Felton R. Fort, Petitioner, v. United States Postal Service, Respondent, 956 F.2d 1173 (Fed. Cir. 1992)

Mr. Felton R. Fort appeals the decision of the Merit Systems Protection Board, Docket No. BN07529010254, affirming his removal as a Postal Service clerk based on instances of tardiness, poor attendance, and failure to report for work as scheduled. The underlying facts are unchallenged. Although Mr. Fort argues before us that other Postal Service employees had worse records, no error is apparent in the findings of the arbitrator and the administrative judge that there was just cause for removal.

Mr. Fort asks that the case be removed to the district court, because he does not wish to waive his discrimination claim. He states that he received disparate treatment because he is black. No issue of discrimination because of race was presented before the arbitrator, and the administrative judge gave independent review to the discrimination issue. The administrative judge, reviewing the facts, held that Mr. Fort had not established a prima facie case of discrimination based on disparate treatment. Reversible error has not been shown in that finding. Thus it is inappropriate to transfer the case to the district court. See Hill v. Department of the Air Force, 796 F.2d 1469, 1471 (Fed. Cir. 1986). The requested transfer is denied.

The decision of the Board is affirmed.