Mancini v. Department of Veterans Affairs , 391 F. App'x 865 ( 2010 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
MARIO G. MANCINI, JR.,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
__________________________
2010-3006
__________________________
Petition for review of the Merit Systems Protection
Board in CH0752090272-I-1.
___________________________
Decided: July 21, 2010
___________________________
KENNETH J. HEISELE, Weprin, Folkerth & Routh, LLC
of Dayton, Ohio, for petitioner.
JOSHUA E. KURLAND, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent. With him
on the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY,
JR., Assistant Director.
MANCINI v. VA 2
__________________________
Before DYK, FRIEDMAN, and MOORE, Circuit Judges.
PER CURIAM.
Mario G. Mancini, Jr., (“Mancini”) petitions for review
of a final order of the Merit Systems Protection Board (the
“MSPB” or “Board”) affirming a decision of the Depart-
ment of Veterans Affairs (the “VA” or “agency”). The VA
removed Mancini for “Inappropriate Conduct,” “Neglect of
Duty,” “Using Government Computer to Transmit Inap-
propriate Materials,” and “Providing Inconsistent State-
ments Under Oath.” See Mancini v. Dep’t of Veterans
Affairs, No. CH-0752-09-0272-I-1 (M.S.P.B. Aug. 6, 2009)
(“Final Order”). We affirm.
I BACKGROUND
Mancini was employed as a vocational rehabilitation
specialist at the Dayton Veterans Affairs Medical Center
(“Dayton VA”) from 1992 until January 2, 2009. The four
charges for which Mancini was removed from this position
relate to multiple, distinct events that occurred over a
short period of time.
Neglect of Duty
A. Failure to Transfer
During Fall 2007 and early 2008, Mancini served as a
counselor to a female veteran (the “Veteran”) with dimin-
ished mental capacity who was receiving treatment at the
Dayton VA. On October 18, 2007, Mancini concluded that
he believed it was in the Veteran’s best interests for her
to be transferred to the care of a female vocational reha-
3 MANCINI v. VA
bilitation specialist, Debbie Oberg (“Oberg”). Mancini
took steps to transfer the Veteran to Oberg, but the
transfer was never completed, and the Veteran stayed
under Mancini’s care. The parties dispute whether it was
Mancini’s or Oberg’s fault that the transfer was not
completed. Mancini’s failure to complete the transfer of
the Veteran to Oberg after he had determined that such a
transfer was necessary became the basis for one of the
two specifications supporting a Neglect of Duty charge.
B. Improper Supervision of Intern
On October 19, 2007, Mancini recorded in a progress
note that the Veteran was “very manipulative and is
becoming increasingly seductive to male staff” and that
Mancini “now believes this veteran is extremely problem-
atic in her judgment, insight, physical limitations, rela-
tionships with men.” J.A. 884. He further noted that the
Veteran had asked Mancini’s student intern (the “Intern”)
to drive her to Florida, which the Intern had declined to
do. The Intern had also told Mancini that a “friendship”
had started developing between the Intern and the Vet-
eran. J.A. 175, 177. Mancini testified that he cautioned
the Intern both that driving the Veteran to Florida and
that developing a friendship with the Veteran would be
inappropriate. Later, the Intern disclosed to Mancini that
the Veteran had called the Intern from Florida. The
Intern took a break from his internship the following
academic quarter. On February 29, 2008, the Veteran
disclosed to Mancini that she had become involved in a
consensual, sexual relationship with the Intern during his
break from the internship. Mancini’s allegedly improper
supervision of the Intern formed a second basis for the
Neglect of Duty charge against Mancini.
MANCINI v. VA 4
Providing Inconsistent Statements Under Oath
Mancini appeared before the First Administrative
Board of Investigation to provide sworn testimony relat-
ing to the relationship between the Intern and the Vet-
eran on March 21, 2008, and April 11, 2008. An alleged
inconsistency between Mancini’s testimonies on these two
dates formed the basis for the charge of Providing Incon-
sistent Statements Under Oath.
Inappropriate Conduct
A. Provision of Daughter’s Contact Information
In February 2008, the Veteran expressed an interest
in motorcycles to Mancini. Mancini provided the Veteran
with the contact information for his daughter, Candace
Pickrel (“Pickrel”), who was knowledgeable about motor-
cycles. Like Mancini, Pickrel was trained to provide
rehabilitation services, but she was unaffiliated with the
Dayton VA.
On March 25 or 26, 2008, which was four or five days
after Mancini first appeared before the Board of Investi-
gation, the Veteran was allegedly raped by another pa-
tient (“Mr. K”), who was being treated for sexual
addiction at the Dayton VA. Pickrel subsequently became
an advocate for the Veteran with regard primarily to the
alleged rape, as well as to the Veteran’s treatment and
personal relationships at the Dayton VA.
The Code of Professional Ethics for Rehabilitation
Counselors (the “CPERC”) discourages the development of
familial relationships with clients “that could impair
professional judgment or increase the risk of harm to
clients.” J.A. 397. Mancini’s provision of his daughter’s
telephone number to the Veteran in February 2008 alleg-
5 MANCINI v. VA
edly violated the CPERC and provided the basis for the
first of two specifications supporting the charge of Inap-
propriate Conduct against Mancini. In this specification,
the agency “noted that Ms. Pickrel became the patient’s
advocate in matters in which [Mancini] clearly had a
vested interest.” J.A. 721.
B. Transportation on Personal Motorcycle
On April 25, 2008, Mancini transported the Veteran
off of the Dayton VA premises after-hours on his personal
motorcycle. Mancini claims he was taking the Veteran “to
look at a motorcycle to educate her on budgeting skills
and try to talk her out of buying the motorcycle.” Pet’r’s
Br. 6. Mancini’s use of his motorcycle to transport the
Veteran became the basis for the second specification
supporting the charge of Inappropriate Conduct.
Using Government Computer to Transmit Inappropri-
ate Materials
During the investigation of some of the foregoing alle-
gations, an examination of the files in Mancini’s computer
was conducted. The investigation discovered that
Mancini had forwarded two emails to his wife and daugh-
ter. One email contained a pornographic image of a
naked woman bending over and another email contained
a racial joke. These emails provided the basis for a
charge, Using Government Computer to Transmit Inap-
propriate Materials. This charge included two specifica-
tions relating to the two emails Mancini forwarded to his
wife and daughter.
On October 23, 2008, the Dayton VA issued Mancini a
notice proposing his removal based on the four charges of
misconduct: (1) Inappropriate Conduct; (2) Neglect of
MANCINI v. VA 6
Duty; (3) Using Government Computer to Transmit
Inappropriate Materials; and (4) Providing Inconsistent
Statements Under Oath. Mancini provided an oral re-
sponse to the charges.
In December of 2008, the agency sustained the
charges and removed Mancini. On January 14, 2009,
Mancini appealed his removal to the MSPB. An Adminis-
trative Judge (“AJ”) issued an Initial Decision sustaining
all four of the charges, as well as the penalty of removal,
on May 1, 2009. Mancini v. Dep’t of Veterans Affairs, No.
CH-0752-09-0272-I-1 (M.S.P.B. May 1, 2009) (“Initial
Decision”). Mancini filed a petition for review with the
full Board, which was denied, making the initial decision
of the AJ the final decision of the Board. Mancini timely
appealed to this court, and we have jurisdiction over his
appeal pursuant to 28 U.S.C. § 1295(a)(9).
II DISCUSSION
Our review of an MSPB decision is limited. We must
sustain a decision of the Board unless it is “found to be (1)
arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law; (2) obtained without proce-
dures required by law, rule, or regulation having been
followed; [or] (3) unsupported by substantial evidence.”
Jacobs v. Dep’t of Justice, 35 F.3d 1543, 1545 (Fed. Cir.
1994) (citing 5 U.S.C. § 7703(c)).
A Neglect of Duty and Inappropriate Conduct
With respect to two of the specifications, we agree
with Mancini that the decision of the Board is not sup-
ported by substantial evidence. First, the Board’s deci-
sion with respect to the allegation that Mancini
improperly supervised the Intern, which is the second
7 MANCINI v. VA
specification of the Neglect of Duty charge, is plainly
based on a misapprehension of the record. Mancini points
out that the Board mistakenly concluded that the rape of
the Veteran was committed by the Intern, whereas the
rape was actually committed by a third person, Mr. K.
The Board’s error on this point appears to have contrib-
uted to its decision to sustain this specification. See
Initial Decision, slip op. at 6 (“T]he appellant’s actions
resulted in harm to [the Veteran]. She pursued com-
plaints about the intern’s actions based on her belief she
was ‘basically raped’ . . . . I therefore find that discipli-
nary action based on this specification was warranted . . .
.”).
Second, the Board’s decision with respect to the alle-
gation that Mancini provided his daughter’s contact
information to the Veteran in violation of the CPERC, the
first specification of the Inappropriate Conduct charge, is
not supported by substantial evidence. The Board con-
cluded that Mancini had violated the CPERC by providing
his daughter’s telephone number to the Veteran because
it was reasonably foreseeable that his daughter would
become involved as the Veteran’s advocate on issues over
which he had a “vested interest.” We see no basis in the
record for this conclusion. The Board’s decision on this
specification again confuses the Intern and Mr. K.
Mancini’s daughter’s advocacy efforts related primarily to
the alleged rape by Mr. K, over which Mancini had no
vested interest. At the time the daughter’s name was
provided, the rape by Mr. K had not even occurred, and
there is no basis for believing that the Veteran would
even require the services of an advocate. While we con-
clude that these two specifications are not sustainable, as
we now discuss, we conclude that Mancini’s challenges to
the other charges and specifications are without merit.
MANCINI v. VA 8
With regard to the remaining Neglect of Duty and In-
appropriate Conduct specifications, Mancini’s primary
argument is that the MSPB erred by relying on the testi-
mony of the agency’s witnesses in finding the specifica-
tions of these two charges supported by substantial
evidence. The MSPB found the testimony of the agency’s
witnesses more persuasive than that of Mancini. We
have often held that when the MSPB’s credibility deter-
minations are not inherently improbable or discredited by
undisputed fact, we are not in a position to re-evaluate
them. See Pope v. U.S. Postal Serv., 114 F.3d 1144, 1149
(Fed. Cir. 1997); Hambsch v. Dep’t of Treasury, 796 F.2d
430, 436 (Fed. Cir. 1986); DeSarno v. Dep’t of Commerce,
761 F.2d 657, 661 (Fed. Cir. 1985); Griessenauer v. Dep’t
of Energy, 754 F.2d 361, 364 (Fed. Cir. 1985). We find
nothing in the record here to justify reconsidering the
Board’s credibility determinations. The first specification
of the Neglect of Duty charge, which concerned Mancini’s
failure to transfer the Veteran to a female vocational
rehabilitation specialist, and the second specification of
the Inappropriate Conduct charge, which concerned the
transportation of the Veteran on Mancini’s personal
motorcycle, are supported by substantial evidence. Since
each charge is supported by a specification that we have
sustained, we conclude that all of the charges must be
sustained.
B Using Government Computer to Transmit Inappropri-
ate Materials
The third charge, Using Government Computer to
Transmit Inappropriate Materials, relates to the emails
containing sexual and racial innuendos that Mancini sent
to his wife and daughter. Mancini explains that “[t]his is
not a situation where [he] was regularly emailing inap-
propriate materials to mass number of recipients. [He]
9 MANCINI v. VA
forwarded emails on two occasions to immediate family
members merely to show what he was receiving at work.”
Pet’r’s Br. 20-21. To remove Mancini from federal service
on the basis of these emails, the VA was required to
prove, among other things, that “a relationship [was
present] between the misconduct and the objective of
promoting the efficiency of the service.” See James v.
Dale, 355 F.3d 1375, 1378 (Fed. Cir. 2004). Mancini
asserts that the MSPB failed to specify how a nexus
existed between his conduct in forwarding these emails
and the efficiency of the Dayton VA. He claims that the
MSPB “merely parroted the ‘efficiency of the service’
language without supporting facts.” Pet’r’s Reply Br. 11.
We disagree.
The MSPB described Mancini’s conduct and the con-
tents of the emails in detail. The MSPB then discussed
how the VA Handbook, Part IX, provides that government
property may only be used for officially-approved pur-
poses. The MSPB explained that “use of the [government]
computer to forward messages containing sexual or racial
innuendos is not appropriate, even assuming the mes-
sages were only forwarded to the appellant’s wife and
daughter. . . . Because improper use of government
property harms the efficiency of the service, the charge is
sustained.” Initial Decision, slip op. at 9. We see no error
in the MSPB’s finding. It is self-evident that using gov-
ernment resources to send racially and sexually charged
emails is inappropriate; such conduct is a misuse of public
funds and reflects poorly on the agency.
C Providing Inconsistent Statements Under Oath
The fourth charge against Mancini is that he provided
inconsistent statements under oath. When he was ques-
tioned on March 21, 2008, Mancini testified that the
MANCINI v. VA 10
Intern had informed him that the Intern was developing a
friendship with the Veteran. While giving sworn testi-
mony on April 11, 2008, however, Mancini claimed that
the Intern had “never” told him that “a friendship or
relationship” was developing with the Veteran. J.A. 635.
Contrary to Mancini’s assertions, we agree with the
MSPB that his statements were inconsistent. There is
also no merit to Mancini’s contention that he could not be
disciplined for making inconsistent statements. We
therefore sustain the Board’s decision as to this charge.
D Reasonableness of Penalty
Finally, Mancini challenges the Board’s determination
that removal was an appropriate penalty. Mancini argues
that the MSPB erred in failing to consider all of the
relevant factors pursuant to Douglas v. Veterans Admini-
stration, 5 M.S.P.R. 280 (1981), which provides a list of
twelve factors that should be considered in determining
the appropriateness of a penalty. The Board, however, is
not required to “consider every one of the 12 Douglas
factors ‘mechanistically by [a] preordained formula.’”
Webster v. Dep’t of Army, 911 F.2d 679, 686 (Fed. Cir.
1990) (quoting Douglas, 5 M.S.P.R. at 306). The deciding
official here, whose determinations were adopted by the
MSPB, expressly considered all of the Douglas factors.
Because we uphold the Board’s decision with respect to
each of the charges against Mancini and because the
Board did not err in finding that removal was not an
inappropriate sanction, we sustain the Board’s decision as
to penalty. Our decision setting aside the Board’s deci-
sion as to the two specifications does not affect the pen-
alty since there is no indication that the agency would
have reached a different result absent those two specifica-
tions.
AFFIRMED
11 MANCINI v. VA
COSTS
No costs.