Andrew CONNOR, Plaintiff-Appellant, v. UNITED STATES CIVIL SERVICE COMMISSION, Defendant-Appellee, 721 F.2d 1054

BOYCE F. MARTIN, Jr., Circuit Judge. Dr. Connor appeals from the decision of the Federal Employee Appeals Authority (FEAA) terminating his civilian employment with the United States Army. The FEAA conducted a full hearing and considered several charges lodged against Dr. Connor. The charges upheld by the FEAA dealt with plaintiff’s failure to adequately prepare reports assigned to him, insubordination, and refusal to cooperate with Army personnel. His challenge in district court was denied. Here, Dr.

Connor challenges the substance of the claims against him, the procedural due process afforded him in the proceedings below, and the severity of his punishment. The scope of our review is governed by 5 U.S.C. § 706. A government agency’s discharge decision must be upheld when supported by substantial evidence and when not arbitrary and capricious. See Elliott v. Phillips, 611 F.2d 658 (6th Cir.1979). Reviewing this record we find substantial evidence to support the decision. We find no support for the argument by Dr.

Connor that he was prejudiced because the officer directly in charge was not physically present when he was first advised of the charges against him. See Pascal v. United States, 543 F.2d 1284, 211 Ct.Cl. 183 (1976). In the hearing before the Federal Employees Appeal Authority, the following five charges against Dr. Connor were sustained; all others were dropped:

(1) Item (c): [Dr. Connor] failed to adequately prepare a report on the Remotely Monitored Battlefield Sensor System (REMBASS) program.

(2) Item (d): [Dr. Connor] failed to adequately prepare a report to be presented at a conference in Fort Leavenworth, Kansas.

(3) Item (e): [Dr. Connor] failed to incorporate his comments into a report after being instructed to do so.

(4) Item (f): [Dr. Connor] held an unauthorized meeting concerning Army burglar alarm systems despite being told all discussions concerning .the topic were over.

(5) Item (g): [Dr. Connor] had refused to cooperate with an Army security officer' searching for classified documents, and that he had left his work location without permission. A review of the record shows substantial evidence exists to support all of these charges. Regarding the first three, testimony was solicited from Dr. Connor’s supervisors and other Army personnel detailing the inadequacy and poor quality of his submitted reports. The record also establishes he was notified about the inadequacies, but nevertheless failed to upgrade his submitted materials to a satisfactory level.

Finally, it cannot be said, as he claims, that the Army’s charges were subjective in nature or were too conclusory. Considerable evidence existed to support the FEAA’s conclusion that his submitted reports were wholly insufficient in light of the time spent on the reports by Dr. Connor and his familiarity with the topics he was assigned to review. Regarding the fourth charge, the FEAA hearing officer rejected Dr. Connor’s contention that an unidentified telephone caller told him to ignore previously issued orders regarding further discussions on the burglar alarm system.

We cannot say, as a matter of law, that the hearing officer’s conclusion on this charge was arbitrary or capricious. Goodman v. United States, 424 F.2d 914 (D.C.Cir.1970); 5 U.S.C. § 706(2)(A). The fifth charge is also supported by substantial evidence. It is undisputed that Dr. Connor failed to open his safe when first requested to do so by a security officer in charge of collecting classified documents. The second issue under this charge, Dr. Connor’s unauthorized absence from his work location, is also supported by substantial evidence. Dr.

Connor admitted he was absent, but claimed he had permission to work at home. This testimony was not creditable in the eyes of the hearing officer. Again, we cannot state that the hearing officer’s conclusion was not supported by the recoi’d. Goodman, supra. The final argument by Dr. Connor is that the government failed to afford him procedural due process, as required by certain administrative regulations, and that this disregard of the regulations voids his dismissal ab initio. We disagree. Our

interpretation of the applicable statutory provisions and case law leads to the conclusion that an agency’s violation of its procedural rules will not result in reversible error absent a showing that the claimant has been prejudiced on the merits or deprived of substantial rights because of the agency’s procedural lapses. Shaw v. United States Postal Service, 697 F.2d 1078 (Fed.Cir.1983); Rasmussen v. United States, 543 F.2d 134, 140, 211 Ct.Cl. 260 (1976); Pascal, supra, 543 F.2d at 1288. Dr. Connor complains of three procedural irregularities:

(1) He was not permitted to address the appropriate officials at his “oral reply” hearing as provided for in 5 C.F.R. § 752.202(b) (1976);

(2) The Army was allowed to offer additional documentary evidence not previously disclosed to plaintiff at the FEAA hearing; and

(3) Several of his requests for the introduction of specific witnesses and certain documents were unfairly denied by the FEAA hearing officer. He relies on Albert v. Chafee, 571 F.2d 1063 (9th Cir.1977); McKamey v. United States, 458 F.2d 47, 198 Ct.Cl. 28 (1972); and Ricucci v. United States, 425 F.2d 1252, reh. denied, 432 F.2d 453, 197 Ct.Cl. 120 (1970), to support his argument that his removal must be set aside because of the Army’s failure to afford him a proper “oral reply” hearing. Dr. Connor’s situation is clearly distinguishable from each of these decisions.

In Albert, the court held that the government’s failure to give a discharged employee advance notice of all the charges brought against him, coupled with the trivial nature of the charges, constituted reversible error, requiring his reinstatement. It was also pointed out that Albert did not receive his informal oral reply as requested. Here, Dr. Connor was given advance notice of the charges against him, and these charges were certainly significant. McKamey is also distinguishable.

There the Court of Claims found that the government had not afforded a dismissed employee any opportunity to reply orally to -the charges against him. Dr. Connor cannot complain of similar treatment. He was afforded both an “oral reply” hearing and a full adversary hearing before the FEAA. Similarly, there is an indication that the dismissed employee in Ricucci was given only a perfunctory hearing before his case reached the Court of Claims. Ricucci, 425 F.2d at 1256 (concurring opinion). As we note, Dr. Connor was provided with a full trial-type hearing before his case reached the courts.

Moreover, we are disinclined to read Ricucci as requiring reversal of an agency’s termination decision merely because the discharged employee is confronted with an unresponsive “oral reply” hearing officer, especially when, as here, the discharged employee was provided a full adversary hearing subsequent to his “oral reply” hearing. Like the discharged employee in Pascal v. United States, supra, “[Dr. Connor] ... makes the mistake of believing that any procedural lapse, no matter how unrelated to the end-result, endows him automatically with a right to a judgment and to back-pay.” Pascal, 543 F.2d at 1288.

We are unwilling to adopt such a position. Similarly, Dr. Connor’s second and third claims of procedural error must also fall. A review of the entire record fails to show how he was in any way prejudiced on the merits or deprived of a substantial right as a result of the Army’s introduction of additional documentary evidence or the FEAA hearing officer’s decision to exclude certain documents and witnesses. His conclusory statements, without further demonstration of actual harm, certainly do not amount to sufficient grounds for reversal of an agency’s personnel decision. EEOC v.

Kimberly Clark Corp., 511 F.2d 1352, 60-61 (6th Cir.1975), cert. denied, 423 U.S. 994, 96 S.Ct. 420, 46 L.Ed.2d 368. Furthermore, the procedural lapses here did not in any way negate the substantive charges lodged against him, and therefore, must be considered harmless at best. EEOC v. Kimberly Clark Corp., supra; Buschmann v. Schweiker, 676 F.2d 352, 358 (9th Cir.1982); U.S. Steel Corp. v. U.S. Environmental Protection Agency, 595 F.2d 207, 215 (5th Cir.1979). Finally, we cannot state that the Army’s decision to remove Dr. Connor from his position was arbitrary, capricious or an abuse of discretion. Boyle v.

United States, 515 F.2d 1397, 207 Ct.Cl. 27 (1975). Accordingly, the judgment of the district court is affirmed.