NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3131
MIROSLAW G. STANASZEK,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
Miroslaw G. Stanaszek, of Chicago, Illinois, pro se.
Roger A. Hipp, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Michael F. Hertz, Deputy Assistant Attorney General, Jeanne E.
Davidson, Director, and Kenneth M. Dintzer, Assistant Director.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2009-3131
MIROSLAW G. STANASZEK,
Petitioner,
v.
UNITED STATES POSTAL SERVICE,
Respondent.
Petition for review of the Merit Systems Protection Board in
CH0752080125-B-1.
____________________________
DECIDED: August 6, 2009
____________________________
Before MICHEL, Chief Judge, LOURIE, Circuit Judge, and CLARK, District Judge. ∗
PER CURIAM.
DECISION
Miroslaw G. Stanaszek appeals from the final decision of the Merit Systems
Protection Board (the “Board”) affirming the removal action of the U.S. Postal Service
(the “Postal Service” or the “agency”). Stanaszek v. U.S. Postal Serv., CH-0752-08-
0125-B-1 (M.S.P.B. Feb. 20, 2009). Because Stanaszek has not demonstrated that the
Board’s decision was contrary to law, unsupported by substantial evidence, or otherwise
reversible, we affirm.
∗
Honorable Ron Clark, District Judge, United States District Court for the
Eastern District of Texas, sitting by designation.
BACKGROUND
On July 31, 2006, the Postal Service proposed to remove Stanaszek from his
position as a letter carrier in Chicago, Illinois, for failure to maintain satisfactory
attendance. Stanaszek filed a grievance, which was resolved by a last chance
agreement, under which the proposed removal was reduced to a long-term suspension.
The agreement also provided that Stanaszek’s failure to comply with its terms, including
a requirement to maintain satisfactory attendance, would result in removal. Satisfactory
attendance was defined in the agreement as no more than two unscheduled absences
in a six-month period and no absences without leave during the one-year term of the
agreement.
On July 27, 2007, the agency proposed to remove Stanaszek for violation of the
agreement, alleging eleven unscheduled absences between January 23 and June 6,
2007. Stanaszek filed another grievance, arguing that he was not scheduled to work on
the dates in question, but the dispute resolution team resolved the grievance against
Stanaszek and found the proposed removal had been issued for good cause. The
Postal Service issued a removal decision, effective November 7, 2007.
On appeal, the administrative judge (“AJ”) initially dismissed Stanaszek’s appeal
for lack of jurisdiction, holding that he had waived his appeal rights. On June 5, 2008,
the full Board granted Stanaszek’s petition for review, reversed the dismissal, finding
that he had not fully waived his right to appeal his removal, and remanded for a decision
on the merits.
On September 26, 2008, on remand, the AJ held that the agency had proven by
a preponderance of the evidence that Stanaszek had violated the last chance
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agreement by incurring eleven unscheduled absences and absences without leave
during a six-month period. The AJ came to this conclusion after making credibility
determinations in favor of the agency’s witnesses, who testified about the general
staffing and overtime procedures at Stanaszek’s post office and about his individual
absences in particular. The AJ also noted that Stanaszek admitted during the hearing
to being absent without leave on February 16-17, 2007, which was sufficient to be a
violation of the terms of the last chance agreement. The AJ further held that the penalty
of removal was reasonable.
Stanaszek filed a petition for review of the AJ’s initial decision. On February 20,
2009, the Board declined review and thus rendered the AJ’s initial decision final.
Stanaszek timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a Board decision is limited. We can
only set aside the Board’s decision if it was “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c) (2006). “In determining whether the [B]oard's
decision is supported by substantial evidence, the standard is not what the court would
decide in a de novo appraisal, but whether the administrative determination is supported
by substantial evidence on the record as a whole.” Parker v. U.S. Postal Serv., 819
F.2d 1113, 1115 (Fed. Cir. 1987). Thus, if the record contains “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion,” it must be
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affirmed. Brewer v. U.S. Postal Serv., 647 F.3d 1093, 1096 (Ct. Cl. 1981) (citation
omitted).
Stanaszek argues that the Board failed to consider evidence he introduced
regarding some of the disputed unscheduled absences. He contends that he was not
absent on two of the dates in question, June 6, 2007, and March 30, 2007, and points to
his pay stubs for support. He also contends that he took emergency leave on February
27, 2008, and not on January 24, 2007. Stanaszek challenges the overall credibility of
the agency’s witnesses and the reliability of the documents submitted at the hearing.
He also asserts that the Board should have applied “the law of common sense and
reasonableness” in deciding his appeal.
In response, the Postal Service argues that Stanaszek fails to dispute the
Board’s finding that he was absent without leave on February 16-17, 2007, which is a
sufficient ground for removal under the last chance agreement. The agency also
asserts that there is no basis for challenging the Board’s credibility determinations,
which are given great deference. Finally, the agency contends that the Board’s decision
was in accordance with the law and the terms of the last chance agreement.
We agree with the Postal Service that the Board’s decision was not contrary to
law, unsupported by substantial evidence, or otherwise reversible. As the agency
points out, Stanaszek does not dispute in his opening brief that he was absent without
leave for two days during the term of the last chance agreement. Although Stanaszek
contends in his reply brief that his admission during the hearing of being absent without
leave on February 16-17, 2007, was incorrect, Stanaszek does not cite any evidence in
the record for support. In addition, the Board’s credibility determinations are “virtually
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unreviewable,” Hambsch v. Dep’t of Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986), and
we see no basis to overturn the Board’s finding here that the agency’s witnesses were
more credible than Stanaszek. We conclude, therefore, that the Board’s factual finding
that Stanaszek was absent without leave for those two days is supported by substantial
evidence, and it is undisputed that any absence without leave is unsatisfactory
attendance under the terms of the last chance agreement. We also conclude that the
Board’s factual findings regarding Stanaszek’s unscheduled absences, many of which
Stanaszek does not individually contest, are supported by substantial evidence. Finally,
Stanaszek’s contention that the Board misapplied the law does not reference any actual
legal error and thus provides no grounds for reversal.
For the foregoing reasons, the Board did not reversibly err in affirming the Postal
Service’s decision to remove Stanaszek. Accordingly, we affirm.
COSTS
No costs.
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