              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


                                         05-3373



                                    ERCILIA GARCIA,

                                                               Petitioner,

                                             v.

                       DEPARTMENT OF VETERANS AFFAIRS,

                                                               Respondent.


                            __________________________

                            DECIDED: March 27, 2006
                            __________________________



Before NEWMAN, SCHALL, and GAJARSA, Circuit Judges.

PER CURIAM.



       Ercilia Garcia petitions for review of the decision of the Merit Systems Protection

Board, Docket No. NY315H040257-I-1, dismissing her appeal of termination during the

probationary period because she had failed to establish jurisdiction based on marital status

discrimination, 5 C.F.R. §315.806.1 We affirm the decision of the Board.


      1       Garcia v. Dep't of Veterans Affairs, 2004 MSPB LEXIS 3159, No.
NY315H040257-I-1 (Dec. 30, 2004) (initial decision); 2005 MSPB LEXIS 4275 (Aug. 2,
2005) (final decision).
                                       DISCUSSION

       The Department of Veterans Affairs appointed Ms. Garcia to the position of

Vocational Rehabilitation Counselor on May 4, 2003. Her first year of employment was

probationary. She was terminated for unacceptable performance, effective April 30, 2004.

       Her supervisor of record, Mr. Bernie Finger, assigned Mr. Broderick Ilegbameh to

train and mentor her work. The record states that she exhibited excellent interpersonal

skills in her interactions with veterans; Mr. Finger gave her a fully successful performance

evaluation after her first four months, but advised that her narrative reports needed

improvement. Ms. Garcia acknowledged that there was room for improvement in her work,

but stated that she was concerned about the level of criticism she had been receiving from

Mr. Ilegbameh. At the three-day trial before the Administrative Judge (AJ), there was

extensive testimony concerning her performance, her interactions with Mr. Ilegbameh, his

interactions with other female employees and veteran "clients," and many details

concerning the workplace. Ms. Garcia alleged that Mr. Ilegbameh had sexually harassed

her because she was an unmarried, available female, and then retaliated by undermining

her performance. As summarized in her appeal:

       Since the first day I began work at the VA, [Mr. Ilegbameh] has engaged in
       regular, daily, sexual harassment of me, creating a hostile work environment,
       and essentially a horrible work experience. While I was able to tune this out
       when working with the clients and my other colleagues, this sexual
       harassment and pursuit was always a paramount issue when dealing in any
       way with [Mr. Ilegbameh], always in the air, part of his entire presentation to
       me . . . . [Mr. Ilegbameh] even made it perfectly clear that a sexual
       relationship with him would be good for my career . . . . As my personal
       rejection of his advances became clear to him, [Mr. Ilegbameh] became more
       and more abusive and hostile towards me, being generally uncooperative,
       even though I needed his assistance. . . .




05-3373                                      2
The AJ issued a lengthy opinion, with mixed findings as to the credibility of the various

witnesses and the nature and weight of the evidence. See Ellis v. Dep't of Treasury, 81

M.S.P.R. 6, 9 (1999) (where allegations of marital status discrimination and sex

discrimination are so intertwined that no meaningful finding as to one can be made without

consideration of the other, the Board must review both).

       The AJ identified the issues, summarized the evidence on each issue, and explained

in detail whose version of events would be accepted. See Hillen v. Dep't of Army, 35

M.S.P.R. 453, 458 (1987) (summarizing the factors to be considered in assessing the

credibility of a witness). A presiding official's credibility determinations are entitled to

deference, and should not be disturbed absent exceptional circumstances. See Anderson

v. City of Bessemer City, N.C., 470 U.S. 564 (1985) (a fact finder's credibility choice

between two witnesses "can virtually never be clear error"); Hambsch v. Dep't of Treasury,

796 F.2d 430, 436 (Fed. Cir. 1986) (credibility determinations of the administrative judge

are "virtually unreviewable").

       There were many charges and countercharges. The AJ found that some of Ms.

Garcia's allegations were supported, but that others were not, and ultimately concluded that

Ms. Garcia had not established sexual harassment or marital status discrimination. The full

Board denied review, and Ms. Garcia appeals to this court.

       Ms. Garcia challenges the AJ's factual findings and credibility determinations,

requesting that all of the evidence be reexamined.         Ms. Garcia acknowledges the

importance of credibility determinations, but asserts that important issues discussed during

the hearing were not discussed in the AJ's decision. For example, she states that it was

brought out during the hearing that several documents submitted to her previous attorney


05-3373                                      3
during discovery appeared to be forgeries by Mr. Ilegbameh, and that the AJ should have

taken this criminal act into account when weighing the credibility of Mr. Ilegbameh's

testimony. However, Ms. Garcia does not explain what evidence establishes that these

documents were in fact forged, and the record does not support overturning the AJ's

apparent view of this matter.

       Ms. Garcia also states that the AJ did not discuss the fact that two other employees,

Ms. Tiaka Wright and Ms. Wanda Richards-Clark, did not have to submit write-ups for an

eight-month review, but only for an end-of-year review; Ms. Garcia states that she received

disparate treatment. The AJ rejected this argument, stating that it was not probative of the

issue of marital status discrimination. Ms. Garcia also states that the AJ failed to consider

her explanations for not reporting the alleged sexual harassment; however, the AJ's opinion

includes the finding that her failure to report these incidents diminished, on the whole, the

plausibility of her account of the events.

       The AJ, discussing the evidence, concluded that discrimination based on marital

status had not been established. Substantial evidence supports this decision.           See 5

U.S.C. §7703(c); Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620 (1966) ("the possibility

of drawing two inconsistent conclusions from the evidence does not prevent an

administrative agency's findings from being supported by substantial evidence"). "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. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)). Further, the

Board's decision was not arbitrary, capricious, an abuse of discretion, or otherwise not in


05-3373                                       4
accordance with law, and was not obtained without procedures required by law, rule, or

regulation having been followed. See §7703(c). Accordingly, the Board's decision must be

affirmed.

      No costs.




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