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NOTE: This disposition is nonprecedential.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
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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
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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.