        NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
               __________________________

                 DWIGHT MAYBERRY,
                     Petitioner,

                             v.
           DEPARTMENT OF DEFENSE
         DEPENDENTS SCHOOLS EUROPE,
                 Respondent.
               __________________________

                       2012-3014
               __________________________

    Appeal from Petition for Review of an Arbitrator's Deci-
sion in FMCS Case No. 111118-51267-A by Jacqueline A.
Imhoff.
              ___________________________

                Decided: January 7, 2013
              ___________________________

   RICHARD J. HIRN, Attorney at Law, of Washington, DC,
argued for petitioner.

    JANE W. VANNEMAN, Senior Trial Counsel, Commercial
Litigation Branch, United States Department of Justice, of
Washington, DC, argued for respondent. With her on the
brief were STUART F. DELERY, Acting Assistant Attorney
MAYBERRY   v. DODDS                                         2


General, JEANNE E. DAVIDSON, Director, and REGINALD T.
BLADES, JR., Assistant Director.
               __________________________

 Before RADER, Chief Judge, NEWMAN AND REYNA, Circuit
                        Judges.
NEWMAN, Circuit Judge.


    Mr. Dwight Mayberry was a first-grade teacher at the
Schweinfurt Elementary School, a Department of Defense
school located in Schweinfurt, Germany to serve children in
the military community, primarily Army families stationed
in the southeastern portion of Germany. After twenty-seven
years of unblemished record, he was fired for “repositioning”
four first-grade students in his classroom. That is the issue
of this appeal.

    Mr. Mayberry states that the penalty is disproportion-
ate, that he was removed without notice that his discipli-
nary actions were disapproved, that his years of service and
the many favorable reports and parental support were not
considered, and that he offers every likelihood of corrective
behavior. Although we believe that the courts should be
reluctant to intrude into local school management, on the
record before us the remedy of termination without oppor-
tunity to improve, in view of Mr. Mayberry’s long and favor-
able record as a teacher in the first grade and his
representations of ready correction is not supportable. The
“Memorandum of Understanding” between DoDDS and the
teachers states that “an educator’s use of reasonable force to
restrain a student is appropriate to prevent the student
from harming himself or herself, harming others, or destroy-
ing property.”
3                                          MAYBERRY   v. DODDS


    We reverse the dismissal, and remand to the agency for
reinstatement and the application of guidelines relevant to
the acceptable standards of discipline in a first-grade class-
room.

                        BACKGROUND

    When unruly children in his first grade class would
slouch or fall off their chairs or otherwise be disruptive, and
would not obey when Mr. Mayberry asked them to stop the
disruption and sit up, he would lift the child by the upper
arms to sit them up in their chairs. A child reported to his
parents that his arm had been hurt by the lifting, and the
parent told the school’s principal. After investigation, Mr.
Mayberry was fired. He was not previously warned that his
disciplinary actions were disapproved, and was given no
opportunity to change.

    The record was that Mr. Mayberry had no prior discipli-
nary complaint. Throughout his teaching career he received
favorable performance evaluations, and won numerous
teaching awards. Over the years before these allegations,
Mr. Mayberry’s colleagues and supervisors—including the
principal who later recommended his termination—
described him in glowing terms. Some samples from the
record are:

    I found Mr. Mayberry to be an effective manager of
    routines in a well-organized classroom. He often ate
    and interacted positively in his soft-spoken way
    with his students during lunch in the cafeteria.

    [Mr. Mayberry] continually strives to successfully
    implement DoDDS guidelines and curriculum stan-
    dards . . . . Mr. Mayberry has a calming demeanor
    with his students. He has been challenged this year
MAYBERRY   v. DODDS                                          4


   by some of the more demanding students and has
   sought professional advice from his colleagues. I
   look forward to next year [with Mr. Mayberry].

   Mr. Mayberry is a dedicated professional who has
   successfully met all critical performance elements . .
   . . As a result of his focused and supportive efforts,
   increased learning occurred for all students in his
   class . . . . Mr. Mayberry utilizes many motivational
   techniques and creates a supportive and productive
   educational environment for learning.

   [Mr Mayberry] implements best practices in reading
   and communicates the criteria for expected per-
   formance . . . . Of particular note is his stellar suc-
   cess with several ESL students who began the year
   with little to no understanding of English and ended
   the year confident and greatly improved in their ap-
   plication of English usage in reading, writing, and
   speaking. In concert with the ESL teacher, he cre-
   ated a safe and supportive environment for lan-
   guage application. Mr. Mayberry is a model of
   professionalism and commitment to [his] students.

   Mr. Mayberry is well regarded by students, staff,
   parents and administration and has very success-
   fully met the critical performance elements.

   Mr. Mayberry has exemplified the positive support
   expected of all staff regarding our school’s goals for
   improved reading comprehension and adequate
   yearly progress for all students.

The parents of two of Mr. Mayberry’s students had specifi-
cally requested that Mr. Mayberry teach their younger child
5                                           MAYBERRY   v. DODDS


because his older brother “absolutely loved [Mr. Mayberry]
as a teacher.”

    On January 27, 2010, eight-year-old AF’s1 mother called
Wilma Holt, the school’s principal. Ms. Holt stated that
AF’s mother said that AF “told her this morning that his
teacher was hitting kids in the class” and had “hurt him
too,” by grabbing him by the upper arm. Ms. Holt promptly
informed the military authorities including the Army’s
Criminal Investigation Division (CID). That afternoon Ms.
Holt summoned Mr. Mayberry to her office, told Mr. May-
berry that there had been an allegation of child abuse
against him, and put Mr. Mayberry on administrative leave
pending the outcome of the CID investigation.

    CID agents interviewed children from Mr. Mayberry’s
class, and their parents. Several children stated that Mr.
Mayberry “grabbed,” “yanked,” “squeezed,” “shook,” or “hit”
them when they misbehaved. Other children in the class
related how much they liked Mr. Mayberry and looked
forward to his class. For example, the parents of one stu-
dent stated that their child “adored Mr. Mayberry and
looked forward to going to school on a daily basis.” Another
parent stated that her son “is very fond of Mr. Mayberry
and has never made any complaints” about him. Still other
parents reported that their son “enjoys being in Mr. May-
berry’s class and has never had any complaints;” these
parents had “visited the classroom on many occasions and . .
. never observed anything inappropriate.”

    On conclusion of the CID investigation, Principal Holt
issued a notice of proposed removal. The notice describes
four incidents of child discipline, called specifications.

       1
              The record uses initials to protect the children’s
identities.
MAYBERRY   v. DODDS                                          6


According to the first specification, Mr. Mayberry squeezed
AF’s arms “really tight and/or picked him up (by the upper
arm) and slammed him down in his seat.” In the second
specification, Mr. Mayberry “used force with JN when [Mr.
Mayberry] picked him up by his arm/shoulder and pushed
him down to a seated position at his desk.” JN stated that
this happened several times and caused his chest to hurt.
In the third specification, Mr. Mayberry “grabbed GP by the
chin and squeezed a little too tight.” The fourth specifica-
tion states that “[o]n multiple occasions during the school
year, [Mr. Mayberry] used force with [JM, JL, TM, and OM],
to include grabbing and/or picking them up by their arms
and pushed them down to a seated position at their desks.”
This specification also states that Mr. Mayberry “hit TM on
the neck with a ruler, causing her to suffer pain for two
days.”

     Principal Holt fired Mr. Mayberry for “inappropriate
touching of students.” Ms. Holt stated that removal was
appropriate “in light of the nature and seriousness of his
offense, and its relation to his duties, position and responsi-
bilities as a teacher.” Superintendent Michael Thompson
agreed. Mr. Thompson acknowledged that the collective
bargaining agreement governing Mr. Mayberry’s employ-
ment contemplates progressive discipline and an opportu-
nity to correct unacceptable behavior, but stated that the
“repeated, inappropriate touching of students is so egregious
that removal is warranted, even if a first offense.” The
record before the arbitrator, discussed post, states that Mr.
Mayberry admitted to physically repositioning four disrup-
tive students. There is no record of a hearing at the agency.

   Mr. Mayberry filed a grievance with the Department of
Defense Dependents Schools (DoDDS). The Director of
DoDDS-Europe denied the grievance, stating that Mr.
Mayberry’s “egregious” conduct, specifically his “manhan-
7                                        MAYBERRY   v. DODDS


dling” of the students, “warrants immediate removal and
does not allow for progressive discipline.” The Director
pointed out that, under DoDEA Regulation 5751.9, “removal
is within the range of recommended penalties for a first
offense of substantiated child abuse, and/or administering
physical punishment, and/or using physical force to alter the
behavior of a student.” Mr. Mayberry proceeded to arbitra-
tion, as the agreement authorized. At the arbitration hear-
ing he admitted to “repositioning” four intransigent
students, but he did not admit to the more serious conduct
charged by the school. The arbitrator upheld Mr. May-
berry’s termination on the basis of Mr. Mayberry’s admis-
sions.

    At the arbitration, Mr. Mayberry described the event
involving AF as follows: He was teaching a math lesson,
and the children were sitting on the floor in front of the
chalkboard. AF began talking loudly. Mr. Mayberry asked
him to stop numerous times, and asked him to move to a
different part of the room. AF ignored Mr. Mayberry, kept
talking, and refused to move. According to Mr. Mayberry:

    At that point I got up, I walked over to him, he is
    seated on the floor with his legs crossed. I took my
    hand, upper arm, I lifted him up, picked him up,
    took about two steps and sat him back down on an-
    other location on the floor.

AF did not complain when Mr. Mayberry moved him, al-
though he complained to his parents that his arm had been
hurt.

   AF appeared before the arbitrator and testified that Mr.
Mayberry “hurt kids” and “picked me up by the arm and
then slammed me on the floor.” AF stated that he did not
remember how many times this occurred, but the incident
MAYBERRY   v. DODDS                                         8


left a bruise on his arm. AF also testified that Mr. May-
berry “will push the chair when you are sitting at your desk
and hurts your stomach.” AF reported that he did not like
Mr. Mayberry. The arbitrator determined that AF’s testi-
mony was unreliable, so she did not give it any weight in
arriving at her decision.

    As to the second specification, Mr. Mayberry admitted to
repositioning JN in his chair, as a “last resort” when he was
“annoyed” or “at the end of my rope.” Mr. Mayberry ex-
plained that JN had severe behavioral problems, he was
distracted easily, slouched down in his chair, fell out of his
chair, and moved around a lot. Mr. Mayberry stated that he
tried to encourage him, to use positive rewards, but some-
times nothing worked.

     For the third specification, there was no evidence before
the arbitrator that Mr. Mayberry grabbed or squeezed GP’s
chin. Respondent DoDDS so conceded. As to the fourth
specification, Mr. Mayberry recalled repositioning JM and
JL the same way he repositioned JN—exerting enough force
to sit them up in their chairs. Mr. Mayberry denied touch-
ing or moving TM, and he did not recall moving OM.

    In total, Mr. Mayberry admitted to physically reposi-
tioning four students during the 2009-10 school year.
According to the arbitrator, that was enough for discharge:

    I find that physically moving or adjusting four chil-
    dren, three of them more than once, over a period of
    time warrants discharge even though this was the
    first time [Mr. Mayberry’s] behavior was brought to
    the attention of the administration.

  Numerous persons testified in support of Mr. Mayberry.
One parent reported that her son “really liked Mr. May-
9                                           MAYBERRY   v. DODDS


berry,” “asked about him every day,” and said “I want Mr.
Mayberry back.” This parent testified that Mr. Mayberry
“was very nice, very helpful . . . and always was smiling . . . .
[He was a] very good teacher.” Her son had never seen Mr.
Mayberry grab a student.

    Another mother testified that “[w]e liked Mr. Mayberry
as a teacher.” She elaborated that:

    Mr. Mayberry did a great job with [our first son]
    and a great job of bonding with [him] and we had
    enjoyed him. [Our first son] absolutely loved him as
    a teacher. We felt he also would do well with [our
    second son].

She did not believe Mr. Mayberry committed the alleged
abuse, and “hope[d] [Mr. Mayberry] would come back and be
able to finish out the year.”

    The Schweinfurt pediatric dentist, who had a son in Mr.
Mayberry’s class and whose patients included 70-80% of Mr.
Mayberry’s students, testified that the students said they
“liked” Mr. Mayberry and thought he was “nice” and
“funny.” This community dentist “never had any concerns”
about Mr. Mayberry. He testified that “[t]he children who
came into my office constantly reported that they liked Mr.
Mayberry, enjoyed being in his class.” He saw Mr. May-
berry’s firing as “a loss of an asset” and “a loss to the com-
munity.”

    The teacher across the hall, who occasionally shared
classes with Mr. Mayberry, testified that she “observed a
very caring, consistent teacher” and saw nothing of concern
when she visited his classroom. She was “very upset” to see
Mr. Mayberry go. Ten to twelve of Mr. Mayberry’s col-
leagues wrote character references on his behalf.
MAYBERRY   v. DODDS                                      10


    The arbitrator’s decision to uphold the termination was
based solely on the conduct to which Mr. Mayberry admit-
ted. The arbitrator acknowledged that the collective bar-
gaining agreement required notice and progressive
discipline but, citing her concern for the safety of young
children, stated that “some infractions are so serious as to
justify termination for a first offense,” giving as examples
“slugging a supervisor” or “selling drugs on the premises.”
Apparently believing Mr. Mayberry’s misconduct to be of
similar magnitude, the arbitrator sustained the removal.

                       DISCUSSION

     When taking adverse action against a federal employee,
the agency must establish (1) that a preponderance of the
evidence supports the charged misconduct, (2) a sufficient
nexus between the misconduct and the efficiency of the
service, and (3) that the penalty imposed is reasonable in
light of the facts and circumstances. Malloy v. U.S. Postal
Serv., 578 F.3d 1351, 1356 (Fed. Cir. 2009). In reviewing an
agency’s action, “[a]n arbitrator is bound to apply the same
substantive legal standards as would the Merit Systems
Protection Board (‘MSPB’),” Martin v. Dep’t of Veterans
Affairs, 412 F.3d 1258, 1264 (Fed. Cir. 2005), and judicial
review of an arbitrator’s decision is under the same stan-
dard governing appeals of MSPB decisions. 5 U.S.C.
§7121(f); Grigsby v. U.S. Dep’t of Commerce, 729 F.2d 772,
774 (Fed. Cir. 1984). Thus the arbitrator’s action is af-
firmed 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 regu-
lation having been followed, or (3) unsupported by substan-
tial evidence. 5 U.S.C. §7703(c).

    Mr. Mayberry argues that agency rule requires progres-
sive discipline and an opportunity to change, and that the
11                                        MAYBERRY   v. DODDS


penalty of immediate termination, in light of his highly
favorable and lengthy record and commendations, is so
disproportionate as to be an abuse of discretion. “[T]he
discipline imposed by an agency will not be upheld where
that discipline is so harsh that it is unconscionably dispro-
portionate to the offense and amounts to an abuse of discre-
tion.” Swentek v. United States, 658 F.2d 791, 796 (Ct. Cl.
1981).

    There must be a reasonable relationship between an
employee’s wrongdoing and the discipline imposed. In
Villela v. Department of the Air Force, 727 F.2d 1574, 1576
(Fed. Cir. 1984), this court recognized that while “[t]he
choice of penalty is generally left to agency discretion,”
deference is unwarranted if “the penalty is so harsh and
unconscionably disproportionate to the offense that it
amounts to an abuse of discretion.” In Webster v. Depart-
ment of the Army, 911 F.2d 679, 685-86 (Fed. Cir. 1990), the
court observed that a “grossly disproportionate” remedy
should not be sustained. In Mitchum v. Tennessee Valley
Authority, 756 F.2d 82, 84 (Fed. Cir. 1985), the court recog-
nized a duty to ensure that “the agency has responsibly
balanced the relevant factors in the individual case and
selected a penalty within the tolerable limits of reasonable-
ness.” In Gose v. United States Postal Service, 451 F.3d 831,
836 (Fed. Cir. 2006), the court explained that an abuse of
discretion occurs where the decision “represents an unrea-
sonable judgment in weighing relevant factors.”

    According to the record, the arbitrator sustained the
termination on the basis of Mr. Mayberry’s admission that
he physically “repositioned” four slouching, uncooperative
students in the current school year. Although the school
apparently referred to additional disciplinary actions that it
said had occurred over two years, the arbitrator did not
mention them. As stated in Quinton v. Department of
MAYBERRY   v. DODDS                                          12


Transportation, 808 F.2d 826, 829 (Fed. Cir. 1986), the court
“will scrutinize carefully the appropriateness of the penalty
imposed” if “many of the original charges are not sustained
below.”

     The arbitrator held that Mr. Mayberry’s admitted repo-
sitioning of four unruly students in his first grade classroom
warranted discharge, even though this was Mr. Mayberry’s
first complaint in twenty-seven years. As noted supra,
many parents, students, and colleagues provided letters and
testimony on his behalf, stating that they consider him a
wonderful teacher and an asset to the school. The school’s
policy and the collective bargaining agreement require
progressive discipline if rehabilitation is feasible. However,
the DoDEA regulations state that, “[u]sing physical force to
alter the behavior of a student” may result in removal, even
for a first offense. DoDEA regulations reflect the under-
standing that “[t]here are many disciplinary situations and
a wide variety of penalties. In deciding which action to
take, careful judgment must be used so that the penalty is
not out of proportion to the character of the offense, espe-
cially a first offense.” What Mr. Mayberry did, physically
sitting-up students in their chairs and moving an unruly
student sitting on the floor, is indeed a use of physical force,
but the nature of the force and the entirety of the circum-
stances must be considered. It is not disputed that there
was no notice to Mr. Mayberry that his actions were unac-
ceptable, and no opportunity for him to cease this behavior.
See Swentek, 658 F.2d at 796 (discussing reasonableness of
the penalty in light of all the circumstances).

    We do not doubt that some offenses warrant immediate
discharge; however, the arbitrator’s examples of “slugging a
supervisor” or “selling drugs” are not comparable. On the
arbitrator’s findings, Mr. Mayberry was fired for physically
repositioning several disruptive students, when they would
13                                     MAYBERRY   v. DODDS


not follow his instructions to sit in their chairs or stop
talking.

    We do not hold that the school should not have inter-
vened promptly, on learning of behavior that it deemed
improper. However, on the facts on which the arbitrator
relied, the remedy of termination, without prior notice of
disapproval and without opportunity to improve, was not
reasonable in view of the weighty record of glowing state-
ments from many parents and students, and a history of
commendations for excellence. The termination is reversed.
 We remand to the agency with instructions to withdraw the
termination, and to provide sufficient instruction as to
acceptable classroom discipline.

            REVERSED and REMANDED.
