                     NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit

                                      2009-3131


                            MIROSLAW G. STANASZEK,

                                                      Petitioner,

                                           v.

                        UNITED STATES POSTAL SERVICE,

                                                      Respondent.


      Miroslaw G. Stanaszek, of Chicago, Illinois, pro se.

      Roger A. Hipp, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Michael F. Hertz, Deputy Assistant Attorney General, Jeanne E.
Davidson, Director, and Kenneth M. Dintzer, Assistant Director.

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                         NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                       2009-3131


                              MIROSLAW G. STANASZEK,

                                                             Petitioner,

                                            v.

                          UNITED STATES POSTAL SERVICE,

                                                             Respondent.

              Petition for review of the Merit Systems Protection Board in
              CH0752080125-B-1.
                            ____________________________

                              DECIDED: August 6, 2009
                           ____________________________


Before MICHEL, Chief Judge, LOURIE, Circuit Judge, and CLARK, District Judge. ∗

PER CURIAM.

                                       DECISION

       Miroslaw G. Stanaszek appeals from the final decision of the Merit Systems

Protection Board (the “Board”) affirming the removal action of the U.S. Postal Service

(the “Postal Service” or the “agency”). Stanaszek v. U.S. Postal Serv., CH-0752-08-

0125-B-1 (M.S.P.B. Feb. 20, 2009). Because Stanaszek has not demonstrated that the

Board’s decision was contrary to law, unsupported by substantial evidence, or otherwise

reversible, we affirm.


       ∗
              Honorable Ron Clark, District Judge, United States District Court for the
Eastern District of Texas, sitting by designation.
                                    BACKGROUND

      On July 31, 2006, the Postal Service proposed to remove Stanaszek from his

position as a letter carrier in Chicago, Illinois, for failure to maintain satisfactory

attendance.      Stanaszek filed a grievance, which was resolved by a last chance

agreement, under which the proposed removal was reduced to a long-term suspension.

The agreement also provided that Stanaszek’s failure to comply with its terms, including

a requirement to maintain satisfactory attendance, would result in removal. Satisfactory

attendance was defined in the agreement as no more than two unscheduled absences

in a six-month period and no absences without leave during the one-year term of the

agreement.

      On July 27, 2007, the agency proposed to remove Stanaszek for violation of the

agreement, alleging eleven unscheduled absences between January 23 and June 6,

2007. Stanaszek filed another grievance, arguing that he was not scheduled to work on

the dates in question, but the dispute resolution team resolved the grievance against

Stanaszek and found the proposed removal had been issued for good cause. The

Postal Service issued a removal decision, effective November 7, 2007.

      On appeal, the administrative judge (“AJ”) initially dismissed Stanaszek’s appeal

for lack of jurisdiction, holding that he had waived his appeal rights. On June 5, 2008,

the full Board granted Stanaszek’s petition for review, reversed the dismissal, finding

that he had not fully waived his right to appeal his removal, and remanded for a decision

on the merits.

      On September 26, 2008, on remand, the AJ held that the agency had proven by

a preponderance of the evidence that Stanaszek had violated the last chance



2009-3131
                                       -2-
agreement by incurring eleven unscheduled absences and absences without leave

during a six-month period. The AJ came to this conclusion after making credibility

determinations in favor of the agency’s witnesses, who testified about the general

staffing and overtime procedures at Stanaszek’s post office and about his individual

absences in particular. The AJ also noted that Stanaszek admitted during the hearing

to being absent without leave on February 16-17, 2007, which was sufficient to be a

violation of the terms of the last chance agreement. The AJ further held that the penalty

of removal was reasonable.

      Stanaszek filed a petition for review of the AJ’s initial decision. On February 20,

2009, the Board declined review and thus rendered the AJ’s initial decision final.

Stanaszek timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C.

§ 1295(a)(9).

                                     DISCUSSION

      The scope of our review in an appeal from a Board decision is limited. We can

only set aside the Board’s decision if it was “(1) arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law; (2) obtained without procedures

required by law, rule, or regulation having been followed; or (3) unsupported by

substantial evidence.” 5 U.S.C. § 7703(c) (2006). “In determining whether the [B]oard's

decision is supported by substantial evidence, the standard is not what the court would

decide in a de novo appraisal, but whether the administrative determination is supported

by substantial evidence on the record as a whole.” Parker v. U.S. Postal Serv., 819

F.2d 1113, 1115 (Fed. Cir. 1987). Thus, if the record contains “such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion,” it must be



2009-3131
                                       -3-
affirmed. Brewer v. U.S. Postal Serv., 647 F.3d 1093, 1096 (Ct. Cl. 1981) (citation

omitted).

      Stanaszek argues that the Board failed to consider evidence he introduced

regarding some of the disputed unscheduled absences. He contends that he was not

absent on two of the dates in question, June 6, 2007, and March 30, 2007, and points to

his pay stubs for support. He also contends that he took emergency leave on February

27, 2008, and not on January 24, 2007. Stanaszek challenges the overall credibility of

the agency’s witnesses and the reliability of the documents submitted at the hearing.

He also asserts that the Board should have applied “the law of common sense and

reasonableness” in deciding his appeal.

      In response, the Postal Service argues that Stanaszek fails to dispute the

Board’s finding that he was absent without leave on February 16-17, 2007, which is a

sufficient ground for removal under the last chance agreement.         The agency also

asserts that there is no basis for challenging the Board’s credibility determinations,

which are given great deference. Finally, the agency contends that the Board’s decision

was in accordance with the law and the terms of the last chance agreement.

      We agree with the Postal Service that the Board’s decision was not contrary to

law, unsupported by substantial evidence, or otherwise reversible.        As the agency

points out, Stanaszek does not dispute in his opening brief that he was absent without

leave for two days during the term of the last chance agreement. Although Stanaszek

contends in his reply brief that his admission during the hearing of being absent without

leave on February 16-17, 2007, was incorrect, Stanaszek does not cite any evidence in

the record for support. In addition, the Board’s credibility determinations are “virtually



2009-3131
                                        -4-
unreviewable,” Hambsch v. Dep’t of Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986), and

we see no basis to overturn the Board’s finding here that the agency’s witnesses were

more credible than Stanaszek. We conclude, therefore, that the Board’s factual finding

that Stanaszek was absent without leave for those two days is supported by substantial

evidence, and it is undisputed that any absence without leave is unsatisfactory

attendance under the terms of the last chance agreement. We also conclude that the

Board’s factual findings regarding Stanaszek’s unscheduled absences, many of which

Stanaszek does not individually contest, are supported by substantial evidence. Finally,

Stanaszek’s contention that the Board misapplied the law does not reference any actual

legal error and thus provides no grounds for reversal.

      For the foregoing reasons, the Board did not reversibly err in affirming the Postal

Service’s decision to remove Stanaszek. Accordingly, we affirm.

                                        COSTS

      No costs.




2009-3131
                                       -5-
