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

06-3265 JANICE A. ZGONC, Petitioner,

v. DEPARTMENT OF DEFENSE, Respondent.

__________________________ DECIDED: November 9, 2006

__________________________ Before MICHEL, Chief Judge , RADER and LINN, Circuit Judges

. PER CURIAM. Janice A. Zgonc (“Zgonc”) appeals a decision of the Merit Systems Protection Board (“Board”), adopting the det ermination of the administrative judge (“AJ”), which affirmed the Department of Defense’s (“Agen cy”) decision to remove Zgonc from her position of Technical Information Specialist. Zgonc v. Department of Defense , No. DC0432-05-0740-I-1 (M.S.P.B. Nov. 3, 2005) (“ Initial Decision ”). The Initial Decision became the final decision of the Board when the Board denied Z gonc’s petition for review. Zgonc v. Department of Defense , No. DC-0432-05-0740-I-1 (M.S.P.B. May 12, 2006). Because the Board’s decis ion is not arbitrary, capricious, an abuse of discretion, or otherwise not in accordanc e with law and is supported by substantial evidence, we affirm

.BACKGROUND Zgonc worked as a Technical Information Specialist for the Agency’s Research & Archiving Branch, Information Management Divis ion, Joint Secretariat and was required to meet performance standards regarding productivity and error rates. On May 15, 2003, John C. Krysa (“Krysa”), the Chief of the Information Management Division, issued a memorandum, establishing that each Technical Information Specialist was to complete at least thirteen packages per day with an error rate not to exceed 0.10. In June 2004, Zgonc’s performance was rated unacceptable for failing to meet those requirements. On June 29, 2004, Zgonc’s s upervisor, Ms. Elizabeth Burns (“Burns”), notified Zgonc that she would be placed on a Performance Improvement Plan for ninety days, during which time Zgonc and Burns met weekly to review Zgonc’s performance. On October 4, 2004, after the ninety-day period, Burns proposed that Zgonc be removed from her position for unacceptabl e performance and, on No vember 13, 2004, the Agency removed Zgonc from service. On November 5, 2004, Zgonc sought correct ive action from the Office of Special Counsel, alleging that she was removed in re taliation for whistleblower disclosures. On August 18, 2005, Zgonc petitioned for review of the Agency’s removal decision by the Board, asserting affirmative defenses of age discrimination and reprisal for whistleblowing activity. On November 3, 2005, after a hearing, the AJ affirmed the Agency’s removal action and concluded that Z gonc failed to meet her burden of proof on the affirmative defenses. Initial Decision , slip op. at 3-11. On January 3, 2006, the Office of Special Counsel notified Zgonc that it was terminating its investigation of her complaint because “the [Board] has already adj udicated the very issues that we would

06-3265 2bring before it if we conc luded that a prohibited pers onnel practice had been committed here.” The Initial Decision became the final decision of the Board on May 12, 2006. Zgonc timely appealed to this court. We have jurisdiction under 28 U.S.C. § 1295(a)(9). DISCUSSION A. Standard of Review Our scope of review in an appeal from a decision of the Board is limited. Specifically, we must affirm the Board’s dec ision unless we find it to be arbitrary, capricious, an abuse of discretion, or other wise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evi dence. 5 U.S.C. § 7703(c); Cheeseman v. Office of Pers. Mgmt. , 791 F.2d 138, 140 (Fed. Cir. 1986). The petitioner bears the burden of establishing error in the Board’s decision. See Cheeseman , 791 F.2d at 140. B. Analysis Zgonc argues that it was erro r for the Board to consider her allegations of reprisal for whistleblowing because Zgonc did not int end to plead that claim as an affirmative defense before the Board; rat her, she was seeking correctiv e action from the Office of Special Counsel. Zgonc requests that we determine that her whistleblower claim was not properly adjudicated so that the Office of Special Counsel can proceed with its investigation of this matter. 5 U.S.C. § 1214(a) provides, in relevant part, that: (1) in an otherwise appealable action, an employee may seek corrective ac tion from the Board for reprisal for whistleblowing without first seeking corrective action from the Office of Special Counsel;

06-3265 3or (2) in an action that is not otherwise appealable, an employee must first seek corrective action for reprisal for whistleblowi ng from the Office of Special Counsel. Although Zgonc argues that she did not intend to plead a whistleblower claim before the Board, substantia l evidence, outlined below, suppor ts the conclusion that she placed this claim before the Board as an affi rmative defense. Specifically, the record establishes that, on August 18, 2005, Zgonc asserted a whistleblower claim before the Board in an otherwise appealable action under which the Board had jurisdiction pursuant to 5 U.S.C. § 4303(e). In the sect ion entitled “Whistleblowing Activity” on the appeal form that Zgonc filed wit h the Board on that date, Z gonc answered affirmatively the question asking if she had made a protected disclosure. Zgonc completed all required parts of that form to properly assert before the Board her belief that the action she was appealing was in retaliation for whis tleblowing. Although Zgonc noted that the “whistle blower [sic] complaint is distinct fr om this complaint . . . and filing on that matter would be premature,” Zgonc subsequently provided t he Board with a prehearing submission, filed on October 6, 2005, reciti ng in detail the fact s in support of her whistleblower claim. Furthermore, Zgonc repeatedly raised her whistleblower claim both at the hearing and in a memorandum to t he AJ, filed after the hearing to “correct the record,” asserting that the Agency had motivation for reta liation. Given this record, we hold that the Board did not err in adjudicating her whistleblower claim. Zgonc next asserts that the Board err ed in affirming the removal decision, arguing that, because she received a withi n grade increase on June 15, 2003 and a cash award on January 24, 2004, her work at the Agency was at an acceptable level of competence. Zgonc’s general allegations that she performed at an acceptable level are

06-3265 4not sufficient to overcome or rebut the substantial evidenc e that supports the Agency’s determination that she did not meet the requirement that each Technical Information Specialist was to complete at least thirt een packages per day with an error rate not to exceed 0.10. Moreover, Zgonc does not di spute that she failed to meet this requirement. Zgonc also argues that the Board e rred in affirming the removal decision because the Agency erroneously relied upon undoc umented errors, putting Zgonc in the position of not knowing what kind of errors were relied upon in support of the removal decision. In addressing this argument, the Board credited the Agen cy’s testimony that “while some of the errors could not be demonstrated on the review sheets every one was discussed in [the] weekly meet ings [between Zgonc and Burns].” Initial Decision , slip op. at 6. Because t he administrative judge is in the best position to evaluate credibility, her credibility determinations are “virtua lly unreviewable” on appeal, see Hambsch v. Dep’t of the Treasury , 796 F.2d 430, 436 (Fed. Cir. 1986), and will not be disturbed unless inherently impr obable, discredited by undisput ed evidence, or contrary to physical facts, Hanratty v. Dep’t of Transp. , 819 F.2d 286, 288 (Fed. Cir. 1987). Zgonc’s allegations that cert ain unspecified errors were improperly relied upon by the Agency merely because they were not demons trated on the review sheets do not meet the high burden required to dist urb the administrative judge’ s credibility determinations that those errors were sufficiently discuss ed with Zgonc to put her on notice. Based upon this credibility determination, we see no error with the Board’s finding that the Agency properly informed Zgonc of her per formance errors and properly considered those errors in calculating Zgonc’s error rate. Initial Decision , slip op. at 6.

06-3265 5Finally, Zgonc argues that the AJ commi tted procedural error by allowing the government to file a brief out of time, that the AJ denied her right to a hearing, and that the AJ failed to recuse herself. These argum ents relate to a separate case that is pending before the Board and ar e not properly before us for review. We have considered Zgonc’s remaining arguments and find them to be without merit. CONCLUSION For the foregoing reasons, we conclude that the Board’s decision affirming the penalty of removal is supported by substantia l evidence, is not an abuse of discretion, and does not otherwise contain reversible erro r. Accordingly, we affirm the Board’s decision.

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