NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SHELIA BOWE-CONNOR,
Petitioner
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent
______________________
2017-2011
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-13-0668-I-1.
______________________
Decided: November 13, 2017
______________________
SHELIA BOWE-CONNOR, Laurel, MD, pro se.
ADAM E. LYONS, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, for respondent. Also represented by CHAD A.
READLER, ROBERT E. KIRSCHMAN, JR., REGINALD T.
BLADES, JR.
______________________
Before DYK, SCHALL, and TARANTO, Circuit Judges.
2 SHELIA BOWE-CONNOR v. DVA
PER CURIAM.
DECISION
Shelia Bowe-Connor petitions for review of the final
decision of the Merit Systems Protection Board (“Board”)
that affirmed the action of the Department of Veterans
Affairs (“VA” or ”agency”) removing her from her position
for misconduct. We affirm.
DISCUSSION
I.
Ms. Bowe-Connor worked as a clinical pharmacist in
the inpatient pharmacy at the VA Medical Center in
Washington, D.C. Effective May 17, 2013, the agency
removed her from her position based upon three charges:
(1) causing delay in patients receiving medications; (2)
conduct unbecoming; and (3) disrespectful conduct.
Ms. Bowe-Connor appealed her removal to the Board.
Following a hearing, the administrative judge (“AJ”) to
whom the appealed was assigned issued an initial deci-
sion sustaining the VA’s action. Shelia Bowe-Connor v.
Dep’t. of Veterans Affairs, Case No. DC-0752-13-0668-I-1,
2014 WL 4594583 (M.S.P.B. Sept. 11, 2014) (“Initial
Decision”). Ms. Bowe-Connor timely petitioned the Board
for review. Thereafter, on January 20, 2015, the Board
issued a final decision in which it denied the petition for
review and, except as modified, affirmed the AJ’s initial
decision, thereby sustaining Ms. Bowe-Connor’s removal.
Shelia Bowe-Connor v. Dep’t. of Veterans Affairs, Case No.
DC-0752-13-0668-I-1,
2015 WL 241222 (M.S.P.B. Jan. 20,
2015) (“Final Decision”). This appeal followed. We have
jurisdiction pursuant to
28 U.S.C. § 1295(a)(9) (2012). *
* In her petition for review to the Board, in addition
to the other arguments she made, Ms. Bowe-Connor
SHELIA BOWE-CONNOR v. DVA 3
II.
Our scope of review in an appeal from a decision of
the Board is limited. Specifically, we must affirm the
Board’s decision unless we find it to be arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accord-
ance with law; obtained without procedures required by
law, rule, or regulation having been followed; or unsup-
ported by substantial evidence.
5 U.S.C. § 7703(c) (2012);
Miller v. Fed. Deposit Ins. Corp.,
818 F.3d 1361, 1365
(Fed. Cir. 2016).
III.
Ms. Bowe-Connor’s main argument on appeal is that
the Board incorrectly decided the facts relating to the
three charges against her and generally did not take into
account the evidence presented. See Petitioner’s Informal
Brief (“Informal Brief”), Questions 2, 5. In making this
argument, she contends that the Board ignored “the
exhibits that were presented in the case” and what she
refers to as “the disability.”
Id. She also contends that
the AJ erred in making a credibility determination relat-
ing to the charge of “conduct unbecoming.” See Petition-
er’s Informal Reply Brief (“Informal Reply Brief”), pp. 8–9.
For the following reasons, we are not persuaded by these
arguments.
A.
The charge of causing delay in patients receiving med-
ications (Charge 1) arose out of an incident that occurred
raised the affirmative defense of discrimination based
upon disability, thereby making this a mixed case. Ms.
Bowe-Connor has since abandoned that claim, howev-
er. Consequently, there is no bar to our jurisdiction. See
Daniels v. Postal Service,
726 F.2d 723, 724 (Fed. Cir.
1984).
4 SHELIA BOWE-CONNOR v. DVA
on January 21, 2013. On that date, the VA alleged,
personnel in the surgical intensive care unit (SICU)
attempted to reach the inpatient pharmacy by telephone
to have a prescription filled. However, Ms. Bowe-Connor,
who was on duty at the time, did not answer the phone.
Initial Decision, pp. 2–3. Nursing Supervisor Theresa
Poblete stated that, when she asked Ms. Bowe-Connor
why she was not answering the phone, Ms. Bowe-Connor
deliberately ignored her and never made eye contact. Ms.
Poblete also stated that, when she repeated her question,
Ms. Bowe-Connor said in a very irritated tone not to
bother her because she was busy inputting medications in
the computer.
Id. The AJ found that the VA had proved
this charge, noting that Ms. Bowe-Connor “did not deny
that her failure to answer the phones in the pharmacy on
the night in question caused a delay in patients’ receipt of
their prescribed medications . . . .” Id., p.3.
The charge of conduct unbecoming (Charge 2) in-
volved an incident that occurred on February 16, 2013.
That day, Dr. Babatunde Osun, a clinical pharmacist who
was working in the SICU, called the inpatient pharmacy
because a nurse had reported to him that a critically ill
surgical patient’s intravenous (IV) drip of the medication
Versed was almost empty, and a refill ordered two hours
earlier from the pharmacy still had not been delivered.
Initial Decision, pp. 3–4. Dr. Osun testified that, when he
telephoned the pharmacy and requested the medication
“STAT,” Ms. Bowe-Connor answered the phone and told
him that he should not be requesting orders “STAT” and
that she argued with him when he reiterated that he had
an urgent need for the medication. Id. Dr. Osun stated
that he thus had to leave the SICU and go downstairs to
the pharmacy in person, prepare the IV medication him-
self, and bring it upstairs for the patient in the SICU. Id.,
p. 4. The AJ found that the agency also had proved this
charge. The AJ noted that Ms. Bowe-Connor did not deny
the portion of the charge that she argued with Dr. Osun
SHELIA BOWE-CONNOR v. DVA 5
about whether the IV medication could be dispensed
STAT. Id., p. 4. In addition, the AJ rejected Ms. Bowe-
Connor’s testimony at the hearing that she in fact filled
the request for the IV medication herself. In doing so, the
AJ found Dr. Osun’s testimony as to what happened on
February 16 more credible than that of Ms. Bowe-Connor.
Id.
Disrespectful conduct, the third charge against Ms.
Bowe-Connor, was based upon an incident that occurred
on January 24, 2013. Lucy Hilliard-Brown, the inpatient
pharmacy supervisor, testified that, on that day, she
alerted her supervisor, Linwood Moore, the associate
director of the pharmacy, that she needed additional help
because there was a shortage of available pharmacy
technicians. Responding, Mr. Moore sent Mabelyn Mi-
jango, who usually worked in the outpatient pharmacy, to
assist in the inpatient pharmacy. Ms. Bowe-Connor,
however, disputed the choice of Ms. Mijango, arguing with
both Ms. Hilliard-Brown and Mr. Moore. Mr. Moore
testified that Ms. Bowe-Connor loudly and disrespectfully
questioned Ms. Hilliard-Brown and him as to why an
inexperienced individual had been assigned to help out in
the inpatient pharmacy when she would have preferred
another, more capable technician instead. Initial Deci-
sion, pp. 5–6. The AJ found that the VA had proved this
charge too. The AJ noted that Ms. Bowe-Connor did not
deny the charge. The AJ also found that the testimony of
Ms. Hilliard-Brown and Mr. Moore as to what happened
on January 24 was more credible than that of Ms. Bowe-
Connor. Id., p. 6.
Review of the record reveals that, contrary to Ms.
Bowe-Connor’s contentions, both the AJ, see Initial Deci-
sion, pp. 2–6, and the Board, see Final Decision, pp. 4–6,
considered and weighed all of the evidence pertinent to
the three charges brought by the VA. Ms. Bowe-Connor
has failed to identify any document that the AJ and the
Board failed to consider, and she has not demonstrated
6 SHELIA BOWE-CONNOR v. DVA
that the AJ and the Board failed to consider what she has
referred to as “the disability.” As best we can understand
it, Ms. Bowe-Connor’s claim on this point is that the AJ
and the Board failed to take into account the way in
which an unnamed disability she suffers impeded her
work performance and thus was a factor in the events
that led to the charges against her. See Informal Reply
Brief, pp. 7, 9–11. However, aside from the fact that she
only makes passing references to this matter in her
briefing before us, she provides us with no citations
showing where she raised it before the AJ and the Board.
Quite simply, Ms. Bowe-Connor’s real complaint is that
the Board weighed the evidence and came to the wrong
conclusion in her case. This is not a reason to set aside
the Board’s decision, however. We have stated that “‘the
evaluation of and weight to be given to . . . [the] evidence
in the record are judgment calls that rest primarily within
the discretion of the Board.’” Koenig v. Dep’t of the Navy,
315 F.3d 1378, 1381 (Fed. Cir. 2003) (quoting Hall v. Dep’t
of the Treasury,
264 F.3d 1050, 1060 (Fed. Cir. 2001)).
Ms. Bowe-Connor has not demonstrated why we should
reject the Board’s assessment of the evidence. In short,
we have no difficulty concluding that the decision of the
Board in this case is supported by substantial evidence.
B.
The final piece of Ms. Bowe-Connor’s main argument
is her claim that the AJ made an erroneous credibility
determination relating to the charge of conduct unbecom-
ing. Because she contends that she did, in fact, fill the IV
medication request for the SICU, Ms. Bowe-Connor
challenges the AJ’s acceptance of Dr. Osun’s contrary
testimony. We reject her claim. The AJ thoroughly
explained why he found Dr. Osun more credible than Ms.
Bowe-Connor:
Initial Decision, p. 4. Credibility determinations
His demeanor on the witness stand was calm and
SHELIA BOWE-CONNOR v. DVA 7
steady, whereas the appellant was argumentative
and overly adamant, consistent with the argu-
mentative conduct described in [the charge of con-
duct unbecoming.] In addition, Dr. Osun had no
reason to fabricate his testimony, which directly
contradicted that of the appellant, who had an ob-
vious reason to give false testimony, since her job
was at stake.
such as this by the AJ are “virtually unreviewable . . . .”
Hambsch v. Dep’t of the Treasury,
796 F.2d 430, 436 (Fed.
Cir. 1986) (citing 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); also citing Anderson v.
City of Bessemer City, N.C.,
105 S. Ct. 1504, 1513 (1985)).
Ms. Bowe-Connor has not provided us with a reason to
overturn the AJ’s credibility determination.
IV.
Ms. Bowe-Connor makes several additional argu-
ments. We address them in turn.
A.
Ms. Bowe-Connor argues that the Board failed to take
into account her union’s collective bargaining agreement
and that, in removing her, the VA violated the terms of
the agreement. We disagree.
Before the Board Ms. Bowe-Connor claimed that the
VA committed harmful procedural error when it failed to
conduct a fair and impartial investigation concerning the
events that led to the charges against her, as required by
the collective bargaining agreement. Both the AJ and the
Board, however, fully considered this claim. See Initial
Decision, pp. 7–8; Final Decision, pp. 8–9. The AJ found
that the action taken against Ms. Bowe-Connor “was
based on contemporaneous written statements from
several witnesses” and that the deciding official “reviewed
the entire evidentiary file, along with the appellant’s oral
8 SHELIA BOWE-CONNOR v. DVA
and written replies, before concluding that the charges
were proven.” Initial Decision, p. 8. In her petition for
review, Ms. Bowe-Connor argued that the VA violated the
collective bargaining agreement and committed harmful
procedural error when, before it proposed her removal, it
failed to provide her with “supervisory notes and reports
of contact.” Final Decision, p. 8. The Board rejected this
contention because it concluded that Ms. Bowe-Connor
had failed to show how the agency’s failure to provide her
with these documents amounted to harmful procedural
error. Id., p. 9. The Board stated, “[a]lthough the appel-
lant vaguely asserted at the hearing that her ability to
view these documents may have changed the result in
this case, [ ] we do not find that this failure by the agency
caused it to reach a different conclusion than it otherwise
would have.” Id. In view of the substantial evidence
presented by the VA in support of the charges against Ms.
Bowe-Connor, we see no error in the Board’s ruling.
B.
Ms. Bowe-Connor’s remaining arguments on appeal
relate to the penalty that was imposed upon her. She
contends that, in removing her, the VA failed to take into
account her years of service with the agency. She also
contends that her removal amounted to disparate treat-
ment. We see no merit in either of these arguments.
When it disciplines an employee, in addition to prov-
ing the merits of the charge(s) involved, an agency must
demonstrate that the penalty imposed promotes the
efficiency of the service and is reasonable.
5 U.S.C.
§§ 7701(c)(1)(B) and 7513(a); Douglas v. Veterans Admin-
istration,
5 M.S.P.R. 280, 303 (1981). In Douglas, the
Board set forth the factors to be considered in determin-
ing whether a penalty is reasonable, and this Court has
approved use of the Douglas factors. See Weston v. U.S.
Dep’t of Hous. & Urban Dev.,
724 F.2d 943, 950 (Fed. Cir.
1983). One of the Douglas factors is the employee’s past
SHELIA BOWE-CONNOR v. DVA 9
work record, including length of service. Douglas, 5
M.S.P.R. at 305. The evidence of record shows that, in
deciding on the penalty of removal, the deciding official
took into account the pertinent Douglas factors, including
Ms. Bowe-Connor’s length of service with the agency. See
p. 88 of the Appendix attached to the Government’s
Informal Brief. Moreover, in both their respective deci-
sions, the AJ and the Board explained why Ms. Bowe-
Connor’s conduct merited the penalty of removal. See
Initial Decision, p. 7; Final Decision, pp. 6–7.
We turn finally to Ms. Bowe-Connor’s claim of dispar-
ate treatment. To establish disparate treatment, a disci-
plined employee must show that there is enough
similarity between both the nature of the misconduct
charged and other pertinent factors to lead a reasonable
person to conclude that the agency treated similarly
situated employees differently. Lewis v. Dep’t of Veterans
Affairs,
113 M.S.P.R. 657, ¶ 15 (2010); see Miskill v. Soc.
Sec. Admin.,
863 F.3d 1379, 1384 (Fed. Cir. 2017). The
Board rejected Ms. Bowe-Connor’s claim of disparate
treatment. It did so because it found that neither of the
two agency employees to whom Ms. Bowe-Connor pointed
had engaged in conduct consistent with the charge of
causing a delay in patient medications or had histories of
discipline similar to hers. Final Decision, p. 8. Ms. Bowe-
Connor has not demonstrated how the Board’s findings on
disparate treatment are not supported by substantial
evidence. In sum, Ms. Bowe-Connor has not demonstrat-
ed error in the Board’s affirmance of the VA’s penalty.
CONCLUSION
For the foregoing reasons, the Board’s Final Decision
is affirmed.
AFFIRMED
COSTS
No costs.
