Rodney Ray v. United States Mint, Denver, Colorado

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RODNEY RAY,
Petitioner
v.
UNITED STATES MINT, DENVER, COLORADO,
Respondent
______________________
2025-1631
______________________
Petition for review of an arbitrator’s decision in No.
FMCS 240802-08698 by Jeff J. Minckler.
______________________
Decided: January 13, 2026
______________________
RODNEY RAY , Aurora, CO, pro se.
T ATE N ATHAN WALKER , Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by ELIZABETH
MARIE HOSFORD, P ATRICIA M. MC CARTHY , BRETT SHUMATE.
______________________
Before L OURIE, BRYSON, and REYNA, Circuit Judges.
P ER CURIAM .
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RAY v. UNITED STATES MINT , DENVER, COLORADO 2
Pro se petitioner Rodney Ray asks us to review an ar-
bitration decision finding his removal from the United
States Mint did not violate the Mint’s collective bargaining
agreement with the local union. For the reasons discussed
herein, we affirm the arbitrator’s decision.
BACKGROUND
Mr. Ray was a longtime employee of the United States
Mint in Denver, Colorado (“Mint”) and served as president
of the local chapter of the American Federation of Govern-
ment Employees (“Union”). His wife also worked at the
Mint on the third shift. On January 25, 2024, Mary
Wurster, Human Resources Officer for the Mint, issued
Mr. Ray’s wife a letter informing her she must undergo a
“fitness-for-duty” examination. A “fitness-for-duty” exam-
ination entails a medical assessment of an employee’s abil-
ity to perform job duties, and failure to meet the necessary
physical requirements can result in removal.
As part of his Union president duties, Mr. Ray attended
weekly labor-management meetings. He attended one
such meeting on January 31, 2024, along with several
members of management and Ms. Wurster. Near the end
of the meeting, Mr. Ray made some statements, the exact
phrasing of which are disputed. Mr. Ray contends he
stated that “if people do not stop messing around someone
is going to get killed” and that “all bets are off” and “[I’m]
putting management on notice.” Appx113; Informal
Br. 14.1 The Mint, harmonizing statements from the other
meeting attendees, contends Mr. Ray stated something
identical or similar to the following: “If anyone messes with
my wife, I will kill them” and “I’m only doing what any
1 “Appx” refers to the appendix accompanying Re-
spondent’s Informal Brief, which is docketed at ECF
No. 26. “Informal Br.” refers to Mr. Ray’s Informal Brief
docketed at ECF No. 29.
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RAY v. UNITED STATES MINT , DENVER, COLORADO 3
husband would do to protect his wife. You all are on no-
tice.” Appx35.
The context of Mr. Ray’s statements is also disputed.
Mr. Ray claims he was referring to his wife potentially be-
ing harmed by other third-shift employees. He believed his
wife was being targeted by other third-shift employees for
lodging a complaint with management, and that those em-
ployees had placed nails in her car tires and tampered with
her brakes. Certain other meeting attendees, however, felt
directly threatened by Mr. Ray’s statements. Ms. Wurster
felt Mr. Ray was referencing the “fitness-for-duty” letter
she issued Mr. Ray’s wife the week prior.
Mr. Ray was placed on administrative leave the follow-
ing day and Mint Police were brought in to investigate the
incident. On May 8, 2024, the Mint issued a notice of pro-
posed removal charging Mr. Ray with making statements
that disrupted the workplace. On June 12, 2024, the Mint
sustained the charge and removed Mr. Ray. On June 22,
2024, Mr. Ray appealed his removal through the negoti-
ated grievance procedure set forth in the Mint’s collective
bargaining agreement (“CBA”) with the Union. Mr. Ray
argued the Mint had improperly removed him for making
statements that were protected by his role as Union presi-
dent. The Mint denied the grievance and Mr. Ray invoked
arbitration under the CBA. The arbitrator held an eviden-
tiary hearing on January 22, 2025, and issued a binding
arbitration decision on March 5, 2025. The arbitrator de-
nied the grievance, finding the Mint did not violate the
CBA and that Mr. Ray was removed for just and sufficient
cause. Mr. Ray appealed to this court. We have jurisdic-
tion under 5 U.S.C. § 7121(f).
S TANDARD OF REVIEW
We review the arbitrator’s decision using the same
standard of review that applies to appeals from decisions
of the Merit Systems Protection Board. 5 U.S.C. § 7121(f).
Thus, this Court must affirm the arbitrator’s decision
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RAY v. UNITED STATES MINT , DENVER, COLORADO 4
unless it is “(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). We review the arbitrator’s legal deter-
minations de novo. Welshans v. U.S. Postal Serv., 550 F.3d
1100, 1102 (Fed. Cir. 2008). We review underlying findings
of fact for substantial evidence. Parrott v. Merit Sys. Prot.
Bd., 519 F.3d 1328, 1334 (Fed. Cir. 2008).
D ISCUSSION
Mr. Ray argues the arbitrator erred in denying his
grievance for several reasons. As we discuss below, none
are persuasive, and we affirm the arbitrator’s decision.
First, Mr. Ray argues the arbitrator erred by siding
with Ms. Wurster’s and other meeting attendees’ more ne-
farious version of his statements. Informal Br. 8–9, 13–14.
The arbitrator weighed Mr. Ray’s account of his statements
against those of the other meeting attendees and found it
was more likely than not that Mr. Ray made threatening
statements. Appx8–11. The arbitrator found that the
“number of credible witnesses who stated and later testi-
fied the Employer’s version is the more accurate outnum-
ber the single supporter of Ray’s version – Ray himself.”
Appx9. We find substantial evidence supports the arbitra-
tor’s determination.
Mr. Ray calls into question Ms. Wurster’s credibility
because she had a relationship with the police chief of the
Mint Police. Informal Br. 17. The arbitrator considered
this relationship, finding Ms. Wurster nonetheless credible
because there was “no nexus” between that relationship
and her statement or testimony. Appx11. Such credibility
determinations are “virtually unreviewable.” See Hamb-
sch v. Dep’t of the Treasury, 796 F.2d 430, 436 (Fed. Cir.
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RAY v. UNITED STATES MINT , DENVER, COLORADO 5
1986)).2 We see no reason to disturb the arbitrator’s credi-
bility assessment.
Mr. Ray also argues that Ms. Wurster’s statement was
made in retaliation to complaints he and his wife made to
Ms. Wurster about issues on third shift. Informal Br. 13.
The arbitrator considered Mr. Ray’s statement to that ef-
fect and found there was “no credible claim or testimony
alleging the witnesses supporting the Employer’s version
had any ulterior motive in their claim Ray’s statements
were threatening.” Appx9, 115. And even if Mr. Ray had
credibly raised such a claim, the arbitrator based his find-
ing that Mr. Ray made threatening statements on state-
ments and testimony of meeting attendees other than
Ms. Wurster. Appx8–9. This is substantial evidence to up-
hold the arbitrator’s decision.
Second, Mr. Ray argues that any reference to the “fit-
ness-for-duty” letter should have been excluded from evi-
dence because the events giving rise to his removal were
entirely unrelated to that letter. Informal Br. 9–10. Evi-
dentiary issues are at the “sound discretion” of the arbitra-
tor. See Curtin v. OPM, 846 F.2d 1373, 1378 (Fed. Cir.
1988). And it is incumbent upon Mr. Ray to show that any
abuse of discretion on such matters caused “substantial
harm or prejudice to his rights which could have affected
the outcome of the case.” Id. at 1379. Here, Mr. Ray does
not establish an abuse of discretion or argue admission of
2 We apply MSPB case law to appeals of arbitration
decisions like the decision at issue here. 5 U.S.C. § 7121(f)
(“[J]udicial review shall apply to the award of an arbitrator
in the same manner and under the same conditions as if the
matter had been decided by the Board.”) (emphasis added).
We do not review MSPB credibility determinations, like
the determination here, that are not “inherently improba-
ble or discredited by undisputed fact.” Stevens v. Dep’t of
Air Force, 395 F. App’x 679, 682 (Fed. Cir. 2010).
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RAY v. UNITED STATES MINT , DENVER, COLORADO 6
the letter could have affected the outcome of his grievance.
Further, the letter was plainly relevant as Ms. Wurster’s
statement indicated she felt threatened by Mr. Ray’s state-
ments made in her presence after his wife received the let-
ter. Appx79. We find no abuse of discretion in the
arbitrator’s admission of the letter.
Third, Mr. Ray argues the arbitrator exceeded his au-
thority by failing to implement progressive discipline as
mandated by the CBA. Informal Br. 4–5. We disagree that
the arbitrator exceeded his authority. The relevant provi-
sion of the CBA, Article 31(1), provides that removals “will
be taken only for just and sufficient cause.” Appx128. Ap-
plying that standard, the arbitrator found that the Mint
chose removal because Mr. Ray’s statements “were a real
threat which disrupted the workplace,” “negatively im-
pacted the efficiency of governmental operations,” and “cre-
ated fear and motivation for some to leave the workplace.”
Appx13. The arbitrator further expounded that removal is
appropriate because Mr. Ray’s continued employment
would be accompanied by an “unacceptable level [of] risk
he might act on his threats.” Id.
The arbitrator also considered whether removal is the
appropriate penalty by analyzing the Douglas factors. Id.
at 13–16 (citing Douglas v. Veterans Admin., 5 MSPR 280
(1981)). In so reviewing, the arbitrator took into account
Mr. Ray’s longevity and clean disciplinary record but found
that other factors outweighed those considerations.
Mr. Ray argues that the arbitrator failed to properly con-
sider comparative discipline cases with the Douglas factor
analysis, namely cases Mr. Ray provided involving interac-
tions between police officers. Informal Br. 19. The arbitra-
tor explained that adverse action comparisons consider,
inter alia, whether employees “worked in separate chains
of command” and “had different responsibilities.”
Appx14–15. The arbitrator determined the cases cited by
Mr. Ray did not involve “similarly situated” employees act-
ing “under similar circumstances.” Id. at 15. Thus, the
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RAY v. UNITED STATES MINT , DENVER, COLORADO 7
arbitrator considered Mr. Ray’s cited cases and determined
they were not factually relevant. For that reason, Mr.
Ray’s argument concerning the Douglas factors fails.
Fourth, Mr. Ray argues his removal violated his pro-
tected rights in his capacity as Union president. Informal
Br. 8. In some cases, a union representative may use “in-
temperate, abusive, or insulting language without fear of
restraint” when acting on behalf of the union. Dep’t of the
Air Force, Grissom Air Force Base, 51 F.L.R.A. 7 (1995).
Here, however, the arbitrator found Mr. Ray’s statements
indicated he “was acting as a husband protecting his wife,
rather than a union official concerned for the good of his
members as a whole.” Appx12. The arbitrator also went a
step further to find that, even if Mr. Ray had been acting
in his capacity as Union president, his statements were so
outrageous that they constituted unprotected “flagrant
misconduct.” Appx11, 17. This court has held the same
under less egregious circumstances. Weekes v. Dep’t of
Homeland Security, 351 F. App’x 442, 443–45 (Fed. Cir.
2009) (declining to find merely insulting, but not threaten-
ing, statements to be protected). Thus, the arbitrator’s
finding that Mr. Ray was not acting in his Union president
capacity, or alternatively that his statements were not pro-
tected by such capacity, is supported by substantial evi-
dence. For this reason, Mr. Ray’s argument that his
removal violated his protected rights as Union president
fails.
CONCLUSION
We have considered Mr. Ray’s remaining arguments
and find them unpersuasive. For the foregoing reasons, we
affirm.
AFFIRMED
COSTS
No costs.
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