                    Note: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit

                                   2007-3278



                          PRISCA M. DELEONARDO,

                                                        Petitioner,

                                        v.


            EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

                                                        Respondent.

      James P. Alexander, Littler Mendelson, of Birmingham, Alabama, for petitioner.

       Dawn S. Conrad, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General; Jeanne E.
Davidson, Director; and Martin F. Hockey, Jr., Assistant Director. Of counsel was
Elizabeth A. Holt, Trial Attorney. Of counsel on the brief was Elizabeth E. Theran,
Attorney, Office of General Counsel, Equal Employment Opportunity Commission, of
Washington, DC.

Appealed from: Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit


                                      2007-3278


                             PRISCA M. DELEONARDO,

                                                            Petitioner,


                                           v.


               EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

                                                            Respondent.



    Petition for review of the Merit Systems Protection Board in AT1221060340-B-1.



                           DECIDED: April 29, 2008




Before NEWMAN and SCHALL, Circuit Judges, and ZOBEL, District Judge. ∗

SCHALL, Circuit Judge.

                                      DECISION

      Prisca M. DeLeonardo petitions for review of the final decision of the Merit

Systems Protection Board (“Board”) that sustained her reassignment from her position

as Supervisory Trial Attorney at the Birmingham office of the Equal Employment

Opportunity Commission (“EEOC” or “agency”).       DeLeonardo v. Equal Employment

      ∗
                Honorable Rya W. Zobel, District Judge, United States District Court for
the District of Massachusetts, sitting by designation.
Opportunity Comm’n, No. AT-1221-06-0340-B-1 (M.S.P.B. May 7, 2007) (“Final

Decision”). We affirm.

                                      DISCUSSION

                                             I

       Ms. DeLeonardo was a Supervisory Trial Attorney, GS-14, in the EEOC’s

Birmingham District Office. After receiving a negative performance evaluation, she was

reassigned to the position of Trial Attorney, which is also a GS-14 position. She then

filed a complaint with the Office of Special Counsel (“OSC”), claiming that these

personnel actions were in retaliation for protected whistleblower activities under the

Whistleblower Protection Act (“WPA”). Specifically, Ms. DeLeonardo alleged that her

disclosures of gross mismanagement, abuse of authority, and various violations of

agency protocol led to her negative performance evaluation and subsequent demotion. 1

After OSC terminated its investigation of her claim, she filed an individual right of action

(“IRA”) appeal with the Board.

       The administrative judge (“AJ”) assigned to the appeal granted the EEOC’s

motion to dismiss for lack of jurisdiction. However, on petition for review, the Board held

that Ms. DeLeonardo had established jurisdiction by making nonfrivolous allegations

       1
                For instance, Ms. DeLeonardo alleged that she informed Eric Dreiband,
the agency’s General Counsel, about misrepresentations made during a mediation by
her then-supervisor, Regional Attorney Charles Guerrier. See DeLeonardo v. Equal
Employment Opportunity Comm’n, 103 M.S.P.R. 301, 305 (2006). She also alleged
that she had reported to Gwendolyn Reams, the agency’s Associate General Counsel,
that Mr. Guerrier had misrepresented and omitted facts in order to get a case approved
for litigation. Id. Ms. DeLeonardo further alleged that she was instructed by agency
officials to sign pleadings and documents notwithstanding her concerns that doing so
would violate the Federal Rules of Civil Procedure, the Alabama Rules of Professional
Conduct, and the local rules of the United States District Court for the Northern District
of Alabama. Id. at 305-06. Finally, Ms. DeLeonardo alleged that she had disclosed
various other improper actions by agency management. Id. at 306.


2007-3278                                    2
that her disclosures were a contributing factor in the agency’s personnel actions against

her. Accordingly, the Board vacated the dismissal and remanded the case to the AJ for

adjudication of the merits of Ms. DeLeonardo’s WPA claim. DeLeonardo, 103 M.S.P.R.

at 307.

      On remand, prior to the prehearing conference, the parties provided the AJ with

their lists of proposed witnesses. With respect to Ms. DeLeonardo’s list of proposed

witnesses, the AJ approved testimony by Ms. DeLeonardo and nine additional

witnesses, but excluded six other witnesses on the ground of relevance. In November

2006, the AJ conducted a hearing, and in January 2007 he issued an initial decision

denying the corrective action sought by Ms. DeLeonardo. In doing so, the AJ assumed

that Ms. DeLeonardo had made protected disclosures and that those disclosures were a

contributing factor in the personnel actions that were taken.          However, the AJ

nonetheless found by clear and convincing evidence that the agency would have taken

the same personnel actions in the absence of those disclosures. See Clark v. Dep’t of

Army, 997 F.2d 1466, 1470 (Fed. Cir. 1993); DeLeonardo v. Equal Employment

Opportunity Comm’n, No. AT-1221-06-0340-B-1 (M.S.P.B. January 5, 2007) (“Initial

Decision”). The AJ based this conclusion on the testimony of several witnesses, who

described Ms. DeLeonardo’s role in various problems plaguing the EEOC’s Birmingham

office. For instance, the witnesses testified that the Birmingham office had not tried a

single case in the past eight years, and was also riddled with various other management

problems. Id. There was testimony that Ms. DeLeonardo contributed to these problems

through her unwillingness to hold herself or her subordinates accountable for the office’s

shortcomings. Id. at 4-5.   The witnesses also testified that beyond her general lack of




2007-3278                                   3
cooperation, Ms. DeLeonardo also waged an active campaign to undermine the

authority of her supervisor at the time, Charles Guerrier. Id. at 7. Finally, witnesses

testified that Ms. DeLeonardo also allegedly asked to be reassigned because she no

longer wanted to be a Supervisory Trial Attorney. Id. at 5. Ms. DeLeonardo testified to

the contrary. The AJ found that there was clear and convincing evidence that Ms.

DeLeonardo’s evaluation and reassignment were the result of her actual work

performance and attitude, and were not in retaliation for any whistleblowing activities.

       The Initial Decision became the final decision of the Board on May 7, 2007, when

the Board denied Ms. DeLeonardo’s petition for review for failure to meet the criteria for

review set forth at 5 C.F.R. § 1201.115(d). Final Decision. This appeal followed. We

have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).

                                             II

       Pursuant to 5 U.S.C. § 7703(c), we must affirm the Board’s decision unless we

find it to be (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 substantial evidence. See also

Kewley v. Dep’t of Health & Human Servs., 154 F.3d 1357, 1361 (Fed. Cir. 1998).

       On appeal, Ms. DeLeonardo argues that the AJ erred in excluding the testimony

of six of her witnesses. The individuals whose testimony was excluded were Pamela

Agee, Donald Burris, Debra Crook, Kimberly Elston, Chris Mitchell, and Valerie Hicks-

Powe. According to Ms. DeLeonardo, each of these witnesses would have refuted the

adverse testimony, and would have corroborated her assertion that her performance

rating and reassignment were in retaliation for her protected disclosures.             The




2007-3278                                    4
government responds that the testimony of these six people would have been either

irrelevant or cumulative to the testimony of two witnesses, Mason Barrett and Carole

Sabree, who had been requested by Ms. DeLeonardo and approved by the AJ, but

were never called by Ms. DeLeonardo to testify on her behalf. We consider each of the

six excluded witnesses, and the parties’ specific arguments, in turn. In doing so, we

review the AJ’s ruling for an abuse of discretion. See Guise v. Dep’t of Justice, 330

F.3d 1376, 1379 (Fed. Cir. 2003); Davis v. Office of Pers. Mgmt., 918 F.2d 944, 946

(Fed. Cir. 1990).

       First, the agency accused Ms. DeLeonardo of inappropriately stating, during a

meeting, that conciliations would count equally as case filings for purposes of meeting

internal litigation goals.   Pamela Agee was offered as a witness to testify that Ms.

DeLeonardo never made this statement. The government responds that this testimony

would have been cumulative to that of Mr. Barrett, who was also present at the meeting

in question, and therefore could have corroborated Ms. DeLeonardo’s story had she

chosen to call him as a witness.

       Donald Burris was offered to testify that Ms. DeLeonardo’s refusal to sign certain

pleadings in a racial discrimination case was warranted, in view of his same concerns

that doing so would violate Rule 11 of the Federal Rules of Civil Procedure, and not

because she was unsupportive of the agency’s mission. The government responds that

this testimony would also have been cumulative to that of Mr. Barrett, who had actually

raised the very same issue, as pointed out by Ms. DeLeonardo in her own brief.

       Debra Crook was offered to testify that Ms. DeLeonardo’s objections to litigating

a disability discrimination case were justified by her concern that the charging party was




2007-3278                                   5
not in fact “disabled.”     The government responds that this testimony was again

cumulative, since Mr. Barrett was in fact the trial attorney with principal responsibility for

that case and could have been called to testify for the very same purpose.

       Kimberly Elston was offered to testify that Ms. DeLeonardo’s negative

performance evaluation was not in her file until after her whistleblowing activity, as proof

of the agency’s retaliation.     The government responds that two other witnesses,

Gwendolyn Reams and Charles Guerrier, explained during the hearing that this was a

consequence of Mr. Guerrier’s departure and the accompanying transition in

management, rather than any retaliation. Therefore, Ms. Elston’s testimony would have

added nothing to the facts already in the record.

       Chris Mitchell, who was opposing counsel in an EEOC matter involving the

agency’s BellSouth case, was offered to testify that Ms. DeLeonardo played no role in

the monetary settlement or press release in that lawsuit, for which she received a poor

performance rating. The government responds that this testimony would have been

irrelevant in view of the fact that Ms. DeLeonardo directly supervised the attorney who

was involved in the settlement, and Mr. Mitchell would have had no knowledge of any

conversations between those two.

       Finally, Valerie Hicks-Powe was offered to testify that Ms. DeLeonardo’s

accusations of misrepresentations by Mr. Guerrier were in fact true, and not part of a

deliberate campaign to undermine his authority. The government responds that such

testimony would have been irrelevant, since Ms. Hicks-Powe would only have known

about what Mr. Guerrier actually said, and not whether his statements were indeed true

or false. The government also notes that James Lee, the individual who reassigned Ms.




2007-3278                                     6
DeLeonardo, was unaware of her protected disclosures at the time and thus could not

have acted in retaliation for something about which he had no knowledge.

      We see no abuse of discretion in the AJ’s exclusion of Ms. DeLeonardo’s six

additional witnesses.   In general, it appears that the proffered testimony of these

witnesses was indeed largely irrelevant or cumulative, to the extent that two uncalled

witnesses, Mason Barrett and Carole Sabree, could have testified about the same

subject matter. In her reply brief, Ms. DeLeonardo criticizes the potential testimony of

these two witnesses. Those criticisms, however, simply reveal potential imperfections

in the testimony, which nonetheless remained adequate for purposes of corroborating

her defense.    Because Ms. DeLeonardo deliberately chose not to call these two

witnesses, she cannot now complain that the AJ abused his discretion and denied her

of a fair and impartial hearing. If anything, any resulting injustice was largely self-

inflicted by her failure to call two witnesses who could have corroborated her story.

      In addition, we are not persuaded by Ms. DeLeonardo’s reliance on this court’s

decision in Chudson v. Environmental Protection Agency, 17 F.3d 380 (Fed. Cir. 1994).

There, we found that the AJ had abused his discretion in excluding the testimony of

various witnesses, leaving the employee’s own testimony as the “only testimony

permitted by the AJ in rebuttal” and rendering the agency’s position “virtually

unassailable.” Id. at 385. Those facts are not present here, and Chudson is therefore

inapposite. Here, the agency’s position was not “virtually unassailable,” because Ms.

DeLeonardo could have supplemented her own personal testimony and that of the six

witnesses who were on the witness list for both sides with that of two additional




2007-3278                                   7
witnesses, but chose not to. That decision was the direct result of her own discretion,

rather than any abuse of discretion by the AJ.

      For the foregoing reasons, the final decision of the Board is affirmed.

      No costs.




2007-3278                                  8
