John Potempa, Petitioner, v. Department of Treasury, Respondent, 899 F.2d 1229 (Fed. Cir. 1990)

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U.S. Court of Appeals for the Federal Circuit - 899 F.2d 1229 (Fed. Cir. 1990) March 27, 1990

Before RICH, Circuit Judge, JACK R. MILLER, Senior Circuit Judge, and ALLEN SHARP, Chief Judge.* 

JACK R. MILLER, Senior Circuit Judge:


This appeal is from the October 10, 1989 decision of the Merit Systems Protection Board denying review of the initial decision of the Administrative Judge in Docket No. PH07528910103. We affirm.


With respect to the letter of official reprimand issued to Mr. Potempa on October 20, 1987, it is to be underscored that the grounds for reprimand were prior incidents of the same sort of disruptive conduct that became the basis for the removal challenged here, viz. causing dissension or discord with fellow employees (in violation of the IRS Rules of Conduct); writing letters and memoranda containing inflammatory allegations to fellow employees (including his supervisor) alleging discrimination, sexual harassment, and interference by management in his relationship with a woman employee.

Further, it should be emphasized that the letter of reprimand "cautioned that any future violations of [such a nature] or other misconduct, may result in more severe disciplinary action, up to and including removal." However, Mr. Potempa continued to write his inflammatory letters as often as two to three times per week. Also, as the MSPB found, Mr. Potempa does not deny the acts which form the basis for his removal but, instead admits them.

As to the penalty of removal from office imposed by MSPB on Mr. Potempa, this court has long said that penalty determinations are "judgment calls" that should be left to the discretion of the agency involved.

Accordingly, the denial of the MSPB of Mr. Potempa's petition for review is affirmed and the petition is dismissed.


Allen Sharp, Chief Judge of the United States District Court for the Northern District of Indiana, sitting by designation