however, may be used in

Board proceedings. Kewley v. Dep’t of Health & Human Servs., 153 F.3d 1357, 1364

(Fed. Cir. 1998). As a result, it was not error for the administrative judge to consider the

written statements of three employees in conjunction with the testimony of Mr. Luna and

Ms. Caldwell.

       Finally, Ms. Penney-Guzman argues that under Gregory v. United States Postal

Service, 212 F.3d 1296 (Fed. Cir. 2000), the administrative judge improperly relied on

Ms. Penney-Guzman’s prior thirty-day suspension in determining whether the penalty of

removal was reasonable because her prior suspension was being appealed. Because

Ms. Penney-Guzman did not make this argument below, it is waived and this court will

not consider it for the first time on appeal. Bosley v. Merit Sys. Prot. Bd., 162 F.3d 665,

668 (Fed. Cir. 1998). We note, however, that Gregory was vacated by the Supreme

Court, which rejected the rule that the Board can never rely on prior disciplinary actions

subject to ongoing grievance procedures. U.S. Postal Serv. v. Gregory, 534 U.S. 1, 7-8

(2001). In any event, Ms. Penney-Guzman’s appeal of the thirty-day suspension was

dismissed by the Board by final order on June 5, 2006.

       Ms. Penney-Guzman does not raise her affirmative defenses of disability

discrimination and retaliation on appeal, but we have considered the record on those

issues and we conclude that the administrative judge did not err in rejecting Ms.

Penney-Guzman’s affirmative defenses.

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

       No costs.




2006-3207                                    6
