Background
Valerie Simpson worked as an Advanced Medical Support Assistant at the Wilmington VA Medical Center. On May 4, 2018, she left jewelry vendor Cheryl Price’s location at the medical center with two unpaid jewelry sets. Simpson said Price allowed her to pay later; Price denied giving permission. The VA proposed removal for conduct unbecoming a federal employee through three specifications: taking the jewelry without permission, giving inconsistent and untruthful accounts during the investigation, and telling VA police about making a “deal” and speaking with Price to “work things out.” Deciding official Vincent Kane sustained the charge, and Simpson’s removal became effective July 27, 2018.
An administrative judge sustained the first two specifications, rejected the third, affirmed removal, rejected Simpson’s whistleblower-retaliation defense, and concluded that the Douglas factors were immaterial to a removal under 38 U.S.C. § 714. The Merit Systems Protection Board later vacated and remanded for determinations concerning Kane’s use of the substantial-evidence standard instead of the preponderance standard, whether Simpson’s protected disclosure contributed to removal, and whether the VA properly considered the Douglas factors. On remand, the AJ again affirmed removal and gave no weight to a letter purportedly signed by Price describing the incident as a miscommunication. The Board denied Simpson’s petition for review, and she timely sought Federal Circuit review.
The Court’s Holding
In a nonprecedential per curiam decision, the Federal Circuit affirmed. Applying 5 U.S.C. § 7703(c), the court explained that Board decisions must be affirmed unless they are unlawful, procedurally deficient, or unsupported by substantial evidence, among the statute’s other grounds. It held that substantial evidence supported the misconduct finding. The AJ credited Price over Simpson, treated discrepancies in Price’s testimony as minor compared with Simpson’s inconsistent accounts, and reasonably declined to give weight to the purported Price letter. The court noted that Price had testified consistently with her original account and that Simpson had not explained why the letter, which she claimed to possess before the original appeal, was not introduced or used in cross-examination. Citing Hornseth and King, the court described such credibility determinations as “virtually unreviewable” on appeal.
The court also rejected Simpson’s harmful-error argument. Although Kane used the wrong evidentiary standard, the court stated that whether that agency error warranted reversal turned on harmfulness, citing Oliva v. Department of Veterans Affairs and 5 C.F.R. § 1201.4(r). Kane testified on remand that he would have sustained the charge under the preponderance standard, and the AJ credited that testimony and found the evidence satisfied that standard. Substantial evidence therefore supported the conclusion that the error did not affect the outcome.
The court further upheld rejection of Simpson’s whistleblower defense. Although her scheduling complaints were protected disclosures and proposing official Christine O’Donnell knew of them, substantial evidence supported the AJ’s Carr-factor analysis and the determination that the VA proved by clear and convincing evidence that it would have removed Simpson anyway. Finally, the court found no reversible error in the Douglas analysis conducted after remand. Kane had considered the misconduct’s seriousness, lost confidence in Simpson, lesser discipline, penalty consistency, service length, performance history, and lack of prior discipline; the AJ concluded removal was within the bounds of reasonableness and promoted the efficiency of the service.
Key Takeaways
- The court affirmed the sustained misconduct charge and removal, while the third specification had been rejected by the AJ.
- The incorrect burden of proof did not warrant reversal because substantial evidence supported the finding that it did not affect the outcome.
- The whistleblower defense failed on the record supporting the agency’s clear-and-convincing showing under the Carr factors.
- The court reviewed the Board’s legal and procedural conclusions under § 7703(c) and upheld the challenged factual determinations as supported by substantial evidence.
Why It Matters
The decision illustrates how the Federal Circuit applies deferential substantial-evidence review to MSPB credibility findings, harmful-error determinations, whistleblower defenses, and penalty analysis. It also shows the significance of proceedings on remand: the Board had vacated the earlier decision, and the court evaluated the AJ’s subsequent consideration of the correct burden and Douglas factors rather than treating the vacated 2018 analysis as controlling.
The judgment was affirmed, with no costs. The disposition is expressly nonprecedential.