N OTE : This disposition is nonprecedential.



# United States **Court of Appeals**  **for the Federal Circuit**

______________________

FRANK LICARI,

Petitioner

v.

DEPARTMENT OF TRANSP ORTATION, Respondent

______________________

2017

- 1470

______________________

Petition for review of an arbitrator ’ s decision in No.
FMCS 16

- 55055A by Laurence M. Evans.

______________________

Decided: August 11 , 2017

______________________

F RANK L ICARI , Burke, VA, pro se.

M ARGARET J ANTZEN , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by
C HAD A. R EADLER

, R OBERT E. K IRSCHMAN

, J R

., E LIZABETH M. H OSFORD ; C HARLES E DWARD L OHMEYER , Department of Transportation, Washington, DC.

______________________

Before L OURIE

, R EYNA

, and H UGHES

, Circuit Judges.LICARI v. DEPARTMENT OF TRANSP ORTATION 2

P ER C URIAM

. Frank Licari appeals from an arbitration decision a ffirming his dismissal from federal employment. Because
substa ntial evidence supports the arbitrator’s decision, we
affirm

.
B ACKGROUND

1. Mr. Licari’s Removal

Mr. Licari work ed for the United States Department of Transportation (“agency”) from 2004 until his removal
i n March 2016. At the time of his removal, Mr. Licari was a senior transportation analyst for a division of the age ncy responsible for reviewing and approving oil spill r esponse plans.

During his tenure at the agency, Mr. Licari was su bject to annual performance appraisals

. A July 2015 appraisal of Mr. Li cari’s 2014

– 2015 performance resulted in an “unacceptable” rating in three job elements. See S.A. 93, 95

– 96. The only job element relevant to this appeal is Critical Element 4, which state s that employees must “perform[] reviews of onshore pipeline oil spill response plans

. . . [and] accurately follow[] review guid elines 85% of the time.” S.A. 19 , 96 . Each response plan required Mr. Licari to review oil operators’ answers to 38 questions. Mr. Licari accurately reviewed several of the 38 questions less than 85% of the time. For example, he correctly reviewed Question 16 only 33% of the time. S.A.

20. 1

In September 2015, the agency plac ed Mr. Licari on a Performance Improvement Plan (“PIP”) and issued a

1 The arbitrator set aside the agency’s determin ation that Mr. Licari’s performance as to Critical Element 3 was unacceptable. S.A. 18. That decision is not before us on appeal.LICARI v. DEPARTMENT OF TRANSP ORTATION 3

memorandum explaining how he needed to improve h is performance. S.A. 101

– 05. The memorandum allowed
Mr. Licari 90 days “to demonstrate acceptable perfo rmance,” assigned him a mentor, and set regular check

- in meetings. S.A. 104. The memorandum further specified
that Mr. Licari would meet biweekly wit h his supervisor, David Lehman, to discuss his progress. Id.

At the conclusion of the 90

- day period, the agency n otified Mr. Licari that he failed to improve to an acceptable level of performance. S.A. 106. Based on his failure to improve, the agency sent Mr. Licari a Notice of Proposed
Removal in January 2016 . Mr. Licari , represented by his
union

, challeng ed the Notice of Proposed Remov al and filed a Step 3 Grievance. The agency issued its decision to

remove Mr. Licari and denied Mr. Licari’s Step 3 G rie vance. The agency noted that if Mr. Licari was unsatisfied, he could proceed to arbitration through his union. S.A.

182.

2. Arbitration

M r. Licari elected to pursue arbitration. In August 2016, the arbitrator heard the testimony of six witnesses
and received 21 exhibits. After post

- trial briefing, the
arbitrator rendered a decision that substantial evidence supported the agency’s finding that Mr. Licari performed

u nacceptably as to Critical E lement 4 and that just cause
existed for Mr. Licari’s removal. The arbitrator summ arized the requirements for acceptable performance of
Critical Element 4 , including the accurate review of 38 questions

. The agency provided unr ebutted testimony that Question 16 was the most significant. T he arbitrator
found Mr. Li cari’s failure rate of 67% on Qu estion 16 to be “startling.” S.A. 20. He also noted that Mr. Licari acc urately answered several other questions below the 85%
thresho ld.

The arbitrator made credibility determinations about

Mr. Lehman’s testimony, stat ing that he had “no basis toLICARI v. DEPARTMENT OF TRANSP ORTATION 4

question Supervisor Lehman’s credibility or good faith” in determining that Mr. Licari failed Cr itical E lement 4. Id. “As between the testimony of Supervisor Lehman and the Grievant,” the arbitrator wrote, “I find Lehman’s testim ony to be more reliable, accurate and trustworthy, and I therefore credit his version of events with regard to Critical Element 4 and its related performance standard. ”
S.A. 21. The arbitrator noted that Mr. Licari “had to recant certain testimony due to ‘confusion’ and start

over, ” and t hat Mr. Licari provided no witness testimony to “undermine Lehman’s testimony in any respect.” Id. Based on these findings, the ar bitrator concluded that “the Agency, by ‘substantial evidence,’ has proven that the Grievant’s work performance, during the term of his PIP, was unacceptable under Critical Element 4 and its related performance standard.” S.A. 22.

Mr. Licari appeals. We have jurisdiction pursuant to 5 U.S.C. §§ 7121(f) and 7703.

D ISCUSSION

We review an appeal from an arbitrat ion decision u sing the same standards as an appeal from a decision of the Merit Systems Protection Board. 5 U.S.C. § 7121(f);

Norris v. SEC , 675 F.3d 1349, 1352

– 53 (Fed. Cir. 2012). By statute, we may set aside an arbitration decision only if it is arbitrary, capricious, an abuse of discretion, othe rwise not in accordance with law; obtained in violation of law, rule, or regulation; or unsupported by substantial evidence. 5 U.S.C. § 7703(c). We review questions of law de novo and questions of fact for substantial evidence. See Wrocklage v. Dep’t of Homeland Sec. , 769 F.3d 1363, 1366 (Fed. Cir. 2014). Substantial evidence is “such
relevant eviden ce as a reasonable mind might accept as adequate to support a conclusion.” McLaughlin v. Office of Pers. Mgmt. , 353 F.3d 1363, 1369 (Fed. Cir. 2004). Credibility determinations, however, are “virtually unr eviewable” and are almost never overturned absent co n-LICARI v. DEPARTMENT OF TRANSP ORTATION 5

tradictory extrinsic evidence. Hambsch v. Dep’t of the Treasury , 796 F.2d 430, 436 (Fed. Cir. 1986). The burden of proving reversible error rests on Mr. Licari. See
Pucilowski v. Dep’t of Justice , 498 F.3d 1341, 1344 (Fed. Cir. 2007).

Mr. Licari app ears to raise four primary a rguments on appeal . First, he contends that the arbitrator erred in determining that Mr. Lehman was more credible than

Mr. Licari. The Board (or in this case, the arbitrator) resolves credibility disputes by (1) identifying th e dispu ted facts; (2) summarizing the evidence; (3) identifying which version he believes; and (4) explaining why one
version was more credible than the other. Hillen v. Dep’t of the Army , 35 M.S.P.R. 453, 458 (1987). The arbitrator acknowledged his obligation to follow Hillen

, S.A. 21 n.17

, and we find no error in the arbitrator’s credibility dete rmination. The arbitrator first identified Critical Element 4 as the issue in dispute. He also summarized both sides’ evidence, stated that he believed Mr. Lehman’s version to
be more credible, and explained why. For example, the
arbitrator noted that no witnesses contradicted
Mr. Lehman “in any respect,” and that Mr. Licari had to

recant som e of his testimony. S.A. 21. In light of t he proper applicat ion of Hillen and the lack of contrary
extrinsic evidence

, we have no difficulty upholding the
arbitrator’s determination that Mr. Lehman’s testimony

was credible. Hambsch , 796 F.2d at 436.

Second , Mr. Licari alleges that the agency applied an incorrect, retroactive methodology to determine that he failed to adequately perform Critical Element 4. Critical Element 4 requires employees to review answers to 38 regulatory questions with 85% accuracy. Mr. Lehman testified that prior to his becoming director i n 2013, an employee could consistently miss the same question but still satisfy the 85% benchmark by correctly reviewing other questions. S.A. 201. Because each question repr esented a regulatory requirement, Mr. Lehman was co n-LICARI v. DEPARTMENT OF TRANSP ORTATION 6

cerned that employees could consistently review individ ual questions inaccurately

. He therefore began requiring
each question to be reviewed correctly 85% of the time. S.A. 19, 201

– 02. Mr. Lehman testified that he explained the new review methodology to his employees at two staff meetings. S.A. 202

. He also testified that he coached his employees on the methodology during the “communication timeframe,” which was the beginning of the upcoming appraisal period. S.A. 210, 234. Mr. Licari confirmed that he spoke with Mr. Lehman abo ut the changes. S.A.

226 , 234

. We do not agree with Mr. Licari that the review methodology was flawed. A Senate Report notes that

a gencies have “ ‘ great flexibility ’” in choos ing and develo ping their own review systems

. Gillebeau v. Dep’t of the Navy , 362 F.3d 1329, 1336 (Fed. Cir. 2004) (quoting S. Rep. No. 95

- 969, at 42, reprinted in 1978 U.S.C.C.A.N. at 2764). We have previously concluded that Congress “intend[ed] to permit government agencies latitude in crafting performance appraisal systems to fit their needs.”
Id. at 1337. The arbitrator explained that the agency’s oil spill response plans were so significant that the 85% accuracy threshold was not “unduly strict.” S.A. 19 n.13. Given the potential environmental and economic effects of
oil spills, we agree. Mr. Licari presents no other persu asive arguments against the merits of the appraisal crit eria.

We also reject Mr. Licari’s argument that the a ppraisal criteria were retroactively applied to him. When the change went into effect, Mr. Licari notified

Mr. Lehman that he disagreed with “the whole plan ,” S.A. 234, and signed the July 31, 2014 performance plan “in disagreement,” S.A. 92. The fact that Mr. Licari doc umented his disagreement in July 2014

— a full year before his July 2015 perf ormance appraisal

— indicates that the new standards were not applied retroactively. We discern nothing from the record that Mr. Licari was unaware ofLICARI v. DEPARTMENT OF TRANSP ORTATION 7

how he would be evaluated for the 2014

– 2015 appraisal period

. We conclude the methodology was not retroac tiv ely applied

. Third, Mr. Licari faults the arbitrator for not consi dering what he calls prior “exceptional performance a ppraisals

. ” The record indicates, however, that the
arbitrator received Mr. Licari’s past performance apprai sals dating back to 2009. S.A. 224. The arbitrator acknowledged the union’s position that Mr. Licari “was an ‘outstanding performer’ until he came under the superv ision of David Lehman in late 2013.” S.A. 11. But an agency cannot decide to remove an employee based on
unaccepta ble performance that occurred more than a year before the notice of proposed removal. 5 U.S.C. § 4304(c)(2). We note that § 4303(c)(2) does not prohibit the arbitrator from considering past acceptable perfo rmance. Given the prohibition on considering un accept able performance more than one year old , however, we do not fault the arbitrator for not focusing on acceptable conduct prior to 2014. We see no requirement, statutory or otherwise, that an arbitrator must consider acceptable performance that occurr ed more than one year before the notice of proposed removal

. And at any rate, the arbitr ator had before him records of Mr. Licari’s past acceptable behavior for the past several years.

Fourth, Mr. Licari alleges that the arbitrator was b iased against him. Specifically, he argues that both pa rties made the arbitrator aware of a medical condition that
could cause Mr. Licari to interrupt the proceeding , but that the arbitrator “incorrectly interpreted [his] medical problems, as being a difficult witness that was uncooper ative.” Informal Br. at 9. Mr. Licari also alleges that certain passages of the arbitration decision exemplify the
arbitrator’s bias.

The government disagrees, citing Bieber

v. Department of the Army , 287 F.3d 1358 (Fed. Cir.LICARI v. DEPARTMENT OF TRANSP ORTATION 8

2002). In Bi eber , the appellant did not file a motion for
recusal with the administrative judge (“AJ”). Id. at 1361. Instead, like here, the appellant complained of bias for the first time on appeal. Id. We explained that in appl ying the federal judicial recusal s tatute, 28 U.S.C. § 455, the Supreme Court requires a showing of “‘deep

seated . . . antagonism’ toward a party.” Id. at 1362 (quoting Liteky v. United States , 510 U.S. 540, 555 (1994)). Though the appellant in Bieber sought a new hearing instead of recusal, we applied the recusal stan dard from Liteky

. Id. Based on that standard, w e determined that although some of the AJ’s comments were inappropriate

, they did not to rise to the level of due

process

- depriving bias. Id. at 1362. In a subsequent case, an appellant alleged bias because an administrative judge
told her to either settle her case or face dismissal. Atanus

v. MSPB , 434 F.3d 1324, 1327 (Fed. Cir. 2006). Even

a ccepting the appellant’s version of the facts, we found
that such a statement “doe s not establish that the judge had a ‘deep

- seated favoritism or antagonism that would make fair judgment impossible.’” Id. (quoting Bieber , 287 F.3d at 1362).

W e find that the arbitrator’s conduct does not demo nstrate a deep

- seated antagonism against Mr. Licari, and thus did not deprive him of due process. Mr. Licari makes only generalized allegations about the arbitrator’s conduct during the trial but does not cite to specific statements that demonstrate bias. He also points to two passages in
the a rbitration decision: “I have no basis to question Supervisor Lehman’s credibility or good faith” and “No one came forward to undermine Lehman’s testimony in any respect.” S.A. 20

– 21. While Mr. Licari may disagree with the arbitrator’s credibility determi nations, they do not show any, let alone deep

- seated, antagonism toward

Mr. Licari. An adverse credibility determination is not equivalent to improper bias.LICARI v. DEPARTMENT OF TRANSP ORTATION 9

C ONCLUSION

We have considered the remainder of Mr. Licari’s a rguments and find them to be unpersua sive. Substantial evidence supports the arbitrator’s decision to uphold

Mr. Licari’s removal based on Critical Element 4 . We
therefore affirm the arbitration decision.

AFFIRMED

C OSTS

No costs.