Abrams v. Department of Veteran Affairs , 306 F. App'x 602 ( 2009 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3314
WINFRED B. ABRAMS,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Winfred B. Abrams, of Memphis, Tennessee, pro se.
Steven J. Abelson, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on the
brief were Gregory G. Katasas, Assistant Attorney General, Jeanne E. Davidson, Director,
and Franklin E. White, Jr., Assistant Director. Of counsel on the brief was Alan E. Foster,
Staff Attorney, Nashville Regional Office, United States Department of Veterans Affairs, of
Nashville, Tennessee.
Appealed from: Merit Systems Protection Board
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2008-3314
WINFRED B. ABRAMS,
Petitioner,
v.
DEPARTMENT OF VETERAN AFFAIRS,
Respondent.
Petition for review of the Merit Systems Protection Board in
AT0752080051-I-1.
____________________________
DECIDED: January 12, 2009
____________________________
Before LOURIE, BRYSON, and GAJARSA, Circuit Judges.
PER CURIAM.
DECISION
Winfred Abrams appeals from the decision of the Merit Systems Protection Board
(“Board”) affirming the decision of the Veterans Administration (“VA” or “Agency”)
removing him from his position as a kinesiotherapist. Abrams v. Dep’t of Veterans
Affairs, AT-0752-08-0051-I-1 (M.S.P.B. Feb. 15, 2008). Because the Board’s decision
was in accordance with law and supported by substantial evidence, we affirm.
BACKGROUND
Abrams worked as a kinesiotherapist at the VA Medical Center in Memphis, TN.
As a kinesiotherapist, Abrams prescribed and oversaw exercise treatments for veterans.
On October 5, 2007, the Agency removed Abrams from his position on charges that he
had engaged in a prohibited relationship with a patient and had committed patient
abuse.
The charges stemmed from Abrams’ relationship with Felicia Dukes, one of
Abrams’ patients. According to Dukes, she and Abrams had a five-year sexual
relationship during the time that Dukes was being treated by Abrams. Sometime in
2006 Dukes contacted Abrams’ supervisors and the VA police, alleging that Abrams
had begun harassing her because of the breakup of their relationship. In October 2006,
Dukes requested, and was assigned, a new therapist.
Abrams admitted that he and Dukes had a personal relationship, but denied that
the relationship was of a sexual nature. Abrams claims that his and Dukes’ relationship
was limited to periodic kinesiotherapy group dinners, talking on the phone, accepting
meals from her at his workplace, and occasionally attending church together. Abrams
stated that his relationship with Dukes ended in October 2006 when he was instructed
by his employer as well as the VA police to cease contact with Dukes.
After the Agency removed him in October 2007, Abrams appealed the decision to
the Board. In an initial decision dated February 15, 2008, an administrative judge
affirmed the Agency’s removal decision. The AJ found that Abrams and Dukes had
engaged in a sexual relationship. That conclusion was based primarily on witness
credibility determinations; the AJ found Dukes’ testimony to be more persuasive than
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Abrams’. Thus, the AJ found that because Abrams engaged in a prohibited sexual
relationship, the Agency’s removal decision was appropriate. However, the AJ did not
sustain the Agency’s alternative ground for removal: patient abuse. The AJ found
insufficient evidence to support the Agency’s charge that Abrams had harassed Dukes.
Thus, although only one of the Agency’s charges against Abrams was sustained,
the AJ upheld the decision to remove Abrams. The AJ upheld the Agency’s removal
decision based upon Abrams’ behavior, his lack of potential for rehabilitation, and his
past disciplinary record. The Board denied Abrams’ petition for review; thus, the AJ’s
decision became final.
Abrams timely appealed the Board’s denial. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9).
DISCUSSION
The scope of our review in an appeal from a Board decision is limited. We can
only set aside the Board’s decision if it was “(1) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (2) obtained without procedures
required by law, rule, or regulation having been followed; or (3) unsupported by
substantial evidence.” 5 U.S.C. § 7703(c) (2000); see Briggs v. Merit Sys. Prot. Bd.,
331 F.3d 1307, 1311 (Fed. Cir. 2003). This court reviews rulings on evidentiary matters
under an abuse of discretion standard. Banknote Corp. of Am., Inc. v. United States,
365 F.3d 1345, 1358 (Fed. Cir. 2004).
On appeal, Abrams resumes his claims that he never engaged in a sexual
relationship with Dukes and that the AJ’s decision was based entirely on “she said
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testimony.” He further argues that he should be reinstated because the VA did not
respond to his requests for VA policies regarding prohibited socialization with patients.
In response, the government contends that the evidence established that Dukes
and Abrams had a sexual relationship and that such relationships were prohibited by the
VA. Furthermore, the government argues that the AJ is given wide discretion regarding
discovery requests and there is no evidence that that discretion was abused in this
case.
We agree with the government. This case hinges on the conflicting testimony of
Dukes and Abrams. The former claimed that the pair engaged in a five-year affair that
ended only after police and the VA intervened. The latter claimed that the relationship
was strictly platonic. The AJ found Dukes’ testimony to be “more persuasive” than
Abrams’. This court will not overturn credibility determinations unless the testimony was
“inherently improbable or discredited by undisputed evidence or physical facts.”
Hanratty v. Dep’t of Transp., 819 F.2d 286, 288 (Fed. Cir. 1987) (citation omitted).
Abrams has not pointed to anything in Dukes’ testimony that has been discredited or is
inherently improbable. Thus, due to our deferential standard of review of credibility
determinations, we must uphold the AJ’s finding that Dukes and Abrams engaged in a
sexual relationship.
Abrams’ argument that the AJ erred by refusing to grant his discovery request is
similarly flawed. Abrams has not shown that the failure of the AJ to grant his discovery
request was prejudicial to him. In fact, his discovery request only sought information as
to the VA’s policy regarding social relations with patients. In this case, it has already
been established by the AJ that Abrams’ relationship with Dukes was not of merely a
2008-3314
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“social” nature; thus, the request for such a policy was irrelevant. See Curtin v. Office of
Pers. Mgmt., 846 F.2d 1373 (Fed. Cir. 1988) (finding that an AJ may exclude irrelevant
evidence). It was uncontested at the AJ’s hearing that sexual relationships with patients
were prohibited by the VA. Therefore, Abrams’ discovery request was properly denied
by the AJ.
Accordingly, we affirm the Board’s decision.
COSTS
No costs.
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