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

04-3282 ROSEMARIE JENKINS, Petitioner,

v. DEPARTMENT OF TRANSPORTATION, Respondent.

___________________________ DECIDED: November 4, 2004

___________________________ Before CLEVENGER, RADER, and BRYSON, Circuit Judges

. PER CURIAM. DECISION This is a petition for revi ew of the decision of the Me rit Systems Protection Board, Docket No. CH-0752-02-0659-I-1, deny ing petitioner Rosemarie Jenkins’s appeal of an agency decision to remove her from federal service for repeated instances of disorderly conduct in the workplace. We affirm

. BACKGROUND In 1984, Ms. Jenkins began working as a GS-4 clerk-typist at the Federal Transit Administration (“FTA”), an agency within the D epartment of Transportation. Over time,04-3282 2 Ms. Jenkins advanced to the position of Trans portation Program Specialist, GS-11. She held that position in 2002 when the FTA removed her for repeatedly engaging in disorderly conduct. Although Ms. Jenkin s had received annual performance awards from 1988 through 1995, she rece ived performance ratings of “marginal at best” from her supervisors for each of the seven years prior to her removal in 2002. In 1996 the FTA found that Ms. Jenk ins had made derogatory and threatening comments to a male co-worker who she believ ed was homosexual. As a result of that incident, the agency issued Ms. Jenkins a fo rmal written warning and ordered her to attend sexual harassment traini ng. In 1998 Ms. Jenkins received a notice of proposed removal based on charges of failure to follo w established leave procedures, tardiness resulting in unauthorized absence, and three in stances of disorderly conduct toward a fellow worker. The Deputy Administrator of the FTA sustained all the charges but mitigated the removal to a 14-day suspension. The Deputy Administrator warned Ms. Jenkins that if she engaged in similar incident s in the future she would be subject to more severe disciplinary action, including removal. In March of 2002 the FTA again proposed to remove Ms. Jenkins based on four more instances of disorderly conduct. The agency charged that Ms. Jenkins had been verbally abusive to and had physically st ruck the same employee, Brenda SandersTaylor, who was the subject of the disorder ly conduct charges in the 1998 disciplinary proceeding. The agency also charged Ms. J enkins with using insulting and abusive language toward at least four other employees and attempting to inflict bodily injury on two of those employees. In response to the notice, Ms. Jenkin s contended that the incidents did not occur in the workplace, that there was no corroboration of the04-3282 3 complainants’ versions of the incidents, and that the incident s did not warrant disciplinary action. She also complained that a regional adminis trator had issued the removal notice, rather than her immediate s upervisor, and that the punishment was not allowed under Department of Transportation gui delines. On July 12, 2002, the FTA’s Deputy Associate Administrator sustained all the charges and ordered Ms. Jenkins removed from federal service as of that date. Ms. Jenkins appealed that decision to the Merit Systems Protection Board. Following a hearing, the administrative judge who was assigned to the case sustained all four specificat ions of disorderly conduct and upheld the removal action. Ms. Jenkins petitioned for review by the full Board, but the Board denied review. Ms. Jenkins then sought review by this court. DISCUSSION Ms. Jenkins argues that the Board impr operly failed to take into account two alleged incidents of physical contact against Ms . Jenkins by co-workers who testified against her, that the FTA did not follow the agency’s penalty guidelines when it selected removal as her penalty, and that the Board di d not consider evidence from several witnesses when it made its decision. All three arguments lack merit. 1. In his opinion, the admin istrative judge specifically referred to the first incident of physical contact claimed by Ms. Jenkins. The administrativ e judge found that Ms. Sanders-Taylor pushed Ms. Jenkins in an attempt to demonstrate how Ms. Jenkins had initiated the physical contact that was charged in the notice of removal. The administrative judge noted that Ms. Sanders-Taylor was repr imanded for that incident. In making his findings with respect to that incident, the administrative judge stated that04-3282 4 he found Ms. Sanders-Taylor’s te stimony and the testimony of at least two witnesses to the incident to be credible. This court has stated that administr ative judge credibility determinations are “virtually unreviewable.” Frey v. Dep’t of Labor , 359 F.3d 1355, 1361 (Fed. Cir. 2004). In order to prevail, Ms. Jenkins must establish that the Board’s findings are not supported by substantial evidence. See Bieber v. Dep’t of the Army , 287 F.3d 1358, 1364-65 (Fed. Cir. 2002) (affirmi ng administrative judge’s findings of fact based on substantial evidence). Ther e is substantial evidence to support the administrative judge’s finding, and we conc lude that Ms. Jenkins has failed to demonstrate otherwise. The second incident of alleged physical c ontact cited by Ms. Jenkins occurred when, according to Ms. Jenkins, Mr. Miny o “started screaming at me and poked me in my nose with his finger.” Ms. Jenkins has not shown that the inci dent with Mr. Minyo is relevant to the charges against her, and she has therefore failed to demonstrate that the administrative judge abused his discretion in failing to discuss that incident in his opinion. 2. Ms. Jenkins’s second argument is that the FTA did not follow applicable disciplinary guidelines when it removed her fo r the four charged incidents of disorderly conduct. Ms. Jenkins has not shown that her removal was contrary to any applicable penalty guidelines, however. The guidelines to which she refers state that “supervisors may decide to effect a greater or lesser penalty than indicated by this guideline,” indicating that supervisors may use broad di scretion in selecting a punishment for a particular offense. Furthermore, the agency’ s deciding official concluded that even treating her offense as a first offense, the pertinent guideline permitted a penalty up to04-3282 5 removal. Finally, the deciding official c onsidered Ms. Jenkins’s disciplinary record, noting that she had been discip lined twice in the past for similar misconduct, which indicated that her misconduct was not an aberra tion but part of a c ontinuing course of conduct. Ms. Jenkins contends that the agency failed to consider progressive discipline, including an oral or written r eprimand. The deciding official, however, addressed in some detail whether a lesse r penalty would be appropriate and concluded, based on all the circumstances, that it would not. Both the deciding official and the administrative judge focused on the fact ors bearing on the proper penalty and determined that removal was appropriate. Havi ng reviewed the treatment of the penalty issue both by the agency and by the Board, we uphold the adm inistrative judge’s conclusion that the deciding official reas onably exercised her discretion in choosing removal as the appropriate penalty. 3. Finally, Ms. Jenkins complains t hat the administrativ e judge improperly excluded testimony and written st atements of witnesses that s he offered as evidence at the hearing. The evidence in question cons isted of accounts of unrelated misconduct allegedly committed by several of the agency’s witnesses. An administrative judge has broad discretion with regar d to the admission of evidence at a Board hearing. Davis v. Office of Pers. Mgmt. , 918 F.2d 944, 946 (Fed. Cir. 1990). We will not overturn a decision of the Board on the basis of procedural error “unless an abuse of discretion is clear and harmful.” Curtin v. Office of Pers. Mgmt. , 846 F.2d 1373, 1378 (Fed. Cir. 1988) . Ms. Jenkins has not shown how the evidence she proffered regarding extrinsic in cidents involving agency witnesses bears significantly on the issues before the administrative judge. Nor has she demonstrated04-3282 6 how she was harmed by the exclusion of that evidence. Accordingly, Ms. Jackson has not shown that the administr ative judge abused his discretion in ruling that evidence inadmissible at the hearing.