Unpublished Dispositiondouglas D. Faith, Petitioner, v. United States Postal Service, Respondent, 826 F.2d 1071 (Fed. Cir. 1987)

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U.S. Court of Appeals for the Federal Circuit - 826 F.2d 1071 (Fed. Cir. 1987) July 10, 1987

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

BALDWIN, Senior Circuit Judge.


The decision of the Merit Systems Protection Board (board), Docket No. DA07528610178, sustaining the removal of Douglas D. Faith (petitioner) by the United States Postal Service (agency), is affirmed on the basis of the board's opinion.


The board affirmed petitioner's removal on agency charges of discourteous and disrespectful conduct and for failure to follow a direct order. Petitioner asserts that the board's presiding official failed to properly credit testimony which would show an underlying animosity on the part of petitioner's supervisors.

This court cannot substitute its interpretation of the evidence for that of a trial court simply because we "might give the facts another construction, resolve ambiguities differently, and find a more sinister cast to actions which the [trial court] apparently deemed innocent." Inwood Laboratories v. Ives Laboratories, 456 U.S. 844, 858-59 (1981), quoting United States v. Real Estate Boards, 339 U.S. 485, 495 (1950).

We will not review the credibility determinations of the presiding official who had the opportunity to hear the witnesses at the hearing and observe their demeanor. DeSarno v. Department of Commerce, 761 F.2d 657, 661 (Fed. Cir. 1985). "Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous." Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985). The decision of the board has not been found to be arbitrary, capricious, an abuse of discretion, obtained without proper procedure, or unsupported by substantial evidence taken from the record as a whole. 5 U.S.C. § 7703(c). See Brewer v. United States Postal Service, 647 F.2d 1093, 1096 (Ct. Cl. 1981), cert. denied, 454 U.S. 1144 (1982). In addition, we find sufficient evidence in the record, including past disciplinary actions against petitioner, to support the board's decision that the removal was an appropriate choice of penalty in this case.

Accordingly, we affirm the decision of the board sustaining the agency's action in removing petitioner.