                      NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit

                                       2008-3103


                               ROBERT N. MCINTOSH,

                                                          Petitioner,

                                           v.

                      DEPARTMENT OF VETERANS AFFAIRS,

                                                          Respondent.

      Robert N. McIntosh, of Chicago, Illinois, pro se.

       Courtney E. Sheehan, 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 Kirk T. Manhardt, Assistant Director.

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                      NOTE: This disposition is nonprecedential.


    United States Court of Appeals for the Federal Circuit
                                      2008-3103

                               ROBERT N. MCINTOSH,

                                                           Petitioner,

                                           v.

                      DEPARTMENT OF VETERANS AFFAIRS,

                                                           Respondent.


Petition for review of the Merit Systems Protection Board in CH0752070272-I-2.

                         ______________________________

                              DECIDED: June 9, 2008
                         ______________________________



Before MICHEL, Chief Judge, FRIEDMAN, Senior Circuit Judge, and RADER, Circuit
Judge.

PER CURIAM.

      The Merit Systems Protection Board (“Board”) upheld the Department of

Veterans Affairs (“Department”)’s termination of one of its employees for patient abuse.

We affirm.

      This case arises out of a verbal altercation between the appellant, Robert N.

McIntosh (“McIntosh”), a medical technician at a Department Hospital, and a patient

whose hospital room he entered to take the patient’s vital signs.        The Department
credited the patient’s version of what happened, and removed McIntosh for “patient

abuse and using intimidating language towards a patient.”

       After a hearing, the Board’s administrative judge affirmed the removal in her

initial decision, which became final when the Board refused to review it. We affirm that

decision, primarily for the reasons given in that opinion.

       The administrative judge stated that the issue was “one of credibility.” There was

a sharp disagreement among the witnesses over what happened.                   The patient

described improper and threatening statements McIntosh allegedly made to him. The

patient’s teenage brother, who was present in the room, corroborated the patient’s

testimony. McIntosh denied making the statements attributed to him and gave a quite

different version of what happened.

       The administrative judge determined that the patient’s version of the events was

“more credible than the appellant’s based on the inherent improbability of the

appellant’s version, [the patient’s] lack of motive to invent the complaint, [the patient’s]

version painting himself in an unflattering light, and [the patient’s] version having been

corroborated by his brother who was present at the scene.” We have no reason to

reject that credibility determination.

       We also affirm the administrative judge’s sustaining of the penalty of removal as

reasonable.     After reviewing the relevant Douglas factors, Douglas v. Veterans

Administration, 5 M.S.P.R. 280, 305-06 (1981), she found that McIntosh’s “brief tenure

and the seriousness of his offense in connection with his position outweigh[ed] the

mitigating circumstances [(provocation)] surrounding this event.”          She, therefore,

properly concluded that the agency did not abuse its discretion in removing McIntosh.




2008-3103                                    2
      We have considered McIntosh’s other contentions, but deem them unpersuasive.

      The decision of the Board affirming McIntosh’s removal is

                                    AFFIRMED.




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