NOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3245 ROGER A. NELSON, JR., Petitioner,

v. UNITED STATES POSTAL SERVICE, Respondent. Roger A. Nelson, Jr. , of Chicago, Illinois, pro se. Robert C. Bigler , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Ju stice, of Washington, DC, for respondent. With him on the brief were Gregory G. Katsas , Acting Assistant Attorney General, Jeanne E. Davidson , Director, and Reginald T. Blades, Jr. , Assistant Director. Appealed from: Merit S ystems Protection BoardNOTE: This disposition is nonprecedential. 

## United States Court of Appeals for the Federal Circuit

2008-3245 ROGER A. NELSON, JR., Petitioner,

v. UNITED STATES POSTAL SERVICE, Respondent.

Petition for Review of t he Merit Systems Protection Board in CH0752080134-I-1.

__________________________

DECIDED: October 10, 2008

__________________________ Before RADER, LINN, and MOORE, Circuit Judges

. PER CURIAM. Petitioner Roger A. Nelson, Jr. (“Nelson”) pet itions for review of a final decision of the Merit Systems Protection Board (“Board”) affirming his removal by the United States Postal Service (“Postal Service”). Nelson v. U.S. Post Office , CH-0752-08-0134-I-1 (M.S.P.B. Mar. 3, 2008) (“Board Decision ”). Because the Boar d’s decision is in accordance with law and supported by substantial evidence, we affirm

. Nelson was a City Letter Carrier at the Ja ckson Park Station of the Chicago Post Office. Board Decision at 1. The Postal Service remov ed Nelson for failure to maintain regular attendance, as a result of abs ences between September 19, 2006 and August 22, 2007. Id. at 2. Nelson admitt ed to 598.6 hours of unscheduled absences in thateleven-month period. Id. at 4. On August 14, 2007, Nelson’s supervisor Bernadine Keys initiated proceedings to remove Nelson. Id. at 6. On November 7, 2008, Valarie Carter, the Manager of Customer Services Operations for t he Postal Service’s Chicago District, issued a letter of decision removing Nelson. Nelson appealed his removal to the Boar d. Following a hearing at which Keys, Carter, and Nelson testified, an administrat ive judge of the Boar d issued an initial decision affirming Nelson’s removal. Nelson did not petition for review by the Board, so the initial decision became final on April 7, 2008. Id. at 11. Nelson appeals to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). “Our scope of review in an appeal from a decision of the Board is limited. Specifically, we must affirm the Board’s deci sion unless we find it to be arbitrary, capricious, an abuse of discret ion, or otherwise not in a ccordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidenc e.” Abell v. Dep’t of Navy , 343 F.3d 1378, 1382-83 (Fed. Cir. 2003) (citing 5 U. S.C. § 7703(c)). “The pet itioner bears the burden of establishing error in the Board’s decision. ” Harris v. Dep’t of Veterans Affairs , 142 F.3d 1463, 1467 (Fed. Cir. 1998). Nelson raises three arguments on appeal . First, Nelson argues that his termination was the result of retaliation for le tters that he had written complaining about Keys’s and Carter’s management. To establis h a prima facie case of retaliation for whistleblowing activity, an employee must show by a preponderance of the evidence that (1) he engaged in whistleblowing activity by making a disclosure protected under 5 U.S.C. § 2302(b)(8), and (2) th e protected disclosure was a contributing factor in a

2008-3245 2personnel action. 5 U.S.C. §§ 1221(e)(1), 2302(b)(8); Briley v. Nat’l Archives & Records Admin. , 236 F.3d 1373, 1378 (Fed. Cir. 2001); Carr v. Soc. Sec. Admin. , 185 F.3d 1318, 1322 (Fed. Cir. 1999). In this case, the Boar d credited Keys’s testimony that she had no knowledge of Nelson’s letters at the time she initiated termination proceedings, and it therefore concluded that the letters could no t have been a contributing factor in Nelson’s removal. Board Decision at 6. Nelson offers no reas on for us to disturb the Board’s credibility determination on this point. See Rogers v. Office of Pers. Mgmt. , 87 F.3d 471, 472 (Fed. Cir. 1996) (“[C] redibility determinations [of an administrative judge] are ‘virtually unreviewable.’” (quoting Hambsch v. Dep’t of Treasury , 796 F.2d 430, 436 (Fed. Cir. 1986))). Likewise, t he Board concluded that, even assuming that Carter knew of Nelson’s complaints at the ti me that she issued the letter of removal, Nelson “failed to present any evidence establishing that t here is a genuine nexus between the alleged retaliation and the adverse action.” Board Decision at 7. On appeal, Nelson has again failed to identify any evidence suggesting that his letters were a “contributing factor” in his removal. We therefore conclude that t he Board’s rejection of Nelson’s retaliation argument was in accordance with law. Second, Nelson argues that the Board improperly co nsidered an earlier fourteenday suspension when determining whether removal was an appropriate penalty. Following previous disciplinar y proceedings in 2006 that resulted in a fourteen-day suspension, Nelson and the Postal Service en tered into a settlement agreement. Under the agreement, if Nelson met certain c onditions going forward, the fourteen-day suspension would be removed from his record; if he failed to meet the conditions, the suspension would remain part of his record. Nelson admitted at the hearing in this case

2008-3245 32008-3245 4 that he had failed to meet the conditi ons of the settlement agreement. Id. at 9. The Board therefore did not err by cons idering the fourt een-day suspension. Finally, Nelson argues that he was not al lowed to present t he testimony of any witness who could have rebutted the testimony of Keys and Carter. Nothing in the record indicates that Nelson was prohibited from calling wit nesses at the hearing. In fact, Nelson testified on his own behalf at the hearing. Moreover, the record indicates that, prior to his appeal, Nelson received a copy of the Board’s r egulations, along with a telephone number that he could call “[f]or fu rther information on appeal procedures.” Resp’t’s App. at 19. Board procedures generally allow appellants to call witnesses at hearings. See, e.g. , 5 C.F.R. §§ 1201.31-37; 1201.51-64. Nelson has identified no evidence suggesting that the Board failed to follow its own procedures. We find no support in the record for Nelson’s allegation t hat he was not allowed to call witnesses. For the foregoing reasons, we affirm the decision of the Board. COSTS No costs.