Schab v. Department of Veterans Affairs , 142 F. App'x 449 ( 2005 )

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
05-3096
KEVIN B. SCHAB,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
____________________
DECIDED: July 11, 2005
____________________
Before MAYER, LOURIE, and LINN, Circuit Judges.
PER CURIAM.
Kevin B. Schab seeks review of the final decision of the Merit Systems Protection
Board sustaining his removal by the Department of Veterans Affairs (“VA”). Schab v.
Dep’t of Veterans Affairs, No. CH-0752-04-0668-I-1 (M.S.P.B. Oct. 13, 2004). We
affirm.
DISCUSSION
Schab was removed from his position as a Medical Supply Technician at the VA
based on a charge of failure to maintain a regular work schedule. The supporting
specification alleges that during a one-year period, Schab had sixty-six unscheduled
absences totaling more than five hundred hours. Schab appealed his removal to the
Board.
An Administrative Judge (“AJ”) sustained the penalty of removal, based on ten
documented instances, totaling 74.75 hours, in which Schab had been absent without
leave (“AWOL”). Schab argued that his absences were caused by his illnesses, but the
AJ found that he had failed to provide supporting medical documentation. While
considering Schab’s medical condition to be a mitigating factor, the AJ nevertheless
concluded that it was within the agency’s discretion to impose the penalty of removal,
given the “inherent relationship between a charge of AWOL and the efficiency of the
service.” Id., slip op. at 4. Because Schab did not seek review of the AJ’s initial
decision by the full Board, that decision became final. This appeal followed. We have
jurisdiction under 28 U.S.C. § 1295(a)(9).
We will affirm the Board’s decision unless it was: (1) arbitrary, capricious, or an
abuse of discretion; (2) procedurally deficient; or (3) unsupported by substantial
evidence. 5 U.S.C. § 7703(c) (2000). We discern none of these grounds for reversal.
On appeal, Schab argues that he did provide adequate medical documentation
supporting his absences, and that the AJ failed to fully consider other mitigating
circumstances. Schab’s arguments amount to an invitation for us to re-weigh the
evidence, which, as an appellate tribunal, we cannot do. See Bieber v. Dep’t of the
Army, 287 F.3d 1358, 1364 (Fed. Cir. 2002). The Board had substantial evidence for its
decision and its procedures were not deficient. Moreover, our review of the penalty
imposed by the agency is highly deferential. See id. at 1365. Accordingly, we must
affirm.
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