Unpublished Dispositionroger Elliott, Petitioner, v. Department of the Army, Respondent, 824 F.2d 977 (Fed. Cir. 1987)

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U.S. Court of Appeals for the Federal Circuit - 824 F.2d 977 (Fed. Cir. 1987) April 28, 1987

Before FRIEDMAN, Circuit Judge, BALDWIN, Senior Circuit Judge, and NIES, Circuit Judge.

PER CURIAM.


DECISION

The final decision of the Merit Systems Protection Board (board), issued on June 5, 1986, affirmed the removal of Roger Elliott (petitioner) from his position of computer specialist with the Department of the Army. Five specifications of insubordination and three specifications of impertinent and defiant behavior charged by the Army were sustained by the board. Coupled with a prior disciplinary record, the sustained charges were found to reveal a continuing insolent, insubordinate attitude toward supervision such that the removal would promote the efficiency of the service. We affirm.

OPINION

Petitioner maintains that the board failed to consider his assertion that the removal was a retaliatory action designed to punish him for reporting alleged shortcomings he found to exist in his supervisors. Petitioner also alleges that the board committed procedural errors and that its decision is not supported by substantial evidence.

The burden of proof in a reprisal claim is upon the petitioner. Stanek v. Department of Transportation, 805 F.2d 1572, 1579 (Fed. Cir. 1986). Petitioner has neither sustained his burden of proof to demonstrate reprisal nor established that alleged procedural error was harmful. Nor has petitioner demonstrated that the board's opinion is unsupported by substantial evidence.

In reviewing the board decision sustaining the removal of petitioner, the decision must be affirmed since we do not find it to be arbitrary, capricious, an abuse of discretion, otherwise not in accordance with law, or not supported by substantial evidence. See Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984).