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
05-3373
ERCILIA GARCIA,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
__________________________
DECIDED: March 27, 2006
__________________________
Before NEWMAN, SCHALL, and GAJARSA, Circuit Judges.
PER CURIAM.
Ercilia Garcia petitions for review of the decision of the Merit Systems Protection
Board, Docket No. NY315H040257-I-1, dismissing her appeal of termination during the
probationary period because she had failed to establish jurisdiction based on marital status
discrimination, 5 C.F.R. §315.806.1 We affirm the decision of the Board.
1 Garcia v. Dep't of Veterans Affairs, 2004 MSPB LEXIS 3159, No.
NY315H040257-I-1 (Dec. 30, 2004) (initial decision); 2005 MSPB LEXIS 4275 (Aug. 2,
2005) (final decision).
DISCUSSION
The Department of Veterans Affairs appointed Ms. Garcia to the position of
Vocational Rehabilitation Counselor on May 4, 2003. Her first year of employment was
probationary. She was terminated for unacceptable performance, effective April 30, 2004.
Her supervisor of record, Mr. Bernie Finger, assigned Mr. Broderick Ilegbameh to
train and mentor her work. The record states that she exhibited excellent interpersonal
skills in her interactions with veterans; Mr. Finger gave her a fully successful performance
evaluation after her first four months, but advised that her narrative reports needed
improvement. Ms. Garcia acknowledged that there was room for improvement in her work,
but stated that she was concerned about the level of criticism she had been receiving from
Mr. Ilegbameh. At the three-day trial before the Administrative Judge (AJ), there was
extensive testimony concerning her performance, her interactions with Mr. Ilegbameh, his
interactions with other female employees and veteran "clients," and many details
concerning the workplace. Ms. Garcia alleged that Mr. Ilegbameh had sexually harassed
her because she was an unmarried, available female, and then retaliated by undermining
her performance. As summarized in her appeal:
Since the first day I began work at the VA, [Mr. Ilegbameh] has engaged in
regular, daily, sexual harassment of me, creating a hostile work environment,
and essentially a horrible work experience. While I was able to tune this out
when working with the clients and my other colleagues, this sexual
harassment and pursuit was always a paramount issue when dealing in any
way with [Mr. Ilegbameh], always in the air, part of his entire presentation to
me . . . . [Mr. Ilegbameh] even made it perfectly clear that a sexual
relationship with him would be good for my career . . . . As my personal
rejection of his advances became clear to him, [Mr. Ilegbameh] became more
and more abusive and hostile towards me, being generally uncooperative,
even though I needed his assistance. . . .
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The AJ issued a lengthy opinion, with mixed findings as to the credibility of the various
witnesses and the nature and weight of the evidence. See Ellis v. Dep't of Treasury, 81
M.S.P.R. 6, 9 (1999) (where allegations of marital status discrimination and sex
discrimination are so intertwined that no meaningful finding as to one can be made without
consideration of the other, the Board must review both).
The AJ identified the issues, summarized the evidence on each issue, and explained
in detail whose version of events would be accepted. See Hillen v. Dep't of Army, 35
M.S.P.R. 453, 458 (1987) (summarizing the factors to be considered in assessing the
credibility of a witness). A presiding official's credibility determinations are entitled to
deference, and should not be disturbed absent exceptional circumstances. See Anderson
v. City of Bessemer City, N.C., 470 U.S. 564 (1985) (a fact finder's credibility choice
between two witnesses "can virtually never be clear error"); Hambsch v. Dep't of Treasury,
796 F.2d 430, 436 (Fed. Cir. 1986) (credibility determinations of the administrative judge
are "virtually unreviewable").
There were many charges and countercharges. The AJ found that some of Ms.
Garcia's allegations were supported, but that others were not, and ultimately concluded that
Ms. Garcia had not established sexual harassment or marital status discrimination. The full
Board denied review, and Ms. Garcia appeals to this court.
Ms. Garcia challenges the AJ's factual findings and credibility determinations,
requesting that all of the evidence be reexamined. Ms. Garcia acknowledges the
importance of credibility determinations, but asserts that important issues discussed during
the hearing were not discussed in the AJ's decision. For example, she states that it was
brought out during the hearing that several documents submitted to her previous attorney
05-3373 3
during discovery appeared to be forgeries by Mr. Ilegbameh, and that the AJ should have
taken this criminal act into account when weighing the credibility of Mr. Ilegbameh's
testimony. However, Ms. Garcia does not explain what evidence establishes that these
documents were in fact forged, and the record does not support overturning the AJ's
apparent view of this matter.
Ms. Garcia also states that the AJ did not discuss the fact that two other employees,
Ms. Tiaka Wright and Ms. Wanda Richards-Clark, did not have to submit write-ups for an
eight-month review, but only for an end-of-year review; Ms. Garcia states that she received
disparate treatment. The AJ rejected this argument, stating that it was not probative of the
issue of marital status discrimination. Ms. Garcia also states that the AJ failed to consider
her explanations for not reporting the alleged sexual harassment; however, the AJ's opinion
includes the finding that her failure to report these incidents diminished, on the whole, the
plausibility of her account of the events.
The AJ, discussing the evidence, concluded that discrimination based on marital
status had not been established. Substantial evidence supports this decision. See 5
U.S.C. §7703(c); Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620 (1966) ("the possibility
of drawing two inconsistent conclusions from the evidence does not prevent an
administrative agency's findings from being supported by substantial evidence"). "Under
the substantial evidence standard of review, a court will not overturn an agency decision if it
is supported by 'such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.'" Jacobs v. Dep't of Justice, 35 F.3d 1543, 1546 (Fed. Cir. 1994)
(quoting Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)). Further, the
Board's decision was not arbitrary, capricious, an abuse of discretion, or otherwise not in
05-3373 4
accordance with law, and was not obtained without procedures required by law, rule, or
regulation having been followed. See §7703(c). Accordingly, the Board's decision must be
affirmed.
No costs.
05-3373 5