              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

                                       04-3257


                                 LARRY N. VITATOE,

                                                           Petitioner,

                                           v.

                      GENERAL SERVICES ADMINISTRATION,

                                                          Respondent.

                              _____________________

                               DECIDED: April 7, 2005
                              _____________________



Before MICHEL, Chief Judge, RADER and LINN, Circuit Judges.

PER CURIAM.

      Larry N. Vitatoe petitions for review of the final decision of the Merit Systems

Protection Board (“Board”) sustaining his removal by the General Services

Administration (“Agency”) for misconduct. Vitatoe v. Gen. Services Admin., No. DA-

0752-02-0582-I-2 (M.S.P.B. Mar. 9, 2004) (“Final Decision”).       Because the charge

against Vitatoe was supported by substantial evidence, and both the Agency and the

Board considered the relevant factors in determining the reasonableness of the penalty,

we affirm.
                                 I.     BACKGROUND

      Vitatoe was employed as an Information Technology Representative, GS-13,

with the Agency’s Federal Telecommunications Service, Greater Southwest Region,

located in New Orleans, Louisiana. Vitatoe v. Gen. Services Admin., No. DA-0752-02-

0582-I-2 (M.S.P.B. Mar. 31, 2003) (“Initial Decision”). In April 2002, Vitatoe was serving

as a Technical Representative on task MC17123T2, a “services task for the Naval

Reserve Recruiting Command in New Orleans.”           Id., slip op. at 2.   Following the

issuance of a request for proposal, three contractors timely filed proposals. Vitatoe was

assigned to review the three submitted proposals and to evaluate each contractor’s past

performance. Two of the bidding contractors listed Jan Brandon at the U.S. Army Corp

of Engineers as a reference for their past performance. Although Vitatoe attempted to

contact Brandon by telephone, he never spoke with her directly or via any other means

of communication.     Id.   Instead, he spoke by telephone with Tina Harris, one of

Brandon’s subordinates, who declined to provide past performance scores for the two

bidders, stating that Brandon was the appropriate person to give such information.

Vitatoe, nevertheless, provided past performance scores that he represented as

originating from the U.S. Army Corp of Engineers to the Contracting Officer for task

MC 17123T2. On June 17, 2002, the Agency removed Vitatoe from his position for

fabricating these scores. On November 7, 2002, Vitatoe timely appealed his removal to

the Board.

      Before the Board, Vitatoe withdrew his request for a hearing. The Administrative

Judge thus decided his appeal based upon the written evidence of record, which

included declarations from Brandon and Harris. Initial Decision, slip op. at 3-4. The




04-3257                                     2
Administrative Judge sustained the Agency’s charge of misconduct and determined that

removal was fully warranted. Id., slip op. at 2. The Administrative Judge noted that

Vitatoe had served for over twenty-seven years in federal service and had been

disciplined for negligence in carrying out his duties on two prior occasions. Id., slip op.

at 8. The Administrative Judge also noted that although the Agency’s deciding official

did not believe Vitatoe’s actions were malicious or for personal gain, they effectively

destroyed the trust and confidence she had placed in him. Based upon this evidence,

the Administrative Judge concluded that Vitatoe’s pattern of evading responsibility

reflected a poor rehabilitative potential. Id., slip op. at 9. The Administrative Judge thus

upheld the removal.

       Vitatoe petitioned the full Board for review of the Initial Decision. Concluding that

Vitatoe had not shown any new, previously unavailable evidence or that the

Administrative Judge made an error in law or regulation that affected the outcome of the

appeal, the full Board declined to review Vitatoe’s appeal, thereby rendering the Initial

Decision final. Final Decision, slip op. at 2.

       Vitatoe timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C.

§ 1295(a)(9).

                                   II.     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.




04-3257                                          3
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. v. Nat’l Labor Relations Bd., 305 U.S. 197, 199 (1938)).

       On appeal, Vitatoe contends that the Administrative Judge committed multiple

factual errors in sustaining the misconduct charge. Vitatoe claims that all errors are

directed to the Administrative Judge’s failure to appreciate that (1) the communication

he submitted to the Contracting Officer was not a final product, but instead simply a

draft; and (2) he planned to verify the scores with Brandon. In Vitatoe’s own words, “it

was a draft, a draft, a draft, based on information that had yet to be verified.” As

support for his contention, Vitatoe claims that his communication to the Contracting

Officer stated that he sought “review and comment.” Vitatoe also points out that Harris

stated that Brandon would return his call.

       We conclude that the charges against Vitatoe were supported by substantial

evidence.   The record establishes that Vitatoe knowingly submitted fabricated past

performance scores for two bidders. Harris swore that she spoke with Vitatoe and

refused to supply him with the requested scores, instead offering to have Brandon

return his call.   Nevertheless, Vitatoe wrote the communication to the Contracting

Officer five days later without ever having spoken with Brandon. Vitatoe’s use of the

words “review and comment,” we conclude, in no way connote that his communication

to Brandon was a draft, pending confirmation from Brandon.           Rather, these words

merely seek a response from the recipient of the communication. In any event, even if




04-3257                                      4
a mere draft, the communication contained fabricated scores and false attribution.

Hence, as the Administrative Judge explained in his decision, “[r]egardless of the

reason, in supplying technical evaluation data under such false pretenses, [Vitatoe]

engaged in ‘misconduct . . . that impairs that trustworthiness of the employee.’” Initial

Decision, slip op. at 7.

       Vitatoe also appears to argue that the Administrative Judge committed legal error

in sustaining the penalty of removal by not considering all of the relevant mitigating

factors. In reviewing the appropriateness of an agency-imposed penalty, the Board

must first ascertain that the Agency considered the relevant twelve factors set forth in

Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981). Hayes v. Dep’t of Navy,

727 F.2d 1535, 1540 (Fed. Cir. 1984). Then the Board itself must make findings on

these factors.   Although the Board need not make findings on factors that are not

relevant, “failure to consider a significant mitigating circumstance constitutes an abuse

of discretion.” Van Grossen v. Dep’t of Housing & Urban Dev., 748 F.2d 1579, 1581

(Fed. Cir. 1984). “This court will not disturb the agency’s choice unless the severity of

its action appears totally unwarranted in light of the relevant factors.” DeWitt v. Dep’t of

Navy, 747 F.2d 1442, 1445 (Fed. Cir. 1984) (citing Brewer v. U.S. Postal Serv., 647

F.2d 1093, 1098 (Fed. Cir. 1981)). “Whether this court would have chosen a different

penalty is irrelevant.” Webster v. Dep’t of Army, 911 F.2d 679, 686 (Fed. Cir. 1990)

(citing Hunt v. Dep’t of Health & Human Services, 758 F.2d 608, 611 (Fed. Cir. 1985)).

       Here, Vitatoe fails to specify any particular Douglas factor that he believes was

ignored and that weighs in favor of imposing a lesser penalty. Our review of the record

indicates that the Board considered all the relevant factors, particularly mitigation and




04-3257                                      5
rehabilitation. The Administrative Judge noted that Vitatoe had been employed for over

twenty-seven years in federal service and had been previously disciplined on two prior

occasions for negligence in carrying out his assignments, receiving an office reprimand

in 2001 and a five-day suspension in 2002. The Administrative Judge adopted the

deciding official’s view that Vitatoe’s prior infractions, coupled with the present

misconduct, showed a persistent “‘neglect of duty.’” Initial Decision, slip op. at 8. The

Administrative Judge further observed that the deciding official determined that the

multiple infractions by Vitatoe destroyed her trust and confidence in him to perform his

job as a technology representative. The Administrative Judge thus determined that

Vitatoe exhibited a very low rehabilitation potential. Because the record shows that the

Board considered the relevant factors in assessing the appropriateness of the penalty,

and the penalty of removal was not unreasonable, we decline to find an abuse of

discretion. Accordingly, for the foregoing reasons, Board’s decision is affirmed.




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