Beatrez v. Merit Systems Protection Board , 413 F. App'x 298 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
DIANE L. BEATREZ,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2010-3145
__________________________
Petition for review of the Merit Systems Protection
Board in case no. CB1215080015-T-1.
__________________________
Decided: March 25, 2011
__________________________
DIANE L. BEATREZ, Hughesville, Maryland, pro se.
CALVIN M. MORROW, Attorney, Office of the General
Counsel, Merit Systems Protection Board, of Washington,
DC, for respondent. With him on the brief were JAMES M.
EISENMAN, General Counsel, and KEISHA DAWN BELL,
Deputy General Counsel.
__________________________
BEATREZ v. MSPB 2
Before PROST, SCHALL, and MOORE, Circuit Judges.
PER CURIAM.
Diane L. Beatrez petitions for review of the final deci-
sion of the Merit Systems Protection Board (“Board”)
holding that she and another Human Resources Special-
ist, Richard Lee, had violated 5 U.S.C. § 2302(b)(6) by
intentionally assisting in the granting of an illegal prefer-
ence for employment to a third employee. Special Counsel
v. Richard F. Lee, 114 M.S.P.R. 57 (2010) (“Final Deci-
sion”). In the Final Decision, the Board reversed the
initial decision of the administrative judge that Ms.
Beatrez and the other employee had not violated
§ 2302(b)(6). See Special Counsel v. Richard F. Lee, Diane
L. Beatrez, Nos. CB1215080014-T-1, CB1215080015-T-1
(March 13, 2009) (“Initial Decision”). The Board imposed
upon Ms. Beatrez the penalty of a ten-day suspension
without pay. Final Decision at 79. Because the Board
overturned the administrative judge’s credibility findings
without providing any sound reason for its contrary
evaluation of the evidence with respect to Ms. Beatrez, we
reverse-in-part.
BACKGROUND
I
This case grows out of the efforts of the U.S. Coast
Guard Regional Examination Center (“REC”) in Los
Angeles, California, to fill a Supervisory Merchant Marine
Specialist position. The process began when Commander
(“CMDR”) Laura O’Hare, the Chief of REC in Los Ange-
les, contacted the Coast Guard’s Human Resources De-
partment (“HR”) in Washington, D.C., and requested
assistance in filling the GS-1801-11 position. Manage-
ment believed that there were internal local candidates
3 BEATREZ v. MSPB
that were particularly qualified for this position because
of their current experience in the REC. Apparently
CMDR O’Hare wanted the opportunity to consider these
employees. Initial Decision at 2. On January 20, 2004,
an HR specialist in Washington, D.C., Jean House, issued
parallel GS-11 vacancy announcements for the position:
(1) a delegated examining unit (“DEU”) announcement
that was open to all qualified U.S. citizens and (2) a merit
promotion announcement that was open to all “status
eligibles” (i.e., present Coast Guard employees). Eric
Woodson, a local REC employee, who held the GS-0986-08
position of Senior Legal Instrument Examiner, applied
under the merit promotion announcement. Although Mr.
Woodson was already performing many of the tasks
associated with the GS-1801-11 position, he was not
referred because he lacked the required time in grade. Id.
CMDR O’Hare was dissatisfied with the original set of
announcements, which she believed had failed to attract
any well-qualified local candidates. Id. at 3. CMDR
O’Hare contacted field HR specialist Richard F. Lee
specifically to inquire why Mr. Woodson had not been
referred. Like CMDR O’Hare, Mr. Lee was serving in
California. He forwarded CMDR O’Hare’s request to Ms.
House in Washington, D.C., requesting her advice about
reopening the vacancy announcements to meet CMDR
O’Hare’s needs. On March 1, 2004, Ms. House instructed
Mr. Lee to “have Commander O’Hare talk about lack of
adequate candidates.” Id. at 4. The record indicates that
CMDR O’Hare followed this advice, and the referral
certificate bears a handwritten annotation by CMDR
O’Hare, stating that she wanted to re-advertise the job
“[b]ecause of a lack of sufficient, well-qualified candi-
dates.” Id.
BEATREZ v. MSPB 4
On March 4, 2004, the vacancy was advertised a sec-
ond time, with no substantive change from the first
announcements. In other words, instead of being drafted
to include supposedly qualified candidates from the local
REC such as Mr. Woodson, the second set of announce-
ments was again advertised only at the GS-11 level. Id.
After the issuance of the second set of announcements,
the staffing assignment was transferred from Ms. House
to Ms. Beatrez, who was also an HR specialist in the
Washington, D.C. office. Thus, Ms. Beatrez did not
become involved until late in the process. In the Initial
Decision, the administrative judge described the totality
of Ms. Beatrez’s actions as follows:
On April 2, 2004, Ms. Beatrez notified Mr. Lee
that she had been told [by Ms. House] “the reason
the job was re-advertised was to try to reach Mr.
Woodson.” Ms. Beatrez then stated that she was
unable to qualify Mr. Woodson at the GS-11 level,
and asked if Mr. Lee wanted the qualified appli-
cants incorporated with the prior list.
Id. at 4-5. Mr. Lee was the one who notified CMDR
O’Hare about the results from the second set of vacancy
announcements. He stated, “They did not find Eric
[Woodson] qualified for the position based on his resume
and how he responded to the KSAs. My recommendation
if you want to consider him is to cancel and advertise the
position as a GS-9 with potential to GS-11.” CMDR
O’Hare then responded to Mr. Lee that she wanted the
position re-announced as a “GS-9/11 to expand the pool of
qualified applicants with specific licensing experience.
Please limit the solicitation to all current and former
federal employees, and limit to LA/LB [Los Angeles/Long
Beach] local area.” Id. Mr. Lee passed this request on to
Ms. Beatrez, instructing her to re-announce the position
5 BEATREZ v. MSPB
as a GS-09/11 merit promotion vacancy with the area of
consideration limited to the Los Angeles commuting area.
Id. Thus, Ms. Beatrez did not provide advice about re-
structuring the vacancy announcement but merely pub-
lished the new announcement designed to expand the pool
of qualified applicants with specific licensing experience.
In its final decision, the Board described Ms. Beatrez’s
activities in a similar manner. Final Decision at 62-63.
The position was re-announced on May 20, 2004, as a
merit promotion position limited to the local commuting
area. On June 17, 2004, CMDR Christopher Hogan
relieved CMDR O’Hare as the Chief of REC. After con-
sidering the applicants from all three sets of vacancy
announcements, CMDR Hogan conducted interviews and
selected Mr. Woodson for the position. Initial Decision at
5.
II
In May of 2008, the Office of Special Counsel (“OSC”)
lodged separate complaints with the Board seeking disci-
plinary action against Ms. Beatrez and Mr. Lee, alleging
that they had violated 5 U.S.C. § 2302(b)(6) by granting a
preference or advantage to Mr. Woodson for the purpose
of improving his prospects of obtaining a promotion to a
supervisory position. The complaints were consolidated,
and the case proceeded to a hearing before the adminis-
trative judge. Following the hearing, the administrative
judge ruled that OSC had failed to prove by a preponder-
ance of the evidence that either Ms. Beatrez or Mr. Lee
had violated 5 U.S.C. § 2302(b)(6), and the administrative
judge dismissed OSC’s complaint. Initial Decision at 12,
16.
BEATREZ v. MSPB 6
The administrative judge began his analysis by stat-
ing, “[T]he essential facts are not in dispute; only the
motives of those involved are in question.” Id. at 6. He
then proceeded to separately examine the evidence relat-
ing to intent as it pertained to Ms. Beatrez and Mr. Lee
respectively. Regarding Ms. Beatrez’s involvement in the
case, the administrative judge found that the purpose
surrounding the reposting of the announcements was “to
correct the error in the initial announcements that ex-
cluded well qualified local candidates such as Mr.
Woodson.” Id. at 7-8. The administrative judge pointed
to copious testimony supporting the need to consider
internal local candidates. For example, the administra-
tive judge stated that he found credible the testimony of
CMDR Hogan, who explained that the position requires
significant knowledge and that someone coming from
outside the Coast Guard or outside the REC would have
difficulty getting up to speed quickly. Id. at 8. The ad-
ministrative judge also found credible Cynthia Nelson-
Possinger, Ms. Beatrez’s supervisor, who likewise testi-
fied that the documentation examiners within REC—like
Mr. Woodson—would have the most relevant experience
for the advertised position. Id. The administrative judge
also pointed to testimony supporting the practice of re-
advertising positions when the initial list did not satisfy
management’s needs. For example, the administrative
judge considered the testimony of Ronald Kogut, the Chief
of Civilian Personnel at the Coast Guard. In the adminis-
trative judge’s view, Mr. Kogut was credible when he
explained that if a candidate list was inadequate to meet
the needs of an organization, it was “common practice” in
both the Coast Guard and the government as a whole to
cancel the announcement. The administrative judge also
found credible Mr. Kogut’s testimony that redesigning the
position to create a GS-09 position was in keeping with
common practice. Id. The administrative judge con-
7 BEATREZ v. MSPB
cluded that “it would have been a legitimate and appro-
priate act to re-announce the position if it was for the
purpose of ensuring that management was able to con-
sider the widest field of eligible candidates with the
greatest potential to have the skills and knowledge rele-
vant to the position being advertised.” Id. The adminis-
trative judge further concluded that “[i]t would also have
been a legitimate and appropriate act, in keeping with . . .
merit principles, to design the position as a GS-09/11 in
order to ensure that recruitment could reach qualified
individuals from appropriate sources, including internal
candidates already employed at the REC with knowledge
in their field.” Id. at 9.
The administrative judge turned next to the question
of whether Ms. Beatrez had violated § 2302(b)(6) by
cancelling the second set of announcements and re-
announcing the position for the third time. In considering
Ms. Beatrez’s actions, the administrative judge started
from the premise that “a lack of sufficient qualified candi-
dates in the pool is a legitimate reason for cancelling a
vacancy announcement.” The administrative judge
believed this was the true motive for re-announcing the
position. Id. He found that the second set of announce-
ments was cancelled because, according to Ms. Beatrez,
when she looked at the case “and saw that Mr. Woodson
didn’t qualify, and I saw that there were just a limited
number of applicants, most of which were applicants
under the [DEU] or open competitive announcement, I
made an assessment that the position was advertised in
error, so I cancelled that.” Id. There was only one new
applicant under the merit promotion list, and Ms. Beatrez
explained that the second set of announcements “wasn’t
going to meet [management’s] need to have more names.”
Id.
BEATREZ v. MSPB 8
The administrative judge noted that the testimony
against Ms. Beatrez consisted of her admission that she
had been told by Ms. House that CMDR O’Hare wanted to
“try and reach Mr. Woodson.” Id. at 10. The administra-
tive judge reasoned, however, that “given there had been
only one new applicant under the second merit promotion
announcement, and that the Coast Guard apparently
graded its only qualified internal candidates at the GS-07
and GS-08 levels, Ms. Beatrez would have been singularly
incompetent if she had not thought that an announce-
ment at the GS-09/11 level made sense.” Id. at 10-11.
After noting Ms. Beatrez’s testimony that she thought the
second announcements were in error and the testimony of
Ms. Nelson-Possinger and Mr. Kogut that they did not
believe Ms. Beatrez had done anything improper, the
administrative judge stated:
I share the Coast Guard’s belief that the OSC’s
approach in Ms. Beatrez’s case would make it dif-
ficult for well-intentioned HR staff to help man-
agement exercise the full range of available
options in a recruitment action. While it would
have been preferable if the HR staff had recog-
nized sooner that only a GS-09/11 announcement
would give the agency’s internal candidates an
opportunity to be considered for the position, Ms.
Beatrez was not involved sooner. The other HR
staff’s failure to provide effective advice earlier
should not be allowed to prevent Ms. Beatrez from
assisting management by providing an appropri-
ate announcement once the weakness in their ear-
lier approach had been discovered.
Because I find that Ms. Beatrez did the proper
thing and canceled the ineffective announcement
with a re-announcement designed to catch a
9 BEATREZ v. MSPB
broader pool of well-qualified candidates, the OSC
has failed to prove its case against Ms. Beatrez by
a preponderance of the evidence.
Id. at 12.
In the Final Decision, the Board granted OSC’s peti-
tion for review and reversed the Initial Decision with
respect to both Ms. Beatrez and Mr. Lee. Final Decision,
114 M.S.P.R. at 74. The Board acknowledged that nor-
mally it must defer to the credibility determinations of an
administrative judge when they are based upon the
observation and demeanor of witnesses testifying at a
hearing. Id. at 66. The Board stated, however, that it
could overturn credibility determinations “when the
[administrative judge’s] findings are incomplete, inconsis-
tent with the weight of the evidence, and do not reflect
the record as a whole.” Id. Continuing, the Board stated
that although the administrative judge had not ignored
evidence that would support a finding of preferential
treatment, his findings and credibility determinations
were “nevertheless inconsistent with the weight of the
documentary evidence and do not reflect the record as a
whole.” Id. at 67. In the Board’s view, the administrative
judge “explained away serious contradictions” between
direct testimony favorable to Ms. Beatrez and Mr. Lee
and other less favorable evidence in the record, thereby
“crafting an improbable account of the events leading up
to Mr. Woodson’s appointment to the vacant position.” Id.
In that regard, the Board stated:
The record includes a fairly significant paper trail
of email messages described above, which were
written or received by CMDR O’Hare, Lee and
Beatrez, and which clearly document CMDR
O’Hare’s desire to select Woodson for the position.
BEATREZ v. MSPB 10
When we consider the totality of the evidence, we
find that these messages, together with some of
the material testimony, persuasively show that
CMDR O’Hare was indeed seeking to grant
Woodson a preference not authorized by law, rule,
or regulation. CMDR O’Hare’s email messages
specifically identify Woodson and no other poten-
tial candidate for the vacant position. Between
these blatant references to Woodson, and the
documentation and direct testimony regarding the
assistance forthcoming from the respondents, a
pattern of cooperation between the respondents
and CMDR O’Hare emerges in support of CMDR
O’Hare’s efforts to grant an illegal preference to
Woodson.
Id. at 68.
As far as Ms. Beatrez was concerned, the Board fo-
cused on the following points. First, the Board concluded:
“Beatrez was well-aware of CMDR O’Hare’s intent to
reach Woodson, and she reviewed Woodson’s application
and qualifications first, immediately after the second set
of vacancy announcements closed. She found that he was
not qualified for the position as it was advertised and told
Lee accordingly.” Id. at 69. The Board further noted that
Ms. Beatrez told Mr. Lee that Mr. Woodson was not able
to qualify at the GS-11 level because he lacked time in
grade. Id. She testified that Coast Guard management
hoped that Mr. Woodson would qualify under the new
announcement. Id. at 70-71. Second, the Board indicated
that Ms. Beatrez and Mr. Lee “advised CMDR O’Hare
regarding the specific language to use to request a cancel-
lation of the second set of vacancy announcements and a
re-posting of the position with a lower grade of GS-9/11,
which would allow Mr. Woodson to be considered.” Id. at
11 BEATREZ v. MSPB
69. Third, the Board pointed to what it viewed as the
“carefully tailored nature of the third and final vacancy
announcement that virtually ensured that the position
qualifications would allow Woodson to be incorporated
into the pool of qualified candidates.” Id. at 70. The
Board viewed the third announcement as possibly pre-
cluding candidates from other REC facilities from consid-
eration “even though they were a precise match for the
position in terms of their experience.” Id. Finally, the
Board acknowledged that “the strongest evidence of
intent points not to [Mr. Lee and Ms. Beatrez], but to
CMDR O’Hare. Id. at 72. It nonetheless concluded that
“given the rather blatant intention of granting a prefer-
ence to Woodson that CMDR O’Hare’s communications
expressed to [Mr. Lee and Ms. Beatrez], we also cannot
ignore the actions of [Mr. Lee and Ms. Beatrez], who are
HR professionals, in intentionally facilitating an obvious
violation of section 2302(b)(6).” Id. Viewing Ms. Beatrez’s
and Mr. Lee’s conduct as having aided and abetted a
violation of § 2302(b)(6) by CMDR O’Hare, the Board
found that OSC had proved by a preponderance of the
evidence that both HR specialists violated § 2302(b)(6)
“when they intentionally assisted CMDR O’Hare in grant-
ing an illegal preference for employment to Woodson.” Id.
at 74.
Ms. Beatrez timely petitioned for review of the
Board’s final decision. We have jurisdiction pursuant to
28 U.S.C. § 1295(a)(9).
DISCUSSION
“Our review of Board decisions is limited. We may
only reverse a Board decision if we find the decision to be
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; obtained without procedures
BEATREZ v. MSPB 12
required by law; or unsupported by substantial evidence.”
Kahn v. Dep’t of Justice, 618 F.3d 1306, 1312 (Fed. Cir.
2010) (citing 5 U.S.C. § 7703(c)). While the Board is free
to substitute its judgment for that of an administrative
judge, the Board is not free to overturn an administrative
judge’s credibility findings merely because it disagrees
with those findings. Haebe v. Dep’t of Justice, 288 F.3d
1288, 1299 (Fed. Cir. 2002). Where an administrative
judge is able to observe the demeanor of a testifying
witness and, as a result, the administrative judge’s find-
ings are explicitly and implicitly based on the demeanor
of the witness, the Board may not simply disagree with
the administrative judge’s assessment of credibility
unless it articulates sound reasons for its contrary
evaluation of the testimonial evidence. Leatherbury v.
Dep’t of the Army, 524 F.3d 1293, 1304-05 (Fed. Cir. 2008)
(citing Haebe, 288 F.3d at 1300). The Board may satisfy
this “more stringent standard for overturning demeanor-
based credibility determinations” by providing “sound
reasons, based on the record” for overturning the admin-
istrative judge’s conclusions. Long v. Soc. Sec. Admin.,
No. 2010-3108, slip op. at 7-8, 2011 WL 915175 (Fed. Cir.
Mar. 14, 2011) (affirming the Board’s overturning of
credibility determinations where the Board satisfied the
more stringent standard). “[I]f the [Board]'s reasons for
overturning demeanor-based credibility determinations
are not sufficiently sound, its decision does not survive
substantial evidence review.” Haebe, 288 F.3d at 1301.
Ms. Beatrez raises several arguments on appeal. We
find it necessary to address only one of them: her conten-
tion that the Board erred in overturning the administra-
tive judge’s findings with respect to her intent. She
argues that her actions were based on her belief that
there was a legitimate management interest in expanding
the announcement so that well-qualified merit promotion
13 BEATREZ v. MSPB
candidates at the place where the vacancy occurred could
be considered. She argues that the Board erred because
at worst, the evidence was as consistent with her having
acted with an innocent intent as it was with her not
having done so.
Both the administrative judge and the Board recog-
nized that this case turns on intent. The administrative
judge found that Ms. Beatrez and Mr. Lee did not intend
to violate § 2302(b)(6) by granting an illegal preference to
Mr. Woodson. This finding was supported by the testi-
mony of Ms. Beatrez, CMDR Hogan, Ms. Nelson-
Pottinger, and Mr. Kogut, all of whom the administrative
judge found credible. Noting that the agency may rely on
circumstantial evidence to establish intent, the Board
took the position that the HR specialists’ culpability was
undermined by CMDR O’Hare’s emails and by what it
concluded Ms. Beatrez and Mr. Lee knew about CMDR
O’Hare’s wishes. According to the Board, the administra-
tive judge failed to take these considerations into account.
The Board’s reasons for substituting its own credibil-
ity determinations for that of the administrative judge are
not sufficiently sound to justify overturning the adminis-
trative judge’s finding as to Ms. Beatrez’s intent. First,
we note that while the Board’s opinion addresses both HR
specialists’ culpability, the bulk of the considerations it
points to for overturning the administrative judge pertain
to Mr. Lee rather than Ms. Beatrez. For example, the
Board stated that both Mr. Lee and Ms. Beatrez advised
CMDR O’Hare regarding the language of the final va-
cancy announcement. Id. at 69. The testimony does not
support this assertion. Rather, it was Mr. Lee alone who
emailed CMDR O’Hare and recommend cancelling the
second set of vacancy announcements and advertising the
position as a GS-09 with potential to GS-11. After receiv-
BEATREZ v. MSPB 14
ing Mr. Lee’s email, CMDR O’Hare emailed Mr. Lee and
directed him to re-announce the position as a “GS-9/11 to
expand the pool of qualified applicants with specific
licensing experience.” She also asked him to limit the
announcement to the local commuting area. Mr. Lee
passed this information to Ms. Beatrez, stating that she
should re-announce the position as a GS-09/11 merit
promotion vacancy limited to the Los Angeles commuting
area. There is nothing in either the administrative
judge’s or the Board’s decision indicating that Ms. Beatrez
actually advised CMDR O’Hare regarding the language of
the final vacancy announcement. 1
The Board further points to a “fairly significant paper
trail of email messages” that “clearly document CMDR
O’Hare’s desire to select Woodson.” Id. at 68. The Board
concluded that the HR specialists intentionally facilitated
CMDR O’Hare’s blatant attempt to violate § 2302(b)(6).
The examples discussed in the Board opinion demonstrat-
ing CMDR O’Hare’s blatant intent, however, are all
emails between CMDR O’Hare and Mr. Lee. There is
nothing in either the administrative judge’s or the Board’s
decision indicating that Ms. Beatrez, who was located in
Washington, D.C., had any direct contact with CMDR
O’Hare. On the other hand, the testimony supports that
Mr. Lee and CMDR O’Hare had frequent face-to-face
conversations as well as email discussions at every stage
of the process. In contrast, all of Ms. Beatrez’s limited
dealings were all with Mr. Lee.
1 Thus, Ms. Beatrez did not advise regarding the
language of any of the vacancy announcements. The first
and the second set of announcements were issued before
the staffing assignment for the action was transferred to
Ms. Beatrez.
15 BEATREZ v. MSPB
Beyond the emails discussing CMDR O’Hare’s desire
to be able to consider Mr. Woodson and the advice pro-
vided regarding the vacancy announcements, the Board
points to the “carefully tailored nature” of the third and
final vacancy announcement. Id. at 70. While the an-
nouncement expanded the experience level for potential
applicants by advertising the open position at both the
GS-09 and GS-11 levels, it limited consideration of appli-
cants to the local commuting area. The Board expressed
concern that such specifications precluded candidates
from other Coast Guard REC facilities even though they
were a precise match for the position in terms of their
experience. A geographic limitation, however, is not
inherently incompatible with an intent to expand the pool
of well-qualified internal candidates. This court has
previously concluded that 5 C.F.R. § 335.103(b)(2) pro-
vides that a vacancy announcement can be geographically
limited so long as the area of consideration is sufficiently
broad to ensure the availability of high quality candi-
dates. The administrative judge recognized that it was
entirely appropriate to use an announcement that would
give the agency’s internal candidates an opportunity to be
considered for the position. Had the agency used this
approach at the outset, the announcement would have
been proper. It is only through the backdrop of the re-
peated postings and repostings that the announcements
may have appeared at all suspicious—but Ms. Beatrez
was not involved with those earlier postings. Her decision
to issue the third vacancy announcement is consistent
with her expressed intent to expand the announcement so
that well-qualified merit promotion candidates at the
place where the vacancy occurred could be considered.
Ultimately, candidates from all three sets of announce-
ments were considered.
BEATREZ v. MSPB 16
Finally, to the extent that the Board is relying on Ms.
Beatrez’s decision to cancel the second set of vacancy
announcements as circumstantial evidence of improper
intent, Ms. Beatrez credibly explained: “I saw that there
were just a limited number of applicants, most of which
were applicants under the [DEU] or open competitive
announcement, I made an assessment that the position
was advertised in error so I cancelled that.” It is undis-
puted that there were deficiencies in the first two sets of
vacancy announcements and that re-announcing positions
under such circumstances was a routine practice. The
Board, in considering appropriate penalties, acknowl-
edged this practice. It cited to Mr. Kogut’s testimony
stating that the Coast Guard frequently “reannounce[s]
jobs to get the best quality candidates. . . . [Beatrez]
would have seen this as something that was proper,
appropriate versus inappropriate and wrong.” Id. at 77.
In sum, most of the evidence discussed by the Board
goes to CMDR O’Hare’s improper intent and Mr. Lee’s
understanding of that intent. Much of the remaining
evidence is at least as consistent with Ms. Beatrez having
acted with an innocent intent as it was with her having
intended to aid and abet CMDR O’Hare grant an unau-
thorized preference to Mr. Woodson. Admittedly, Ms.
Beatrez testified that Ms. House had told her that CMDR
O’Hare wanted to “try and reach Mr. Woodson.” But
given the above-described problems with the sufficiency of
the circumstantial evidence used to infer Ms. Beatrez’s
intent, the Board’s reasons for substituting its own credi-
bility determinations for that of the administrative judge
are not sufficiently sound. See, e.g, Long, slip op. at 7-8.
Accordingly, the Board’s decision does not survive sub-
stantial evidence review.
17 BEATREZ v. MSPB
CONCLUSION
For the foregoing reasons the Final Decision is re-
versed insofar as it relates to Ms. Beatrez.
COSTS
Costs awarded to Ms. Beatrez.
REVERSED-IN-PART