NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
BRIAN PROBASCO,
Petitioner,
v.
DEPARTMENT OF THE AIR FORCE,
Respondent.
__________________________
2010-3182
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. DE0752090168-I-2.
____________________________
Decided: March 14, 2011
____________________________
BRIAN PROBASCO, of Roy, Utah, pro se.
ARMANDO RODRIGUEZ-FEO, Trial Attorney, Commer-
cial Litigation Branch, Civil Division, United States
Department of Justice, of Washington, DC, for respon-
dent. With him on the brief were TONY WEST, Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
DONALD E. KINNER, Assistant Director. Of counsel was
MICHELE R. ZELLERS, Attorney, Federal Litigation
PROBASCO v. AIR FORCE 2
Branch, Air Force Legal Operations Agency, United
States Air Force, of Arlington, Virginia.
__________________________
Before LOURIE, PLAGER, and DYK, Circuit Judges.
PER CURIAM.
Brian Probasco petitions for review of the final deci-
sion of the Merit Systems Protection Board (“the Board”)
upholding the Air Force’s decision to remove him from
employment. Probasco v. Dep’t of the Air Force, No. DE-
0752-09-0168-I-2 (M.S.P.B. Sept. 29, 2009) (“Initial Deci-
sion”), (M.S.P.B. July 16, 2010) (“Final Order”). We
affirm.
BACKGROUND
From 2004 until his removal in January 2009, the Air
Force (“the Agency”) employed Probasco as an Aircraft
Mechanical Parts Repairer. In addition to his primary
position, Probasco served on the Agency’s Voluntary
Protection Program (“VPP”) committee. As a member of
the VPP committee, Probasco brought safety issues to the
attention of management.
On the morning of November 8, 2008, Probasco re-
quested medical leave from his immediate supervisor, Jeff
Ivers, for surgery scheduled for November 13, 2008.
Later that morning, Probasco left a Family and Medical
Leave Act (“FMLA”) form in Ivers’ office when Ivers was
not present. Probasco returned later to discuss his leave
request, at which point Ivers claims that Probasco used
obscenities and threatened that if Ivers did not grant the
leave, he would disrupt the work schedule and crew.
There were no other witnesses to the exchange.
3 PROBASCO v. AIR FORCE
Later that day, Ivers discovered that Probasco had
initialed a work checklist, known as a “6-S” sheet, in a
manner that indicated that specific tasks had been com-
pleted for the entire month of November, although the
month was not yet over. Ivers called Probasco into his
office. Probasco’s fourth-level supervisor, Shane Olson,
also entered the office. Ivers alleges that Probasco pro-
ceeded to confrontationally question both him and Olson.
Upon returning from medical leave, on November 17,
2008, the Agency placed Probasco on administrative leave
pending disciplinary action. On November 25, 2008, the
Agency proposed Probasco’s removal for the charges of
use of offensive language and insubordinate defiance of
authority. On December 3, 2008, the Agency contacted
the physician’s assistant whose signature appeared on
Probasco’s FMLA form to verify the signature based on its
similarity to Probasco’s handwriting. The Agency discov-
ered that Probasco had forged the signature. Accordingly,
on December 8, 2008, the Agency issued a new notice of
proposed removal that added a lack of candor charge.
On January 12, 2009, Probasco’s fifth-level supervi-
sor, Terry Morris, sustained all three charges and decided
to remove Probasco from employment with the Agency.
The removal became effective January 30, 2009, and
Probasco appealed to the Board.
In an initial decision, the Administrative Judge (“AJ”)
upheld the Agency’s removal decision. The AJ first de-
termined that the Agency had proven two of the three
charges—use of offensive language and lack of candor.
The AJ also determined that the Agency had proven that
its removal action was reasonable and that it was taken
to promote the efficiency of the service. Initial Decision,
at 11-12, 14, 23-25.
PROBASCO v. AIR FORCE 4
The AJ next held that Probasco had failed to prove
any of his defenses. Id. at 14-21. The AJ determined that
Probasco had failed to prove that he was denied due
process of law, id. at 19-20, or that he was removed in
retaliation for (1) engaging in protected equal employ-
ment opportunity activity, id. at 14-15; (2) filing a com-
plaint with the Occupational Safety and Health
Administration (“OSHA”), id. at 18; and (3) invoking his
FMLA rights, id. at 18-19. The AJ then determined that
even if Probasco had met his burden to show that he
engaged in whistleblowing activity and that this activity
was a contributing factor in his removal, the Agency had
met its burden of showing that it would have removed
Probasco absent any whistleblowing. Id. at 16-18. Fi-
nally, the AJ determined that Probasco had not proven
that the Agency had violated the FMLA by contacting the
physician’s assistant to verify the signature on Probasco’s
FMLA form. Id. at 20-21.
Probasco filed a petition for review by the full Board,
which the Board denied on July 16, 2010, making the AJ’s
initial decision the final decision of the Board. Probasco
appealed to this court. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9) and 5 U.S.C. § 7703(b)(1).
DISCUSSION
The scope of our review in an appeal from a decision
of the Board is limited. We must affirm the Board’s
decision unless we find it to be “(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) un-
supported by substantial evidence.” 5 U.S.C. § 7703(c);
see also Kewley v. Dep’t of Health & Human Servs., 153
F.3d 1357, 1361 (Fed. Cir. 1998). The petitioner bears the
5 PROBASCO v. AIR FORCE
burden of establishing error in the Board’s decision.
Harris v. Dep’t of Veterans Affairs, 142 F.3d 1463, 1467
(Fed. Cir. 1998). Probasco advances several arguments on
appeal. We address each in turn.
I.
Probasco first argues that the AJ erred in not ad-
dressing arguments that were not included in Probasco’s
prehearing submissions. This includes Probasco’s claim
that the Agency violated its own policies by allowing
Morris rather than Roy Castoreno, Probasco’s second-
level supervisor, to initiate the removal. Probasco asserts
that he became aware of the violation only after the first
hearing on April 23, 2009, after belatedly obtaining an
Agency memorandum that should have been provided
during discovery.
We need not decide whether the AJ abused his discre-
tion in declining to consider Probasco’s arguments as to
the alleged violation of the Agency’s policy, for we con-
clude that any oversight would have been harmless error.
The Agency memorandum cited by Probasco does not
establish that the Agency was prohibited from substitut-
ing a higher-level supervisor as the initiating official for
proposing an adverse action. In such cases, we have held
that the replacement of an initiating official by a higher-
level official is prohibited only if the substitution is made
“after the lower-level official reaches a decision.” Bross v.
Dep’t of Commerce, 389 F.3d 1212, 1218 (Fed. Cir. 2004).
Here, Probasco has not alleged or presented any evidence
that Castoreno considered Probasco’s case and reached a
decision before Morris was substituted as the initiating
official. Thus, Probasco could not have prevailed on this
theory, and the AJ’s refusal to consider Probasco's argu-
ments was at most harmless error.
PROBASCO v. AIR FORCE 6
II.
Probasco also argues that the AJ erred by not con-
cluding that the Agency twice violated the FMLA by (1)
first, denying his request for medical leave, which caused
him to forge the signature of the physician’s assistant;
and (2) second, calling the physician’s assistant to verify
his FMLA form, which resulted in his removal. In his
own words, Probasco claims that “[i]f the Agency had not
violated the FMLA first [by denying his leave request],
Mr. Probasco would not have violated the FMLA at all.”
And “[i]f the Agency had not violated the FMLA a second
time by contacting Mr. Probasco’s health care provider, it
would not have known that Mr. Probasco signed the form
himself.” Pet. Inf. Br. 12.
We find no merit to Probasco’s arguments. First, Pro-
basco points to no evidence that the Agency at any point
denied his medical leave; rather, Ivers granted Probasco
leave for his surgery. See R.A. 63-64. Second, the FMLA
regulations prohibit an agency from contacting an em-
ployee’s healthcare provider to clarify the medical certifi-
cation without the employee’s permission, 5 C.F.R.
§ 630.1207(c), and they require that if the agency doubts
the validity of the medical certification, the agency may
require the employee to seek a second medical opinion at
the agency’s expense, id. § 630.1207(d). These regula-
tions, as the AJ correctly concluded, Initial Decision, at
20-22, thus prohibit an agency from contacting a health-
care provider to verify the validity of the medical condi-
tion without permission, but they do not prohibit the
agency from verifying the validity of the underlying leave
form itself. Accordingly, the Agency did not violate the
FMLA by contacting the physician’s assistant to verify
that Probasco had forged his signature on the FMLA
form.
7 PROBASCO v. AIR FORCE
III.
Probasco next argues that the AJ erred in finding that
Morris had no motivation to retaliate against him for
whistleblowing. Specifically, Probasco faults the AJ for
not discussing Castoreno’s testimony that Morris wanted
Probasco fired for reporting safety violations in his role on
the VPP committee. According to Probasco, by failing to
consider this evidence, the AJ failed to place the appro-
priate burden on the Agency that it “would have,” rather
than “could have,” fired Probasco absent any whistleblow-
ing activity.
Again we disagree. In concluding that the Agency
had met its burden of showing by clear and convincing
evidence that it would have removed Probasco absent any
whistleblowing, the AJ relied not only on finding that the
safety disclosures did not directly implicate Morris, giving
him little motive to retaliate. The AJ also relied on the
lack of evidence that the Agency treated Probasco more
harshly than other employees for similar misconduct, and
the strength of the Agency’s removal case against Pro-
basco, including the extremely serious nature of the
proven lack of candor charge as well as the evidence
underlying the insubordination charge that Probasco had
threatened to disrupt production at a military installation
during a time of war. Id. at 16-17. Moreover, in making
the finding of no motive to retaliate, the AJ expressly
credited Morris’s testimony that he viewed some of the
reported injuries as inherent in the nature of the work
and thus beyond his control. Id. at 17. Accordingly, the
finding challenged by Probasco relies on “virtually unre-
viewable” credibility determinations. King, 133 F.3d at
1453. The AJ appears to have credited Morris’s testi-
mony, not Castoreno’s, and did not, as Probasco claims,
PROBASCO v. AIR FORCE 8
improperly shift the burden to him to prove Morris’s
animus.
IV.
Finally, Probasco argues that, with regard to his
whistleblowing defense, the AJ erred in concluding that
Probasco was not treated more harshly than other simi-
larly situated employees. Probasco claims that the AJ
erred in finding there were not similarly situated employ-
ees when employees who engaged in some similar mis-
conduct were not disciplined at all. Probasco also claims
that the AJ improperly shifted the burden onto him to
show that the proposed similarly situated employees were
not whistleblowers.
We see no error in the AJ’s analysis. Probasco relied
on situations in which an employee allegedly forged a note
from a healthcare provider, in which an employee submit-
ted fraudulent reimbursement vouchers, and in which two
employees used profanities. In no case was an employee
disciplined for the misconduct. The AJ first noted that
there was no evidence that those employees were whistle-
blowers, and thus no evidence that the lack of disciplinary
action in those cases resulted from the Agency’s violation
of whistleblower protection rather than a decision not to
discipline. Then, rather than placing the burden on
Probasco to show that the employees were not whistle-
blowers, the AJ assumed that they were not. Initial
Decision, at 17. Yet, the AJ then found that none of the
employees engaged in both the use of vulgar language
and lack of candor, and none threatened to disrupt pro-
duction. Id. Accordingly, the AJ did not err in finding
that those employees were not similarly situated, and
thus their punishment, or lack of punishment, is irrele-
vant to this case.
9 PROBASCO v. AIR FORCE
CONCLUSION
We have considered Probasco’s remaining arguments
and find them unpersuasive. Accordingly, we affirm the
decision of the Board upholding the Agency’s removal
decision.
AFFIRMED
COSTS
No costs.