Edward A. Krause, Petitioner, v. Department of the Air Force, Respondent, 950 F.2d 731 (Fed. Cir. 1991)

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U.S. Court of Appeals for the Federal Circuit - 950 F.2d 731 (Fed. Cir. 1991) Nov. 26, 1991

Before NIES, Chief Judge, MARSHALL, Associate Justice (Retired), Supreme Court of the United States, sitting by designation, and FRIEDMAN, Senior Circuit Judge.

PER CURIAM.


Edward A. Krause appeals the final decision of the Merit Systems Protection Board in No. CH043290106761  which affirmed his dismissal by the Department of the Air Force under Chapter 43 for unacceptable performance in critical element 3 of his job. The administrative judge concluded that the evidence showed that Krause failed to bring his performance up to the acceptable level during the ninety-day period allowed for his improvement and rejected Krause's proffered excuses for failure to do so and his claim of reprisal. While there is no dispute that Krause missed more suspense dates than allowed within that period, he argues (1) that management demonstrated bad faith during the ninety-day improvement period by assigning him an unusually heavy workload and by creating a hostile work environment in which Krause's potential discharge was jokingly discussed, and (2) that he was removed for whistle-blowing.

All of Krause's arguments were presented to the administrative judge and to the Board for review. On appeal, Krause merely disagrees with the Board's decision. He has failed to demonstrate that the decision is (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c) (1988). Accordingly, this court affirms on the basis of the administrative judge's opinion.

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The Initial Decision by the administrative judge became the final decision of the Board upon the Board's denial of Krause's petition for review. 5 C.F.R. § 1201.113(b)