BREYER, Circuit Judge.
The petitioner in this case, Thomas McDonough, suffers from what has been diagnosed as "borderline personality — anxiety neurosis." This emotional illness has made it difficult for him to work steadily. In February 1978, the U.S. Post Office at Buzzards Bay, Massachusetts, hired him to work as a mail handler and, three months later, as a distribution clerk. But, in early November, after less than nine months employment, he had to take leave for treatment of his emotional illness. He reappeared at work in mid-January 1979, but after working only three and one-half days in the week, he told his supervisor that he was sick and left. About six weeks later, the Buzzards Bay Postmaster noticed McDonough's name and picture in a local newspaper as a candidate for selectman in a nearby town. On March 5, 1979, the Postmaster
At the outset it is important to understand that the Service did not discharge McDonough because of any physical or mental inability to do his job. Rather, it dismissed him for two specific reasons. As described in the Postmaster's charges, first sent to McDonough on March 26, 1979, they are:
The Postmaster concluded that these charges were substantiated and dismissed McDonough. The hearing officer upheld the Postmaster's decision on the ground that it was not "arbitrary, capricious or unreasonable." On review, however, the Board pointed out that this standard was incorrect: the Board is to hear this type of case de novo and to insist that the Postmaster prove his charges by a preponderance of the evidence. See 5 U.S.C. § 7701(c)(1)(B). Nevertheless, after reviewing the officer's initial decision and the whole record, the Board determined that the charges were supported by a "preponderance of the evidence."
The issue before us on review is whether, on the basis of the record before it, the Board could find that the charges were supported by a "preponderance of the evidence," or whether the Board decision was "arbitrary, capricious, an abuse of discretion," or (insofar as factual matters are at issue) "unsupported by substantial evidence." 5 U.S.C. § 7703(c). What that comes down to, in this instance, is whether or not the Board's decision is reasonable. We believe that it is.
The record in this case, which we have read in its entirety and with care, leads us to draw two preliminary conclusions. First, although it is clear that McDonough is technically guilty of "Charge No. 2" in that he did not provide medical certification within five days of receiving a request for it, the Board did not interpret that charge with literal strictness. Rather, it interpreted it as requiring certification within a reasonable time, and it still sustained the charge on the ground that McDonough did not provide certification within a reasonable period.
We first look at the documentation that McDonough supplied at some time or other:
On January 4, 1979, before the absence at issue, he provided the Postmaster with a note from his doctor, Joseph Kreplick. It stated:
On March 26, 1979, about three weeks after the Postmaster wrote to McDonough, he received a letter from McDonough, which stated:
After the Postmaster had sent McDonough notice of the charges on March 26, the Postmaster received a note from Dr. Kreplick, dated April 2, which said,
Dr. Kreplick wrote a letter on July 9, 1979, four months after the Postmaster requested medical certification. It stated:
Dr. Kreplick submitted a government disability form, on July 27, 1979. Under the heading "describe the onset of disability," Dr. Kreplick wrote:
The record also contains an accident report form, apparently submitted by Dr. Kreplick to an insurance company in October 1979. It states that McDonough was in some kind of auto accident on January 18, 1979; that he suffered "anx neurosis (aggravated) — soft tissue damage to neck, back, knees, arms;" that the symptoms first appeared on January 17, 1979; that the patient never before suffered a similar condition; and that $400 is due Dr. Kreplick for seeing McDonough three times in January (on the 18th, 24th and 25th), three times in March (on the 12th, 19th and 26th) and twice in April (on the 2nd and 13th). In response to the question: "Patient was disabled (unable to work) from: ___ through: ___," Dr. Kreplick entered the dates 1/17/79 and 4/13/79, respectively. And, in response to the question: "If still disabled, date patient should be able to return to work: ___," Dr. Kreplick entered the date 4-13-79. The Board did not allow this report into evidence on the ground that McDonough did not use due diligence in attempting to obtain it.
The Board found that this certification, some of which was submitted prior to McDonough's absence and most of which was submitted several months after the Postmaster's request, did not constitute the submission of adequate medical certification within a reasonable time. Although the issue is a close one, we believe the Board's finding adequately supported for two reasons. First, as the Board pointed out, nowhere does Dr. Kreplick specifically certify to the Postmaster that McDonough was unable to work from January 17, 1979 to March 5, 1979. The closest he comes to saying this is in his April 2 note, in which he states that McDonough "is unable to work for an indefinite period." (Emphasis added.) If this statement stood alone, it might be taken as ample certification inelegantly expressed. But, the Board could reasonably read this statement more literally not to refer to the period of absence because of several other facts. For one thing, on January 4, Dr. Kreplick wrote that McDonough should return to work. For another, on July 9, Dr. Kreplick wrote a long, detailed account of McDonough's illness for the postal authorities. In that account he recommended McDonough return to work, if only on a part-time basis, and he nowhere stated that McDonough had been unable to work from January 17 through March 5. Dr. Kreplick's July 27 report refers to McDonough as "disabled" for an "indefinite" period, yet Dr. Kreplick cannot have meant by this that McDonough could not work for he had (in his letter of July 9) just recommended that McDonough return to work (and McDonough did so on July 11, 1979).
It is not as if Dr. Kreplick were unaware of McDonough's need for medical certification to cover his absence. McDonough appears to have been well-represented by union counsel. In fact, in petitioning the Board for review of the hearing examiner's decision, McDonough's legal representative wrote that "[n]umerous attempts were made ... to have Dr. Kreplick write a resume regarding the treatment dates and condition ... during the period January 17, 1979 through March 5, 1979. Dr. Kreplick finally agreed ... [but the letter he issued] did not contain the information requested." In sum, Dr. Kreplick's "certifications," as revealed by the record, provide confusion, not enlightenment.
Dr. Kreplick's behavior is susceptible to different interpretations. Perhaps he simply did not understand what he was asked to do. Perhaps he was trying to help McDonough by stressing McDonough's illness when he felt that would keep him from being fired while stressing his health when he felt that might get him rehired. Or, perhaps Dr. Kreplick felt that in good conscience he could not certify that McDonough was unable to work from January 18 through March 5. The main source of confusion
Second, McDonough produced no certification at all until April. He states that he was too confused to understand what he was to do. Yet, Dr. Kreplick did not suggest any such degree of confusion. Moreover, during the period of absence at issue, McDonough took out nomination papers for selectman, found the necessary signatures, placed ads in the newspapers, and attended at least one candidates' night. Of course, the fact that McDonough ran for office does not prove that he was able to work during that time. A mentally unbalanced person may run for political office, and even get elected. Yet, these activities suggest a fair degree of rationality.
Thus, very different conclusions might reasonably be drawn from the evidence in the record. We cannot say that it was unreasonable for the Board to determine that a preponderance of the evidence shows that petitioner did not provide adequate medical documentation within a reasonable time. The record in its present state suggests that rather doubtful certification was obtained quite a long time after it was requested under circumstances that do not clearly excuse the delay.
On a related point, there is implied in what McDonough writes a suggestion that the Postmaster wished to remove him precisely because he was ill but that the Postmaster would not actually come out and say so. Be that as it may, the Board and this court must decide whether the record evidence supports the charges actually made and thereby provides an adequate basis for dismissal. See Washington v. Summerfield, 228 F.2d 452 (D.C.Cir.1955); Saggau v. Young, 138 F.Supp. 140 (D.D.C.1956), aff'd, 240 F.2d 865 (D.C.Cir.1956).