Valenzuela v. Treasury

Case: 19-2069 Document: 40 Page: 1 Filed: 04/01/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JESSE VALENZUELA,
Petitioner
v.
DEPARTMENT OF THE TREASURY,
Respondent
______________________
2019-2069
______________________
Petition for review of the Merit Systems Protection
Board in No. SF-0752-18-0805-I-1.
______________________
Decided: April 1, 2020
______________________
JESSE VALENZUELA, Fresno, CA, pro se.
STEVEN C. HOUGH, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by JOSEPH H.
HUNT, DEBORAH ANN BYNUM, ROBERT EDWARD
KIRSCHMAN, JR.
______________________
Before PROST, Chief Judge, BRYSON and WALLACH,
Circuit Judges.
Case: 19-2069 Document: 40 Page: 2 Filed: 04/01/2020
2 VALENZUELA v. TREASURY
PER CURIAM.
Jesse Valenzuela petitions for review of a Merit Sys-
tems Protection Board (“Board”) decision affirming the De-
partment of the Treasury’s (“Agency”) removal of Mr.
Valenzuela from his position as a Contact Service Repre-
sentative. See Valenzuela v. Dep’t of the Treasury, No. SF-
0752-18-0805-I-1, 2019 WL 2121484 (M.S.P.B. May 7,
2019) (“Decision”). We affirm.
I
Mr. Valenzuela worked as a Contact Service Repre-
sentative with the Internal Revenue Service, a bureau of
the Agency. The Agency removed him from his position be-
cause of his medical inability to perform the essential du-
ties of a Contact Service Representative. Mr. Valenzuela
appealed the Agency’s removal decision to the Board. An
administrative judge, after reviewing undisputed and dis-
puted facts, witness testimony, and various documents, de-
termined that “the [A]gency ha[d] proven by preponderant
evidence that [Mr. Valenzuela] was unable to perform the
essential duties of his regular, assigned position, with or
without accommodation, because of his medical limita-
tions.” Decision, slip op. at 6. The administrative judge
then determined that Mr. Valenzuela had “failed to prove
his affirmative defense of disability discrimination.” Id. at
7. 1 Next, the administrative judge determined that the
1 As the Government points out, Mr. Valenzuela’s
Federal Circuit Rule 15(c) Statement indicates that he is
not challenging the administrative judge’s affirmance of
his disability discrimination defense. See Resp’t’s Br. 6.
See also Valenzuela v. Dep’t of the Treasury, No. 19-2069,
Statement Concerning Discrimination Pursuant to Fed.
Cir. R. 15(c), ECF No. 19 (Sep. 19, 2019) (“No claim of dis-
crimination by reason of . . . handicapped condition has
been or will be made in this case.”).
Case: 19-2069 Document: 40 Page: 3 Filed: 04/01/2020
VALENZUELA v. TREASURY 3
Agency had established the requisite showing of nexus be-
tween the removal of Mr. Valenzuela and the Agency’s po-
tential increased efficiency. The administrative judge then
concluded that the Agency’s removal of Mr. Valenzuela was
reasonable and appropriate and affirmed the Agency.
The initial decision became the Board’s final decision
and Mr. Valenzuela timely petitioned for our review. We
have jurisdiction under 28 U.S.C. § 1295(a)(9).
II
The scope of our review in a petition for review of a de-
cision of the Board is limited. We must affirm the Board’s
decision unless 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 sub-
stantial evidence.” 5 U.S.C. § 7703(c).
III
On petition for review Mr. Valenzuela argues that
(1) the administrative judge should not have credited the
testimony of Mr. Gumm or Ms. McElroy—two of the
Agency’s witnesses; (2) the Agency failed to follow standard
guidelines and protocol during his removal; (3) the
Agency’s decision to remove him was illegal and violated
all applicable federal laws; and (4) the Agency failed to con-
sider his subsequent work restrictions.
Mr. Valenzuela argues that the administrative judge
erred in crediting the testimony of Mr. Gumm and Ms.
McElroy. We disagree. The administrative judge found
both of these witnesses credible, see Decision, slip op. at 6
n.3, 9, 10, and the administrative judge is the one in the
best position to evaluate witness credibility, see Hubbard
v. Department of Veterans Affairs, 51 F. App’x 8, 9 (Fed.
Cir. Nov. 12, 2002) (declining to disturb an administrative
judge’s witness credibility determination). “The evaluation
of witness credibility is a matter within the discretion of
Case: 19-2069 Document: 40 Page: 4 Filed: 04/01/2020
4 VALENZUELA v. TREASURY
the [administrative judge] and is virtually unreviewable.”
Frey v. Dol, 359 F.3d 1355, 1361 (Fed. Cir. 2004) (internal
quotation marks omitted). Given the deference owed to
these findings, we decline to reverse the administrative
judge’s credibility findings in this case.
Mr. Valenzuela also contends that the Agency failed to
follow those guidelines in the Human Resources manage-
ment section under the Internal Revenue Manual and the
Federal Employees Compensation Act. The administrative
judge, however, found that the Agency followed the guide-
lines when it utilized its reasonable accommodation pro-
cess to return Mr. Valenzuela to work. In reaching this
conclusion the administrative judge credited the testimony
of Ms. Melendez and Mr. Schoonmaker—testimony that
Mr. Valenzuela has not challenged. The administrative
judge also determined that Ms. Melendez “went beyond
what was required” in trying to find Mr. Valenzuela a rea-
sonable accommodation and that Mr. Valenzuela failed to
show that the agency had any duty beyond utilizing its rea-
sonable accommodations process. Decision, slip op. at 11–
12. Mr. Valenzuela has not provided sufficient argument
to overcome the administrative judge’s factual determina-
tions. See Jacobs v. Dep’t of Justice, 35 F.3d 1543, 1546
(Fed. Cir. 1994) (providing that we will “not overturn [the
Board’s] decision if it is supported by ‘such relevant evi-
dence as a reasonable mind might accept as adequate to
support a conclusion.’” (quoting Consol. Edison Co. of New
York v. NLRB, 305 U.S. 197, 229 (1938)). Accordingly, we
conclude that substantial evidence supports the adminis-
trative judge’s conclusion that the Agency followed these
guidelines.
We have considered the remaining arguments and find
them either lacking sufficient detail or unpersuasive. For
example, as to Mr. Valenzuela’s contention that the
Agency’s removal decision violated federal law, Mr. Valen-
zuela has not identified which federal laws were violated.
And as to Mr. Valenzuela’s argument that the Agency
Case: 19-2069 Document: 40 Page: 5 Filed: 04/01/2020
VALENZUELA v. TREASURY 5
failed to consider his subsequent work restrictions, Mr.
Valenzuela has not identified which work restrictions were
not considered. 2 As we have noted before, “it is not our
duty to scour the record to find support for a petitioner’s
allegations or arguments.” Hubbard, 51 F. App’x at 9.
Nevertheless, we have “reviewed the record before us dili-
gently, and we cannot discern any support” to reverse the
administrative judge. Id.
We therefore conclude, on the record before us, that the
administrative judge’s decision is supported by substantial
evidence and is not arbitrary, capricious, an abuse of dis-
cretion, or otherwise not in accordance with law.
AFFIRMED
COSTS
The parties shall bear their own costs.
2 Upon a review of the Respondent’s Appendix, the
only appendix submitted in this matter, we note that the
Agency did consider a January 10, 2018 statement from
Mr. Valenzuela’s health care provider, which appears to
address his subsequent work restrictions. See Resp’t’s App.
27.