                 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

                                        05-3317

                                 RHADELLE L. LOVE,

                                                       Petitioner,

                                            v.

                         UNITED STATES POSTAL SERVICE,

                                                       Respondent.



                           __________________________

                           DECIDED: February 8, 2006

                           __________________________



Before MICHEL, Chief Judge, LOURIE, and LINN, Circuit Judges.

PER CURIAM.

      Rhadelle L. Love (“Love”) appeals a decision of the Merit Systems Protection

Board (“Board”) sustaining a charge of “failure to conduct her duties and responsibilities

as a supervisor in a manner ‘conducive of leadership necessary to enable success in

[Love’s] operations’ and that the manner in which she conducted herself as a supervisor

‘negatively impact(ed) the employer/employee relationship,’” and affirming her demotion

from a supervisory position to the highest available non-supervisory position within the

United States Postal Service (“Postal Service”). Love v. United States Postal Serv., No.
CH-0752-04-0411-I-3 (M.S.P.B. Aug. 3, 2005) (“Final Order”). Because the Board’s

decision sustaining the charge and the demotion is supported by substantial evidence,

is not an abuse of discretion, and does not otherwise contain reversible error, we affirm.

                                    BACKGROUND

       Love had been employed by the Postal Service for approximately thirty-eight

years at the time of her demotion from the position of Supervisor of Maintenance

Operations. The charge against Love was primarily based on complaints raised during

the summer of 2003. In August of 2003, the Postal Service attempted to provide Love

with a “notice of [job] expectations,” which Love refused to accept. The Postal Service

initiated an investigation and notified Love of the allegations against her, yet Love

declined to comment on them. On March 8, 2004, relying on the investigative report,

the Postal Service issued an advance notice proposing Love’s demotion (the “Notice”).

After receiving the Notice, Love’s representative at the time, Mr. Bunch, wrote e-mails to

the Postal Service, indicating that he wished to arrange a meeting to review the

documentation supporting the demotion.        However, he failed to schedule such a

meeting. Love’s demotion was effected twenty-six days after issuance of the Notice, on

April 3, 2004.

       Love appealed to the Board, which affirmed the agency’s decision. See Love v.

United States Postal Serv., No. CH-0752-04-0411-I-3 (M.S.P.B. Feb. 2, 2005) (“Initial

Decision”). The administrative judge found that Love conceded or did not respond to

certain of the allegations against her, and that Love’s testimony disputing several of the

allegations was less credible than contrary testimony from multiple other agency

employees. Id. at 3-7. Weighing all the evidence, the administrative judge sustained




05-3317                                  2
four of the seven specifications asserted by the Postal Service. Id. at 8. Moreover, the

administrative judge held that the affirmative defenses Love raised did not warrant a

reversal of the action taken by the Postal Service and found that the penalty of

demotion was reasonable. Id. at 9-14. The administrative judge’s decision became the

final decision of the Board after the Board denied Love’s petition for review. See Final

Order, slip op. at 2. Love timely appealed. We have jurisdiction pursuant to 28 U.S.C.

§ 1295(a)(9).

                                     DISCUSSION

                                 A. Standard of Review

      Pursuant to 5 U.S.C. § 7703(c), this court must affirm the Board’s decision unless

it is: (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. Chase-Baker v. Dep’t of

Justice, 198 F.3d 843, 845 (Fed. Cir. 1999).        The petitioner bears the burden of

establishing reversible error in reviewing a decision of an administrative agency such as

the Board. Harris v. Dep’t of Veterans Affairs, 142 F.3d 1463, 1467 (Fed. Cir. 1998).

                                      B. Analysis

      To succeed in an adverse action against an employee, an agency must establish

that the conduct occurred, that there is a nexus between the conduct and the efficiency

of the service, and that the penalty imposed by the agency was reasonable. Bryant v.

Nat’l Sci. Found., 105 F.3d 1414, 1416 (Fed. Cir. 1997).        5 C.F.R. § 1201.56(b)

requires, among other things, that the Board overturn the action of the agency if the

employee shows harmful error in the application of the agency’s procedures in arriving




05-3317                                 3
at its decision, or shows that the decision was not in accordance with law. See 5 C.F.R.

§ 1201.56(b). Harmful error is defined as “[e]rror by the agency in the application 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.” Id. § 1201.56(c)(3).

Love does not contest the Board’s analysis of the second of the factors noted in Bryant,

so we will confine our analysis to the first and third factors.

                                         1. Conduct

       The Board affirmed the single charge against Love, finding that the Postal

Service proved, by preponderant evidence, four of the seven specifications supporting

the charge.     Initial Decision, slip op. at 8.     Regarding the first specification, the

administrative judge found that the testimony and investigative interviews of multiple

employees supported the conclusion that Love moved maintenance parts in violation of

a collective bargaining agreement with the American Postal Workers Union, in which it

is undisputed that Love was not authorized to move maintenance parts. Id. at 2-4. As

to the second specification, the administrative judge found that, based on statements of

multiple witnesses that contradicted Love’s testimony, Love left confidential documents

in open view and thus failed to safeguard the confidentiality of employee records. Id. at

4-5. On the third specification, the administrative judge affirmed the specification that

Love engaged in loud and unprofessional conversations, noting that Love did not

respond to or rebut the statements from multiple employees that Love engaged in

shouting matches and spoke loudly regarding private matters. Id. at 5. Finally, the

administrative judge affirmed the specification that Love discarded and shipped parts




05-3317                                    4
without documentation, crediting statements by multiple witnesses over Love’s contrary

testimony. Id. at 6-7.

       On appeal from the conduct determination, Love argues that these specifications

cannot be sustained because the Board was not provided with all of the facts due to

error by the agency in the application of its procedures. Love also argues that the

Board erred in crediting the statements of multiple employees over her contradictory

statements, apparently contending that the testimony of certain unspecified individuals

is not credible on the grounds that they were promoted at some unknown time

subsequent to testifying at the hearing. Love indicates, in her informal brief, that she

will move to submit a formal brief challenging the Board’s application of law. However,

she has not filed any further brief, and we address only the arguments she has

presented in her informal brief.     Love’s arguments regarding the sufficiency of the

evidence are unpersuasive.

       Love contends that the Board improperly decided the case with less than all of

the facts, arguing: (1) that the Postal Service committed procedural error in failing to

provide “information from the MS-63;” (2) that she “was not in a Position to assist [her]

council [sic] prior [to] the hearing” because of a lack of documents and a shortened

notice period; (3) that “official documentation was not available;” and (4) that “[t]here are

employees and information now available.”

       Love first argues that she should have been provided documents supporting the

charges against her such as “information from the MS-63.” Although she does not

make clear what she is referring to as “the MS-63,” the only document from the file

relied upon by the Postal Service in preparing the proposed action was the investigative




05-3317                                   5
report. Id. at 10. Nothing in the record indicates that the Postal Service precluded

Love’s review or in any way prevented her from access to the investigative report.

Moreover, the Board found that Love’s legal representative knew he and Love were

entitled to review the investigative report, yet did not attempt to schedule a meeting to

do so. Id. Thus, she cannot fault the Postal Service for the lack of her own diligence.

      Love next argues that she was not in a position to assist her counsel, first

because of a lack of documents and second because of a shortened notice period. As

for the lack of documents, the Board found that this was due to Love’s failure to review

her own records, her failure to schedule an appointment to review those records relied

upon by the Postal Service, and her failure to take advantage of the opportunity given to

her by the Board to provide facts to the Board during her appeal. Id. at 10-11. As for

the shortened notice period, Love argues that she was not in a position to assist her

counsel because the Postal Service did not properly apply the thirty-day notice

requirement of 5 U.S.C. § 7513(b)(1) by effecting her demotion within twenty-seven

days after issuance of the Notice. Although the Board found that the Postal Service

technically violated the thirty-day notice provision, the Board concluded that Love’s right

to respond to and review documents supporting the Notice was not harmed by the four-

day premature action. Id. The record before us supports the Board’s conclusion that

any procedural error present here was harmless. Simply put, Love has not shown that,

if the demotion would have been effected four days later, a different outcome might

have been reached. See 5 C.F.R. § 1201.56(c)(3).; Smith v. United States Postal Serv.,

789 F.2d 1540, 1546 (Fed. Cir. 1986) (finding no harmful error even where petitioner

was given only 18, rather than statutorily required 30 days notice of proposed removal);




05-3317                                  6
see also Devine v. Brisco, 733 F.2d 867, 872-73 (Fed. Cir. 1984) (“a mere conjectural

possibility of prejudice cannot suffice as a basis for inferring actual prejudice”).

       Love’s third and fourth arguments, contending that that “official documentation

was not available” and that “[t]here are employees and information now available,” are

based on evidence not present in the record and not considered by the administrative

judge. Our precedent is clear that facts not before the Board cannot be considered on

appeal. “Our precedent clearly establishes the impropriety of seeking a reversal of the

[B]oard’s decision on the basis of assertions never presented to the presiding official or

to the [B]oard.” Rockwell v. Dep’t of Transp., 789 F.2d 908, 913 (Fed. Cir. 1986); see

Oshiver v. Office of Pers. Mgmt., 896 F.2d 540, 542 (Fed. Cir. 1990) (holding that this

court will not consider new evidence that was not presented to the Board); Rockwell,

789 F.2d at 913 (explaining that Congress limited this court’s appellate review “to final

orders and decisions of the Board on the record”).

       Finally, and in addition to the foregoing, Love challenges the sufficiency of the

evidence based upon the Board’s credibility determinations. Because the administrative

judge is in the best position to evaluate credibility, his credibility determinations are

“virtually unreviewable” on appeal, see Hambsch v. Dep’t of the Treasury, 796 F.2d 430,

436 (Fed. Cir. 1986), and will not be disturbed unless inherently improbable, discredited

by undisputed evidence, or contrary to physical facts, Hanratty v. Dep’t of Transp., 819

F.2d 286, 288 (Fed. Cir. 1987). Love’s allegations that certain unspecified individuals

who testified against her were promoted at some unknown time subsequent to testifying

at the hearing do not meet the high burden required to disturb the administrative judge’s

credibility determinations.




05-3317                                    7
       Love has not identified any reversible error in the Board’s decision to sustain the

charge.

                                      2.       Penalty

       Love also challenges the penalty, asking this court for a reassignment to a

different position where she can use more of her skills. The “[d]etermination of an

appropriate penalty is a matter committed primarily to the sound discretion of the

employing agency.” Brook v. Corrado, 999 F.2d 523, 528 (Fed. Cir. 1993) (quoting

Beard v. Gen. Servs. Admin., 801 F.2d 1318, 1322 (Fed. Cir. 1986)). Accordingly, “we

will not disturb a penalty unless it exceeds the range of permissible punishment or is ‘so

harsh and unconscionably disproportionate to the offense that it amounts to an abuse of

discretion.’” Gonzales v. Def. Logistics Agency, 772 F.2d 887, 889 (Fed. Cir. 1985)

(quoting Villela v. Dep’t of Air Force, 727 F.2d 1574, 1576 (Fed. Cir. 1984)).

       Love’s arguments do not demonstrate an abuse of discretion by the Postal

Service.   Citing Douglas v. Veterans Admin., 5 M.S.P.R. 280, 305-06 (1981), the

administrative judge reviewed the relevant Douglas factors and determined that, due to

Love’s inability to supervise subordinate employees, the demotion to the highest level

non-supervisory position was an appropriate penalty. Initial Decision, slip op. at 13-14.

Although we appreciate Love’s desire to exploit the skills she developed while in a

supervisory position, Love points to no error in the Board’s determination that the

penalty was appropriate, and we find none.




05-3317                                    8
                                     CONCLUSION

      For the foregoing reasons, we conclude that the Board’s decision sustaining the

charge of failure to conduct duties and responsibilities as a supervisor in a manner

conducive of leadership, and affirming the penalty of demotion is supported by

substantial evidence, is not an abuse of discretion, and does not otherwise contain

reversible error. Accordingly, we affirm the Board’s decision.




05-3317                                 9
