Error: Bad annotation destination
                     NOTE: This disposition is nonprecedential.


     United States Court of Appeals for the Federal Circuit

                                     2006-3411



                              MICHAEL J. DOBRUCK,

                                                             Petitioner,

                                          v.


                      DEPARTMENT OF VETERANS AFFAIRS,

                                                             Respondent.



      Michael J. Dobruck, of Punta Gorda, Florida, pro se.

       Tara J. Kilfoyle, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With her on
the brief were Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director;
and William F. Ryan, Assistant Director.

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                       NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                      2006-3411


                               MICHAEL J. DOBRUCK,

                                                     Petitioner,


                                           v.


                       DEPARTMENT OF VETERANS AFFAIRS,

                                                     Respondent.


                           __________________________

                           DECIDED: January 25, 2007
                           __________________________


Before MICHEL, Chief Judge, DYK and PROST, Circuit Judges.

PER CURIAM.

          Michael J. Dobruck appeals from the final decision of the Merit Systems

Protection Board, which sustained the arbitrator’s decision upholding his removal. We

affirm.

                                    BACKGROUND

          At the time of his removal, Dobruck worked as a Veterans Service

Representative at the Department of Veterans Affairs Regional Office in St. Petersburg,

Florida (the “agency”). On September 17, 2004, the agency issued Dobruck a notice of

proposed removal for unacceptable performance. Specifically, the notice alleged that
Dobruck had failed to meet performance standards for “productivity” and “quality of

work.” Dobruck responded to the notice. The agency issued a decision on the proposal

on November 10, 2004, and removed Dobruck from federal service effective November

16, 2004. The decision letter informed him of his appeal rights.

       On November 18, 2004, Dobruck filed a written grievance, alleging that he was

removed in retaliation for filing a discrimination complaint with the Equal Employment

Opportunity Commission. His grievance was ultimately submitted to arbitration and a

hearing was held. On May 31, 2005, the arbitrator denied the grievance. Dep’t of

Veterans Affairs v. Am. Fed’n of Gov’t Employees, Local 1594, FMCS No. 051207-

51709-3 (May 31, 2005) (“Arbitration Decision”).       Dobruck appealed to the Merit

Systems Protection Board (“Board”) pursuant to 5 U.S.C. § 7121(d), which permits

Board review of arbitration decisions in certain cases where the employee alleges

discrimination.   The Board sustained the arbitrator’s decision.   Dobruck v. Dep’t of

Veterans Affairs, 102 M.S.P.R. 578 (M.S.P.B. 2006). Dobruck appeals.

                                     DISCUSSION

       In his pro se appeal, Dobruck makes two arguments: (1) that the evidence was

insufficient to prove the charge of unacceptable performance; and (2) that he was

denied due process because the deciding official relied on information not contained in

the notice of proposed removal when making his removal decision.

                                           A

       Dobruck first takes issue with the arbitrator’s determination that Dobruck’s

performance was unacceptable.        Specifically, Dobruck argues that the agency’s

evidence of his performance contained many errors and that the arbitrator failed to




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consider Dobruck’s own evidence. The arbitrator’s decision, however, was supported

by substantial evidence. For instance, among the evidence presented was testimony by

certain agency employees, who stated that both the quality and quantity of Dobruck’s

work were below performance standards. Arbitration Decision at 7. Moreover, the

arbitrator’s written decision clearly reflects that the arbitrator considered Dobruck’s

evidence. Id. Consequently, we affirm the Board’s determination that the arbitrator did

not err in this regard.

                                            B

       Dobruck next argues that his due process rights were violated as result of an “ex

parte” communication between the deciding official and Dobruck’s second-line

supervisor, Bambi Anderson-Ivers, in which Anderson-Ivers told the deciding official her

opinion that Dobruck had made false entries into a database in order to inflate his

performance numbers.       Dobruck alleges that this communication violated his due

process rights because he was not afforded notice and an opportunity to respond to the

allegation.

       The arbitrator’s decision, however, makes clear that this communication occurred

after Dobruck had been removed from service:

       [The deciding official] notified grievant on November 10 that he was
       terminated, and grievant filed the grievance herein. Grievant and [the
       deciding official] met on November 23 to discuss the grievance. Although
       he was not required to, [the deciding official], after making his termination
       decision, tried to find a suitable position for grievant. . . . [He] checked
       with Anderson-Ivers, who felt that grievant had manipulated computer data
       in order to inflate his production numbers and should not be placed in a
       job that involved self-reporting.




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Arbitration Decision at 8 (emphasis added). Moreover, the arbitrator made a specific

finding that the deciding official considered only the charges listed in the notice of

proposed removal when he made his decision to terminate Dobruck. Id. at 11.

      On appeal, Dobruck does not attempt to challenge the arbitrator’s finding that this

communication occurred after he was removed from service and we see no basis for

overturning that finding.   Accordingly, we see no basis to hold that Dobruck’s due

process rights were violated.

                                    CONCLUSION

      For the foregoing reasons, we affirm the decision of the Board.

      No costs.




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