                      NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit
                                      2008-3026

                                  CONNIE M. FIORI,

                                                             Petitioner,

                                           v.

                        UNITED STATES POSTAL SERVICE,

                                                             Respondent.


      Connie M. Fiori, of Raleigh, North Carolina, pro se.

      Michael J. Dierberg, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General; Jeanne E.
Davidson, Director; and Harold D. Lester, Jr., Assistant Director.

Appealed from: Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit


                                      2008-3026

                                  CONNIE M. FIORI,

                                               Petitioner,

                                          v.

                        UNITED STATES POSTAL SERVICE,

                                               Respondent.


   Petition for review of the Merit Systems Protection Board in DC0752060107-B-1.


                          ___________________________

                          DECIDED: June 4, 2008
                          ___________________________



Before BRYSON and PROST, Circuit Judges, and ZAGEL, District Judge. *

PER CURIAM.

                                      DECISION

      Petitioner Connie M. Fiori appeals from a decision of the Merit Systems

Protection Board sustaining her removal by the United States Postal Service following a

violation of a last chance agreement. We affirm.



      *
             Honorable James B. Zagel, District Judge, United States District Court for
the Northern District of Illinois, sitting by designation.
                                     BACKGROUND

         Ms. Fiori is a preference-eligible veteran who was employed as a Postal Service

mail handler. In May 2004, the Postal Service proposed removing Ms. Fiori from her

position for consuming alcohol while on duty. In June 2004, the Postal Service and Ms.

Fiori entered into a last chance agreement in which the Postal Service agreed not to

remove her at that time, while Ms. Fiori acknowledged that the charges were true and

that the penalty was appropriate.     She also agreed to submit to random drug and

alcohol tests for a two-year period and agreed that a positive test during that time would

constitute a breach of the last chance agreement, which would be grounds for her

immediate removal. On August 4, 2005, following a random drug and alcohol test, Ms.

Fiori tested positive with a blood alcohol level of 0.078 percent. In the course of an

investigative interview, she asserted that she did not violate the last chance agreement,

apparently because she disputed the validity of the test. The Postal Service, however,

proposed to remove her for violating the last chance agreement based on the results of

the test. Ms. Fiori was then placed on emergency suspension from August 4, 2005,

until October 28, 2005, her effective removal date. During that period, she was on a

combination of accrued leave, paid administrative leave, and unpaid administrative

leave.

         Ms. Fiori appealed to the Board, but the administrative judge who was assigned

to the case dismissed the appeal for lack of jurisdiction because “the record contained

nothing to suggest that the [last chance agreement] was invalid for any reason,” and

because Ms. Fiori’s decision to sign the last chance agreement “did not constitute

duress or coercion.” In December 2006, the full Board reversed and remanded for




2008-3026                                   2
adjudication on the merits. On remand, the administrative judge ruled that the last

chance agreement was valid, that Ms. Fiori had violated the terms of the agreement,

and that removal was an appropriate penalty.          However, the administrative judge

reversed the Postal Service’s decision to place her on unpaid status prior to the

effective date of her removal. The full Board denied her petition for review.

                                      DISCUSSION

       Ms. Fiori contends that the positive blood alcohol test was not hers because she

arrived at work at 10:30 a.m. and the test bears a 10:24 a.m. timestamp. She argues

that the machine must have been set correctly because five months had passed since

the date for changing clocks to daylight savings time.

       Contrary to her contention, substantial evidence supports the Board’s findings.

The Board noted that Ms. Fiori did not dispute having taken a blood alcohol test that

morning at the direction of the USPS at the facility where the positive test results were

obtained, that she signed a “piece of paper” containing the test results, and that it is her

signature on the printout bearing the results. The Board also found that she “averred

that she was shown only one ‘test slip’ by the technician.”           The technician who

performed the test testified that the discrepancy regarding the time was due to the fact

that the clock on the testing machine had not been adjusted for daylight savings time.

The Board observed that the technician’s testimony is consistent with Ms. Fiori’s

contention that she took the test about an hour later than the time listed on the test slip.

The technician also testified that he verified the test results with Ms. Fiori and witnessed

her sign the result slip, and that Ms. Fiori was the only person he tested that day. The

Board credited the testimony of the technician and based its decision in part on that




2008-3026                                    3
credibility determination.   Such determinations are virtually unreviewable on appeal.

See J.C. Equip. Corp. v. England, 360 F.3d 1311, 1315 (Fed. Cir. 2004). We therefore

conclude that the Board’s findings are supported by substantial evidence.

       Ms. Fiori also appears to contest the reasonableness of removing her for

violating the last chance agreement. She contends that the length of her service and

her otherwise good work record should have mitigated the penalty of removal. This

court has explained, however, that we cannot disturb the penalty chosen by the agency

unless it is “so ‘outrageously disproportionate’ to the charged offense in light of all

relevant factors as to constitute an abuse of discretion.” Bryant v. Nat’l Sci. Found., 105

F.3d 1414, 1416 (Fed. Cir. 1997) (citations omitted). In assessing the reasonableness

of the penalty, the administrative judge considered the relevant factors set forth in

Douglas v. Veterans Admin., 5 M.S.P.R. 280 (1981). The administrative judge noted

that the last chance agreement provided for Ms. Fiori’s removal if she violated the

agreement, that the deciding official found that she lacked rehabilitative potential, and

that it was permissible for the Postal Service to reject a lesser penalty given the

agency’s conclusion that she lacked rehabilitative potential and in light of the

seriousness of the charge.       The administrative judge found that Ms. Fiori was

“unremorseful and has made no indication that she would change her behavior if the

penalty were mitigated,” and noted the inherent dangers of working around heavy

equipment in a mailroom while under the influence of alcohol.               Although the

administrative judge did not specifically mention Ms. Fiori’s work record, it was not

required to refer explicitly to that factor.       Wynne v. Dep’t of Veterans Affairs, 75




2008-3026                                      4
M.S.P.R. 127, 135 (1997). Based on the evidence before the Board, we cannot find

that the Board’s decision outrageously disproportionate to the charged offense.

      Finally, in her informal reply brief, Ms. Fiori asserts that the original charge of

alcohol consumption was false and that she signed the last chance agreement under

duress. Those assertions are unsupported by any evidence, however, and as such they

do not provide a basis for reversing the Board’s decision. We therefore uphold the

Board’s decision sustaining Ms. Fiori’s removal from her position.




2008-3026                                   5
