Vitatoe v. General Services Administration , 131 F. App'x 277 ( 2005 )

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
04-3257
LARRY N. VITATOE,
Petitioner,
v.
GENERAL SERVICES ADMINISTRATION,
Respondent.
_____________________
DECIDED: April 7, 2005
_____________________
Before MICHEL, Chief Judge, RADER and LINN, Circuit Judges.
PER CURIAM.
Larry N. Vitatoe petitions for review of the final decision of the Merit Systems
Protection Board (“Board”) sustaining his removal by the General Services
Administration (“Agency”) for misconduct. Vitatoe v. Gen. Services Admin., No. DA-
0752-02-0582-I-2 (M.S.P.B. Mar. 9, 2004) (“Final Decision”). Because the charge
against Vitatoe was supported by substantial evidence, and both the Agency and the
Board considered the relevant factors in determining the reasonableness of the penalty,
we affirm.
I. BACKGROUND
Vitatoe was employed as an Information Technology Representative, GS-13,
with the Agency’s Federal Telecommunications Service, Greater Southwest Region,
located in New Orleans, Louisiana. Vitatoe v. Gen. Services Admin., No. DA-0752-02-
0582-I-2 (M.S.P.B. Mar. 31, 2003) (“Initial Decision”). In April 2002, Vitatoe was serving
as a Technical Representative on task MC17123T2, a “services task for the Naval
Reserve Recruiting Command in New Orleans.” Id., slip op. at 2. Following the
issuance of a request for proposal, three contractors timely filed proposals. Vitatoe was
assigned to review the three submitted proposals and to evaluate each contractor’s past
performance. Two of the bidding contractors listed Jan Brandon at the U.S. Army Corp
of Engineers as a reference for their past performance. Although Vitatoe attempted to
contact Brandon by telephone, he never spoke with her directly or via any other means
of communication. Id. Instead, he spoke by telephone with Tina Harris, one of
Brandon’s subordinates, who declined to provide past performance scores for the two
bidders, stating that Brandon was the appropriate person to give such information.
Vitatoe, nevertheless, provided past performance scores that he represented as
originating from the U.S. Army Corp of Engineers to the Contracting Officer for task
MC 17123T2. On June 17, 2002, the Agency removed Vitatoe from his position for
fabricating these scores. On November 7, 2002, Vitatoe timely appealed his removal to
the Board.
Before the Board, Vitatoe withdrew his request for a hearing. The Administrative
Judge thus decided his appeal based upon the written evidence of record, which
included declarations from Brandon and Harris. Initial Decision, slip op. at 3-4. The
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Administrative Judge sustained the Agency’s charge of misconduct and determined that
removal was fully warranted. Id., slip op. at 2. The Administrative Judge noted that
Vitatoe had served for over twenty-seven years in federal service and had been
disciplined for negligence in carrying out his duties on two prior occasions. Id., slip op.
at 8. The Administrative Judge also noted that although the Agency’s deciding official
did not believe Vitatoe’s actions were malicious or for personal gain, they effectively
destroyed the trust and confidence she had placed in him. Based upon this evidence,
the Administrative Judge concluded that Vitatoe’s pattern of evading responsibility
reflected a poor rehabilitative potential. Id., slip op. at 9. The Administrative Judge thus
upheld the removal.
Vitatoe petitioned the full Board for review of the Initial Decision. Concluding that
Vitatoe had not shown any new, previously unavailable evidence or that the
Administrative Judge made an error in law or regulation that affected the outcome of the
appeal, the full Board declined to review Vitatoe’s appeal, thereby rendering the Initial
Decision final. Final Decision, slip op. at 2.
Vitatoe timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(9).
II. 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.
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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. v. Nat’l Labor Relations Bd., 305 U.S. 197, 199 (1938)).
On appeal, Vitatoe contends that the Administrative Judge committed multiple
factual errors in sustaining the misconduct charge. Vitatoe claims that all errors are
directed to the Administrative Judge’s failure to appreciate that (1) the communication
he submitted to the Contracting Officer was not a final product, but instead simply a
draft; and (2) he planned to verify the scores with Brandon. In Vitatoe’s own words, “it
was a draft, a draft, a draft, based on information that had yet to be verified.” As
support for his contention, Vitatoe claims that his communication to the Contracting
Officer stated that he sought “review and comment.” Vitatoe also points out that Harris
stated that Brandon would return his call.
We conclude that the charges against Vitatoe were supported by substantial
evidence. The record establishes that Vitatoe knowingly submitted fabricated past
performance scores for two bidders. Harris swore that she spoke with Vitatoe and
refused to supply him with the requested scores, instead offering to have Brandon
return his call. Nevertheless, Vitatoe wrote the communication to the Contracting
Officer five days later without ever having spoken with Brandon. Vitatoe’s use of the
words “review and comment,” we conclude, in no way connote that his communication
to Brandon was a draft, pending confirmation from Brandon. Rather, these words
merely seek a response from the recipient of the communication. In any event, even if
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a mere draft, the communication contained fabricated scores and false attribution.
Hence, as the Administrative Judge explained in his decision, “[r]egardless of the
reason, in supplying technical evaluation data under such false pretenses, [Vitatoe]
engaged in ‘misconduct . . . that impairs that trustworthiness of the employee.’” Initial
Decision, slip op. at 7.
Vitatoe also appears to argue that the Administrative Judge committed legal error
in sustaining the penalty of removal by not considering all of the relevant mitigating
factors. In reviewing the appropriateness of an agency-imposed penalty, the Board
must first ascertain that the Agency considered the relevant twelve factors set forth in
Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981). Hayes v. Dep’t of Navy,
727 F.2d 1535, 1540 (Fed. Cir. 1984). Then the Board itself must make findings on
these factors. Although the Board need not make findings on factors that are not
relevant, “failure to consider a significant mitigating circumstance constitutes an abuse
of discretion.” Van Grossen v. Dep’t of Housing & Urban Dev., 748 F.2d 1579, 1581
(Fed. Cir. 1984). “This court will not disturb the agency’s choice unless the severity of
its action appears totally unwarranted in light of the relevant factors.” DeWitt v. Dep’t of
Navy, 747 F.2d 1442, 1445 (Fed. Cir. 1984) (citing Brewer v. U.S. Postal Serv., 647
F.2d 1093, 1098 (Fed. Cir. 1981)). “Whether this court would have chosen a different
penalty is irrelevant.” Webster v. Dep’t of Army, 911 F.2d 679, 686 (Fed. Cir. 1990)
(citing Hunt v. Dep’t of Health & Human Services, 758 F.2d 608, 611 (Fed. Cir. 1985)).
Here, Vitatoe fails to specify any particular Douglas factor that he believes was
ignored and that weighs in favor of imposing a lesser penalty. Our review of the record
indicates that the Board considered all the relevant factors, particularly mitigation and
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rehabilitation. The Administrative Judge noted that Vitatoe had been employed for over
twenty-seven years in federal service and had been previously disciplined on two prior
occasions for negligence in carrying out his assignments, receiving an office reprimand
in 2001 and a five-day suspension in 2002. The Administrative Judge adopted the
deciding official’s view that Vitatoe’s prior infractions, coupled with the present
misconduct, showed a persistent “‘neglect of duty.’” Initial Decision, slip op. at 8. The
Administrative Judge further observed that the deciding official determined that the
multiple infractions by Vitatoe destroyed her trust and confidence in him to perform his
job as a technology representative. The Administrative Judge thus determined that
Vitatoe exhibited a very low rehabilitation potential. Because the record shows that the
Board considered the relevant factors in assessing the appropriateness of the penalty,
and the penalty of removal was not unreasonable, we decline to find an abuse of
discretion. Accordingly, for the foregoing reasons, Board’s decision is affirmed.
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