Finizie v. DVA ( 2021 )


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  • Case: 21-1493   Document: 37     Page: 1    Filed: 11/03/2021
    NOTE: This disposition is nonprecedential.
    United States Court of Appeals
    for the Federal Circuit
    ______________________
    SHARON FINIZIE, FLORENCE KOCHER,
    Petitioners
    v.
    DEPARTMENT OF VETERANS AFFAIRS,
    Respondent
    ______________________
    2021-1493
    ______________________
    Petition for review of the Merit Systems Protection
    Board in No. PH-1221-18-0304-W-2.
    ______________________
    Decided: November 3, 2021
    ______________________
    FAYE COHEN, Law Office of Faye Riva Cohen, Philadel-
    phia, PA, for petitioners.
    MATTHEW JUDE CARHART, Commercial Litigation
    Branch, Civil Division, United States Department of Jus-
    tice, Washington, DC, for respondent. Also represented by
    BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR., ELIZABETH
    MARIE HOSFORD.
    ______________________
    Before LOURIE, DYK, and REYNA, Circuit Judges.
    Case: 21-1493    Document: 37      Page: 2    Filed: 11/03/2021
    2                                              FINIZIE   v. DVA
    PER CURIAM.
    Sharon Finizie and Florence Kocher (collectively, “Pe-
    titioners”) appeal from the decision of the Merit Systems
    Protection Board (“the Board”) dismissing their consoli-
    dated appeal under the Whistleblower Protection Act
    (“WPA”). We affirm.
    BACKGROUND
    During 2016, Petitioners were employed at the Cor-
    poral Michael J. Crescenz Department of Veterans Affairs
    Medical Center. This appeal concerns three events in 2016
    that Petitioners argue prompted protected disclosures by
    them under the WPA.
    The first alleged disclosure concerns an argument be-
    tween Kocher and her colleague, Patricia Simon, over a
    missing report (“First Incident”). J.A. 7–8. Kocher alleges
    that during the argument, Simon shouted, cursed, and ges-
    ticulated wildly. Id. Finizie witnessed the event. Id. Af-
    terward, Kocher and Finizie jointly sent a report of the
    incident to their supervisor. J.A. 9, 41–42.
    The second alleged disclosure concerns a crude sexual
    joke and shoulder massage directed to Finizie from Peter
    Leporati (“Second Incident”). J.A. 19. Eight days after this
    incident, Finizie reported the incident to her supervisor.
    Id.; J.A. 22. In her report, she wrote that Leporati intended
    to intimidate her. J.A. 23.
    The last alleged disclosure concerns a finger gun pan-
    tomime that Leporati pointed at Kocher, accompanied by a
    “click, click” sound (“Third Incident”). J.A. 20. Six days
    later, Kocher reported the incident to her supervisor and
    Veterans Affairs (“VA”) police headquarters. Id.
    The agency’s Administrative Investigative Board
    (“AIB”) investigated the three incidents. It found that
    Kocher and Finizie had not been subject to a hostile work
    environment because the incidents were isolated. J.A. 66–
    67. Moreover, although Kocher alleged that her co-workers
    Case: 21-1493       Document: 37   Page: 3   Filed: 11/03/2021
    FINIZIE   v. DVA                                          3
    bullied her, the AIB found that it was Kocher who had cre-
    ated a hostile work environment. Id.
    Following AIB review, Petitioners suffered several neg-
    ative consequences at work, which they allege were in re-
    taliation for their protected disclosures. For example, a VA
    supervisor issued Kocher a memorandum regarding her
    misconduct, delayed issuing her evaluation, and proposed
    reprimanding her. J.A. 15, 16. The VA supervisor also
    moved Finizie to a smaller office. J.A. 3. Finizie has since
    retired. J.A. 2.
    Kocher and Finizie each filed an appeal to the Board
    and, because their underlying claims are related, the Board
    consolidated their appeals.
    The Board’s administrative judge (“AJ”) dismissed Pe-
    titioners complaint, holding that their reports regarding
    the three alleged incidents were not protected disclosures
    under the WPA. First, the AJ found that the First Incident
    was not evidence of wrongdoing by the agency and was, in-
    stead, an ordinary dispute among co-workers. J.A. 17–19.
    The AJ noted that such a “petty grievance” was not within
    the WPA. J.A. 17. Second, the AJ found that Finizie’s al-
    legations concerning the Second Incident were not credible
    because she did not expressly state that she was sexually
    harassed and did not mention this incident in an email to
    a union representative regarding a separate incident. J.A.
    25–26. Third, the AJ found that Kocher’s allegations re-
    garding the Third Incident were not credible due to dis-
    crepancies between Kocher’s testimony at the hearing and
    her allegations to the police. Id.
    The AJ also noted that Kocher’s demeanor during her
    own testimony and during Simon’s testimony hurt her
    credibility. For example, the AJ observed that Kocher was
    “antagonistic,” aggressively “chomping on gum,” and “glow-
    ering” at Simon. J.A. 13.
    Petitioners did not appeal the AJ’s decision to the full
    board. The decision of the AJ thus became the decision of
    Case: 21-1493     Document: 37      Page: 4     Filed: 11/03/2021
    4                                                FINIZIE   v. DVA
    the Board. See 5 C.F.R. § 1201.113(a). Petitioners then
    appealed to this court.              Pursuant to 5 U.S.C.
    § 7703(b)(1)(A) and 28 U.S.C. § 1295(a)(9), we have juris-
    diction over “final order[s] or final decision[s]” of the Board.
    See Weed v. Soc. Sec. Admin., 
    571 F.3d 1359
    , 1361 (Fed.
    Cir. 2009).
    DISCUSSION
    We review the Board’s legal determinations de novo
    and its underlying findings of fact for substantial evidence.
    See, e.g., Welshans v. United States Postal Serv., 
    550 F.3d 1100
    , 1102 (Fed. Cir. 2008). A court will not overturn an
    agency decision if it is not contrary to law and was sup-
    ported by “such relevant evidence as a reasonable mind
    might accept as adequate to support a conclusion.” Consol.
    Edison Co. v. Nat’l Lab. Rel. Bd., 
    305 U.S. 197
    , 229 (1938).
    “[T]he standard is not what the court would decide in a de
    novo appraisal, but whether the administrative determina-
    tion is supported by substantial evidence on the record as
    a whole.” Parker v. United States Postal Serv., 
    819 F.2d 1113
    , 1115 (Fed. Cir. 1987).
    The WPA prohibits an agency from taking a personnel
    action against an employee for disclosing information that
    the employee reasonably believes evidences a violation of
    law, rule, or regulation; gross mismanagement; a gross
    waste of funds; an abuse of authority; or a substantial and
    specific danger to public health or safety. 5 U.S.C. §
    2302(b)(8)–(9). The employee has the burden to establish,
    by a preponderance of evidence, that she made a protected
    disclosure and that her disclosure was a contributing factor
    to the agency’s decision to take a reprisal action against
    her. Id.
    If the employee establishes a prima facie case of re-
    prisal, the Board will order corrective action unless the
    agency demonstrates by clear and convincing evidence that
    it would have taken the same personnel action(s) in the ab-
    sence of the activity or activities. 5 U.S.C. § 1221(e)(2).
    Case: 21-1493       Document: 37   Page: 5    Filed: 11/03/2021
    FINIZIE   v. DVA                                           5
    Here, substantial evidence supports the Board’s con-
    clusion that none of the three disclosures asserted by Peti-
    tioners were protected disclosures.
    For the First Incident, substantial evidence supports
    the Board’s finding that Petitioners did not prove that they
    reasonably believed that Simon (1) violated a VA policy, or
    (2) threatened public safety. Petitioners did not state
    which specific policy they believed Simon violated and prof-
    fered no evidence that Simon’s behavior threatened the
    public. This evidence supports the Board’s finding that the
    incident was simply a workplace disagreement that did not
    fall within the scope of the WPA. In fact, the Board deter-
    mined that Kocher herself initiated the confrontation and
    that her disagreement with Simon was purely verbal.
    For the Second Incident, substantial evidence supports
    the Board’s conclusion that Leporati did not engage in the
    described conduct. The Board found Finizie’s testimony
    “simply not credible” in light of her behavior in reporting
    the incident. Finizie first reported the incident two days
    later to a union official. However, earlier that day, Finizie
    had emailed that same union official inquiring about the
    investigation of the First Incident but “inexplicabl[y] . . .
    did not mention the joke/massage incident in the same
    message.” J.A. 25. Finizie waited six more days to bring
    the matter to her director’s attention. The Board concluded
    based on Finizie’s actions that “she fabricated the story be-
    cause she believed the VA had taken no action on her com-
    plaint against Simon and was concerned that Leporati
    would support Simon regarding the [First Incident].” Id.
    The Board also reasonably credited Leporati’s testimony
    that he did not recall telling an off-color joke or giving a
    massage.
    For the Third Incident, substantial evidence supports
    the Board’s finding that Kocher did not prove that she rea-
    sonably believed that Leporati’s behavior threatened pub-
    lic safety. The Board found that Kocher’s testimony was
    not credible. For example, Kocher’s testimony to the police
    Case: 21-1493    Document: 37       Page: 6   Filed: 11/03/2021
    6                                              FINIZIE   v. DVA
    varied from her testimony to the Board: Kocher told the
    police that Leporati did not make any noises when doing
    the gun pantomime, but she testified to the Board that he
    had made a “click, click” noise. The Board also found note-
    worthy, given the allegation’s seriousness, that Kocher
    waited six days before reporting the incident to police.
    Lastly, the Board properly credited Leporati’s statement
    that Kocher had been hostile to him earlier, calling him
    “perverted.”
    With respect to Petitioners’ argument that it was “in-
    appropriate, unprofessional, and perhaps defamatory” for
    the AJ to take into account Kocher’s demeanor in making
    its credibility determinations, we disagree. It is appropri-
    ate for an AJ to take into account demeanor when assessing
    credibility. See, e.g., Purifoy v. Dep’t of Veterans Affairs,
    
    838 F.3d 1367
    , 1373 (Fed. Cir. 2016). Indeed, we have ex-
    plained that credibility determinations based upon de-
    meanor observations are entitled to special deference. See
    
    id.
    In sum, substantial evidence supports the Board’s con-
    clusion that none of the events cited by Petitioners consti-
    tuted protected disclosures under the WPA.
    CONCLUSION
    For the foregoing reasons, the decision of the Board is
    affirmed.
    AFFIRMED
    COSTS
    No costs.