        NOTE: This disposition is nonprecedential

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                 TYLER J. STEVENS,
                     Petitioner,
                           v.
        DEPARTMENT OF THE AIR FORCE,
                Respondent.
              __________________________

                      2010-3053
              __________________________

   Petition for review of the Merit Systems Protection
Board in case no. DE0752090207-I-1.
              ___________________________

              Decided: September 14, 2010
              ___________________________

   TYLER J. STEVENS, of Ogden, Utah, pro se.

    ANTHONY W. MOSES, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and ALAN J. LO RE, Assis-
tant Director. Of counsel was ROGER A. HIPP, Trail Attor-
ney.
                __________________________
STEVENS   v. AIR FORCE                                  2


   Before RADER, Chief Judge, LINN, and DYK, Circuit
                        Judges.
PER CURIAM.
   Tyler J. Stevens (“Stevens”) petitions for review of a
decision of the Merit Systems Protection Board (“Board”).
The Board affirmed a decision by the Department of the
Air Force (“the agency”) to remove Stevens from his
position as an F-16 Fighter Aircraft Pneudraulic Systems
Mechanic on the grounds of “unauthorized absence,”
“failure to request leave in accordance with IAW estab-
lished procedures,” and “discourteous conduct.”        See
Stevens v. Dep’t of the Air Force, No. DE-0752090207-I-1
(M.S.P.B. October 8, 2009) (“Final Decision”). We affirm.
                            I
     Stevens began working as an Aircraft Pneudraulic
Systems Mechanic on June 1, 2004. In August 2007,
Stevens received a written counseling statement from the
agency concerning misuse of sick leave and failure to
follow proper leave procedures, and he was told that in
the future he would be identified as absent without leave
(“AWOL”) if he did not have sufficient leave or failed to
follow leave procedures. He was also suspended for five
days in October 2008 for “discourteous conduct,” “unau-
thorized absence,” and “disregard of directives.” Resp’t’s
app’x 77.
    Thereafter, the agency determined that Stevens was
absent without leave or authorization nine times from
November 3 to December 3, 2008 for a total of 24 hours.
The agency also determined that Stevens failed to request
leave in accordance with established procedures. The
agency determined as well that Stevens had engaged in
discourteous conduct. On November 26, 2008, Stevens
arrived at work half an hour late. When he arrived, Dave
3                                      STEVENS   v. AIR FORCE


Hemmers, authorized by Stevens’ supervisor to receive
leave requests, asked Stevens what type of leave he
wanted. Stevens replied, “fuck around time.” See Stevens
v. Dep’t of the Air Force, No. DE-0752090207-I-1, slip op.
at 8 (M.S.P.B. July 7, 2009) (“Initial Decision”). According
to Hemmers, Stevens also conveyed a “bad attitude.” Id.
    On January 6, 2009, Brent Wilson (“Wilson”), Stevens’
supervisor, issued Stevens a notice of proposed removal,
inter alia, on the grounds of Stevens’ authorized absences,
failure to properly request leave, and discourteous con-
duct. Leroy Sykes, the F-16 Production Chief, sustained
the proposed removal on March 2, 2009. On March 9,
2009, Stevens appealed to the Board, and an Administra-
tive Judge (“AJ”) held a hearing on May 26-27, 2009.
Stevens argued that he was never given proper notice of
the agency’s leave-requesting procedures and that he was
never specifically told that he would be marked AWOL or
subjected to discipline for failure to follow leave proce-
dures. Stevens also claimed harmful procedural error due
to the agency’s failure to “effect disciplinary actions
within . . . 45 days of the offense” under the Master Labor
Agreement (“MLA”) between the agency and the Interna-
tional Association of Machinists and Aerospace Workers
(“IAW”). Resp’t’s app’x 53. Finally, Stevens asserted the
penalty of removal was too severe.
     The AJ sustained Stevens’ removal based on unau-
thorized absence, failure to follow leave procedures, and
discourteous conduct. See Initial Decision, slip op. at 14-
18. 1 The full Board denied Stevens’ petition for review to
the Board, making the initial decision by the AJ the


    1   Stevens had also been charged with disregard of
directives and insubordination. The AJ determined the
agency failed to prove the charges of disregard of direc-
tives and insubordination.
STEVENS   v. AIR FORCE                                      4


Board’s final decision. Stevens timely appealed to this
court, and we have jurisdiction pursuant to 28 U.S.C. §
1295(a)(9).
                             II
     The scope of our review of an MSPB decision is nar-
row. We must sustain the Board’s decision unless it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; [or] (3) unsupported by substantial evi-
dence.” Jacobs v. Dep’t of Justice, 35 F.3d 1543, 1545
(Fed. Cir. 1994).
    First, we reject Stevens’ procedural error claim. Sec-
tion 5.01 of the MLA between the agency and IAW states:
    [T]he Employer will strive to effect disciplinary ac-
    tion within either 45 days of the offense, the Em-
    ployer’s awareness of the offense, or the
    completion of an investigation of the matter by
    other than the supervisor, whichever occurs later.
    If, for reasons of significantly changed circum-
    stances, further delay in taking the action is an-
    ticipated, a notice from the Employer to the
    employee advising that disciplinary action is be-
    ing considered, the general basis of the action, and
    that the employee will be informed when a deci-
    sion has been made satisfies the requirements of
    this section.
Resp’t’s app’x 53 (emphasis added).
    We see no error in the Board’s determination that this
provision articulated a goal, rather than a mandatory
time limit. See Initial Decision, slip op. at 11. We agree
that, because no language in the agreement “specif[ies] a
consequence for noncompliance,” it is “best read as a
5                                      STEVENS   v. AIR FORCE


housekeeping requirement that is not judicially enforce-
able.” See Timken U.S. Corp. v. United States, 421 F.3d
1350, 1357 (Fed. Cir. 2005) (internal quotation omitted).
There is, moreover, no suggestion that the error, even if it
existed, was harmful. The Board defines harmful error as
one that “is likely to have caused the agency to reach a
conclusion different from the one reached.” 5 C.F.R §
1201.56(c)(3). Here there has been no such showing.
Courts are “reluctant to conclude that every failure of an
agency to observe a procedural requirement voids subse-
quent agency action.” Timken, 421 F.3d at 1357. There-
fore, the Board correctly rejected Stevens’ harmful
procedural error claim.
    We also reject Stevens’ claim that he had inadequate
notice of the charges.      As the Board noted here,
“[a]gencies may take disciplinary action against an em-
ployee . . . provided the employee is clearly on notice of
such requirements and the likelihood of discipline for
continued failure to comply.” Initial Decision, slip op. at
3. Stevens asserts that the Board improperly required
him to establish lack of knowledge and that, under the
proper allocation of the burden of proof, he cannot prop-
erly be charged because he never received notice of proper
leave procedures; believed that he would receive Leave
Without Pay (“LWOP”) instead of being marked AWOL;
and was never informed he would be subject to discipline.
However, the Board did not improperly place the burden
of proof on Stevens, and the Board’s decision is supported
by substantial evidence. The MLA specified procedures
that employees were required to follow in requesting
leave. The procedures stated that, to request unsched-
uled annual or sick leave, employees should call their
immediate supervisor at the beginning of their shift or “no
later than two hours after the shift begins.” Initial Deci-
sion, slip op. at 5. The Board “found credible Wilson’s
STEVENS   v. AIR FORCE                                   6


testimony that he explained the MLA leave provisions . . .
and advised [Stevens] repeatedly to call and request leave
if he was going to be late,” and it found Stevens’ claim
that “Wilson never counseled him that he needed to call
and request leave” to be “inherently improbable.” Id. at 7.
Similarly, the Board disbelieved Stevens’ claim that he
was never told that he could be charged AWOL and that it
was permissible to arrive as much as two hours late for
work.
    The Board’s credibility determinations are virtually
unreviewable, see Pope v. U.S. Postal Serv., 114 F.3d
1144, 1149 (Fed. Cir. 1997), and we see no basis to review
them here. We are not in a position to reevaluate the
Board’s “credibility determinations which are not inher-
ently improbable or discredited by undisputed fact.” Id.
While, as Stevens pointed out, Wilson may have been
uncertain as to whether in each case he advised Stevens
after the fact that his absences were unauthorized, Wilson
was clear that he had advised Stevens in advance of the
leave request procedures and the consequences of the
failure to follow them.
    Similarly, with respect to the “discourteous conduct”
charge, Mr. Hemmers testified that Stevens had dis-
played a discourteous and “bad attitude,” and the Board
credited his testimony. Initial Decision, slip op. at 8-9.
Because we cannot reevaluate “credibility determina-
tions” that are “not inherently improbable or discredited
by undisputed fact,” we accept the Board’s finding. See
Pope, 114 F.3d at 1149. Hence, the Board had substantial
evidence to sustain the unauthorized absence, failure to
request leave, and discourteous conduct charges.
    Lastly, we reject Stevens’ argument that removal was
not a reasonable penalty for his alleged misconduct be-
cause the agency had not used “progressive discipline” or
7                                      STEVENS   v. AIR FORCE


allowed him to show his potential for rehabilitation. See
Initial Decision, slip op. at 13-14. The Board examined
the relevant factors under Douglas v. Veterans Admini-
stration, 5 M.S.P.R. 280 (1991). Although Stevens had a
successful performance record and almost five years of
service, the Board found “particularly aggravating the
repeated nature of [Stevens’] misconduct . . . the disrup-
tion to work schedules and work place morale caused by
[his] repeated failure to report to work when scheduled,”
and his “prior discipline,” which demonstrated a “lack of
potential for rehabilitation.” Initial Decision, slip op. at
13, 12. The Board considered Stevens’ argument that the
agency had failed to utilize “progressive discipline,” but
found that his actions “evidenc[ed] a pattern of flagrantly
violating rules and regulations,” showing that progressive
discipline was not required. Initial Opinion, slip op. at
14, 13. We see no error in the Board’s decision to sustain
the penalty of removal.
                       AFFIRMED
                          COSTS
    No costs.
