Gebhardt v. Dept. Of the Air Force

Federal Circuit

Gebhardt v. Dept. Of the Air Force

180 F. App'x 951

CourtCourt of Appeals for the Federal Circuit

DecidedMay 4, 2006

Docket2005-3335

StatusUnpublished

Cited by8 cases

This text of 180 F. App'x 951 (Gebhardt v. Dept. Of the Air Force) is published on Counsel Stack Legal Research, covering Court of Appeals for the Federal Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Gebhardt v. Dept. Of the Air Force, 180 F. App'x 951 (Fed. Cir. 2006).

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Opinion

PER CURIAM.

Beverly G. Gebhardt appeals the final decision of the Merit Systems Protection Board, affirming her removal from the Department of the Air Force. Gebhardt v. Dep’t of the Air Force, 99 M.S.P.R. 49 (MSPB2005). We affirm.

We must affirm the board’s decision unless it was 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. See 5 U.S.C. § 7703(c) (2000). On October 1, 2003, the department removed Gebhardt from her GS-12 Information Technology Specialist position based on a charge of falsification of a contractor letter with the intent to deceive. Because the administrative judge found her assertions that the forged letter was taken from her desk without permission to be “inherently improbable,” and department testimony established that she voluntarily provided the letter to a colleague with the intent to deceive, the board properly sustained the department’s charge. We find no error in the board’s determination that the oral admonishment Gebhardt received from her supervisor did not constitute a disciplinary action which would preclude the department from effecting this removal action. Moreover, because of the serious nature of her offense, a lack of departmental motive to retaliate, and the absence of evidence that she was treated differently from other similarly situated non-whistleblowers, the board correctly found that the department proved by clear and convincing evidence that it would have removed Gebhardt in the absence of any whistleblowing disclosures. See Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1323 (Fed.Cir.1999). Finally, in view of the department’s loss of trust in her and the supervisory nature of her position, the board properly found that the penalty of removal did not exceed the tolerable limits of reasonableness. See Douglas v. Vet. Admin., 5 MSPB 313, 5 M.S.P.R. 280, 306 (1981).

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PER CURIAM.

Beverly G. Gebhardt appeals the final decision of the Merit Systems Protection Board, affirming her removal from the Department of the Air Force. Gebhardt v. Dep’t of the Air Force, 99 M.S.P.R. 49 (MSPB2005). We affirm.

We must affirm the board’s decision unless it was 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. See 5 U.S.C. § 7703(c) (2000). On October 1, 2003, the department removed Gebhardt from her GS-12 Information Technology Specialist position based on a charge of falsification of a contractor letter with the intent to deceive. Because the administrative judge found her assertions that the forged letter was taken from her desk without permission to be “inherently improbable,” and department testimony established that she voluntarily provided the letter to a colleague with the intent to deceive, the board properly sustained the department’s charge. We find no error in the board’s determination that the oral admonishment Gebhardt received from her supervisor did not constitute a disciplinary action which would preclude the department from effecting this removal action. Moreover, because of the serious nature of her offense, a lack of departmental motive to retaliate, and the absence of evidence that she was treated differently from other similarly situated non-whistleblowers, the board correctly found that the department proved by clear and convincing evidence that it would have removed Gebhardt in the absence of any whistleblowing disclosures. See Carr v. Soc. Sec. Admin., 185 F.3d 1318, 1323 (Fed.Cir.1999). Finally, in view of the department’s loss of trust in her and the supervisory nature of her position, the board properly found that the penalty of removal did not exceed the tolerable limits of reasonableness. See Douglas v. Vet. Admin., 5 MSPB 313, 5 M.S.P.R. 280, 306 (1981).

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180 F. App'x 951, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gebhardt-v-dept-of-the-air-force-cafc-2006.

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