                       NOTE: This disposition is nonprecedential.

  United States Court of Appeals for the Federal Circuit

                                        2008-3314

                                 WINFRED B. ABRAMS,

                                                      Petitioner,

                                            v.

                       DEPARTMENT OF VETERANS AFFAIRS,

                                                      Respondent.


      Winfred B. Abrams, of Memphis, Tennessee, pro se.

       Steven J. Abelson, 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. Katasas, Assistant Attorney General, Jeanne E. Davidson, Director,
and Franklin E. White, Jr., Assistant Director. Of counsel on the brief was Alan E. Foster,
Staff Attorney, Nashville Regional Office, United States Department of Veterans Affairs, of
Nashville, Tennessee.

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                       NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit

                                     2008-3314


                               WINFRED B. ABRAMS,

                                                           Petitioner,

                                          v.

                      DEPARTMENT OF VETERAN AFFAIRS,

                                                           Respondent.



             Petition for review of the Merit Systems Protection Board in
             AT0752080051-I-1.

                         ____________________________

                           DECIDED: January 12, 2009
                         ____________________________


Before LOURIE, BRYSON, and GAJARSA, Circuit Judges.

PER CURIAM.
                                     DECISION

      Winfred Abrams appeals from the decision of the Merit Systems Protection Board

(“Board”) affirming the decision of the Veterans Administration (“VA” or “Agency”)

removing him from his position as a kinesiotherapist. Abrams v. Dep’t of Veterans

Affairs, AT-0752-08-0051-I-1 (M.S.P.B. Feb. 15, 2008). Because the Board’s decision

was in accordance with law and supported by substantial evidence, we affirm.
                                    BACKGROUND

      Abrams worked as a kinesiotherapist at the VA Medical Center in Memphis, TN.

As a kinesiotherapist, Abrams prescribed and oversaw exercise treatments for veterans.

On October 5, 2007, the Agency removed Abrams from his position on charges that he

had engaged in a prohibited relationship with a patient and had committed patient

abuse.

      The charges stemmed from Abrams’ relationship with Felicia Dukes, one of

Abrams’ patients.   According to Dukes, she and Abrams had a five-year sexual

relationship during the time that Dukes was being treated by Abrams. Sometime in

2006 Dukes contacted Abrams’ supervisors and the VA police, alleging that Abrams

had begun harassing her because of the breakup of their relationship. In October 2006,

Dukes requested, and was assigned, a new therapist.

      Abrams admitted that he and Dukes had a personal relationship, but denied that

the relationship was of a sexual nature. Abrams claims that his and Dukes’ relationship

was limited to periodic kinesiotherapy group dinners, talking on the phone, accepting

meals from her at his workplace, and occasionally attending church together. Abrams

stated that his relationship with Dukes ended in October 2006 when he was instructed

by his employer as well as the VA police to cease contact with Dukes.

      After the Agency removed him in October 2007, Abrams appealed the decision to

the Board.   In an initial decision dated February 15, 2008, an administrative judge

affirmed the Agency’s removal decision. The AJ found that Abrams and Dukes had

engaged in a sexual relationship.   That conclusion was based primarily on witness

credibility determinations; the AJ found Dukes’ testimony to be more persuasive than



2008-3314
                                      -2-
Abrams’. Thus, the AJ found that because Abrams engaged in a prohibited sexual

relationship, the Agency’s removal decision was appropriate. However, the AJ did not

sustain the Agency’s alternative ground for removal: patient abuse.     The AJ found

insufficient evidence to support the Agency’s charge that Abrams had harassed Dukes.

      Thus, although only one of the Agency’s charges against Abrams was sustained,

the AJ upheld the decision to remove Abrams. The AJ upheld the Agency’s removal

decision based upon Abrams’ behavior, his lack of potential for rehabilitation, and his

past disciplinary record. The Board denied Abrams’ petition for review; thus, the AJ’s

decision became final.

      Abrams timely appealed the Board’s denial. We have jurisdiction pursuant to 28

U.S.C. § 1295(a)(9).

                                    DISCUSSION

      The scope of our review in an appeal from a Board decision is limited. We can

only set aside the Board’s decision if 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) (2000); see Briggs v. Merit Sys. Prot. Bd.,

331 F.3d 1307, 1311 (Fed. Cir. 2003). This court reviews rulings on evidentiary matters

under an abuse of discretion standard. Banknote Corp. of Am., Inc. v. United States,

365 F.3d 1345, 1358 (Fed. Cir. 2004).

      On appeal, Abrams resumes his claims that he never engaged in a sexual

relationship with Dukes and that the AJ’s decision was based entirely on “she said




2008-3314
                                        -3-
testimony.” He further argues that he should be reinstated because the VA did not

respond to his requests for VA policies regarding prohibited socialization with patients.

        In response, the government contends that the evidence established that Dukes

and Abrams had a sexual relationship and that such relationships were prohibited by the

VA. Furthermore, the government argues that the AJ is given wide discretion regarding

discovery requests and there is no evidence that that discretion was abused in this

case.

        We agree with the government. This case hinges on the conflicting testimony of

Dukes and Abrams. The former claimed that the pair engaged in a five-year affair that

ended only after police and the VA intervened. The latter claimed that the relationship

was strictly platonic. The AJ found Dukes’ testimony to be “more persuasive” than

Abrams’. This court will not overturn credibility determinations unless the testimony was

“inherently improbable or discredited by undisputed evidence or physical facts.”

Hanratty v. Dep’t of Transp., 819 F.2d 286, 288 (Fed. Cir. 1987) (citation omitted).

Abrams has not pointed to anything in Dukes’ testimony that has been discredited or is

inherently improbable. Thus, due to our deferential standard of review of credibility

determinations, we must uphold the AJ’s finding that Dukes and Abrams engaged in a

sexual relationship.

        Abrams’ argument that the AJ erred by refusing to grant his discovery request is

similarly flawed. Abrams has not shown that the failure of the AJ to grant his discovery

request was prejudicial to him. In fact, his discovery request only sought information as

to the VA’s policy regarding social relations with patients. In this case, it has already

been established by the AJ that Abrams’ relationship with Dukes was not of merely a



2008-3314
                                        -4-
“social” nature; thus, the request for such a policy was irrelevant. See Curtin v. Office of

Pers. Mgmt., 846 F.2d 1373 (Fed. Cir. 1988) (finding that an AJ may exclude irrelevant

evidence). It was uncontested at the AJ’s hearing that sexual relationships with patients

were prohibited by the VA. Therefore, Abrams’ discovery request was properly denied

by the AJ.

       Accordingly, we affirm the Board’s decision.

                                               COSTS

       No costs.




2008-3314
                                         -5-
