Claude H. Weaver v. Merit Systems Protection Board

Weaver petitions for review of a decision of the Merit Systems Protection Board (“MSPB”) upholding his removal from a position as boiler plant operator at the Navy Public Works Center, Oakland, California. We note jurisdiction pursuant to 5 U.S.C. § 7703 and deny the petition for review.

Weaver was involved in an altercation with his supervisor in which the supervisor sustained a lacerated lip and two fractured teeth. Weaver insisted that he had merely raised his arms to fend off his supervisor and his supervisor’s mouth came in contact with Weaver’s forearm. The supervisor stated that Weaver punched him in the mouth. The supervisor also stated that Weaver had sworn at and assaulted him two years earlier. The department director believed the supervisor’s story and issued a Notice of Proposed Removal.

The MSPB did not err in admitting evidence of acts which occurred more than one year prior to the Notice of Proposed Removal. Decisions adversely affecting a government employee which are based upon poor job performance may not be based on incidents occurring more than one year pri- or to the Notice of Proposed Removal. 5 U.S.C. § 4303 (c)(2)(A). Weaver admits that his removal was…