NOTE: This dispositio n is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2006-3321 JUELITHIA G. ZELLARS, Petitioner,

v. DEPARTMENT OF THE AIR FORCE, Respondent.

____________________________ DECIDED: December 6, 2006

____________________________ Before GAJARSA, Circuit Judge , PLAGER, Senior Circuit Judge , and MOORE, Circuit Judge

. PER CURIAM. Petitioner, Juelithia G. Zellars, appeals th e final judgment of the Merit Systems Protection Board (“Board”), affirming the D epartment of the Air Force’s (“Air Force”) non-disciplinary removal of Ms. Zellars from Federal Service. 1 Because the Board’s decision is not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law and is support ed by substantial evidence, we affirm

.

1 Ms. Zellars’ Reply was filed after t he deadline. We are treating this late filing as a motion to extend time under Fed. Cir. R. 26(b) and the motion is granted. Thus, the Reply has been considered in rendering this opinion.BACKGROUND Juelithia G. Zellars was employed by the Air Force as an Office Assistant, GS0318-5, in the Mai n tenance Engineering Section, Oper ations Flight, 11th Civ il Engineering Squadron, lo cated at Bolling Air Force Base , in Washington, D.C. In a notice of proposed removal dated August 3, 2005, the Air Force proposed Ms. Zellars ’ removal for “non-availability,” indicating that she failed for some time to maintain a regular work schedule and had been abs ent excess ively on an ongoing basis. The proposal notice also indic a ted t hat while the abs enc es may have been f o r medical reasons beyond her control, it was the agency’s determination that non-disciplinar y removal was warranted due to her inability to k eep a regular work schedule. Ms. Zellars did not res pond to the proposal notice, and the agenc y deciding official iss u ed a notic e of decision to remove her from her position effective September 9, 2005. Ms. Zellars appealed her removal to the B oard. After an administrative hearing the Administrative Judge (“AJ”) issued an In itial Dec i sion affirming the agency’s removal action, DC-0752050793-I-1 (M.S.P.B. Jan. 4, 2006). The Board then denied Ms. Zellars ’ petition for review, and she appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). DISCUSSI ON The scope of our review of Board decisions is limited by statute. The standar d of review for Board decisions is governed by 5 U.S.C. § 7703(c) (2000), which allows us to set aside a judgment of the B oard only if it is (1) arbitr ary, capricious, an abus e of discretion, or otherwise not in accordance with law; (2) obtained without procedures

2006-3321 2required by law, rule, or regulation hav ing been followed; or (3) unsupported by substantial evidenc e. Upon rev i ew of the administrative record , the AJ’s finding that Ms. Zellars was removable from her position fo r non-availability is s u pported by substantial evidence. An agency can bring a removal action agai nst an e m ployee for excess iv e abse nces even if the absences are excus ed becaus e of poor health. Sc hultz v. United States Navy , 810 F.2d 1133, 1137 n.* (Fed. Cir. 1987). Prolonged abs ences of an employee with no foreseeable end can provide just c ause for removal because it constitutes a burden on the employing agency. Ms. Zell ars does not disput e that, before h e r removal, she was frequently lat e to work or absent due to various medic a l conditions. 2
The record as a whole demonstrates that Ms . Zellars had been absent from work for a signific ant amount of time over a two-year period, and there is no disput e that she lacked the available leave to cover prio r absences , much less anticipated future absences had she not been removed. Severa l me moranda and letters from the Air Force war ned that her continued tardiness and absences could re sult in an adver se action unless she became available for duty on a regular, full-time basis. The documentary evidenc e and testim ony before the AJ also indic a te that the position needed to be filled on a regular, full-time basis. Further, Ms. Zellars communicated to the agency before her removal that she was “ver y sick” and unable to work at that time, and would be on leave without pay until “further notice.” Ptr.’s Bd. Memo. 5. On appeal, Ms. Zellars has not demonstrated revers ible legal error in the Board’s judgment.

2 The record indicates that Ms. Zellars was abs ent 817 hours, or approximately 40% of the time in the 2004 leav e year , and 1013.25 hours or approximately 79% of the time in the 2005 leave year.

2006-3321 3We also find no error in the B oard’s determination that Ms. Zellars has not demonstrated that her removal was a reprisal for a protected act or that there was a nexus between the alleged retaliatory remova l and the protected act. Ms. Zellars has not provided sufficient evidenc e or argument that a Temporary Restraining Order (“TRO”) against a c o -worker, sought soon a fter her removal was proposed and months after the alleged incident, constitutes a prot ected activity with a nexus to the remova l action. Thus the retaliation allegation is not supported by substantial ev idence and the Board’s determination that Ms. Zellers failed to prove retaliation is not arbitrary, capricious, or contra ry to the law. Additionally , Ms. Zellars appeals t he Boar d’s judgment that t here was no harmful error in the procedures used to decide that she should be removed. To demonstrate that procedural errors rise to the level of har mful errors, Ms. Zellar s must demonstrate that a procedural error occurred and that the error caused the agency to reach a conclus i on different from t he one it would have reached in the abs ence of error. See 5 C.F.R. § 1201.56(c)(2); 5 U.S. C. § 7701(c)(2)(A). The reco rd indicates that the AJ considered the Air Force’s efforts to deliver the notice of proposed removal by certified and regular mail, the affidavit of a manager at the District Hei ghts/Forestville Post Office that described the process by which it s o rts and identif ies delivery addresses, and evidence regarding the Post Offi ce’s deliver y attempts at Ms . Zellars’ address. The AJ weighed this evidence against Ms . Zellars’ stat ement that she did not receive the notice until after the removal action had been effe cted and that the letter was incorrectly

2006-3321 4addressed. 3 The Board’s judgment t hat there was no harmful error is supported by substantial evidenc e. Finally, Ms. Zellars as serts that the AJ failed to consider that the agency refused to allow her to improve her at tendance and that t he penalty of removal was not reasonable. We find that the record and the testimony of Air Force personnel regarding the agenc y’s weighing of aggravating and mitigating factors against the penalty selection s upport the Board’s ju dgment that the Air Force’s penalty selection was not an abuse of discretion or ot herwise arbitrary, capric ious, or unreasonable. For the foregoing reasons, we affirm the Board’s judgment. No costs.

3 The notice of propos ed removal letter was address ed to Ms. Zellars’ correct street address, District Heights, MD , 20747 and Ms. Zellars claims that it should have been addressed to Forestvill e, not District Heights

. Howev e r, the District Heights and Forestville designations are evidently bo th acceptable for any letter having a zip code of 20747 and since the zi p code and street address we re c o rrectly listed on the letter, the unrefuted evidence indicates that the city des ignation should have no bearing on its deliv ery.

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