Mario E. CARDONA, Petitioner, v. UNITED STATES POSTAL SERVICE, Respondent, 29 F. App'x 603

PER CURIAM. Mario E. Cardona seeks review of the March 27, 2001, decision of the Merit Systems Protection Board, No. DA0752010196-I-1, affirming his dismissal from the United States Postal Service. We affirm. Cardona has served as a rural letter carrier for three years. While servicing his route, he was spotted throwing mail into a dumpster. During the ensuing investigation, Cardona admitted to throwing away mail but attempted to justify it by explaining that he was “running late” and wanted to save time.

Our review is limited to setting aside any action that is “(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) (1994). See Yates v. M.S.P.B., 145 F.3d 1480, 1483 (Fed.Cir.1998). Because Cardona admitted to throwing away mail, the board’s finding with regard to that charge is supported by substantial evidence.

The only remaining issue is the reasonableness of the imposed penalty. “It is a well-established rule of civil service law that the penalty for employee misconduct is left to the sound discretion of the agency.” Miguel v. Dep’t. of the Army, 727 F.2d 1081, 1083 (Fed.Cir.1984). An agency’s penalty determination is reviewed for an abuse of discretion and we “will not disturb a choice of penalty within the agency’s discretion unless the severity of the agency’s action appears totally unwarranted in light of all factors.” Mings v. Dep’t of Justice, 813 F.2d 384, 390 (Fed.Cir.1987).

Given the nature of Cardona’s misconduct, dismissal is not “totally unwarranted.”