Unpublished Dispositionraymond H. Wilson, Petitioner, v. Equal Employment Opportunity Commission, Respondent, 824 F.2d 978 (Fed. Cir. 1987)

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U.S. Court of Appeals for the Federal Circuit - 824 F.2d 978 (Fed. Cir. 1987) May 12, 1987

Before MARKEY, Chief Judge, SKELTON, Senior Circuit Judge, and SMITH, Circuit Judge.

PER CURIAM.


DECISION

The decision of the Merit Systems Protection Board (board), Docket No. DC04328519030, sustaining Equal Employment Opportunity Commission's (agency's) removal of Raymond H. Wilson (Wilson) for unacceptable performance, is affirmed.

OPINION

Substantial evidence supports the board's finding that the agency proved by substantial evidence that Wilson's performance was unsatisfactory in the critical elements of (1) Financial/Budget Administration, (2) Personnel Administration, and (3) Individual Performance.

The record does not support Wilson's assertion that " [o]nly termination was considered." Substantial evidence supports the board's finding that "the agency has shown that it did consider alternatives to removal." Moreover, an agency has discretion to demote or remove an employee for unacceptable performance, and neither the board nor this court has authority to disturb its choice. Lisiecki v. Merit Sys. Protection Bd., 769 F.2d 1558, 1568 (Fed. Cir. 1985), cert. denied, 106 S. Ct. 1514 (1986).

Our review is limited by statute to matters made of record before the board. We affirm on the basis of the board's opinion because we do not find the decision arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, or obtained without procedures required by law, rule, or regulation having been followed, or unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1982); see Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984).