              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

                                     05-3202

                             PAULETTE P. WRIGHT,

                                                      Petitioner,

                                        v.

                   DEPARTMENT OF VETERANS AFFAIRS,

                                                      Respondent.

                        ___________________________

                        DECIDED: December 8, 2005
                        ___________________________

Before MAYER, RADER, and DYK, Circuit Judges.

RADER, Circuit Judge.

      The Merit Systems Protection Board (Board) sustained the Department of

Veterans Affairs (DVA) removal of Paulette Wright, a former Clinical Dietitian.

Wright v. Dep't of Veterans Affairs, No. NY-0752-04-0201-I-1 (M.S.P.B. Apr. 27,

2005) (Final Decision). This court affirms.

                                  DISCUSSION

                                         I.

      The DVA removed Ms. Wright from her position based on eight charges,

including failure to respond to pager and phone and failure to follow a

supervisor’s instructions. Ms. Wright was also accused of blatantly inappropriate

and disrespectful conduct.
         Following a hearing, the administrative judge rejected Ms. Wright’s

defenses of harmful procedural error and retaliation. The judge then sustained

all but one of the charges. Wright v. Dep't of Veterans Affairs, No. NY-0752-04-

0201-I-1 (M.S.P.B. Jul. 26, 2004) (Initial Decision).        The Board denied Ms.

Wright’s petition for review for failure to meet the criteria for review set forth at 5

C.F.R. § 1201.115(d).       Final Decision.      This court has jurisdiction under 28

U.S.C. § 1295(a)(9).

                                           II.

         This court affirms the Board's decision unless it is arbitrary, capricious, an

abuse of discretion, otherwise not in accordance with law, or unsupported by

substantial evidence. Kewley v. Dep't of Health & Human Servs., 153 F.3d 1357,

1361 (Fed. Cir. 1998).

          Ms. Wright asserts that the administrative judge wrongfully excluded the

testimony of certain “important” witnesses. The administrative judge did approve

four of appellant’s witnesses, but held that Ms. Wright did not show that the

additional proposed witnesses were relevant. In any case, “[a] determination to

allow or exclude witness testimony is within the sound discretion of the

administrative judge.” Guise v. Dep’t of Justice, 330 F.3d 1376, 1379 (Fed. Cir.

2003).     Ms. Wright has not presented any new evidence here to show the

relevance of the disputed witnesses.             The record does not show that the

administrative judge abused his discretion.

         Ms. Wright also contends that substantial evidence does not support the

Board's decision. The administrative judge credited the uncontradicted testimony




05-3202                                    2
of a number of witnesses with respect to critical events.          An administrative

judge’s credibility determinations are virtually unreviewable. See Frey v. U.S.

Dep’t of Labor, 359 F.3d 1355, 1361 (Fed. Cir. 2004). Thus, this court has no

reason to disturb these credibility determinations.

         Further, the Board did not err in rejecting Ms. Wright’s affirmative defense

of retaliation. The administrative judge found that, on balance, Ms. Wright’s

misconduct, not her protected EEO activity, was the motivation for the agency’s

action. Therefore, there was no genuine nexus between the alleged retaliation

and the adverse action. See Warren v. Dep’t. of Army, 804 F.2d 654, 656 (Fed.

Cir. 1986). On this record we shall not disturb this finding.

         Finally, the Board did not err in rejecting Ms. Wright’s affirmative defense

based on an applicable collective bargaining agreement. Ms. Wright argued that

the agreement required further inquiry into certain of the charges and more levels

of progressive discipline before her removal. The administrative judge found no

evidence that the agreement’s provisions were violated, and none that any

violation would have had a harmful effect. This court perceives no reversible

error.

         For the forgoing reasons, the final decision of the Board is affirmed.




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