Alan Maddox v. Department of Transportation

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not
citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
04-3198
ALAN MADDOX,
Petitioner,
v.
DEPARTMENT OF TRANSPORTATION
Respondent.
_______________________
DECIDED: November 9, 2004
_______________________
Before LOURIE, Circuit Judge, ARCHER, Senior Circuit Judge, and DYK, Circuit Judge.
PER CURIAM.
Alan Maddox (“Maddox”) appeals the Merit Systems Protection Board’s (“Board”)
decision affirming the Department of Transportation’s removal of him for failing to
comply with drug testing procedures and for being absent without leave (“AWOL”) upon
two occasions. Maddox v. Dep’t of Transp., No. CH-0752-02-0670-I-1 (M.S.P.B. Apr.
30, 2003). We affirm.
On May 1, 2002, at approximately 8:25 a.m., Maddox was informed that he was
to participate in a random drug test that morning. In response, Maddox told his
supervisor (Gary Thomas) that he had “a doctor’s appointment” and that he “had to go.”
His supervisor replied that he was unaware of any request for leave and told Maddox
that he would arrange for Maddox’s immediate testing. Thomas then told Maddox that

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he was going to make sure the testers were ready. When Thomas returned,
approximately two minutes later,1 Maddox was no longer at his work station, and
Thomas did not see Maddox’s car in the company parking lot. Maddox returned later
that morning and, at some point later in the day, submitted a leave slip for the time he
was gone. This leave request, however, was not approved, because Maddox had not
followed agency leave procedures and did not have a valid excuse for this departure
from procedure. Also that day, Maddox requested leave from 1:30 to 4:30 p.m. – this
time following proper agency procedure. However, at 1:20 p.m., when Thomas went in
search of Maddox, Thomas could not find him. Accordingly, the two time periods that
Maddox was deemed AWOL are from 8:30 to 11:00 a.m. and 1:20 to 1:30 p.m. on
May 1, 2002.
Following an exhaustive discussion of the factual background of this case and
the testimony before him, the AJ found
the circumstances surrounding the appellant’s sudden departure from the
agency’s facility on May 1, 2002, after receiving notice that he would be
randomly drug tested, without obtaining specific leave approval from [his
supervisor], and without an otherwise legitimate reason to leave the
facility, establish, by preponderant evidence, that the appellant
intentionally failed and refused to submit to the random drug test in
violation of agency standards of conduct and discipline, and the conditions
of his employment of which he was on ample personal notice.
Id. at 33. The AJ also found that the agency’s AWOL charges were supported and
sustained by a preponderance of the evidence. The AJ’s decision became final when
the full Board denied Maddox’s petition for review. We have jurisdiction pursuant to
5 U.S.C. § 7703.
1 Maddox claimed that it had to have been at least ten minutes before
Thomas returned due to a phone conversation Maddox recalled having; however, the
Administrative Judge (“AJ”) did not believe this testimony.
04-3198 2

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We must affirm a Board decision unless it is found to be arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law; obtained without
procedures required by law, rule or regulation having been followed; or unsupported by
substantial evidence. 5 U.S.C. § 7703(c). We will not overturn a decision of the Board
“if it is supported by ‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Brewer v. United States Postal Serv., 647 F.2d
1093, 1096 (Ct. Cl. 1981).
On appeal, Maddox simply takes issue with the Board’s findings of fact,2 without
offering any explanation as to why the AJ’s decision was not supported by substantial
evidence. The AJ’s conclusions are fully supported by the evidence which is discussed
in detail in his forty page opinion. The AJ made determinations concerning the
credibility of agency witnesses and Maddox’s lack of credibility. It is well settled that
judging the credibility of witnesses is the responsibility of the trier of fact and is virtually
unreviewable. Hambsch v. Dep’t of the Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986).
Accordingly, we affirm the Board’s decision.
2 Maddox does not challenge the “efficiency of the service” and “penalty”
prongs of the AJ’s decision.
04-3198 3

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