Lonnie M. Jacobs, Sr., Petitioner, v. Department of the Navy, Respondent, 831 F.2d 306 (Fed. Cir. 1987)

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U.S. Court of Appeals for the Federal Circuit - 831 F.2d 306 (Fed. Cir. 1987) September 18, 1987

Before MARKEY, Chief Judge, and FRIEDMAN and NIES, Circuit Judges.

PER CURIAM.


DECISION

The decision of the Merit Systems Protection Board (board), Docket No. AT07528710050, sustaining Department of the Navy's (agency's) removal of Lonnie M. Jacobs, Sr. for careless workmanship which damaged government property and endangered the safety of personnel is affirmed.

OPINION

There is substantial evidence to support the administrative judge's determination that in light of Jacobs' careless workmanship leading to the destruction of a Navy boat, the danger to personnel, and past disciplinary record there is no basis for mitigating the penalty of removal. This Court 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, 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. 1054 (1985).

Mr. Jacobs's claims of disparate treatment and racial discrimination fail to allege a set of facts which, if proven, would comprise even a minimal prima facie case of discrimination. Hill v. Department of the Air Force, 796 F.2d 1469, 1471 (Fed. Cir. 1986). Thus this is not a 'mixed' case under 5 U.S.C. § 7702. In addition, we have considered Mr. Jacob's settlement argument and find it equally without merit.

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).

Judge Nies would dismiss with prejudice for failure to comply with Rule 10(c) (4) of this court. Jacobs does not raise only issues of the board's dismissal for lack of jurisdiction or for untimeliness. Indeed, there are no such issues in the case.