November 21, 1984; As Amended November 21, 1984.
Appealed from: Merit Systems Protection Board
Before Nies, Newman, and Bissell, Circuit Judges.
This appeal is from the decision of the Merit Systems Protection Board (MSPB), Case No. DC07528210354, affirming the removal of petitioner from his position with the Federal Energy Regulatory Commission (FERC) for using disrespectful language toward his supervisor. We affirm.
Petitioner was employed as a lithographic pressman with the FERC. In the 13 months preceding petitioner's removal on October 23, 1981, petitioner had been reprimanded on one occasion and suspended on another for using abusive language. Petitioner had also been suspended for insubordination and had been terminated from the Employee Assistance Program, a counseling service, because of his "un-cooperative attitude and failure to keep appointments."
Petitioner was removed for an incident occurring August 20, 1981, in which petitioner, in a loud voice, called his supervisor profane and abusive names as his supervisor passed through the press area. At the hearing before the presiding official of the MSPB, petitioner denied having used such language toward his supervisor. However, petitioner's testimony was contradicted by that of other employees present in the press area at the time of the incident. The presiding official, after reviewing the evidence and observing the demeanor of the witnesses, determined that the agency's charge was supported by a preponderance of the evidence.
The presiding official also considered the appropriateness of the penalty of removal in view of mitigating factors as required by Douglas v. Veterans Administration, 5 M.S.P.B. 313, 331-32 (1981). The presiding official noted that while the use of profanity was common in the print plant, the agency did not sanction the use of abusive language (disrespectful language directed to an individual) as evidenced by a reprimand petitioner's supervisor had himself received for abusive language. Since petitioner had been progressively disciplined for abusive language, the presiding official found the atmosphere at the plant insufficient to mitigate the penalty.
Petitioner's primary argument on appeal is that the presiding official failed to identify the basis on which the agency demonstrated the requisite nexus between the removal of petitioner and the efficiency of the service. Petitioner also contends that the FERC and the presiding official both failed to consider a number of "essential" mitigating factors, such as harassment by petitioner's supervisor, that petitioner had a hearing problem and, as a consequence, always spoke in a loud voice, and that petitioner had emotional problems.
Before addressing petitioner's arguments, we first consider the government's preliminary contention that petitioner can raise on appeal only those issues that were presented in his petition for review to the full board, citing Lizut v. Department of the Army, 717 F.2d 1391, 1395-96 (Fed. Cir. 1983). Under Lizut, according to the government, "except for the claim that consideration was not given to the allegedly mitigating factor of profanity in the printing plant, there has been a failure to exhaust administrative remedies with respect to every point raised on appeal."
The government's position, that the statement of issues in the petition for review to the full board restricts the issues on appeal to this court, not only reflects a misinterpretation of Lizut, but also grossly distorts the review procedure to the prejudice of a party.
Under the procedures established for appealing a decision of a presiding official, a party ...