Unpublished Dispositionronald C. Henley, Petitioner, v. Veterans Administration, Respondent, 829 F.2d 42 (Fed. Cir. 1987)

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US Court of Appeals for the Federal Circuit - 829 F.2d 42 (Fed. Cir. 1987) Aug. 7, 1987

Before MARKEY, Chief Judge, BALDWIN, Senior Circuit Judge, and NIES, Circuit Judge.

PER CURIAM.


DECISION

The decision of the Merit Systems Protection Board (board), Docket No. CH07528610340, sustaining Veterans Administration's (agency's) removal of Ronald C. Henley (Henley) for absence without approved leave, disrespectful conduct toward a supervisor and coworkers, and sleeping and loafing while on duty, is affirmed.

OPINION

Henley has not explained why he 'do [es]n't think that the validity of these charges was proven without doubt.' Substantial evidence in the record supports the board's determination that the agency proved its charges.

The record does not support Henley's assertion that until September 1985 the agency tolerated the kind of behavior that Henley was charged with. Henley had received prior discipline for absence without approved leave and loafing.

The record does not support Henley's assertion that the board did not consider his record and length of service in assessing the reasonableness of the penalty of removal. Substantial evidence supports the Administrative Judge's determination that the agency weighed relevant factors as prescribed in Douglas v. Veterans Administration, 5 MSPB 313 (1981), before proposing Henley's removal, and that an appropriate penalty was selected.

We will not disturb a choice of penalty within the agency's discretion unless the severity of its action appears totally unwarranted in light of all relevant factors. See Yeschick v. Department of Transportation, FAA, 801 F.2d 383, 384-85 (Fed. Cir. 1986); DeWitt v. Department of the Navy, 747 F.2d 1442, 1445 (Fed. Cir. 1984), cert. denied, 470 U.S. 1075 (1985). It does not so appear here.

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).