Parker v. Department of Veterans Affairs

NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not
citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
05-3076
LAVONZER V. PARKER,
Petitioner,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
____________________
DECIDED: May 5, 2005
____________________
Before MICHEL, Chief Judge, LOURIE and BRYSON, Circuit Judges.
PER CURIAM.
Lavonzer V. Parker petitions for review of the final decision of the Merit Systems
Protection Board affirming the agency’s decision to remove him from employment for
unauthorized sale of government property. Parker v. Dep’t of Veterans Affairs, No. SF-
0752-04-0248-I-1 (M.S.P.B. Sept. 28, 2004). We affirm.
BACKGROUND
Lavonzer V. Parker was formerly employed as a Supply Technician at the
Veterans Administration’s Medical Center in Palo Alto, California. In that position,
Parker’s primary duty was to process the agency’s “excess” property (such as used
computers), including the preparation of lists describing the “excess” property,
advertisement of the property, and interacting with potential buyers. Parker, No. SF-
0752-04-0248-I-1, slip op. at 3-5. Once Parker found a potential buyer, he was required
to inform his supervisor, Mr. Grissett, and Grissett, in turn, would prepare a sales
document and collect payment. Id., slip op. at 5. There is no dispute that Parker did not
follow this standard processing protocol, and, on February 10, 2003, the agency
removed him from employment for conducting unauthorized sales of government
property. Specifically, on eleven separate occasions, the agency charged Parker with
selling government property to individuals and private entities “without completing all of
the required sales documents and without authorization [from Grissett].” Id., slip op. at
2.
The Administrative Judge (“AJ”) held a hearing and affirmed the agency’s
removal of Parker, concluding that Parker failed to comply with written and oral
directions and policies established by his supervisors. Based on testimony from agency
officials, the AJ rejected Parker’s contention that agency officials did not instruct him on
the proper procedure for selling government property. According to the AJ, agency
officials testified that they directly informed Parker that Grissett must first approve all
sales of government property. Id., slip op. at 6-9. The AJ found the testimony from the
agency officials credible. The AJ also found that memoranda and e-mails sent to
Parker outlining the proper procedure for selling government property supported the
agency officials’ testimonies. Id. Furthermore, the AJ noted that Parker signed an
attendance sheet for a training class relating to selling procedure. Id., slip. op at 7.
The AJ rejected Parker’s claims of disparate treatment due to race and reprisal
for prior whistleblowing disclosures. Regarding the racial discrimination charge, the AJ
determined that Parker failed to allege or demonstrate that agency officials had taken
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adverse action against him due to his race. Id., slip op. at 12. With respect to his claim
of reprisal for alleged whistleblowing disclosures, the AJ found that Parker presented no
evidence that his supervisors even knew of his prior whistleblowing disclosures.
Parker did not petition the full Board for review of the AJ’s decision, rendering
that decision final. Parker timely appealed to this court. We have jurisdiction pursuant
to 28 U.S.C. § 1295(a)(9).
DISCUSSION
Congress has expressly limited the scope of our review in an appeal from the
Board. Specifically, we must affirm the Board’s decision unless we find it to be arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law; obtained
without procedures required by law, rule, or regulation having been followed; or
unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000); Ellison v. Merit Sys.
Prot. Bd., 7 F.3d 1031, 1034 (Fed. Cir. 1993). “Under the substantial evidence standard
of review, a court will not overturn an agency decision if it is supported by ‘such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Jacobs v. Dep’t of Justice, 35 F.3d 1543, 1546 (Fed. Cir. 1994) (quoting Consol. Edison
Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)).
On appeal, Parker appears to argue that the AJ did not give his testimony proper
weight and that, contrary to the AJ’s finding, certain agency officials knew that Parker
was selling government property (and presumably allowed it). However, it is well-
settled that the Board’s credibility determinations are virtually unreviewable, and the AJ
made such determinations. Hambsch v. Dep’t of the Treasury, 796 F.2d 430, 436 (Fed.
Cir. 1986). Thus, absent compelling evidence to the contrary, we will not second-guess
05-3076 -3-
the weight that the AJ gave to Parker’s testimony. Here, Parker does not point to any
portion of the record to support his credibility argument. Moreover, Parker does not
provide, and we cannot find in the record before us, any evidence supporting his
allegation that agency officials knew he, by himself, was selling government property.
Accordingly, we affirm the Board’s decision.
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