Appealed from: Merit Systems Protection Board
Before Rich and Davis, Circuit Judges, and Miller, Senior Circuit Judge
This appeal challenges petitioner's removal from his position (as a Training Specialist with the General Services Administration (GSA)) on six charges of having made statements and engaged in actions that conveyed threats of bodily harm to fellow employees. The Merit Systems Protection Board (MSPB or Board) sustained the removal (MSPB No. PH07528310635), and the case is now here. We affirm.
This removal case is closely related to petitioner's separate suspension case which we decided in Thomas v. General Services Administration, 756 F.2d 86 (Fed. Cir.), cert. denied, 474 U.S. 843, 106 S. Ct. 129, 88 L. Ed. 2d 106 (1985) (Thomas I). In that opinion -- which dealt with petitioner's suspension pending consideration of a potential disability retirement application filed for him by GSA -- we summarized the factual background of both that case and this one:
Petitioner was a training specialist with the Federal Protective Service (FPS), the division of GSA responsible for law enforcement on government property. In this capacity, he was responsible for training other FPS officers, training and evaluating contract security guard services, and similar duties involving FPS personnel.
Problems within his office arose because petitioner repeatedly exhibited what has been said to be bizarre behavior. Specifically, the agency's charges allege, inter alia, that petitioner would level a realistic-looking toy pistol at fellow employees to practice his aim; that petitioner would practice martial arts on soda machines and other objects; and that petitioner on one occasion hacked at a cardboard carton with a scissors while saying "even this is too good for her" -- allegedly referring to a fellow employee. According to GSA, petitioner also discussed an incipient revolution (of which he would be a part) with such conviction and in such detail that his fellow employees became nervous in petitioner's presence.
In January 1982 GSA ordered petitioner to submit to a psychiatric fitness-for-duty examination. After the examination, at which the psychiatrist found him to be highly paranoid, GSA placed him on involuntary sick leave. Soon thereafter, on May 22, 1982, the GSA proposed petitioner's suspension from the federal service, citing both his behavior around the office and its adverse impact on the other employees as the cause. In a notice to petitioner, GSA said that the proposed suspension would run until GSA decided whether to apply for disability retirement on petitioner's behalf; if the GSA decided so to apply, the notice continued, the suspension would remain in effect pending a decision on the application. On June 10, 1982, GSA sent petitioner final notice that it had decided to proceed with a disability retirement application. Two weeks later, GSA notified him of its decision to place him on indefinite suspension pending a decision on that application.
GSA's application for disability retirement was denied by the Office of Personnel Management, and the suspension was upset by a presiding official of the MSPB. GSA then proposed Thomas' removal on the six charges now before us and the agency sustained those charges. Petitioner appealed that removal to the MSPB.
Meanwhile, the suspension action was proceeding independently before the Board. The presiding official, as we have said, rejected that agency action but the full Board, though it said the MSPB had no jurisdiction over such a suspension, held that the presiding official was wrong on the facts and that the record sustained the agency's reasons for the suspension. In Thomas I, this court reversed the Borad as to its jurisdiction but affirmed its factual findings and directed the upholding of the agency's suspension action.
The removal action -- now being considered*fn1 -- was then decided by the MSPB on the record made in the suspension proceeding.*fn2 Though the presiding official disagreed with the full Board's findings in its suspension decision, on review the full Board (a) applied the principles of issue preclusion (collateral estoppel) to the four of the six removal charges which were identical to incidents presented in the suspension proceeding; (b) sustained (as supported by the evidence) one of the two additional specifications made in the removal action; (c) rejected petitioner's defense of retaliation; (d) held that the agency had proved that the removal action ...