John Joseph Nagle v. United States Postal Service

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOHN JOSEPH NAGLE,
Petitioner
v.
UNITED STATES POSTAL SERVICE,
Respondent
______________________
2022-1306
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-0752-20-0313-I-2.
______________________
Decided: July 7, 2022
______________________
J OHN J OSEPH N AGLE, South Boston, MA, pro se.
ANDREW J AMES HUNTER, Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, for respondent. Also represented by
BRIAN M. BOYNTON, D EBORAH ANN BYNUM , P ATRICIA M.
MCCARTHY .
______________________
Before REYNA, L INN, and HUGHES , Circuit Judges.
Case: 22-1306 Document: 32 Page: 1 Filed: 07/07/2022

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NAGLE v. USPS 2
P ER CURIAM .
Petitioner John Joseph Nagle appeals the Merit Sys-
tems Protection Board’s affirmance of the U.S. Postal Ser-
vice’s decision to remove Nagle from employment. For the
following reasons, we affirm.
BACKGROUND
Nagle worked for the United States Postal Service
(“USPS”) as a full-time regular mail handler and equip-
ment operator. App’x 1–2.1 Around August 2018, the
USPS instructed Nagle to complete recertification training
with a Driver Safety Instructor (“DSI”) from the American
Postal Workers Union (“APWU”), which was required for
operating a forklift. See App’x 4–5, 45–46. Nagle refused
to complete the training, and on August 22, 2018, he filed
a report with the Occupational Safety and Health Admin-
istration (“OSHA”) alleging that the USPS had instructed
him to complete training with an unqualified instructor,
which constituted a hazardous condition. Id.
On August 23, 2018, the USPS revoked Nagle’s equip-
ment operating license, which prompted him to leave work
in protest. S. App’x 111.2 On Friday, August 24, 2018,
Nagle was absent from work without leave (“AWOL”).
S. App’x 112. On Monday, August 27, 2018, Nagle did re-
port to work. But because he refused to undergo the train-
ing required for his equipment operator position, the USPS
reassigned Nagle to operate a high-speed mail sorter. Id.
Nagle rejected the reassignment and thenceforth chose to
be AWOL from work. See App’x 5.
1 The citation reference “App’x” herein refers to the
appendix materials filed by Respondent, the USPS.
2 The citation reference “S. App’x” herein refers to
the supplemental appendix materials that Nagle submit-
ted with his Reply brief.
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NAGLE v. USPS 3
On November 8, 2018, the USPS issued Nagle a letter
of warning, advising him that his absences without leave
would lead to disciplinary action, which could include dis-
charge. App’x 37–38. On February 1, 2019, the USPS is-
sued Nagle a seven-day suspension due to his AWOL
absences. App’x 39–40. On March 18, 2019, the USPS is-
sued Nagle a fourteen-day suspension, again due to his re-
fusal to report to work without leave. App’x 41–42. On
May 23, 2019, the USPS issued Nagle another fourteen-
day suspension for his continued AWOL status.
App’x 43–44.
On October 23, 2019, the USPS sent Nagle a
Pre-Disciplinary Interview (“PDI”) letter addressing his
refusal to report to work. See App’x 29. In the letter, the
USPS ordered Nagle to (1) report for work on his next
scheduled workday or provide documentation to support
his absence; and (2) attend a telephonic pre-disciplinary
interview on October 29, 2019. See App’x 3, 29. The letter
warned that failure to comply with its instructions could
lead to discipline “up to and including discharge from the
Postal Service.” See App’x 3–4, 29.
On January 13, 2020, the USPS issued Nagle a Notice
of Proposed Removal (“NOPR”) based on the following
three charges of misconduct: (1) failure to comply with
leave procedure; (2) failure to follow instructions—namely,
the two instructions set forth in the PDI letter; and
(3) 75 instances of AWOL spanning from September 3,
2019, to December 20, 2019. App’x 28–29.
On February 12, 2020, Nagle met with the deciding of-
ficial to orally respond to the NOPR, and he maintained
that his actions were fully justified because he had been
subjected to an unsafe work condition by being ordered to
report for training. App’x 45. Nagle further contended
that his absence should be medically excused due to high
blood pressure. App’x 46. And he argued that the NOPR
and the USPS’s revocation of his equipment operator
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NAGLE v. USPS 4
license were both retaliations against him for (1) his filing
of an OSHA complaint for unsafe work conditions, and (2)
the fact that he had assisted another mail handler on Au-
gust 28, 2019, with a complaint before the National Labor
Relations Board (“NLRB”). App’x 46.
On June 1, 2020, the USPS issued a letter of decision
upholding the NOPR charges against Nagle and sustaining
his removal from employment. App’x 45. The USPS deter-
mined that Nagle’s claim of an unsafe workplace was un-
founded, that his claim of high blood pressure was
untimely raised and unsupported, and that Nagle’s beliefs
about whether the USPS had retaliated against him did
not entitle him to be AWOL or disregard the PDI letter.
App’x 45–46.
On June 4, 2020, Nagle filed an appeal with the Merit
Systems Protection Board (“Board”). During proceedings
before the Board, Nagle repeatedly failed to comply with
discovery requirements and deadlines, despite the Admin-
istrative Judge (“AJ”) hearing multiple motions to compel
and suspending proceedings multiple times for Nagle’s
benefit. App’x 57–84. On June 11, 2021, the AJ granted a
pending request by the USPS for sanctions against Nagle
for failing to file a prehearing submission, failing to dis-
close any witnesses he intended to call, and failing to re-
spond to the USPS’s discovery requests in violation of an
order compelling responses. App’x 93. Specifically, the AJ
refused to further suspend proceedings and barred Nagle
from producing additional documents or witnesses not yet
disclosed. App’x 93–94.
On June 28, 2021, the AJ held a hearing on the merits
regarding charges 1 and 3 of the NOPR.3 App’x 1. Nagle
did not dispute that he committed the alleged conduct.
3 The USPS withdrew charge 2 of the NOPR (failure
to follow instructions), so that became moot. App’x 95.
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NAGLE v. USPS 5
App’x 5–6. Instead, he argued that the USPS committed
harmful procedural errors when it (1) assigned DSI from
the APWU to conduct his training; (2) reassigned him to a
mail sorting machine when he refused to complete train-
ing; and (3) failed to provide him with a pre-disciplinary
interview before proposing his removal. App’x 6–7. He
also argued that he was entitled to whistleblower protec-
tion because the USPS had retaliated against him for pro-
tected disclosures. App’x 8.
On September 27, 2021, the AJ issued an initial deci-
sion affirming the USPS’s decision to remove Nagle.
App’x 1. The AJ rejected Nagle’s contentions of harmful
procedural error because (1) the USPS presented evidence
that it was obligated by the terms of an arbitration award
to hire APWU DSIs to conduct recertification training;
(2) the USPS had the right to instruct Nagle to work on a
mail sorting machine after he refused to undergo his fork-
lift recertification training; and (3) the USPS did provide
Nagle the opportunity for a PDI. App’x 7–8. The AJ also
rejected Nagle’s whistleblower contentions because
(1) Nagle failed to show that any officials were aware of his
protected activity; and (2) the agency sufficiently showed
that it would have removed him regardless of the protected
disclosures, due to his 75-day AWOL period. App’x 8–10.
Nagle appeals the AJ’s decision. We have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(9).
STANDARD OF REVIEW
The scope of our review of Board decisions is limited by
statute, and we must affirm unless we find the Board’s de-
cision to be: (1) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law; (2) obtained with-
out procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evidence.
5 U.S.C. § 7703(c); Bennett v. Merit Sys. Prot. Bd., 635 F.3d
1215, 1218 (Fed. Cir. 2011). We review the Board’s legal
determinations de novo. Welshans v. U.S. Postal Serv.,
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NAGLE v. USPS 6
550 F.3d 1100, 1102 (Fed. Cir. 2008). The petitioner bears
the burden of establishing that the board committed re-
versible error. Link v. Dep’t of Treasury, 51 F.3d 1577,
1581 (Fed. Cir. 1995).
D ISCUSSION
Nagle raises several arguments on appeal. We address
each argument in turn, below.
Nagle’s overall and primary contention on appeal is
that the AJ erred in determining that he was not entitled
to corrective action as a protected whistleblower. We dis-
cern no error in the AJ’s application of the whistleblower
laws in this case. Instead, substantial evidence supports
the AJ’s finding that agency officials had no knowledge of
Nagle’s protected disclosures. See App’x 9; see also, e.g.,
S. App’x 111–13, 114–16 (declaration testimony by Nagle’s
supervisor). And substantial evidence supports the AJ’s
finding that the USPS would have removed Nagle regard-
less of his protected disclosures, due to his 75-day AWOL
period. See App’x 9–10 (“He literally walked off the job and
has not returned.”). Nagle offers no contrary evidence that
warrants disturbing the AJ’s decision.
Nagle additionally argues that the AJ erred by impos-
ing discovery sanctions on him without further warning.
He contends that the AJ should have instead suspended
the case for another 30 days and issued a warning to Nagle
that he would be sanctioned if he did not comply with dis-
covery orders. Pet.’s Br. 3. The record belies Nagle’s argu-
ment. The AJ suspended proceedings multiple times on
Nagle’s behalf and repeatedly ordered him to comply with
discovery orders. Thus, we do not agree that the AJ
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NAGLE v. USPS 7
committed any abuse of discretion by imposing discovery
sanctions.4
Nagle also argues that the AJ failed to appreciate that
the USPS withdrew charge 2 of the NOPR. Pet.’s Br. 3–4.
However, the AJ’s decision makes clear that charges 1 and
3 independently supported the USPS’s decision to remove
Nagle. Nagle fails to explain how or why the AJ’s mention
of charge 2, even if superfluous, resulted in any harmful
error.
Lastly, Nagle contends that he was deprived of due pro-
cess, i.e., notice and an opportunity to respond, with re-
spect to the NOPR. Pet.’s Br. 9–10. Again, the record
belies Nagle’s position. Nagle received several notices of
potential disciplinary action, including multiple suspen-
sions and a PDI letter setting a date and time for a pre-
disciplinary interview. App’x 28–33, 37–44.
CONCLUSION
We hold that Nagle fails to show that the AJ’s decision
was arbitrary, capricious, an abuse of discretion, or other-
wise contrary to law. We have considered the remainder of
the arguments raised on appeal and find them unpersua-
sive. The AJ’s decision is affirmed.
AFFIRMED
COSTS
No costs.
4 “Procedural matters relative to discovery and evi-
dentiary issues fall within the sound discretion of the board
and its officials.” Curtin v. Off. of Pers. Mgmt., 846 F.2d
1373, 1378–79 (Fed. Cir. 1988) (citations omitted). “This
court will not overturn the board on such matters unless
an abuse of discretion is clear and is harmful.” Id. (citation
omitted).
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