       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                 LONDER B. DAVIS,
                    Petitioner,
                           v.
       UNITED STATES POSTAL SERVICE,
                 Respondent.
              __________________________

                      2012-3069
              __________________________

   Petition for review of the Merit Systems Protection
Board in case no. DA0752100459-B-1.
               _________________________

                Decided: June 12, 2012
               _________________________

   LONDER B. DAVIS, of Dallas, Texas, pro se.

    RYAN M. MAJERUS, 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, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and CLAUDE
BURKE, Assistant Director.
               __________________________
DAVIS   v. USPS                                           2


  Before LINN, MOORE, and O’MALLEY, Circuit Judges.
PER CURIAM.
     Londer B. Davis (“Davis”) appeals from the final deci-
sion of the Merit Systems Protection Board (“the Board”)
which: (1) denied his petition for review of the administra-
tive judge’s (“AJ”) initial decision on grounds that he
failed to show any new, previously unavailable, evidence;
and (2) adopted the AJ’s initial decision affirming the
United States Postal Service’s (“USPS” or “the agency”)
decision to remove him from employment for unacceptable
conduct. Davis v. U.S. Postal Serv., No. DA-0752-10-
0459-B-1, 2011 MSPB LEXIS 6950 (M.S.P.B. Nov. 21,
2011) (reported in table format at 117 M.S.P.R. 107)
(“Final Decision”); Davis v. U.S. Postal Serv., No. DA-
0752-10-0459-B-1, 2011 MSPB LEXIS 2867 (M.S.P.B.
May 9, 2011) (“Initial Decision”). For the reasons ex-
plained below, we affirm.
                       BACKGROUND
    Davis began working for the Postal Service on June
12, 1993. Prior to his removal, Davis was a full-time
letter carrier assigned to the Robert E. Price Station in
Dallas, Texas. On September 26, 2009, Davis was in-
volved in an altercation with another carrier, Tat Lee.
The altercation took place in a conference room at the
station and occurred in the presence of two witnesses:
Hilario Montoya, the Acting Supervisor for the station,
and Biagio Randazzo, the Chief Union Steward for that
shift. Montoya and Randazzo later testified that they
were in the conference room to investigate an earlier
argument that Davis and Lee had on the workroom floor.
It is undisputed that Davis used profanity during that
verbal altercation.
3                                            DAVIS   v. USPS


    While in the conference room, Davis and Lee contin-
ued to exchange profanity, and Lee slammed his fist into
the conference room table. At that point, Davis left his
end of the table, walked toward the end of the table where
Lee was standing, and punched Lee in the head. Al-
though testimony from Montoya and Randazzo and a
written statement from Lee confirmed this sequence of
events, Davis denied hitting Lee.
    In a letter dated September 30, 2009, Montoya noti-
fied Davis that he was being placed on “non-duty status,
non-pay, effective September 26, 2009.” Appendix (“A.”)
83. The letter informed Davis that his conduct during
the altercation was unacceptable, and that an investiga-
tion was underway to determine whether corrective action
was warranted.
    On October 23, 2009, Montoya sent Davis a Notice of
Proposed Removal for unacceptable conduct stemming
from the September 26, 2009 incident. By letter dated
November 9, 2009, George Young, the Postal Service’s
deciding official for this case, informed Davis that he
would be removed from employment effective November
29, 2009. In the letter, Young: (1) explained that he
considered the factors listed in Douglas v. Veterans Ad-
ministration, 5 M.S.P.R. 280, 306-07 (1981) (“the Douglas
factors”) to assess whether the penalty of removal is
appropriate; and (2) walked through each of the twelve
Douglas factors as they applied to Davis.
     Davis appealed his removal to the Board, and the AJ
conducted an evidentiary hearing on August 12, 2010.
During the hearing, the AJ heard testimony from several
individuals, including Montoya, Randazzo, Davis, and
Young. On August 13, 2010, the AJ issued an initial
decision dismissing Davis’ removal appeal as untimely
filed. Davis v. U.S. Postal Serv., No. DA-0752-10-0459-I-
DAVIS   v. USPS                                           4


1, 2010 MSPB LEXIS 4783 (M.S.P.B. Aug. 13, 2010).
Davis petitioned the Board for review and, in a decision
dated January 7, 2011, the Board granted the petition
and reversed, finding that the regional office had improp-
erly rejected Davis’ filing as premature, thereby contribut-
ing to his untimeliness. Davis v. U.S. Postal Serv., 116
M.S.P.R. 329, 2011 MSPB LEXIS 223 (M.S.P.B. Jan. 7,
2011). The Board remanded the case to the AJ to render
an initial decision on the merits of Davis’ claims.
    On February 3, 2011, the AJ conducted a conference
call with the parties, explaining that he “already con-
ducted a hearing on the matter and received evidence
regarding the agency’s charge.” Initial Decision, 2011
MSPB LEXIS 2867, at *1-2. The AJ informed the parties
that the record would close on February 14, 2011, but that
they could submit additional evidence and argument
before that date. Neither party submitted any additional
evidence.
    On May 9, 2011, the AJ issued an initial decision af-
firming the agency’s penalty of removal. First, the AJ
concluded that the USPS “presented preponderant evi-
dence to support the charge of unacceptable conduct.”
Initial Decision, 2011 MSPB LEXIS 2867, at *2. Based on
the evidence, the AJ found it undisputed that Davis was
involved in a verbal altercation with Lee and used profan-
ity on the workroom floor. Indeed, Davis admitted to
doing so at the evidentiary hearing. The AJ noted a
conflict in the evidence with respect to whether Davis
struck Lee during the altercation in the conference room.
Although testimony from Montoya and Randazzo was
consistent with Lee’s written statement that Davis
punched him in the head, Davis denied doing so. The AJ
did not find Davis’ denial credible, noting that “Randazzo,
as a union steward appeared reluctant to present testi-
mony that could be considered adverse to another (or
5                                              DAVIS   v. USPS


former) union official, but he nevertheless confirmed that
he witnessed [Davis’] unprovoked attack on Lee.” Id. at
*7. The AJ further found it inherently unlikely that
Montoya, Randazzo, and Lee “would fabricate such a
surprising event” and that there was “no suggestion of
any collusion or conspiracy.” Id. at *7-8. Accordingly, the
AJ concluded that the agency showed, by a preponderance
of the evidence, that Davis struck Lee.
     As to the penalty, the AJ found that removal “is rea-
sonable and promotes the efficiency of the service.” Id. at
*8. Specifically, the AJ found that Young – the deciding
official in this case – weighed the relevant factors articu-
lated in Douglas and that, in light of those factors, re-
moval was appropriate. Young testified that the Postal
Service has a “Zero Tolerance” policy for workplace vio-
lence and that the agency gives periodic talks on the
issue. Id. at *10. Because Davis struck a co-worker
“while on duty and in the presence of his supervisor and
union steward, [the AJ] found the misconduct unequivo-
cally duty related.” Id. at *11. Looking to the evidence as
a whole, the AJ concluded that Davis’ removal did not
exceed the bounds of reasonableness and that it would
“advance the efficiency of the service.” Id. at *12.
     Davis filed a petition for review, requesting that the
Board reconsider the AJ’s initial decision. Davis subse-
quently submitted several documents for the first time,
including: (1) a 1994 arbitrator’s decision and award; (2) a
1995 arbitrator’s award summary; and (3) a 2009 arbitra-
tor’s award summary.
    On November 21, 2011, the Board issued a final deci-
sion denying Davis’ petition for review. In its decision,
the Board noted that Davis failed to explain how the
newly-submitted arbitration awards “are of sufficient
weight to warrant a different outcome from the remand
DAVIS   v. USPS                                             6


initial decision.” Final Decision, 2011 MSPB LEXIS 6950,
at *3. And, because Davis failed to show that the docu-
ments were previously unavailable before the record
closed, the Board concluded that it need not consider
them. Id. (citing Avansino v. U.S. Postal Serv., 3 M.S.P.R.
211, 214 (1980)). The Board found that Davis failed to
either: (1) present new or previously unavailable evidence;
or (2) show that the AJ made an error interpreting the
law or regulation. Accordingly, the Board denied Davis’
petition for review, and the AJ’s initial decision became
the final decision of the Board, “[e]xcept as modified by
th[e] [Board’s] Final Order.” Id.
    Davis timely appealed to this court. We have jurisdic-
tion pursuant to 28 U.S.C. § 1295(a)(9).
                        DISCUSSION
     To sustain an adverse action against an employee, an
agency such as the USPS must: (1) prove, by a preponder-
ance of the evidence, that the charged misconduct oc-
curred; (2) establish a nexus between that misconduct and
the efficiency of the service; and (3) demonstrate that the
penalty imposed is reasonable. Malloy v. U.S. Postal
Serv., 578 F.3d 1351, 1356 (Fed. Cir. 2009). The Board
gives plenary review to the agency’s decision as to each of
the three factors. Our review of final Board decisions is
limited, however. By statute, we 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.” 5 U.S.C. § 7703(c).
    On appeal, Davis argues that the Board erred in af-
firming the USPS’s decision removing him from employ-
ment because it failed to consider certain facts and
applied the wrong law. With respect to the facts, Davis
7                                              DAVIS   v. USPS


argues that the Board failed to consider evidence he
submitted after the AJ rendered the initial decision. With
respect to the law, Davis appears to argue that: (1) the
Board failed to consider his status as a preference eligible
veteran; and (2) the penalty of removal was unreasonable.
For the reasons explained below, each of these arguments
is without merit.
         A. Untimely Evidentiary Submissions
    First, Davis claims that Board erred by failing to con-
sider the three arbitration awards he submitted. Accord-
ing to Davis, if the AJ and the Board “had taken these
documents into consideration the outcome maybe would
have been different.” In response, the agency argues that
the Board “properly ruled that it need not consider the
three arbitration decisions” because they: (1) were un-
timely introduced; and (2) ”involved unrelated arbitration
proceedings for other parties.” Respondent’s Informal Br.
11. Because we agree with the agency on the first point,
we need not address the second.
    Pursuant to the Board’s rules, “[o]nce the record
closes, no additional evidence or argument will be ac-
cepted unless the party submitting it shows that the
evidence was not readily available before the record
closed.” 5 C.F.R. § 1201.114(i). The rules further provide
that the Board has discretion to grant a petition for
review where “[n]ew and material evidence is available
that, despite due diligence, was not available when the
record closed.” 5 C.F.R. § 1201.115(d)(2). Consistent with
these principles, both this court and the Board have held
that “a party submitting new evidence in connection with
a petition for review must satisfy the burden of showing
that the evidence is material and that it could not have
been obtained earlier with the exercise of due diligence.”
DAVIS   v. USPS                                           8


Brenneman v. Office of Pers. Mgmt., 439 F.3d 1325, 1328
(Fed. Cir. 2006) (citations omitted).
     Here, the Board found that Davis failed to explain the
relevance of the arbitration decisions and further failed to
show that they were previously unavailable “despite his
due diligence.” Final Decision, 2011 MSPB LEXIS 6950,
at *3. Based on the record, we find no error in the Board’s
decision. As previously noted, the AJ gave the parties
until February 14, 2011 to submit any additional post-
hearing evidence. The AJ issued his initial decision on
May 9, 2011, and Davis did not submit the arbitration
awards until May 23, 2011 – over three months after the
record closed for evidence. Davis failed to provide any
explanation for this delay. And, because all three of the
arbitration awards pre-date February 14, 2011 – the date
the record closed for evidence – Davis cannot argue that
his newly-submitted evidence “was not readily available
before the record closed.” See 5 C.F.R. § 1201.114(i).
Indeed, two of the three arbitration decisions were ren-
dered in the mid-1990s, and the third was from 2009.
Davis does not allege that he could not have obtained
these documents earlier with the exercise of due diligence.
Given these circumstances, and absent any explanation
for the delay, we are unable to say that the Board abused
its discretion by refusing to consider documents that were
not part of the record before the AJ.
                  B. Veterans’ Preference
     Davis also contends that the Board failed to consider
his status as a preference-eligible veteran. To the extent
Davis seeks to assert a claim under the Veterans Em-
ployment Opportunities Act of 1998 (“VEOA”), that claim
fails. Pursuant to 5 U.S.C. § 3330a, a preference-eligible
veteran who alleges that an agency violated his rights
under a statute or regulation relating to veterans’ prefer-
9                                             DAVIS   v. USPS


ence must first file a complaint with the Secretary of
Labor before appealing the alleged violation to the Board.
See 5 U.S.C. § 3330a(d)(1); see also 5 C.F.R. § 1208.2(b)
(“[A] preference eligible . . . may file an appeal with the
Board, provided that he has satisfied the statutory re-
quirements for first filing a complaint with the Secretary
of Labor and allowing the Secretary at least 60 days to
attempt to resolve the complaint.”). Accordingly, to
establish Board jurisdiction over an appeal brought under
the VEOA, an appellant must show, among other things,
that he exhausted his administrative remedies with the
Department of Labor. Lazaro v. Dep’t of Veterans Affairs,
666 F.3d 1316, 1319 (Fed. Cir. 2012).
    The record contains no evidence that Davis filed a
VEOA complaint with the Department of Labor. Nor does
Davis allege that he filed such a complaint. Indeed, on
his handwritten MSPB Appeal Form dated May 25, 2010,
Davis indicated that he was not asserting any other
claims, including a veterans’ preference claim, in connec-
tion with his appeal. A. 112. Davis’ preference-eligible
status was not raised as an issue before the Board, and he
does not explain how the agency violated his rights under
the VEOA. Given these factors, we conclude that Davis’
attempt to raise a VEOA claim for the first time on appeal
is improper.
                     C. The Penalty
     Finally, Davis argues that the AJ failed to consider
certain mitigating factors in determining the appropriate
penalty. Specifically, Davis claims that the AJ should
have considered: (1) his twenty-one years of service with
the agency and lack of prior disciplinary action;
(2) provocation; (3) ”that the incident occurred off the
workroom floor”; and (4) whether “other individuals”
received a lesser penalty.
DAVIS   v. USPS                                           10


    As a general rule, the penalty for employee miscon-
duct is left to the agency’s discretion. Villela v. Dep’t of
Air Force, 727 F.2d 1574, 1576 (Fed. Cir. 1984) (“The
choice of penalty is generally left to agency discretion.”).
Neither the Board nor this court has authority to deter-
mine what penalty the agency should have selected.
Instead, the Board must assess whether the agency
balanced the relevant Douglas factors and selected a
penalty that is within the “bounds of reasonableness.”
Hayes v. Dep’t of Navy, 727 F.2d 1535, 1540 (Fed. Cir.
1984) (quotations omitted). This court will “normally
defer to the administrative judgment unless the penalty
exceeds the range of permissible punishments 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.” Villela, 727 F.2d at
1576 (internal quotations and citation omitted).
    In sustaining the penalty of removal, the AJ noted
that the deciding official considered the relevant Douglas
factors, including: (1) the nature and seriousness of the
offense; (2) the notoriety of the incident; (3) whether there
were any mitigating circumstances; (4) the potential for
rehabilitation; (5) the adequacy of alternative sanctions to
deter future misconduct; and (6) the fact that Davis was
on notice of the Postal Service’s Zero Tolerance Policy for
workplace violence. The AJ found that removal was
justified, particularly since Davis’ misconduct “occurred at
work, while on duty, in the presence of his supervisor, and
chief union steward.” Initial Decision, 2011 MSPB LEXIS
2867, at *12. Because Davis “disrupted the workplace,
and was verbally and physically abusive and threatening
toward a co-worker,” the AJ found that his removal “does
not exceed the bounds of reasonableness.” Id.
    On appeal, Davis seems to argue that the agency and
the Board failed to consider his lack of prior disciplinary
11                                             DAVIS   v. USPS


history during his twenty-one years with the Postal
Service. As this court has consistently noted, “[i]t is not
reversible error if the Board fails expressly to discuss all
of the Douglas factors. The Board need only determine
that the agency considered the factors significant to the
particular case.” Kumferman v. Dep’t of Navy, 785 F.2d
286, 291 (Fed. Cir. 1986) (internal citation omitted).
Here, review of the deciding official’s removal decision
reveals that he considered Davis’ past work record and
disciplinary history in making his penalty determination.
Indeed, in his decision letter, the deciding official dis-
cussed all twelve of the Douglas factors and found that
they weighed in favor of removal. Although the AJ’s
initial decision does not reference Davis’ length of service
and lack of prior disciplinary action, the AJ expressly
found that the deciding official considered mitigating
circumstances. Accordingly, we find that the Board and
the agency considered and balanced all relevant Douglas
factors – including mitigating factors – in assessing the
appropriate penalty.
    With respect to provocation, the AJ expressly rejected
Davis’ testimony and credited testimony from Montoya,
Randazzo, and Lee. Specifically, the AJ credited Ran-
dazzo’s testimony that Davis engaged in an “unprovoked
attack on Lee.” Initial Decision, 2011 MSPB LEXIS 2867,
at *7. It is well-established that credibility determina-
tions are within the AJ’s discretion and are “virtually
unreviewable” on appeal. Frey v. Dep’t of Labor, 359 F.3d
1355, 1361 (Fed. Cir. 2004) (quoting King v. HHS, 133
F.3d 1450, 1453 (Fed. Cir. 1998)); see also 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.”). Davis has given no
DAVIS   v. USPS                                           12


reason for us to reject the AJ’s credibility determinations,
and we decline to do so.
     Davis next argues that the Board should have consid-
ered “that the incident occurred off the workroom floor.”
Davis fails to explain how this fact is relevant to the
penalty determination. The altercation occurred at the
workplace, while Davis was on duty, and the AJ found
that it was disruptive. As the AJ noted, moreover, the
deciding official “considered the notoriety of the offense as
a significant factor” and conducted a meeting with staff
following the incident to discuss what had happened.
Initial Decision, 2011 MSPB LEXIS 2867, at *10. Given
these circumstances, the fact that the physical altercation
took place in the station conference room, rather than on
the workroom floor, does not render the Board’s decision
unreasonable.
    Although Davis claims that “other individuals” re-
ceived a lesser penalty, it is unclear which individuals he
is referring to, and there is no evidence that Davis as-
serted a claim for disparate treatment before the AJ. To
the extent Davis is referring to the grievants involved in
the three unrelated arbitration decisions previously
discussed, those decisions were not properly before the
Board, and we decline to consider them for the first time
on appeal.
    Because the agency considered and balanced all of the
relevant Douglas factors, the AJ did not err in finding
that the penalty of removal was reasonable. Given the
totality of the circumstances, we cannot say that the
Board abused its discretion in sustaining Davis’ removal
for unacceptable conduct.
13                                         DAVIS   v. USPS


                     CONCLUSION
    For the foregoing reasons, and because we find that
Davis’ remaining arguments are without merit, we affirm
the Board’s final decision.
                     AFFIRMED
                        COSTS
     No costs.
