                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     KRISTOPHER MELETTI,                             DOCKET NUMBER
                  Appellant,                         DA-0752-14-0001-I-2

                  v.

     DEPARTMENT OF HOMELAND                          DATE: March 18, 2016
       SECURITY,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Denis P. McAllister, Esquire, Glen Cove, New York, for the appellant.

           Nara Dasilva, Esquire, Edinburg, Texas, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     sustained his removal. Generally, we grant petitions such as this one only when:
     the initial decision contains erroneous findings of material fact; the initial
     decision is based on an erroneous interpretation of statute or regulation or the


     *
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                       2

     erroneous application of the law to the facts of the case; the administrative
     judge’s rulings during either the course of the appeal or the initial decision were
     not consistent with required procedures or involved an abuse of discretion, and
     the resulting error affected the outcome of the case; or new and material evidence
     or legal argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, we conclude that the petitioner has not established any basis under section
     1201.115 for granting the petition for review. Therefore, we DENY the petition
     for review and AFFIRM the initial decision, which is now the Board’s final
     decision. 5 C.F.R. § 1201.113(b).
¶2         The agency removed the appellant for inability to perform the essential
     duties of his position as a Border Patrol Agent. Initial Appeal File (IAF), Tab 8
     at 28, 68.   The specifications for his removal were his inability to carry a
     government-issued weapon and his inability to use proper judgment and make
     quick decisions in law enforcement situations. Id. Prior to proposing to remove
     the appellant, the agency offered to find him an alternate position, but the
     appellant did not take advantage of the offer. Refiled Appeal File (RAF), Tab 6,
     Initial Decision (ID) at 15-16.
¶3         The appellant filed an appeal of his removal, and he raised affirmative
     defenses alleging national origin discrimination, retaliation for prior equal
     employment opportunity (EEO) activity, harmful procedural error and violation
     of his due process. IAF, Tabs 1, 15. The administrative judge advised him of the
     applicable burdens of proving his affirmative defenses, as well as the kind of
     evidence he was required to produce to meet his burden of proof. IAF, Tab 15.
     Thereafter, the appellant filed a pleading explicitly waiving all of his affirmative
     defenses. IAF, Tab 20. The administrative judge dismissed the appeal without
     prejudice to refiling at the request of the appellant’s representative, and the
     appellant subsequently refiled his appeal. IAF, Tab 44; RAF, Tab 1.
                                                                                            3

¶4        After holding the requested hearing, the administrative judge issued an
     initial decision thoroughly analyzing the probative value of the witnesses’
     testimony      and   the   parties’   submissions,   including   the   reports   of   the
     board-certified psychiatrist who conducted the appellant’s fitness-for-duty
     examination and another reviewing forensic psychiatrist. ID at 2-16; see IAF,
     Tab 8 at 158-71.       The administrative judge affirmed the appellant’s removal,
     finding that the agency proved the charge by preponderant evidence and that his
     removal promoted the efficiency of the service. ID at 15-16. The appellant filed
     a petition for review, and the agency responded in opposition to his petition.
     Petition for Review (PFR) File, Tabs 1, 4.
¶5        On review, the appellant reasserts the affirmative defenses that he raised
     below, which he admittedly withdrew before the hearing on his appeal. PFR File,
     Tab 1 at 3-8; RAF, Tab 6 at 8; IAF, Tab 20. Because the appellant withdrew his
     affirmative defenses, and he did not object to the administrative judge’s order
     identifying the issues in dispute or submit a motion to supplement the summary of
     issues in dispute on appeal below, we find that he waived the right to raise these
     issues on review. IAF, Tab 43 at 1 & n.1.
¶6        On review, the appellant also disputes the administrative judge’s finding
     that the agency proved the charge of inability to perform the essential duties of
     his Border Patrol Agent position.        PFR File, Tab 1 at 4.     He argues that the
     administrative judge uncritically accepted the biased hearing testimony of people
     who witnessed the appellant’s behavior, “which gave rise to the Agency’s
     ‘concerns’” about his fitness for duty and the timing of the referral for his
     fitness-for-duty evaluation. Id.
¶7        Although the appellant disagrees with the administrative judge’s credibility
     findings and determinations, he has shown no error by the administrative judge in
     this regard.     The Board must give deference to an administrative judge’s
     credibility determinations when they are based, explicitly or implicitly, on the
     observation of the demeanor of witnesses testifying at a hearing; and the Board
                                                                                      4

     may overturn such determinations only when it has “sufficiently sound” reasons
     for doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir.
     2002).   We find that the administrative judge here considered the record as a
     whole in determining that the testimony provided by the agency’s witnesses was
     consistent with the events detailed in the memoranda relied upon by the
     examining psychiatrist and in finding that the appellant’s version of the events in
     question were not confirmed by anyone else. ID at 13-18. In the initial decision,
     the administrative judge provided a detailed summary of the witnesses’ testimony
     and explained the basis for his credibility determinations and we discern no
     reason to disturb those well-reasoned findings. ID at 2-15; Crosby v. U.S. Postal
     Service, 74 M.S.P.R. 98, 106 (1997) (stating that there is no reason to disturb the
     initial decision where the administrative judge considered the evidence as a
     whole, drew appropriate inferences, and made reasoned conclusions); Broughton
     v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
¶8        On review, the appellant also challenges “the conclusions and opinions”
     contained in the fitness-for-duty report prepared by the examining psychiatrist.
     PFR File, Tab 1 at 4, 7-9. In assessing the probative weight of medical opinion,
     the Board considers whether the opinion was based on a medical examination,
     whether the opinion provided a reasoned explanation for its findings as distinct
     from mere conclusory assertions, the qualifications of the expert rendering the
     opinion, and the extent and duration of the expert’s familiarity with the treatment
     of the appellant. Slater v. Department of Homeland Security, 108 M.S.P.R. 419,
     ¶ 16 (2008).
¶9        Here, the psychiatrist’s opinion was based on more than just the allegedly
     inaccurate statements provided by the agency. He also based his opinion on his
     interview with the appellant; the results of a supervised Minnesota Multiphasic
     Personality Inventory–2; the results of the Beck Depression Inventory and Beck
     Anxiety Inventory; a Comprehensive Health Services physical examination;
     memoranda from several Border Patrol Agents detailing the situations that
                                                                                      5

      prompted the appellant’s fitness-for-duty evaluation; and the appellant’s job
      description.   IAF, Tab 8 at 158.    A forensic psychiatrist also evaluated the
      appellant’s records and agreed with the psychiatrist’s opinion that the appellant
      was not fit for duty and that his prognosis was guarded. Id. at 171. On review,
      the appellant has not submitted any medical evidence contradicting the opinions
      of these two doctors.
¶10        An agency may remove an employee if he is unable, because of a medical
      condition, to perform the duties of his position. Bullock v. Department of the Air
      Force, 88 M.S.P.R. 531, 534, ¶ 7 (2001).      The administrative judge carefully
      considered the medical evidence in finding that the agency proved that the
      appellant was unable to perform the essential functions of his position and that
      the removal penalty was reasonable and promoted the efficiency of the service
      under the circumstances. ID at 9-10, 14-16. The appellant’s arguments on review
      present no reason to disturb the administrative judge’s findings concerning the
      probative weight of the medical evidence or his decision to sustain the agency’s
      charge and affirm his removal. We therefore deny the petition for review.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the U.S.
      Court of Appeals for the Federal Circuit. You must submit your request to the
      court at the following address:
                                United States Court of Appeals
                                    for the Federal Circuit
                                  717 Madison Place, N.W.
                                   Washington, DC 20439

      The court must receive your request for review no later than 60 calendar days
      after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
      2012). If you choose to file, be very careful to file on time. The court has held
      that normally it does not have the authority to waive this statutory deadline and
                                                                                    6

that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff. Dec.
27, 2012). You may read this law as well as other sections of the United States
Code, at our website, http://www.mspb.gov/appeals/uscode.htm.            Additional
information is available at the court’s website, www.cafc.uscourts.gov.            Of
particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,”
which is contained within the court’s Rules of Practice, and Forms 5, 6, and 11.
      If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
