       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                 CECIL J. WARREN,
                     Petitioner,
                           v.
       UNITED STATES POSTAL SERVICE,
                 Respondent.
              __________________________

                      2012-3147
              __________________________

   Petition for review of the Merit Systems Protection
Board in MSPB Docket No. DC0752100530-B-1.
             ____________________________

              Decided: November 9, 2012
             ____________________________

   CECIL J. WARREN, of Andrews, North Carolina, pro se.

    WILLIAM P. RAYEL, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent. With him on
the brief were STUART F. DELERY, Acting Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and DONALD
E. KINNER, Assistant Director.
               __________________________
CECIL WARREN   v. USPS                                  2


    Before LOURIE, DYK, and MOORE, Circuit Judges.
PER CURIAM.
     Cecil J. Warren (“Warren”) appeals from the final de-
cision of the Merit Systems Protection Board (“the Board”)
dismissing his petition for review. See Warren v. U.S.
Postal Serv., No. DC-0752-10-0530-I-1 (M.S.P.B. Aug. 23,
2010) (“Initial Decision”); (M.S.P.B. Jul. 26, 2011) (“Re-
mand Order”); No. DC-0752-10-0530-B-1 (M.S.P.B. Oct.
14, 2011) (“Initial Decision on Remand”); (M.S.P.B. Apr.
18, 2012) (“Final Order”). Because the Board’s decision is
supported by substantial evidence, we affirm.
                         BACKGROUND
     Warren was employed as a Rural Carrier with the
United States Postal Service (“USPS”) and was removed
in 2009 for unsatisfactory work performance. Warren
appealed his removal to the Board, alleging that it was
the product of age and race discrimination, as well as
retaliation for filing a grievance. In August 2010, the
administrative judge (“AJ”) issued an initial decision
affirming the removal action. Initial Decision at 13. The
AJ concluded that USPS had proven Warren’s unsatisfac-
tory work performance by a preponderance of the evi-
dence, finding he had violated an important safety policy
about which he had received specific and extensive train-
ing. Id. at 4–6. However, the AJ also found that the
agency’s deciding official, Postmaster Kevin Claus
(“Claus”), erred by relying upon Warren’s “poor perform-
ance, inability to get along with [others], and ‘bad atti-
tude’” as aggravating factors, because these factors were
not articulated in the USPS’s proposed removal notice.
Id. at 12. The AJ then conducted a new analysis of the
reasonableness of the penalty in light of the factors de-
lineated in Douglas v. Veterans Administration, 5
3                                      CECIL WARREN   v. USPS


M.S.P.R. 280, 305–06 (1981),1 disregarding any considera-
tion of Warren’s general performance, attitude, or inter-
personal relations, and nevertheless concluded that
removal was warranted. Id. at 12–13. The AJ also con-
cluded that Warren failed to prove his removal was the
product of age discrimination, that there was no evidence
supporting a finding that race was a factor, and that there
was no merit to his retaliation claim. Id. at 6–10.
    Warren petitioned for reconsideration by the full
Board, contesting for the first time the merits of his prior
disciplinary actions that supported the removal decision.
Remand Order at 2. The Board affirmed the AJ’s find-
ings, found no clear error in the USPS’s or the AJ’s con-
sideration of the prior disciplinary actions, and agreed
that Warren failed to establish a claim of disparate pen-
alty. Id. at 2–3. The Board sua sponte addressed the AJ’s
finding that Claus improperly relied upon the fourth
Douglas factor and held that, although the AJ’s assess-
ment was consistent with the Board’s case law at the time
of the initial decision, that law was no longer correct in
light of our decision in Ward v. United States Postal
Service, 634 F.3d 1274 (Fed. Cir. 2011) (holding that
appellant’s right to due process may be violated if decid-
ing official considers new and material information when
determining whether to impose enhanced penalty).
Accordingly, the Board remanded the August 2010 deci-
sion with instructions to consider whether Claus’s consid-
eration of aggravating factors violated Warren’s due

    1   The Board’s opinion in Douglas outlines factors
that supervisors must consider in determining an appro-
priate penalty to impose for an act of employee miscon-
duct, the fourth of which is “the employee’s past work
record, including length of service, performance on the
job, ability to get along with fellow coworkers, and de-
pendability.” 5 M.S.P.R. 280, 305–06.
CECIL WARREN   v. USPS                                   4


process rights, and, if those rights were not violated,
whether USPS committed harmful error. Id. at 6–7.
    On remand and further hearing, the AJ reaffirmed
the removal decision, concluding that USPS did not err
with respect to its penalty determination. Initial Decision
on Remand at 7–9. The AJ found that, even if the pro-
posal notice was somehow defective because it did not
specifically state that USPS was considering the sub-
stance of misconduct listed in prior disciplinary letters,
such defect did not deprive Warren of due process. In
particular, the AJ found the information was cumulative
because Warren was specifically notified that his prior
disciplinary history would be considered and was given
opportunity to respond. Id. at 7–8. Similarly, the AJ
concluded that, even if Warren could demonstrate a
procedural defect, such error was harmless because Claus
credibly testified that he would have taken the same
action regardless of considering the fourth Douglas factor.
Id. at 8. Warren again petitioned for reconsideration by
the full Board, which was denied. Final Order at 3–4.
The initial decision of the AJ thus became the decision of
the Board.
    Warren appealed to this court. We have jurisdiction
pursuant to 5 U.S.C. § 7703(b)(1) and 28 U.S.C.
§ 1295(a)(9).
                         DISCUSSION
     The scope of our review in an appeal from a Board de-
cision is limited. We can only set aside the Board’s deci-
sion 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); see Briggs v.
Merit Sys. Prot. Bd., 331 F.3d 1307, 1311 (Fed. Cir. 2003).
5                                      CECIL WARREN   v. USPS


The Board’s decision is supported by substantial evidence
“if it is supported by such relevant evidence as a reason-
able mind might accept as adequate to support a conclu-
sion.” Brewer v. U.S. Postal Serv., 647 F.2d 1093, 1096
(Ct. Cl. 1981) (internal quotation marks omitted).
    We agree that the Board did not abuse its discretion
in dismissing Warren’s petition because substantial
evidence shows that Warren violated an important safety
policy relating to use of delivery vehicles in conducting
USPS business, for which he had attended three training
sessions in the six months prior to his removal. The
Board considered the relevant facts and evidence in
sustaining the charge of unsatisfactory work performance.
Warren argues that his direct line supervisor provided
false testimony and falsified documents; however, even if
Warren had denied the factual testimony concerning his
misconduct before the AJ, he has provided no basis for us
to overturn the AJ’s findings. The AJ observed the super-
visor’s demeanor as she testified and concluded that she
was a credible witness. Initial Decision at 5–10. See
Griessenauer v. Dep’t of Energy, 754 F.2d 361, 364 (Fed.
Cir. 1985) (“The determination of the credibility of the
witnesses is within the discretion of the presiding official
who heard their testimony and saw their demeanor.”);
Hambsch v. Dep’t of Treasury, 796 F.2d 430, 436 (Fed.
Cir. 1986) (holding that a “presiding official’s credibility
determinations…are virtually unreviewable”).
    The Board also correctly held that there was no viola-
tion of Warren’s right to due process. We have set forth
three factors relevant to whether a due process violation
has occurred because of consideration of information not
included in the notice of proposed removal: 1) whether the
information is new or merely cumulative; 2) whether the
employee knew of the error and had an opportunity to
respond; and 3) whether information was of the type
CECIL WARREN   v. USPS                                       6


likely to result in undue pressure on the deciding official
to rule in a particular manner. Stone v. FDIC, 179 F.3d
1368, 1377 (Fed. Cir. 1999). Warren has provided no
basis for overturning the Board’s conclusion that, contrary
to its initial findings, the deciding official, Claus, “did not
consider any ‘information or documentation’ that was
outside of the proposal and materials supporting the
proposal notice.” Initial Decision on Remand at 5; Final
Order at 3. Based on the record before us, we agree with
the Board’s determination that the AJ did not err in
finding that the information regarding Warren’s work
record was only cumulative of the information contained
in the letters recording three separate disciplinary actions
prior to his removal, that Warren had notice of this in-
formation, and that there was no evidence that the infor-
mation resulted in undue pressure on Claus to decide in a
certain way. See Initial Decision on Remand at 7–8; Final
Order at 3.
    The Board also correctly held that there was no harm-
ful procedural error. The Board’s regulations define
“harmful error” as an “[e]rror by the agency in the appli-
cation of its procedures that is likely to have caused the
agency to reach a conclusion different from the one it
would have reached in the absence or cure of the error.” 5
C.F.R. § 1201.56(c)(3); see Ward, 634 F.3d at 1281. We
have no basis to overturn the AJ’s conclusion that Claus
credibly testified that the removal action would have been
taken notwithstanding any improper consideration of
aggravating factors. Thus, even if the USPS committed
procedural error in violation of 5 C.F.R. § 752.404(f) by
relying on matters without providing Warren with ade-
quate notice, the AJ concluded that Claus would have
reached the same conclusion. The Board properly held
that any procedural error was therefore harmless. See
Ward, 634 F.3d at 1282. There was also no error in the
7                                    CECIL WARREN   v. USPS


conduct of the hearing. Warren had opportunity to ques-
tion Claus on the due process and harmful error issues,
but asked questions only on the merits of the removal
action, which were outside the scope of review on remand.
Moreover, the Board correctly found that the AJ did not
err on remand in limiting Claus’s testimony on his deci-
sion-making process regarding the removal determina-
tion. In sum, Warren has failed to show that the Board
abused its discretion in denying his petition.
    We have considered Warren’s remaining arguments
and conclude that they are without merit. For the forego-
ing reasons, the decision of the Board is
                      AFFIRMED
                         COSTS
No costs.
