                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                      2008-3155

                                  DAVID L. STOUT,

                                                            Petitioner,

                                           v.

                           DEPARTMENT OF THE ARMY,

                                                            Respondent.


      David L. Stout, of Longview, Washington, pro se.

       Robert E. Chandler, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson,
Director, and Steven J. Gillingham, Assistant Director.

Arbitrator Decision
                          NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                          2008-3155

                                      DAVID L. STOUT,

                                                                      Petitioner,

                                              v.

                              DEPARTMENT OF THE ARMY,

                                                                      Respondent.

Petition for review of an arbitrator’s decision by Thomas F. Levak.
                             ___________________________

                            DECIDED: November 7, 2008
                            ___________________________

Before BRYSON, PLAGER, and DYK, Circuit Judges.

PER CURIAM.

       Petitioner David L. Stout (“Stout”) petitioned for review of an arbitrator’s decision

affirming his 90-day suspension from his hydropower project operator position at the

Portland District of the U.S. Army Corps of Engineers (“agency”), at John Day Dam

(“Dam”). We affirm in part, reverse in part, and remand in part.

                                     BACKGROUND

       Stout resides in Longview, Washington, approximately 165 miles west of the

Dam, which is located near Rufus, Oregon. Stout worked a twelve-hour shift between

6:30 a.m. and 6:30 p.m.; when he started work early, he was entitled to leave early.

Stout’s position at the agency is part of a bargaining unit covered by a labor contract.

       On April 12, 2004, after working part of his shift, Stout was sent by the agency to

a fitness for duty medical examination in Hood River, Oregon, to check a pulmonary
condition.     The driving distance between the Dam and the doctor’s office was

approximately 60 miles.

         The next day, Stout reported to his supervisor that the medical examination

caused him to work an hour of overtime. In September 2004, Stout submitted a travel

voucher for the April 12th appointment, claiming reimbursement for 207 miles

(approximately twice the driving distance from his home to the clinic) and a $12.00

lunch.

         In January 2007, the agency removed Stout for three sustained charges of

misconduct: (1) That Stout falsely claimed having worked one hour of overtime on April

12, 2004; (2) That Stout falsely claimed to have driven from his home in Longview,

Washington to his appointment in Hood River, Oregon, and then back to Longview, in

order to inflate his mileage claim; and (3) That Stout falsely claimed entitlement to

reimbursement for lunch on April 12, 2004.         The agency’s final grievance decision

mitigated the removal to a 90-day suspension.          Stout then obtained review of the

agency’s decision by an arbitrator. The arbitrator found that the agency’s decision to

suspend Stout for 90 days was for just and sufficient cause, and denied Stout’s

grievance.

         Stout timely petitioned for review to this court, and we have jurisdiction pursuant

to 5 U.S.C. § 7121(f) and 5 U.S.C. § 7703(a)(1), (b)(1).

                                       DISCUSSION

         We review the arbitrator’s decision under the same standards that apply to

appeals from decisions of the Merit Systems Protection Board. See 5 U.S.C. § 7121(f);

Cornelius v. Nutt, 472 U.S. 648, 661 n.16 (1985).          We must affirm the arbitrator’s




2008-3155                                 2
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 substantial evidence.” 5 U.S.C.

§ 7703(c).

       Stout argues that there was not substantial evidence to prove that he acted with

fraudulent intent as to the overtime claim.      “Substantial evidence . . . means such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Consol. Edison Co. v. NLRB., 305 U.S. 197, 229 (1938). Intent may be

proven directly or derived from circumstantial evidence. Naekel v. Dep’t of Transp., 782

F.2d 975, 978 (Fed. Cir. 1986). The arbitrator found that if, after leaving the doctor’s

office, Stout’s drive from the clinic to the Dam would have taken him beyond his normal

work hours, he would have been entitled to overtime. Prior to arbitration, the parties

stipulated 1 that the doctor’s appointment was at 3:30 p.m. and that Stout left the Clinic

between 60 and 90 minutes later. In addition, the parties agreed that the drive from the

clinic to the Dam would take one hour. Stout contends that he started work that day at

5:30 a.m.; that he stayed at the doctor’s office until 5:30 p.m.; and (with the hour’s drive

time) he worked until 6:30 p.m. or a total of 13 hours, entitling him to one hour in

overtime compensation.       The arbitrator found Stout’s testimony not credible.        The

arbitrator determined that Stout’s testimony as to when he left the clinic was

inconsistent with both the parties’ stipulations and Stout’s later travel reimbursement

request in which he stated that he left the clinic at 4:30 p.m. The arbitrator found that



       1
          In footnote 8 of his brief, Stout states that no stipulations were made, but this is
incorrect. Based upon the transcript of the proceedings in the agency’s appendix,
stipulations were made and accepted by the arbitrator during oral argument.


2008-3155                                 3
Stout left the clinic at 4:30 p.m. and that the drive to the Dam could have taken one

hour. Even if Stout was entitled to stop work at 5:30 p.m., he would have arrived at the

Dam by 5:30 p.m. Thus, when Stout requested the hour of overtime, he was aware that

he was not entitled to it. We conclude that the record contains substantial evidence that

Stout acted with fraudulent intent as to the overtime claim.

       In addition, Stout argues that there was not substantial evidence to prove that he

acted with fraudulent intent as to the mileage claim. Intent may also be inferred when a

misrepresentation is made with reckless disregard for the truth.      Haebe v. Dep’t of

Justice, 288 F.3d 1288, 1306 n. 35 (Fed. Cir. 2002). Stout made a claim for 207 miles,

which he stated was the roundtrip mileage from his home in Longview, Washington to

the clinic. The agency contents that he was only entitled to 120 miles, the roundtrip

from the Dam to the doctor’s office, because his trip started and ended at the Dam. All

parties agreed that Stout started the day at the Dam and that he drove from the Dam to

the clinic. It is therefore undisputed that Stout’s claim inflated his outgoing mileage

request by approximately 40 miles. In addition, the arbitrator concluded that Stout had

driven back to the Dam and not to his home in Longview, Washington based on prior

EEOC deposition testimony by Stout. During the prior EEOC deposition testimony,

Stout testified that he virtually never drove home to Longview, Washington during a

workweek (a distance of approximately 150 miles).         Moreover, Stout did not verify

whether or not he worked at the Dam on April 12 before submitting the request, and

Stout testified that at the time he made the request he could not recall whether he drove

to the clinic from his home or from the Dam. The arbitrator found that this was proof

that his statements were recklessly made, without regard to their falsity. The record




2008-3155                                4
contains substantial evidence that Stout acted with fraudulent intent as to the mileage

claim.

         Stout argues that the arbitrator’s decision that his testimony lacked credibility as

to the overtime and mileage claims was arbitrary and capricious.                 “Credibility

determinations are within the discretion of the arbitrator and are virtually unreviewable

on appeal.” Raney v. Fed. Bureau of Prisons, 222 F.3d 927, 939 (Fed. Cir. 2000) (en

banc). The arbitrator made a finding that Stout’s explanations could not be believed

because his story had changed over time.            We see no basis for overturning the

arbitrator’s credibility determinations as to the overtime and mileage claims.

         Stout argues, and the agency concedes, that the arbitrator’s finding that Stout

submitted a false claim for lunch reimbursement was not supported by substantial

evidence. A charge of falsification necessitates proof that the employee “knowingly

supplied wrong information . . . with the intention of defrauding the agency.” Naekel,

782 F.2d at 977. The record contains no evidence that Stout had not eaten that day,

that Stout misstated the amount of money he paid for the meal, or that Stout knew he

was not entitled to claim reimbursement for the meal. Accordingly, we reverse on this

issue, and remand for the arbitrator to reassess the penalty.

         Stout also contends that in connection with the penalty determinations, the

arbitrator committed prejudicial error when Stout was denied access to travel

reimbursement claims from other members of the bargaining unit. The consistency of

the penalty between similarly situated employees is one of the Douglas factors.

Douglas v. Veterans Admin., 5 M.S.P.R. 280, 303 (M.S.P.B. 1981). Before arbitration,

the parties stipulated that “[w]ithin the last five years, there has been no comparable




2008-3155                                  5
misconduct within the bargaining unit; that is, no bargaining unit members were found

by the [a]gency to have falsified time sheets or travel vouchers.” Arbitrator’s Opinion

and Award at 3.      The arbitrator specifically found that there was “no persuasive

evidence whatsoever that any other bargaining unit employee was ever found by the

[a]gency to have committed fraud.”      Id. at 12.   Therefore, there were no similarly

situated employees for comparison under the Douglas factors. The arbitrator did not

commit prejudicial error in denying the request.

      Stout argues that the agency pursued these charges, and discriminated against

him, in retaliation for an EEOC claim he previously filed. The arbitrator concluded that

the parties had stipulated that Stout was withdrawing any reprisal or discrimination

defense. Arbitrator’s Opinion and Award at 3. This is consistent with the Union’s Post-

Hearing Brief to the arbitrator, where there is no argument about a reprisal or

discrimination defense.   “[W]e do not consider issues that were not raised in the

proceedings below.” Frank v. Dep’t of Transp., Fed. Aviation Admin., 35 F.3d 1554,

1559 (Fed. Cir. 1994).

      Stout argues that the 90-day suspension was an unreasonable penalty. In light

of the necessity for remand, we do not address this issue.

      For these reasons, we affirm in part, reverse in part, and remand in part.

                                         COSTS

      No costs.




2008-3155                               6
