       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                  VICTOR J. TATE,
                     Petitioner,

                           v.
       UNITED STATES POSTAL SERVICE,
                 Respondent.
              __________________________

                      2012-3066
              __________________________

   Petition for review of the Merit Systems Protection
Board in DA0752110123-I-1.
              ___________________________

               Decided: October 9, 2012
             ___________________________

   VICTOR J. TATE, of Houston, Texas, pro se.

    DELISA M. SANCHEZ, Trial Attorney, Civil Division,
Commercial Litigation Branch, United States Department
of Justice, of Washington, DC, for respondent. With her
on the brief were STUART F. DELERY, Acting Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
REGINALD T. BLADES, JR., Assistant Director.
                __________________________
TATE   v. USPS                                           2


       Before BRYSON, DYK, and PROST, Circuit Judges.
PER CURIAM.

                         DECISION

   Victor Tate appeals from an order of the Merit Sys-
tems Protection Board upholding the decision of the
United States Postal Service to remove him. We affirm.

                       BACKGROUND

    Mr. Tate was employed as a letter carrier with the
Postal Service in Houston, Texas. Starting in 2009, the
Postal Service charged him with repeated instances of
tardiness and absence without authorized leave. The
Postal Service took several steps to address the problem,
including issuing a letter of warning and issuing notices
of proposed suspension on five occasions, the last of which
was issued on June 7, 2010. In September 2010, the
Postal Service proposed to remove Mr. Tate for failing to
maintain a regular work schedule between late June and
mid-August 2010. The charge specified five occasions
during that period on which Mr. Tate was either late or
absent without leave, including a period of 31 hours and
40 minutes of absence without leave between August 5
and August 14, 2010. After concluding that Mr. Tate had
not provided a satisfactory explanation for his failure to
maintain a regular work schedule during that two-month
period, the Postal Service terminated him.

   Mr. Tate appealed his removal to the Merit Systems
Protection Board. Before the Board, Mr. Tate argued that
he had applied for authorization to be absent from work
pursuant to the Family and Medical Leave Act (“FMLA”)
and that he was “awaiting the return of the paperwork.”
He also argued that some of his absences related to an
3                                              TATE   v. USPS


injury he had sustained in an automobile accident and
treatment he had received for that injury. Following a
hearing, the administrative judge who was assigned to
the case ruled that the absences with which Mr. Tate was
charged were unauthorized and were sufficient to estab-
lish the charge of failure to maintain a regular schedule.
The administrative judge noted that Mr. Tate was absent
for more than 60 hours during a period of less than three
months and that the absences occurred after the agency
had previously disciplined him for similar misconduct on
several occasions. The administrative judge further found
that all of the charged absences were unscheduled.
According to the administrative judge, Mr. Tate stipu-
lated that three of the five charged absences were un-
scheduled and that he had neither sought nor obtained
approval in advance for any of those absences. As to the
remaining absences, the administrative judge noted that
on cross-examination, Mr. Tate had not contested that he
did not request leave in advance for those periods, includ-
ing the period between August 5 and August 14 during
which he was absent without leave for almost 32 hours.
With respect to the FMLA, the administrative judge
stated that the only absence for which Mr. Tate claimed
to have sought FMLA leave was his absence on July 13,
2010. The administrative judge found, however, that Mr.
Tate did not request FMLA leave on that occasion and
that he did not seek medical attention on that day but
instead used his time away from work to obtain a rental
vehicle.

    With respect to Mr. Tate’s challenge to the penalty of
removal, the administrative judge found that removal was
a reasonable penalty under the circumstances. The
administrative judge noted that the Postal Service had
considered Mr. Tate’s lengthy service with the agency as a
mitigating factor but had found that factor to be out-
TATE   v. USPS                                            4


weighed by factors favoring the penalty of removal, an
assessment with which the administrative judge agreed.
Those factors included the seriousness of the offense, Mr.
Tate’s past disciplinary record, and the clear notice given
to Mr. Tate warning him that his failure to maintain a
regular attendance schedule would not be tolerated.

    Mr. Tate petitioned the full Board for review, which
issued an opinion addressing some of Mr. Tate’s argu-
ments and denying his petition for review.

                       DISCUSSION

    1. Mr. Tate’s principal argument before this court is
that the Postal Service failed to give proper weight to the
factors bearing on the choice of penalty, which are set
forth in Douglas v. Veterans Administration, 5 M.S.P.R.
280 (1981). In particular, Mr. Tate alleges that the
agency failed to consider, or misapplied, the following
factors: consistency of the penalty with penalties imposed
on other employees for the same or similar offenses; the
employee’s potential for rehabilitation; mitigating circum-
stances; and the adequacy of alternative sanctions to
deter similar conduct in the future by the employee or
others.

    While Mr. Tate fails to make specific allegations of er-
ror as to each of those factors, the administrative judge
found that the agency had considered the relevant Doug-
las factors, including Mr. Tate’s lengthy time in service,
the absence of mitigating circumstances, the unlikelihood
that lesser sanctions would be effective, and the poor
prospects for rehabilitation in Mr. Tate’s case. The ad-
ministrative judge found that the agency had considered
Mr. Tate’s period of more than 20 years of service with
the Postal Service as a factor in his favor, but that the
5                                                TATE   v. USPS


agency had concluded that the length of his service was
outweighed by the factors supporting removal. In par-
ticular, the administrative judge noted that the agency
regarded the offense of failing to maintain a regular work
schedule as a serious one and that the agency had disci-
plined Mr. Tate on numerous occasions for failing to
maintain a regular work schedule. Those prior discipli-
nary actions, the administrative judge found, put Mr.
Tate on notice that his failure to maintain a regular
attendance schedule would not be tolerated. The admin-
istrative judge also cited the testimony of the agency’s
representative, who stated that Mr. Tate’s failure to
conform his attendance to the agency’s expectations in the
face of progressive disciplinary measures showed that Mr.
Tate was a poor candidate for rehabilitation and that a
lesser sanction was not likely to be effective. As to Mr.
Tate’s argument that the agency had not taken into
consideration the lesser penalties imposed on other,
similarly situated employees for similar offenses, the
administrative judge found that the employee identified
by Mr. Tate was not similarly situated, because he had
requested leave for his absence, while Mr. Tate had not.
The full Board subsequently modified the administrative
judge’s decision by noting that the agency had not pro-
vided the other employee “with paperwork regarding
lesser disciplinary sanctions prior to issuing the proposed
removal,” which the Board found to be a substantially
different situation from that of Mr. Tate, who “received
six notices of disciplinary action prior to his receipt of the
notice of proposed removal.” 1


    1   In his informal brief, Mr. Tate refers to a Mr. Ar-
mando Sanchez, whose proposed removal for unsatisfac-
tory attendance was reduced to a 14-day suspension. The
evidence relating to Mr. Sanchez was not before the
administrative judge, as the disparate treatment claim
TATE   v. USPS                                              6


    The determination of an appropriate penalty is a mat-
ter committed primarily to the sound discretion of the
employing agency. Brook v. Corrado, 999 F.2d 523, 528
(Fed. Cir. 1993). This court will not reverse a decision of
the Board upholding an agency’s penalty decision unless
the penalty “exceeds the range of permissible punishment
or is ‘so harsh and unconscionably disproportionate to the
offense that it amounts to an abuse of discretion.’” Gonza-
les v. Def. Logistics Agency, 772 F.2d 887, 889 (Fed. Cir.
1985), quoting Villela v. Dep’t of the Air Force, 727 F.2d
1574, 1576 (Fed. Cir. 1984). Moreover, in reviewing an
agency’s choice of penalty, the Board’s role “is not to insist
that the balance be struck precisely where the Board
would choose to strike it if the Board were in the agency’s
shoes in the first instance,” but rather “to assure that the
agency did conscientiously consider the relevant factors
and did strike a responsible balance within tolerable
limits of reasonableness.” Norris v. S.E.C., 675 F.3d
1349, 1355 (Fed. Cir. 2012) (citations omitted). In this
case, we are satisfied that the penalty of removal was not
unconscionably disproportionate to the offense, and that
the Board properly found that the agency had considered
the relevant mitigating and aggravating factors in reach-
ing its penalty determination.

    2. Mr. Tate makes the separate argument that it was
improper for the agency and the administrative judge to
consider his past violations of the Postal Service’s atten-
dance policy because the disciplinary actions related to
those violations had been informally settled. The Board

that Mr. Tate raised before the administrative judge
involved a different individual. In any event, Mr. Tate
has not shown that the circumstances surrounding Mr.
Sanchez’s case were similar to his. The full Board found
the allegedly new disparate treatment evidence was not
material to Mr. Tate’s appeal, and we agree.
7                                               TATE   v. USPS


properly found, however, that “whether [Mr. Tate] settled
his prior disciplinary actions is irrelevant” because those
prior disciplinary actions, although settled, gave Mr. Tate
notice that the conduct at issue—tardiness and absence
without leave—was in violation of the Postal Service’s
attendance policy and that possible punishment for future
violations included removal. See Jinks v. Dep’t of Veter-
ans Affairs, 106 M.S.P.R. 627, 637 (2007). Because the
Postal Service may take disciplinary action against an
employee if he has notice of his attendance obligations
and the likelihood of discipline for continued violations,
see Williams v. U.S. Postal Serv., 68 M.S.P.R. 150, 155
(1995), it was proper for the agency to consider Mr. Tate’s
prior history of attendance problems for that purpose.
The prior incidents were not used as the bases for the
charge of failure to maintain a regular work schedule that
is the subject of Mr. Tate’s appeal.

     3. Mr. Tate next alleges that the administrative judge
relied on testimony from Postal Service employees that
was “clearly erroneous.” In particular, he contends that
the agency representative was untruthful when he stated
that Mr. Tate did not provide documentation to show the
reasons for his absences. The administrative judge,
however, reviewed in detail Mr. Tate’s arguments that
several of his absences were justified by illness or injury.
Following that review, the administrative judge found,
based in part on stipulations by Mr. Tate, that he had not
properly requested leave for the charged absences. Mr.
Tate has not offered any persuasive rebuttal to that
finding. In particular, although Mr. Tate focuses in his
brief on his short periods of absence in June and July
2010 due to an illness and an automobile accident, he has
failed to provide any sufficient explanation for his lengthy
period of absence between August 5 and August 14, 2010,
TATE   v. USPS                                            8


during which he was charged with almost 32 hours of
unauthorized leave. 2

    4. Mr. Tate argues that the agency breached relevant
labor agreements by removing him even though he com-
plied with the leave procedures set out in those agree-
ments. That argument, however, was not presented to
the administrative judge, and in any event Mr. Tate has
provided no evidence showing what the leave require-
ments were and what steps he took to ensure compliance
with those requirements. We therefore reject his claim
relating to the labor agreements.

    5. Finally, Mr. Tate argues that prior to his removal
his immediate supervisor told him that if he sought
assistance from the employee assistance program no
further disciplinary action would be forthcoming. Such a
statement from Mr. Tate’s immediate supervisor, assum-
ing it was made, would not bind the agency with respect
to disciplinary actions absent evidence—not offered
here—that the supervisor was authorized to make such
disciplinary determinations on behalf of the agency. See
Wesselhoft v. Dep’t of the Interior, 46 M.S.P.R. 594 (1991).

   No costs.

                       AFFIRMED



   2    Although the administrative judge noted that “the
record supports that at least one of the appellant’s ab-
sences during the period between August 5-14, 2010, was
for treatment for the injury he sustained to his ribs,” Mr.
Tate has not pointed to any evidence justifying his ab-
sence during the rest of that period, and the administra-
tive judge found that Mr. Tate did not request leave for
any of his absences during that time.
