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

05-3121 VICTOR R. JOHNSON, Petitioner,

v. DEPARTMENT OF THE AIR FORCE, Respondent.

___________________________ DECIDED: December 9, 2005

___________________________ Before GAJARSA, Circuit Judge , ARCHER, Senior Circuit Judge , and DYK, Circuit Judge

. PER CURIAM. Victor R. Johnson seeks review of the decision of the Merit Systems Protection Board (“Board”), upholding the decision of the Department of the Air Force (“Department”) to terminate his employment. We affirm

. BACKGROUND The Department employed Johnson as a Machinist. On June 26, 2001, the Department proposed removing Johnson for faili ng to request leave in accordance with established procedures, delaying in carrying out work assignments, failing to comply with a work directive, and failing to comp ly with tool control procedures. After considering a written reply from Johns on’s union representativ e, the Department terminated Johnson’s employment. Johnson appealed this decision to the Board. In an initial decision, the Administrative Judge (“AJ”) affirmed the Department’s removal ofJohnson. The full Board denied review. This petit ion for review followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). DISCUSSION Johnson challenges the Board’s decisi on on a number of grounds. We must affirm the Board’s decision unless it is found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule or r egulation; or unsupported by subs tantial evidence. 5 U.S.C. § 7703(c) (2000); Butterbaugh v. Dep’t of Justice , 1336 F.3d 1332, 1336 (Fed. Cir. 2003). I Johnson makes three procedural argument s. First, Johnson argues that the Board should not have considered his union representative’s reply to the proposed removal (the “Response to the Proposed Remo val”), because it was not authenticated under the Federal Rules of Evidence. The Federal Rules of Evidence do not apply to Board proceedings. Yanopoulos v. Dep’t of Navy , 796 F.2d 468, 471 (Fed. Cir. 1986). Accordingly, we find no merit in this contention. Second, Johnson argues that the full Board wrongfully denied review because he presented “new” evidence on appeal to the full Board in the form of statements written by him and by his union representative, a lleging that the “Response to the Proposed Removal” was not submitt ed by either of them. Johnson points to nothing indicating that this “new” evidence was unavailable dur ing the Board’s initia l consideration. Cf. 5 C.F.R. § 1201.115(d)(1) (2004) (stating that t he full Board may grant review when it is established that “[n]ew and mate rial evidence is available that, despite due diligence, was not available when the record closed”). Johnson argues that the materials were

05-3121 2improperly rejected by the B oard because they were unsworn statements. Johnson has not established that these ma terials were rejected on this ground. Moreover, Johnson proffers no reason why the B oard’s initial consideration of the union representative’s reply was harmful, if it was error at all. See Guise v. Dep’t of Justice , 330 F.3d 1376, 1381-82 (Fed. Cir. 2003). Thus, the Board di d not abuse its discr etion in denying Johnson’s petition for review. Finally, Johnson argues that it was impr oper for the Board to partially quote witnesses and not to cite the hearing tr anscript, because Johnson has no way of verifying the statements. Nothing precl uded Johnson from ordering a transcript of the hearing. See 5 C.F.R. § 1201.53(b) ( 2004) (detailing the procedur es by which a party may obtain a tape or tran script of his hearing); id. § 1201.53(c) (detailing procedure by which a party may obtain a waiv er of the fee normally associated with obtaining a tape or transcript). Johnson’s a ssertion that he was denied t he opportunity to examine the testimony because he does not have a tr anscript is therefore without merit. II Johnson next contends that the Board’s decision upholding his removal was not supported by substantial evidence. The Department’s first charge against Johnson was for failing to request leave in accordance wit h established procedures . Johnson testified that he requested four days of leave from his supervisor, Gary Epler. Johnson also provided an alleged tape-recording of this conv ersation. Epler testified that Johnson requested only three days of leave, and t hat Epler—in accordance with Department policy of approving leave in only three-day increments—approved the leave. Epler further testified that the tape-recording wa s not a genuine recording of the conversation

05-3121 3at issue. The Board found Epler’s versi on of the events credible, noting among other things, Johnson’s vague and evasive demeanor. Credibility determinati ons are virtually unreviewable. Frey v. U.S. Dep’t of Labor , 359 F.3d 1355, 1361 (Fed. Cir. 2004). Accordingly, we find no reason to set aside the Board’s finding that Johnson failed to request leave in accordance with Department procedure. The Department’s second charge against Johnson was for delaying in carrying out work assignments. Epler testified that Johnson refused to sign for work equipment, reported to work without necessary equi pment, and was absent for several hours without prior notification. J ohnson did not dispute these fact s; rather, he attempted to give an explanation for some of the events. The Board found Johnson’s explanations to be insufficient to excuse his conduct. Johns on has provided us no reason to set aside the Board’s decision. The Department also charged Johnson with failing to comply with a directive to work overtime on Saturday, April 21, 2000. Epler testified that he told Johnson of the mandatory overtime on April 20 because J ohnson was absent on April 19, when the decision had been made. Johnson asserted that he did not report to work for overtime because he had not been given 1.5 days of notic e as is required by the collective bargaining agreement. The Board determined that Johns on had violated a direct order by Epler, and that even if 1. 5 days of notice were required in this circumstance, the proper procedure for Johnson would have been to report to work and then file a grievance. See Larson v. Dep’t of the Army , 91 M.S.P.R. 511, 519 (2002). We find no error in the Board’s determination.

05-3121 4The Department’s final charge was for failing to comply with tool control procedures. Epler testified that he and two other employees discovered that Johnson’s toolbox had been unlocked. The Board concluded that it was more likely than not that Johnson had left his toolbox unlocked in violati on of tool control procedures. We find substantial evidence to support the Board’s conclusion. The Board determined that the penalty of removal was appropriate given the Department’s charges. We find no error in this decision. III Johnson finally argues that the Board fa iled to consider that the Department removed him in retaliation fo r his filing an EEO complaint. The Board determined that Johnson failed to show a genuine nexus between his protected activity and the adverse action. See Warren v. Dep’t of Army , 804 F.2d 654, 656 (Fed. Cir. 1986). The Board further held that even if Johnson had establis hed a prima facie case of retaliation, the Department had shown a legitimate, non-discrim inatory reason for the adverse action. See Spahn v. Dep’t of Justice , 93 M.S.P.R. 195, 201 (2003) (s tating that once a prima facie case of discrimination is establis hed, the burden of producti on, not persuasion, shifts to the employer to show evidence of a non-discriminatory reas on for the removal). Johnson has failed to show that this finding is not supported by substantial evidence. CONCLUSION For the foregoing reasons, the Board’s decision is affirmed. COSTS: No costs.

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