Parker v. Department of Veterans Affairs

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

05-3076

LAVONZER V. PARKER,

Petitioner,

v.

DEPARTMENT OF VETERANS AFFAIRS,

Respondent.

____________________

DECIDED: May 5, 2005
____________________

Before MICHEL, Chief Judge, LOURIE and BRYSON, Circuit Judges.

PER CURIAM.

Lavonzer V. Parker petitions for review of the final decision of the Merit Systems

Protection Board affirming the agency’s decision to remove him from employment for

unauthorized sale of government property. Parker v. Dep’t of Veterans Affairs, No. SF-

0752-04-0248-I-1 (M.S.P.B. Sept. 28, 2004). We affirm.

BACKGROUND

Lavonzer V. Parker was formerly employed as a Supply Technician at the

Veterans Administration’s Medical Center in Palo Alto, California. In that position,

Parker’s primary duty was to process the agency’s “excess” property (such as used

computers), including the preparation of lists describing the “excess” property,

advertisement of the property, and interacting with potential buyers. Parker, No. SF-
0752-04-0248-I-1, slip op. at 3-5. Once Parker found a potential buyer, he was required

to inform his supervisor, Mr. Grissett, and Grissett, in turn, would prepare a sales

document and collect payment. Id., slip op. at 5. There is no dispute that Parker did not

follow this standard processing protocol, and, on February 10, 2003, the agency

removed him from employment for conducting unauthorized sales of government

property. Specifically, on eleven separate occasions, the agency charged Parker with

selling government property to individuals and private entities “without completing all of

the required sales documents and without authorization [from Grissett].” Id., slip op. at

2.

The Administrative Judge (“AJ”) held a hearing and affirmed the agency’s

removal of Parker, concluding that Parker failed to comply with written and oral

directions and policies established by his supervisors. Based on testimony from agency

officials, the AJ rejected Parker’s contention that agency officials did not instruct him on

the proper procedure for selling government property. According to the AJ, agency

officials testified that they directly informed Parker that Grissett must first approve all

sales of government property. Id., slip op. at 6-9. The AJ found the testimony from the

agency officials credible. The AJ also found that memoranda and e-mails sent to

Parker outlining the proper procedure for selling government property supported the

agency officials’ testimonies. Id. Furthermore, the AJ noted that Parker signed an

attendance sheet for a training class relating to selling procedure. Id., slip. op at 7.

The AJ rejected Parker’s claims of disparate treatment due to race and reprisal

for prior whistleblowing disclosures. Regarding the racial discrimination charge, the AJ

determined that Parker failed to allege or demonstrate that agency officials had taken

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adverse action against him due to his race. Id., slip op. at 12. With respect to his claim

of reprisal for alleged whistleblowing disclosures, the AJ found that Parker presented no

evidence that his supervisors even knew of his prior whistleblowing disclosures.

Parker did not petition the full Board for review of the AJ’s decision, rendering

that decision final. Parker timely appealed to this court. We have jurisdiction pursuant

to 28 U.S.C. § 1295(a)(9).

DISCUSSION

Congress has expressly limited the scope of our review in an appeal from the

Board. Specifically, we must affirm the Board’s decision unless we find it to be arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law; obtained

without procedures required by law, rule, or regulation having been followed; or

unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000); Ellison v. Merit Sys.

Prot. Bd., 7 F.3d 1031, 1034 (Fed. Cir. 1993). “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)).

On appeal, Parker appears to argue that the AJ did not give his testimony proper

weight and that, contrary to the AJ’s finding, certain agency officials knew that Parker

was selling government property (and presumably allowed it). However, it is well-

settled that the Board’s credibility determinations are virtually unreviewable, and the AJ

made such determinations. Hambsch v. Dep’t of the Treasury, 796 F.2d 430, 436 (Fed.

Cir. 1986). Thus, absent compelling evidence to the contrary, we will not second-guess

05-3076 -3-
the weight that the AJ gave to Parker’s testimony. Here, Parker does not point to any

portion of the record to support his credibility argument. Moreover, Parker does not

provide, and we cannot find in the record before us, any evidence supporting his

allegation that agency officials knew he, by himself, was selling government property.

Accordingly, we affirm the Board’s decision.

05-3076 -4-