                       NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                         is not citable as precedent. It is a public record.

 United States Court of Appeals for the Federal Circuit

                                           05-3032

                                  SHADDIE C. SHABAZZ,

                                                                       Petitioner,

                                              v.

                               DEPARTMENT OF JUSTICE,

                                                                       Respondent.

                           ___________________________

                           DECIDED: September 30, 2005
                           ___________________________


Before CLEVENGER, RADER, DYK, Circuit Judges.

PER CURIAM.


       Petitioner Shaddie C. Shabazz (“Shabazz”) seeks review of the decision of the

Merit Systems Protection Board (“Board”), affirming her removal from her position as

Recreational Specialist by the respondent, the United States Department of Justice,

Federal Bureau of Prisons (“Agency”).              Shabazz v. Dept. of Justice, No.

AT0752040464-I-1 (M.S.P.B. July 26, 2004). Finding no reversible error in the Board’s

decision, we affirm.

                                    BACKGROUND

       On October 17, 1993, Shabazz began employment as a correctional officer at the

Federal Correctional Institution (“FCI”) in Estill, South Carolina. She was promoted to

the position of Recreational Specialist on January 5, 1997.
       Shabazz’s conduct prompted disciplinary action on two occasions, both times for

violations of section 9(c) of the Bureau of Prison’s “Standards of Employee Conduct,”

which states that an “employee may not offer or give to an inmate or a former inmate or

any member of his or her family, or to any person known to be associated with an

inmate or former inmate, any article, favor, or service, which is not authorized in the

performance of the employee’s duties.” J.A. at 206.

       The first incident resulted in a reprimand.      On July 25, 1999, Shabazz was

observed alone with an inmate in the education building of the prison, and later that

evening was seen leaving the hobby craft area with that same inmate, at a time when

the inmate should have been in the housing unit for the nightly inmate count. As a

result of this incident, on July 18, 2000, she received a letter of reprimand.

       The second alleged incident resulted in her removal. The agency alleged that

during January 2001, Shabazz wrote letters and sent money orders to inmate Keith

Walton’s mother, Deanna Walton, that Ms. Walton then forwarded to her son. The

agency further alleged that Shabazz took Ms. Walton and her niece to dinner in January

2001. These allegations were based on (1) an analysis of the letters and money orders

by a Forensic Document Examiner, Marvin Dawson; and (2) testimony of Deanna

Walton identifying petitioner as the individual who contacted her. The allegations were

supported by evidence that the return address on the letters was the address of one of

Shabazz’s relatives, and that the name on the return address was her maiden name.

       On July 17, 2002, a final decision letter notified Shabazz that she would be

removed from her position effective July 18, 2002. After her removal, on August 21,

2002, Shabazz filed an Equal Opportunity Employment (“EEO”) complaint alleging that




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her removal was in retaliation for filing two previous EEO grievances. The Complaint

Adjudication Office ruled on March 2, 2004, that the evidence did not support her EEO

claims.

          Shabazz timely appealed the Bureau of Prison’s removal action to the Board. A

hearing before an administrative judge (“AJ”) included testimony of several witnesses,

including Deanna Walton and Shabazz. On July 26, 2004, the AJ affirmed the agency’s

action.     That decision became final on August 30, 2004.     Shabazz timely filed her

petition to this court on April 1, 2005. We have jurisdiction pursuant to 28 U.S.C. §

1295(a)(9).

                                      DISCUSSION

          The Board’s decision must be affirmed unless it is found to be arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; obtained

without procedures required by law, rule or regulation; or unsupported by substantial

evidence. 5 U.S.C. § 7703(c) (2000); Yates v. Merit Sys. Prot. Bd., 145 F.3d 1480, 1483

(Fed. Cir. 1998).

                                            I

          To sustain the removal, the agency was required to prove three elements: (1)

that the charged conduct occurred; (2) that there was a nexus between the conduct and

the efficiency of the service; and (3) that the penalty imposed was reasonable. See 5

U.S.C. §§ 7513(a), 7701(c)(1)(B) (2000); Pope v. United States Postal Serv., 114 F.3d

1144, 1147 (Fed.Cir.1997). Shabazz does not dispute the nexus between the alleged

conduct and the efficiency of the service, but she disputes the other two elements.




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      Shabazz argues that the Board’s finding that the charged conduct occurred is not

supported by substantial evidence, because the AJ “did not fairly consider the

contradictions in Ms. Walton’s testimony which effectively destroy her credibility.”

Credibility determinations are “virtually unreviewable” on appeal. See, e.g., Hambsch v.

Dept. of Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986). Having reviewed the alleged

contradictions in Ms. Walton’s testimony, we conclude that they were not so significant

as to render the Board’s determination “unsupported by substantial evidence.”

      We also find that the administrative judge’s evaluation of expert testimony

regarding document analysis was supported by substantial evidence. In reaching its

conclusion that the agency’s expert was more credible than Shabazz’s, the AJ carefully

considered both experts’ qualifications, and their respective analyses.

      For the above reasons, we conclude that the Board did not err in finding that the

alleged conduct occurred.

      Shabazz also asserts that her removal was an unreasonable penalty. Shabazz's

burden in proving her penalty unreasonable is a heavy one: “deference is given to the

agency's judgment unless the penalty exceeds the range of permissible punishment

specified by statute or regulation, or unless the penalty is so harsh and unconscionably

disproportionate to the offense that it amounts to an abuse of discretion.” Parker v.

United States Postal Serv., 819 F.2d 1113, 1116 (Fed. Cir. 1987) (internal quotation

marks omitted).   Here, we cannot conclude that the Board erred in sustaining the

penalty of removal. Inappropriate conduct by a prison official with an inmate’s family is

a very serious offense which, as the Board asserted, “could have placed her and others

at risk,” particularly in light of the “charged inmate atmosphere found in many federal




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facilities.” J.A. at 12. See Watson v. Dept. of Justice, 64 F.3d 1524, 1530 (Fed. Cir.

1995) (“Law enforcement officers are held to a higher standard of conduct than are

other federal employees”). Moreover, the Board found that petitioner had concealed her

misconduct.

       Shabazz also argues that her punishment was based on the improper

consideration of prior disciplinary action, in violation of an agency guideline, the

“Standard Schedule of Disciplinary Offenses and Penalties” (“Schedule”), which states

that “[t]he reckoning period is defined as that period of time following the date

management becomes aware of the offense during which that offense can be used to

determine the sanction for a subsequent offense.” J.A. at 2. She alleges that the July

2000 reprimand fell outside the two year reckoning period. Although both the Board

and the deciding official, Warden Maldonado, considered the prior offense as evidence

that Shabazz was on notice that her conduct was a violation of the rules, the Board was

persuaded by Maldonado’s testimony that he did not consider the prior disciplinary

action in arriving at the penalty. The Board did not err in concluding that the guideline

was not violated because the agency may rely on actions outside the reckoning period

for the limited purpose of establishing notice of the prohibited conduct.

                                             II

       Shabbaz also claims that she was punished in reprisal for two prior EEO

complaints. Under 5 U.S.C. § 2302(b)(9), it is a prohibited practice to take a personnel

action against an employee because of the exercise of any “grievance right granted by

any law, rule, or regulation.” To prevail on an allegation of illegal reprisal for exercising

grievance rights under 5 U.S.C. § 2302(b)(9), Shabazz must show: (1) she filed a




05-3032                                     5
grievance protected under § 2302(b)(9); (2) the accused official knew of the grievance;

(3) the adverse action under review could have been retaliation under the

circumstances; and (4) there was a genuine nexus between the alleged retaliation and

the grievance. See Warren v. Dept. of the Army, 804 F.2d 654, 656-58 (Fed. Cir. 1986).

       The record discloses that Shabazz filed two grievances: first, a sex discrimination

compliant against her supervisor, Ken Jones, in July 1997; and second, a gender

discrimination complaint in August 2000. The administrative judge found that Shabazz

had failed to establish a genuine nexus.        The complaints were not directed to the

conduct of the deciding official, Warden Maldonado.        Although Maldonado knew of

Shabbaz’s EEO complaints from conversations with the Human Resources Office, the

AJ was persuaded that the prior complaints played no role in his decision.             That

decision is supported by substantial evidence.

       Shabazz also alleges that the agency committed procedural error by proposing

disciplinary action prior to the conclusion of the agency investigation, and prior to review

by the Chief Executive Officer, and that these errors violate the collective bargaining

agreement (“CBA”). The CBA provides: “[w]hen an investigation takes place on an

employee’s alleged misconduct, any disciplinary or adverse action arising from the

investigation will not be proposed until the investigation has been completed and

reviewed by the Chief Executive Officer or designee . . .” J.A. at 9-10. However,

assuming petitioner is correct that the procedure was violated, the Board found that she

failed to allege that the agency would have reached a different conclusion if the

procedure had been followed. Where, as here, the final agency decision is subject to

judicial review, it is well settled that agency error is harmful only where the record shows




05-3032                                     6
that the procedural error was likely to have affected the agency’s conclusion. See 5

U.S.C. 7701(c)(2)(A) (2000); Carmichael v. United States, 298 F.3d 1367, 1375-76

(Fed. Cir. 2002); Sargisson v. United States, 913 F.2d 918, 922-23 (Fed. Cir. 1990).

But cf. Wagner v. United States, 365 F.3d 1358, 1364-65 (Fed. Cir. 2004) (different rule

applies where final agency decision unreviewable). We are not persuaded that the

Board erred in concluding that the petitioner “failed to prove harmful error.” J.A. at 9.

Nor do we believe that the Board erred in concluding that the CBA did not “require that

an employee be permitted to respond to the charges under investigation prior to the

issuance of the proposal notice.” J.A. at 10.

                                     CONCLUSION

      For the foregoing reasons, the Board’s decision is affirmed.

                                        COSTS:

      No costs.




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