Alberto v. Dept. Of Veterans Affairs

• Court: Court of Appeals for the Federal Circuit
• Decided: June 10, 2005
• Docket: 2005-3090
• Status: Unpublished

Opinion

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

05-3090

ALBERTO R. ALBERTO,

Petitioner,

v.

DEPARTMENT OF VETERANS AFFAIRS,

Respondent.

_____________________

DECIDED: June 10, 2005 _____________________

Before LOURIE, SCHALL, and BRYSON, Circuit Judges.

PER CURIAM.

Alberto R. Alberto seeks review of the final decision of the Merit Systems

Protection Board sustaining his removal by the Department of Veterans Affairs (“VA”).

Alberto v. Dep’t of Veterans Affairs, No. DE-0752-03-0468-I-1 (M.S.P.B. Nov. 23, 2004).

We affirm.

DISCUSSION

Alberto was removed from his position as a supervisor at a VA health care facility

after an investigation revealed nineteen misconduct specifications establishing that he

had repeatedly engaged in a pattern of inappropriate and offensive misconduct towards

several female employees at the facility. Appealing his removal to the Board, Alberto advanced two affirmative defenses: (1) the official who imposed the removal penalty

had been improperly influenced; and (2) rather than offensive misconduct, the agency

had effectively charged Alberto with the greater offense of sexual harassment, which it

failed to prove.

While sustaining, in whole or in part, fourteen of the nineteen misconduct

specifications and rejecting Alberto’s affirmative defenses, the Administrative Judge

(“AJ”) mitigated the penalty to a demotion, reasoning that removal was unreasonably

harsh given his positive work record, lack of prior discipline, and rehabilitative potential.

The agency petitioned for review of the AJ’s decision by the full Board, and Alberto

cross-petitioned, reasserting one of his affirmative defenses. Reversing the mitigation

ruling and denying Alberto’s cross-petition, the full Board reinstated the penalty of

removal, holding that it found no error in the agency’s conclusion that Alberto’s repeated

misconduct warranted removal, and that the AJ had erroneously substituted his

judgment for that of the agency. This appeal followed. We have jurisdiction under 28

U.S.C. § 1295(a)(9).

We will affirm the Board’s decision unless it was: (1) arbitrary, capricious, or an

abuse of discretion; (2) procedurally deficient; or (3) unsupported by substantial

evidence. 5 U.S.C. § 7703(c) (2000). We discern none of these grounds for reversal.

On appeal, Alberto’s arguments amount to an invitation for us to re-weigh the

evidence and to consider issues that have not been presented to the Board. As an

appellate tribunal, we can do neither. See Bieber v. Dep’t of the Army, 287 F.3d 1358,

1364 (Fed. Cir. 2002); see also Synan v. Merit Sys. Prot. Bd., 765 F.2d 1099, 1101

(Fed. Cir. 1985).

05-3090 2 Alberto’s arguments range from asserting that all relevant evidence was not

included, proper procedures were not followed, a nexus between the charges and the

efficiency of the service was not established, all relevant factors were not weighed in

making the decision, the Board unfairly credited the deciding official, and the AJ

considered circumstances outside of the charges.

We have considered all these arguments, including the underlying facts, and

conclude that they do not justify reversal. The Board had substantial evidence for its

decision and its procedures were not deficient. Moreover, our review of the penalty

imposed by the agency is highly deferential. See Bieber, 287 F.3d at 1365.

Accordingly, we must affirm.

05-3090 3