NOTE: This dis position is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

06-3241 DEBRA J. ROACH, Petitioner,

v. DEPARTMENT OF DEFENSE, Respondent.

____________________ DECIDED: December 7, 2006

____________________ Before MICHEL, Chief Judge , LOURIE and PROST, Circuit Judges

. PER CURIAM. Debra J. Roach petitions for review of the final decision of the Merit Systems Protection Board (the “Board”) sustaining the decision of the D epartment of Defense (“the agency”) to suspend her for 120 da ys. Roach v. Dep’t of Def. , No. AT-0752-05- 0285-I-1 (M.S.P.B. Sept. 27, 2005). Because s ubstantial evidence supports the Board’s decision, we affirm

. BACKGROUND Roach was employed as a Civilian Pa y Technician, GS-6, by the Defense Finance and Accounting Service in Charleston, South Carolina. On October 21, 2004, Roach’s supervisor proposed to remove Roac h based on four char ges: (1) disrupting a meeting on August 20, 2004, (2) insubordi nation on September 1, 2004, (3) makingfalse accusations against a s uperviso r on September 1, 2004, and (4) making statements that cr eated anxiety and disruption in the workplace on September 1 and 2, 2004. On December 14, 2004, the deciding official sustained t he four charges but reduced her penalty to a 120-day suspension, wh ich was effective De cember 20, 2004. Roach appealed the agency’s decision to th e Board, and the Bo ard sustained the agency’s decision to suspend her for 120 days. With regard to the first charge, the Administrative Judge ( “ AJ”) thoroughly discussed t he testimony and then concluded that the agency proved by preponder ant evidence t hat Roach disrupt ed a meeting between a director and a union official. Regarding the second charge, based on the credible testimony of various employees, the AJ c oncluded that Roach’s super v isor calmly asked Roach to meet with her, and Roach fa iled to obey that order. The AJ als o concluded that Roach failed to obey a direc t or’s order not to call 911 when t h ere was no threat of physical endangerment. Accordingl y, the AJ held that the agency proved by preponderant evidenc e that Roach was ins ubordinate on two occasions on September 1, 2004. Regarding the third charge, based on testimony and credib ility determinations, the AJ determined that the agency proved by preponderant evidenc e that Roach intended to make false allegations against her supervisor. With regard to the fourth charge, the AJ found that Roach’s statements on Sept ember 1 and 2, 2004 caus ed anxiety and disruption in the workplace. The AJ considered Roach’s affirmative defenses, harmful error and retaliat i on for protected union activ i ty, and found that Roac h failed to prove these defenses by a preponderance of the evidenc e. Finally, the AJ considered the reasonab leness of the

06-3241 2penalty imposed and found that the 120-day suspension was within the bounds of reasonableness. The initial decision became the fi nal dec ision of the Board. See 5 C.F.R. § 1201.113. Roach timely appealed to this c o urt, and we have juris d iction pur s uant to 28 U.S.C. § 1295(a)(9). DISCUSSI ON The scope of our review in an appeal from a decis ion of t he Board is limited. We must affirm the Board’s decision unless it was “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; (2) obtai ned withou t procedures required by law, rule, or regulation hav ing been followed; or (3) unsupported by substantial evidence.” 5 U.S.C. § 7703(c) (2000); see Briggs v. Merit Sys. Prot. Bd. , 331 F.3d 1307, 1311 (Fed. Cir. 2003) . A Board decision is uns upported by substantial evidenc e when it lack s “such relevant evid ence as a reasonable mind might accept as adequate t o support a conclus i on.” Matsushita Elec. Indus. Co. v. United States , 750 F.2d 927, 933 (Fed. Cir. 1984) (quoti ng Consol. Edison Co. v. NLRB , 305 U. S. 197, 299 (1938)). Roach argues that the Board erred in seve ral of its credibility dete rminations and that several witness e s misrepresented material facts. Roach also contends that the Board failed to consider and gi ve weight to various new evidence presented to the Board. Roach further assert s that the Board “inc orrectly interpreted the negotiat e d agreement and denied Roac h due process

. ” Finally, Roach c o ntends that her 120-day suspension was unreasonable.

06-3241 3The government responds that the AJ’s factual determinations ar e supported b y substantial evidenc e and that the AJ’s credibility determinations were not in error. The government contends that the AJ specifically addressed conflicting testimony in reaching it s decision. The government al so responds that the penalty imposed upon Roach was reasonable for all f our charges in light of her int entional and malic ious behavior. We agree with the government that substantial evidenc e supports the Board’s determination and that that decis ion was in accordanc e with the law. An AJ’s credibility determinations are “virtually unreviewable” on appea l. Blank v. Dep’t of the Army , 247 F.3d 1225, 1228 (Fed. Cir. 2001). Here, the AJ thoroughly considered and c r edited the testimony, such as the supervisor’s te stimony, because it was corroborated by testimony of three witnesses. We see no er ror in the AJ’s credibilit y determinations. Roach argues that she wa s improperly found to ha ve disobey ed an order when she was c onducting union activ i ties on o fficial time and when she reque sted to be represented by the union. The AJ address ed that argument and determined that Roac h was required to obey her supervi sor’s order unless doing so w ould place her in a clearly dangerous situation. Because there was no such showing, the AJ determined that Roach’s statements and conduct demonstrated her intent to refuse to follow a valid order. The evidence in the rec o rd, such as testimony by various witness e s, support s the AJ’s determination that R oach refused to obey an order. Roach als o argues that the Board erred when it did not state i n its final order whether it gave any weight to new ev idenc e. In a letter dated F e bruary 10, 2006, after the AJ’s initial decis ion, Roach notified t he Board that there was “new evidenc e”

06-3241 4consisting of a copy of a pol ice report that establis hes t hat the 911-call was made at 2:30pm. Roach contends that this new in formation undermines testimony in which the supervisor and direc t or indicat ed a different time as to when the confrontation and subsequent 911-call were made. In its final order, the Board stat ed that it grants petitions f o r review of the AJ’s decis io n only when “signific ant new evidence is presented to us that was not available for consideration earlier.” The Board the n concluded that there was no such evidenc e in this case. Even though the Board may not have expressly referenced the tardy new pi ece of evidenc e, its conclusion denying a petition for review reflects that the Board considered it and declin ed to find t hat it altered the AJ’s decision or t hat it declined to consider it because of its lat e submission. We do not see error in the Board’s decision. Finally, Roach contends t hat her penalty was exc e ssive and was incons istent with other penalties im posed on “similarly situated empl oyees.” Roach c ontends that the government is “well awar e who the employee is .” Howev e r, the evidence of a similarly sit uated employee wa s not in the record before the AJ, and thus we cannot consider it. We defer to the agency’s c h oi ce of penalty unles s it is “so harsh and unconscionably disproportionate to the off ense that it amounts to an abuse of discretion.” Zingg v. Dep’t of Treasury , 388 F.3d 839, 843 (Fed. Cir. 2006) (citation omitted). In light of Roach’s twe n ty-seven years of federal an d military service an d n o prior documented offenses, the agency reduced her penalty from re moval to a 120-day suspension. The AJ determined that t he penalt y was within the bounds o f reasonableness for the sustained misconduct. The agency ’ s choice of penalty, the

06-3241 5120-day suspension, does not am ount to an abuse of discreti on for the four sustained charges of misconduct. We have c onsidered the other ar guments and find them unpersuasive. Bec a use the Board’s decision is supported by subs tantial evidenc e and is not arbitrary, capricious, an abuse of discret ion, or otherwise not in ac c o rdance with the law, we affirm

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