Diaz v. Treasury , 656 F. App'x 1000 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
HECTOR R. DIAZ,
Petitioner
v.
DEPARTMENT OF THE TREASURY,
Respondent
______________________
2016-1819
______________________
Petition for review of the Merit Systems Protection
Board in No. AT-0752-15-0471-I-1.
______________________
Decided: August 3, 2016
______________________
HECTOR R. DIAZ, Lawrenceville, GA, pro se.
VITO SALVATORE SOLITRO, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent. Also represent-
ed by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
ELIZABETH M. HOSFORD.
______________________
Before PROST, Chief Judge, WALLACH and HUGHES,
Circuit Judges.
2 DIAZ v. TREASURY
PER CURIAM.
Hector Diaz appeals from the final order of the Merit
Systems Protection Board sustaining his removal from
the position of Individual Taxpayer Adviser Specialist.
Because the Board’s decision was supported by substan-
tial evidence and was not arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law, we
affirm.
I
Mr. Diaz was formerly employed by the Department
of Treasury (Agency) as an Individual Taxpayer Adviser
Specialist. He was removed from his position after an
altercation with a taxpayer at the Internal Revenue
Service’s Taxpayer Assistance Center in Chamblee,
Georgia. During a hearing in front of the Administrative
Judge, several witnesses, including the taxpayer, testified
that Mr. Diaz and the taxpayer were in a “heated ex-
change” in the walk-in area where employees assist
taxpayers, and that after the taxpayer exited to the lobby,
Mr. Diaz followed her and used profanity in loudly threat-
ening her. Mr. Diaz admitted that he used profanity as
the taxpayer exited the walk-in area, but asserted that he
did so quietly.
The Administrative Judge determined that the wit-
nesses other than Mr. Diaz provided credible testimony,
but found Mr. Diaz’s testimony to be contradicted by other
evidence and internally inconsistent. Based on the other
witnesses’ testimony, the Administrative Judge affirmed
the Agency’s decision to remove Mr. Diaz for unprofes-
sional dealings with a taxpayer and for creating a work-
place disruption. The Administrative Judge also declined
Mr. Diaz’s request to draw an inverse inference against
the Agency for spoliation of evidence, where the Agency
had destroyed audio and video recordings of the incident
in the normal course of business. The Board affirmed the
DIAZ v. TREASURY 3
Administrative Judge’s initial decision as to both deter-
minations.
On appeal, Mr. Diaz argues that the Administrative
Judge erred by relying on the other witnesses’ testimony
and by declining to draw an adverse inference based on
spoliation of evidence. We have jurisdiction under 28
U.S.C. § 1295(a)(9).
II
We may only hold unlawful and set aside any agency
action, findings, or conclusions found 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) unsupported by substantial evidence.” 5 U.S.C.
§ 7703(c). We review the Board’s rulings on procedural
matters relating to discovery and evidentiary issues for
abuse of discretion. Curtin v. Office of Pers. Mgmt., 846
F.2d 1373, 1378 (Fed. Cir. 1988).
Mr. Diaz argues that the Administrative Judge im-
properly relied on the other witnesses’ testimony and
failed to review a relevant exhibit. Pet.’s Br. at 1. The
other witnesses consistently testified to the events sur-
rounding the altercation, and contrary to Mr. Diaz’s
argument, did not present hearsay. Therefore, we do not
find any error in the Administrative Judge’s determina-
tion that the witnesses provided more credible testimony
than Mr. Diaz. Indeed, such credibility determinations
are “virtually unreviewable.” See Hambsch v. Dep’t of the
Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986). Further-
more, although the Board acknowledged that the Admin-
istrative Judge failed to admit three exhibits, Suppl. App.
2 n.2, Mr. Diaz has not shown that any alleged error
caused substantial harm that could have affected the
outcome of the case, particularly in light of the witnesses’
unequivocal statements. See Curtin, 846 F.2d at 1378
(holding that if an abuse of discretion did occur, the
4 DIAZ v. TREASURY
petitioner must prove that the error caused substantial
harm or prejudice which could have affected the outcome
of the case).
We also reject Mr. Diaz’s assertion that the Adminis-
trative Judge erred by failing to draw an adverse infer-
ence based on spoliation of evidence. The records were
destroyed in the ordinary course of business. Moreover,
Mr. Diaz had an opportunity to request the records during
discovery but did not do so until the prehearing confer-
ence. Suppl. App. 19 n.5. Because Mr. Diaz failed to
timely request the records, the Board did not abuse its
discretion in affirming the Administrative Judge’s deci-
sion not to draw an adverse inference based on spoliation
of evidence.
AFFIRMED
No costs.