Davis v. Department of Defense

NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit

2008-3292

RONALD A. DAVIS,

Petitioner,

v.

DEPARTMENT OF DEFENSE,

Respondent.

Ronald A. Davis, of Baltimore, Maryland, pro se.

Michael N. O’Connell, Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent. With
him on the brief were Gregory G. Katsas, Assistant Attorney General, Jeanne E.
Davidson, Director, and Reginald T. Blades, Jr., Assistant Director.

Appealed from: Merit Systems Protection Board
 NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
2008-3292

RONALD A. DAVIS,

Petitioner,

v.

DEPARTMENT OF DEFENSE,

Respondent.

Petition for review of the Merit Systems Protection Board in consolidated cases PH-
3443060506-B-2, PH1221070542-W-1, and PH3443070544-I-1.

___________________________

DECIDED: December 5, 2008
___________________________

Before LOURIE, RADER and LINN, Circuit Judges.

PER CURIAM.

Ronald Davis appeals a decision of the Merit Systems Protection Board (the

“Board”) denying certain of his claims against the Defense Department under the

Uniformed Service Employment and Reemployment Rights Act (“USERRA”), the

Veterans Employment Opportunities Act (“VEOA”), and the Whistleblower Protection

Act (“WPA”). Davis v. Dep’t of Def., PH-3443-06-0506-B-2, PH-1221-07-0542-W-1, PH-

3443-07-0544-I-1 (M.S.P.B. Dec. 21, 2007) (“Board Decision”). Because Davis’s

appeal relies on challenges to the Board’s factual determinations that are supported by

substantial evidence, this court affirms.
 I

Mr. Davis is a GS-5 Teller with the Department of Defense, Defense Finance and

Accounting Service (“DFAS”) in Fort Meade, MD. The precipitating event in this appeal

occurred on September 2, 2005, when Davis filed a complaint with the Office of Special

Counsel (“OSC”) disclosing time, attendance, and overtime irregularities regarding his

immediate supervisor, Mr. Lawson J. Smith. DFAS commenced an investigation of

Smith, which ultimately concluded that Smith had not committed attendance fraud. As

a result of the investigation, however, DFAS provided several warnings to Smith

regarding his future behavior on the job.

Davis alleged before the Board that following his complaint to OSC, DFAS

engaged in several acts of unlawful retaliation. Specifically, Davis claimed that DFAS

denied him a certain cash award, detailed him to a different position, moved him out of

his office, subjected him to changes in his duties, denied him a series change and

upgrade, and denied him training. He also alleged that on February 7, 2006, his

supervisor improperly issued him a letter of warning for refusing to perform a task which

Davis claims he could not have performed. Finally, Davis claimed that he was twice not

selected for promotions, once on March 16, 2006 and again on May 11, 2006, in

retaliation for his protected disclosure. On June 13, 2006, Davis filed an appeal with the

Board alleging a violation of his rights under the VEOA (the “first appeal”). On July 30,

2007, Davis filed another Board appeal under the WPA and USERRA (the “second

appeal”). These appeals concerned the aforementioned personnel actions and non-

selection for promotion, and were consolidated into a single appeal.

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 On December 21, 2007, following a three-day hearing, the Boards’ administrative

judge issued an initial decision largely favorable to Mr. Davis. In this decision, the

administrative judge granted Davis’s request for corrective action under the WPA

regarding the disputed non-selection, but denied Davis’s VEOA and USERRA claims

regarding the other personnel actions. Board Decision at 14. As a remedy for DFAS’s

WPA violation, the administrative judge ordered the agency to promote Davis, effective

March 1, 2006, to a GS-06 position of military pay technician and pay him the

appropriate amount of back pay, with interest. Id. at 14. The administrative judge

denied all other relief sought by Davis. Id.

In this appeal, Mr. Davis primarily challenges the Board’s findings regarding the

February 7, 2006 letter of warning issued by Davis’s supervisor. Davis also appears to

challenge the Board’s conclusion regarding his USERRA and VEOA claims. This court

has jurisdiction under 28 U.S.C. § 1295(a)(9).

II

This court must affirm the Board’s decision unless it 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); Forest v. Merit Sys. Prot. Bd., 47 F.3d

409, 410 (Fed. Cir. 1995). This court reviews the Board’s factual determinations for

substantial evidence. Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir.

1998).

As mentioned above, Davis’s supervisor Smith issued Davis a letter of warning

on February 7, 2007. This letter pertained to Davis’s refusal to perform, at Smith’s

2008-3292 3
request, a review of certain travel vouchers. Davis allegedly believed that his status as

a teller/cashier prevented him from performing voucher reviewer duties. Davis argues

that Smith issued the letter of warning in order to retaliate against Davis for his

September 2, 2005 complaint to OSC, in violation of the WPA. He seeks an order from

this court ordering the agency to remove the letter of warning from his personnel

records.

To establish a violation of the WPA, this court requires proof of four elements:

(1) the acting official has the authority to take, recommend, or approve any personnel

action; (2) the aggrieved employee made a disclosure protected under 5 U.S.C. §

2302(b)(8); (3) the acting official used his authority to take, or refuse to take, a

personnel action against the aggrieved employee; (4) the acting official took, or failed to

take, the personnel action against the aggrieved employee because of the protected

disclosure. See Lachance v. White, 174 F.3d 1378, 1380 (Fed. Cir. 1999).

Davis argues that his supervisor deliberately planned and staged the assignment

of voucher review work and subsequent letter of warning in order to retaliate against

Davis for his protected disclosure. This argument relies on attacking the administrative

judge’s factual determinations regarding Davis’ available courses of action when he was

told to perform voucher review. The record reveals, however, that DFAS employees

Jerry Hammons and Sheila Melton testified that Davis was actually authorized to review

travel vouchers despite his status as a teller. According to Hammons and Melton,

Davis’s function would have been simply to ensure the accuracy and completeness of

the voucher information, and he would not have been finally accountable for such

review. Based on this testimony, the Board concluded that the proper course of action

2008-3292 4
would have been for Davis to simply comply with Smith’s directive and later file a

grievance if he so desired. Board Decision at 11. This factual conclusion that Davis

was authorized to perform the work, and thus the assignment and letter were not

retaliatory, is supported by substantial evidence. This court accordingly affirms the

Board’s determination on Davis’s WPA claim.

III

Davis also appeals the Board’s conclusion that DFAS did not violate his

USERRA rights when it did not select him for promotions in 2006. USERRA provides:

“A person who . . . has performed . . . service in a uniformed service shall not be denied

. . . initial employment, reemployment, retention in employment, promotion, or any

benefit of employment by an employer on the basis of that . . . performance of service.”

38 U.S.C. § 4311(a). An employee making a discrimination claim under USERRA must

initially prove by a preponderance of the evidence that his military service was a

motivating or substantial factor in the adverse employment action. See Sheehan v.

Dep’t of the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001). If that initial burden is met, the

agency must then establish by a preponderance of the evidence that it took the adverse

action for valid reasons unrelated to the employee’s veteran status. Id.

Here, the Board found that Davis’s military service was not a motivating factor in

DFAS’s actions for two reasons. First, as a factual matter, there is no temporal

proximity between Davis’s military service, which ended on April 28, 1994, and the

February 7, 2007 letter. Second, the Board’s administrative judge credited the

testimony of Smith, who testified that Davis’s military service weighed in his favor since

he obtained military pay experience while in the military. As to the question of temporal

2008-3292 5
proximity, the Board’s finding is amply supported by substantial evidence. As to Smith’s

testimony regarding his lack of discriminatory intent with regard to Davis’s military

status, this court gives special deference to an administrative judge’s analysis of

credibility. See Hambsch v. Dep’t of the Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986)

(characterizing credibility determinations as “virtually unreviewable”). Thus, this court

affirms the Board’s denial of Davis’s USERRA claim.

IV

With regard to his VEOA claim, it appears that Mr. Davis factually challenges

whether DFAS actually employed a merit promotion plan for the March 16, 2006

selection in which he was not promoted. Again, the resolution of this issue is dictated

by this court’s narrow standard of review. Davis’s challenge relies on attacking the

credibility of his own witness, Ms. Hull, who testified that the March 16, 2006 selection

was made utilizing the merit promotion process. The Board’s administrative judge

credited this testimony in denying Davis’s VEOA claim. This court has consistently held

that “the evaluation of witness credibility is a matter within the discretion of the AJ.”

Frey v. Dep’t of Labor, 359 F.3d 1355, 1361 (Fed. Cir. 2004). As such, this court must

accept the administrative judge’s determination of Ms. Hull’s credibility because the

testimony relied on here was not “inherently improbable or discredited by undisputed

evidence or physical fact.” Gibson v. Dep’t of Veterans Affairs, 160 F.3d 722, 726 (Fed.

Cir. 1998) (internal quotation omitted). Accordingly, this court affirms the Board’s denial

of Davis’s VEOA claim.

2008-3292 6
 V

Because the Board’s decision is fully supported by substantial evidence, in

accordance with law, and not procedurally defective, arbitrary, or capricious, this court

affirms.

AFFIRMED

2008-3292 7