       NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
               __________________________

               ANN SMITH-NWAGWU,
                    Petitioner,
                            v.
     DEPARTMENT OF VETERANS AFFAIRS,
               Respondent.
               __________________________

                       2010-3181
               __________________________

   Petition for review of an arbitrator’s decision in FMCS
Case No. 09-56875-3, by Robert W. Kilroy
             ______________________________

               Decided: November 7, 2011
            ______________________________

   M. JEFFERSON EUCHLER, Law Office of M. Jefferson
Euchler, of Virginia Beach, Virginia, for petitioner.

    JANE W. VANNEMAN, Senior Trial Counsel, Commer-
cial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, for respon-
dent. With her on the brief were TONY WEST, Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
BRIAN M. SIMKIN, Assistant Director.
               __________________________
SMITH-NWAGWU   v. VA                                     2


 Before RADER, Chief Judge, PROST, and MOORE, Circuit
                       Judges.
PER CURIAM.
     The arbitrator sustained the decision of the Director
of the Veterans Affairs Medical Center, Durham, North
Carolina (“Durham VA Medical Center”), to remove Ann
Smith-Nwagwu (“Smith-Nwagwu”) from her position as a
certified nursing assistant.    Because the arbitrator’s
findings are supported by substantial evidence, this court
affirms.
                             I
    Smith-Nwagwu was a certified nursing assistant
working the night shift (11:30 p.m. to 8:00 a.m.) at the
Durham VA Medical Center. The Director of the Durham
VA Medical Center removed her from her position based
upon three charges: (1) absence without leave, (2) failure
to follow proper leave procedures, and (3) inappropriate
conduct towards her supervisor. The facts leading up to
her removal are as follows.
    In August 2008, Smith-Nwagwu made several re-
quests for an alternate work schedule. She wanted her
shift to begin one hour early and to end two hours early
(10:30 p.m. to 6:00 a.m.) so that she would not be late for
an 8:00 a.m. Thursday class. Dawn Huffstetler (“Huff-
stetler”), the nurse manager of her unit, denied the re-
quests because the heaviest workload for nursing
assistants on the night shift occurs between 6:00 a.m. and
8:00 a.m., when patients are waking up, having their vital
signs checked, and their intake and output recorded.
Huffstetler informed Smith-Nwagwu that, while she could
not pre-approve the request to leave early, Smith-
Nwagwu could ask for permission to leave early at 6:30
a.m. on the day of her shift when Huffstetler would be
3                                      SMITH-NWAGWU    v. VA


able to determine the needs of the unit for that morning.
Alternatively, Smith-Nwagwu could change her schedule
to be off work every Thursday morning.
    On Tuesday, August 26, 2008, Smith-Nwagwu re-
quested permission to leave early the following Thursday
morning. Huffstetler again informed her that she could
not pre-approve the request to leave early and advised
Smith-Nwagwu to contact her at 6:30 a.m. on Thursday,
at which time she would grant the request if everything
was settled on the floor. On that Thursday, Smith-
Nwagwu told the charge nurse on duty that she was
leaving and left at 6:00 a.m., without contacting Huff-
stetler or the off-tour coordinator (who is in charge of all
units and lines up coverage as needed).
    On August 29, 2008, Huffstetler held a counseling
meeting with Smith-Nwagwu and her union representa-
tive regarding her unauthorized absence the previous day.
Huffstetler testified that during this meeting, Smith-
Nwagwu became so angry that her union representative
had to remove her from the room. According to Huff-
stetler, Smith-Nwagwu threw a sheet of paper at her and
also pointed a finger at her and said, “I’ve got your num-
ber.” Huffstetler felt personally threatened by this behav-
ior and filed a police report regarding this incident.
    Following this counseling meeting, Smith-Nwagwu
did not work any Wednesday night/Thursday morning
shifts in September. Instead, she called in and requested
sick leave for September 4th and 11th and used her annual
leave for September 18th. On Wednesday, September 24,
2008, Smith-Nwagwu did not report for duty and did not
contact the off-tour coordinator. At 1:25 a.m. on Thurs-
day, September 25, 2008, Smith-Nwagwu called and
requested sick leave. The off-tour coordinator told her
that she was absent without leave (“AWOL”) from 11:30
SMITH-NWAGWU   v. VA                                     4


p.m. until 1:25 a.m. but granted sick leave for the rest of
the shift.
    The next day, Huffstetler requested disciplinary ac-
tion against Smith-Nwagwu, recounting these various
incidents as well as the “decrease in the professional
relationship between [her and Smith-Nwagwu since the
counseling meeting] as evidenced by [Smith-Nwagwu’s]
unwillingness to make eye contact with [her] or speak to
[her] even when spoken to.” J.A. 147. The Associate
Director of Nursing Service issued a notice of proposed
removal on November 13, 2008. Charges 1 and 2—
absence without leave and failure to follow proper leave
procedure—were based on her unauthorized absence from
11:30 p.m. on September 24, 2008 to 1:25 a.m. on Septem-
ber 25, 2008. Charge 3—inappropriate conduct towards
her supervisor—was based on her conduct during the
counseling meeting on August 29, 2008. The notice also
relied upon her record of previous discipline in 2006,
noting that this would be taken into account in determin-
ing the proper disciplinary action. In 2006, Smith-
Nwagwu had admitted to the charges of: (1) failing to
properly request leave, (2) unauthorized absence, and (3)
failure to follow the instructions of the supervisor having
responsibility for her work. The Director of the Durham
VA Medical Center (“Director”) had suspended her for ten
days in lieu of removal, with the warning that future
misconduct could result in removal.
     After considering all of the information available to
him, the Director issued a notice of decision on December
19, 2008, removing Smith-Nwagwu from employment,
effective January 2, 2009. The union filed a grievance on
January 16, 2009 and invoked arbitration. The arbitrator
held that the grievance was timely because it had been
filed within thirty days of Smith-Nwagwu’s removal date.
After holding a hearing, the arbitrator sustained the
5                                      SMITH-NWAGWU    v. VA


removal decision, finding just cause to terminate Smith-
Nwagwu’s employment based on all three charges.
Smith-Nwagwu timely appealed the arbitrator’s decision.
This court has jurisdiction under 5 U.S.C. §§ 7121(f),
7703.
                             II
    In reviewing an arbitrator’s decision affecting a fed-
eral employee, this court applies the same standard of
review as it would in an appeal from the Merit Systems
Protection Board. 5 U.S.C. § 7121(f). This court will set
aside the arbitrator’s findings only if they are: “(1) arbi-
trary, 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).
    Charges 1 and 2—absence without leave and failure
to follow proper leave procedure—both arise from Smith-
Nwagwu’s absence from work from 11:30 p.m. on Septem-
ber 24, 2008 to 1:25 a.m. on September 25, 2008. The
governing collective bargaining agreement provides that
sick leave is to be granted when an employee:
    1. Receives medical, dental, or optical examina-
    tion or treatment.
    2. Is incapacitated for the performance of duties
    by sickness, injury, pregnancy, or confinement.
    3. Is required to give care and attendance to an
    immediate family member who is afflicted with a
    contagious disease.
    4. Would jeopardize the health of others by being
    present on duty after exposure to a contagious
    disease.
SMITH-NWAGWU   v. VA                                     6


J.A. 29. As a general matter, “[e]mployees should re-
quest, in advance, approval of anticipated leave.” J.A. 28.
However, “an employee who is incapacitated for duty
[must] notify the immediate supervisor or designee (or to
have any responsible person make the notification for the
employee) at the work site as soon as possible but no later
than two hours after the employee is scheduled to report
for duty unless mitigating circumstances exist.” J.A. 29
(emphases added). In other words, while employees are
generally required to request leave in advance, an em-
ployee that is “incapacitated for duty” has up to two hours
after the beginning of a shift to request leave. This nar-
row exception provides leeway for situations where an
employee unexpectedly falls ill or is injured and thus is
not able to notify her supervisor prior to the start of her
shift. It does not suggest that employees seeking sick
leave generally need not request leave in advance.
     It is undisputed that Smith-Nwagwu did not show up
for work on September 24, 2008 and did not contact the
off-tour coordinator to request leave prior to the start of
her shift. Smith-Nwagwu testified that she did not call in
requesting sick leave until 1:25 a.m. on September 25,
2008 because she had overslept. She explained that she
had been up all day taking care of her sick daughter and
that she had also been taking pain medication for a work
injury from June 2008. Taking care of a sick family
member is a legitimate basis for requesting sick leave,
and sick leave was in fact granted for the remainder of
her shift. However, Smith-Nwagwu had to request such
leave in advance, unless she was “incapacitated.” J.A. 29.
    The arbitrator found that Smith-Nwagwu had not
been “incapacitated” but rather had merely overslept.
Implicit in the arbitrator’s finding is his rejection of
Smith-Nwagwu’s testimony that her pain medication had
“incapacitated” her by making her unable to function.
7                                       SMITH-NWAGWU    v. VA


This finding is supported by the record. On direct exami-
nation, Smith-Nwagwu testified that her pain medica-
tions “were too much” such that she “couldn’t function.”
J.A. 120. On cross-examination, however, Smith-Nwagwu
admitted that she had been on pain medication since June
2008, and that over time, the strength of her prescription
had been reduced. By September 2008, she had actually
been taking a weaker dose of pain medication, compared
to the dosages she had previously been on, which had not
prevented her from working shifts in August. Moreover,
Smith-Nwagwu had not claimed to have been incapaci-
tated by medication at any point prior to arbitration
despite having received the notice of proposed removal,
which clearly informed her that she had the right to
respond orally or in writing to show “why this notice is
inaccurate and any other reasons why this action should
not be effected.” J.A. 1. For these reasons, the arbitrator
could have reasonably found that her testimony about not
being able to function due to medication was not credible
and thus concluded that she had not been “incapacitated.”
This court defers to the credibility findings of the arbitra-
tor. See Hambsch v. Dep’t of Treasury, 796 F.2d 430, 436
(Fed. Cir. 1986) (the presiding officer’s credibility deter-
minations are “virtually unreviewable”). Because Smith-
Nwagwu did not contact the off-tour coordinator to re-
quest leave until one hour and fifty-five minutes after the
start of her shift, she was absent without leave during
this time and had failed to follow proper leave procedure.
Accordingly, the arbitrator’s finding that the VA had
established charges 1 and 2 is supported by substantial
evidence.
    Likewise, the arbitrator’s finding that the VA had es-
tablished charge 3—inappropriate conduct towards her
supervisor—is supported by substantial evidence. Charge
3 arose from Smith-Nwagwu’s conduct during the counsel-
SMITH-NWAGWU   v. VA                                     8


ing meeting on August 29, 2008. Huffstetler testified that
during this meeting, Smith-Nwagwu “appeared to get
very angry, her fists were clenched, she’d moved up to the
edge of her seat, and she was getting louder and louder in
her responses to me to the point that her Union Rep
removed her from the room, took her out in the hall for
several minutes to try to calm her down.” J.A. 55. Ac-
cording to Huffstetler, Smith-Nwagwu threw a sheet of
paper at her, and when she left the office, she pointed a
finger at Huffstetler and said, “I’ve got your number.”
Smith-Nwagwu denied clenching her fists, throwing a
paper, and pointing her finger at Huffstetler, but she
admitted to raising her voice and saying, “I’ve got your
number.” The only other person to witness this encounter
was Smith-Nwagwu’s union representative, who did not
testify.
    The arbitrator had to determine which version of the
facts more accurately described the encounter and found
Huffstetler’s testimony more credible. The arbitrator
concluded that Smith-Nwagwu’s “splenetic and intemper-
ate remarks, coupled with her Union representative’s
action in taking her into the hallway, demonstrate a
hostile intent in her comment, ‘I’ve got your number.’”
J.A. 23. In light of the totality of the circumstances, the
arbitrator found that the Smith-Nwagwu had displayed
“patently inappropriate conduct” supporting charge 3. Id.
Applying the deference owed to the arbitrator on such a
fact-based determination, this court finds that the arbi-
trator’s finding is supported by substantial evidence.
    Given the serious nature of the charges and Smith-
Nwagwu’s past disciplinary record, the arbitrator did not
abuse his discretion in sustaining the penalty of removal
as within the range of reasonableness. See Lachance v.
Devall, 178 F.3d 1246, 1251 (Fed. Cir. 1999) (this court
will not disturb an agency’s choice of penalty unless it is
9                                    SMITH-NWAGWU   v. VA


“totally unwarranted”). This court therefore affirms the
arbitrator’s decision sustaining Smith-Nwagwu’s removal.
                     AFFIRMED
