NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

2008-3292 

RONALD A. DAVIS, 

Petitioner, 

v. 

DEPARTMENT OF DEFENSE, 

Respondent. 

 

Ronald A. Davis, of Baltimore, Maryland, pro se. 

Michael N. O’Connell, 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. Katsas, Assistant Attorney General, Jeanne E. 

Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. 

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NOTE: This disposition is nonprecedential. 

United States Court of Appeals for the Federal Circuit 

 

2008-3292 

RONALD A. DAVIS, 

 Petitioner, 

v. 

DEPARTMENT OF DEFENSE, 

 Respondent. 

Petition for review of the Merit Systems Protection Board in consolidated cases PH3443060506-B-2, PH1221070542-W-1, and PH3443070544-I-1. 

___________________________ 

DECIDED: December 5, 2008 

___________________________ 

Before LOURIE, RADER and LINN, Circuit Judges. 

PER CURIAM. 

 Ronald Davis appeals a decision of the Merit Systems Protection Board (the 

“Board”) denying certain of his claims against the Defense Department under the 

Uniformed Service Employment and Reemployment Rights Act (“USERRA”), the 

Veterans Employment Opportunities Act (“VEOA”), and the Whistleblower Protection 

Act (“WPA”). Davis v. Dep’t of Def., PH-3443-06-0506-B-2, PH-1221-07-0542-W-1, PH3443-07-0544-I-1 (M.S.P.B. Dec. 21, 2007) (“Board Decision”). Because Davis’s 

appeal relies on challenges to the Board’s factual determinations that are supported by 

substantial evidence, this court affirms. 
I 

 Mr. Davis is a GS-5 Teller with the Department of Defense, Defense Finance and 

Accounting Service (“DFAS”) in Fort Meade, MD. The precipitating event in this appeal 

occurred on September 2, 2005, when Davis filed a complaint with the Office of Special 

Counsel (“OSC”) disclosing time, attendance, and overtime irregularities regarding his 

immediate supervisor, Mr. Lawson J. Smith. DFAS commenced an investigation of 

Smith, which ultimately concluded that Smith had not committed attendance fraud. As 

a result of the investigation, however, DFAS provided several warnings to Smith 

regarding his future behavior on the job. 

 Davis alleged before the Board that following his complaint to OSC, DFAS 

engaged in several acts of unlawful retaliation. Specifically, Davis claimed that DFAS 

denied him a certain cash award, detailed him to a different position, moved him out of 

his office, subjected him to changes in his duties, denied him a series change and 

upgrade, and denied him training. He also alleged that on February 7, 2006, his 

supervisor improperly issued him a letter of warning for refusing to perform a task which 

Davis claims he could not have performed. Finally, Davis claimed that he was twice not 

selected for promotions, once on March 16, 2006 and again on May 11, 2006, in 

retaliation for his protected disclosure. On June 13, 2006, Davis filed an appeal with the 

Board alleging a violation of his rights under the VEOA (the “first appeal”). On July 30, 

2007, Davis filed another Board appeal under the WPA and USERRA (the “second 

appeal”). These appeals concerned the aforementioned personnel actions and nonselection for promotion, and were consolidated into a single appeal. 

2008-3292 2
 On December 21, 2007, following a three-day hearing, the Boards’ administrative 

judge issued an initial decision largely favorable to Mr. Davis. In this decision, the 

administrative judge granted Davis’s request for corrective action under the WPA 

regarding the disputed non-selection, but denied Davis’s VEOA and USERRA claims 

regarding the other personnel actions. Board Decision at 14. As a remedy for DFAS’s 

WPA violation, the administrative judge ordered the agency to promote Davis, effective 

March 1, 2006, to a GS-06 position of military pay technician and pay him the 

appropriate amount of back pay, with interest. Id. at 14. The administrative judge 

denied all other relief sought by Davis. Id.

 In this appeal, Mr. Davis primarily challenges the Board’s findings regarding the 

February 7, 2006 letter of warning issued by Davis’s supervisor. Davis also appears to 

challenge the Board’s conclusion regarding his USERRA and VEOA claims. This court 

has jurisdiction under 28 U.S.C. § 1295(a)(9). 

II 

 This court must affirm the Board’s decision unless it is “(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); Forest v. Merit Sys. Prot. Bd., 47 F.3d 

409, 410 (Fed. Cir. 1995). This court reviews the Board’s factual determinations for 

substantial evidence. Bolton v. Merit Sys. Prot. Bd., 154 F.3d 1313, 1316 (Fed. Cir. 

1998). 

 As mentioned above, Davis’s supervisor Smith issued Davis a letter of warning 

on February 7, 2007. This letter pertained to Davis’s refusal to perform, at Smith’s 

2008-3292 3
request, a review of certain travel vouchers. Davis allegedly believed that his status as 

a teller/cashier prevented him from performing voucher reviewer duties. Davis argues 

that Smith issued the letter of warning in order to retaliate against Davis for his 

September 2, 2005 complaint to OSC, in violation of the WPA. He seeks an order from 

this court ordering the agency to remove the letter of warning from his personnel 

records. 

To establish a violation of the WPA, this court requires proof of four elements: 

(1) the acting official has the authority to take, recommend, or approve any personnel 

action; (2) the aggrieved employee made a disclosure protected under 5 U.S.C. § 

2302(b)(8); (3) the acting official used his authority to take, or refuse to take, a 

personnel action against the aggrieved employee; (4) the acting official took, or failed to 

take, the personnel action against the aggrieved employee because of the protected 

disclosure. See Lachance v. White, 174 F.3d 1378, 1380 (Fed. Cir. 1999). 

Davis argues that his supervisor deliberately planned and staged the assignment 

of voucher review work and subsequent letter of warning in order to retaliate against 

Davis for his protected disclosure. This argument relies on attacking the administrative 

judge’s factual determinations regarding Davis’ available courses of action when he was 

told to perform voucher review. The record reveals, however, that DFAS employees 

Jerry Hammons and Sheila Melton testified that Davis was actually authorized to review 

travel vouchers despite his status as a teller. According to Hammons and Melton, 

Davis’s function would have been simply to ensure the accuracy and completeness of 

the voucher information, and he would not have been finally accountable for such 

review. Based on this testimony, the Board concluded that the proper course of action 

2008-3292 4
would have been for Davis to simply comply with Smith’s directive and later file a 

grievance if he so desired. Board Decision at 11. This factual conclusion that Davis 

was authorized to perform the work, and thus the assignment and letter were not 

retaliatory, is supported by substantial evidence. This court accordingly affirms the 

Board’s determination on Davis’s WPA claim. 

III 

Davis also appeals the Board’s conclusion that DFAS did not violate his 

USERRA rights when it did not select him for promotions in 2006. USERRA provides: 

“A person who . . . has performed . . . service in a uniformed service shall not be denied 

. . . initial employment, reemployment, retention in employment, promotion, or any 

benefit of employment by an employer on the basis of that . . . performance of service.” 

38 U.S.C. § 4311(a). An employee making a discrimination claim under USERRA must 

initially prove by a preponderance of the evidence that his military service was a 

motivating or substantial factor in the adverse employment action. See Sheehan v. 

Dep’t of the Navy, 240 F.3d 1009, 1013 (Fed. Cir. 2001). If that initial burden is met, the 

agency must then establish by a preponderance of the evidence that it took the adverse 

action for valid reasons unrelated to the employee’s veteran status. Id.

 Here, the Board found that Davis’s military service was not a motivating factor in 

DFAS’s actions for two reasons. First, as a factual matter, there is no temporal 

proximity between Davis’s military service, which ended on April 28, 1994, and the 

February 7, 2007 letter. Second, the Board’s administrative judge credited the 

testimony of Smith, who testified that Davis’s military service weighed in his favor since 

he obtained military pay experience while in the military. As to the question of temporal 

2008-3292 5
proximity, the Board’s finding is amply supported by substantial evidence. As to Smith’s 

testimony regarding his lack of discriminatory intent with regard to Davis’s military 

status, this court gives special deference to an administrative judge’s analysis of 

credibility. See Hambsch v. Dep’t of the Treasury, 796 F.2d 430, 436 (Fed. Cir. 1986) 

(characterizing credibility determinations as “virtually unreviewable”). Thus, this court 

affirms the Board’s denial of Davis’s USERRA claim. 

IV 

 With regard to his VEOA claim, it appears that Mr. Davis factually challenges 

whether DFAS actually employed a merit promotion plan for the March 16, 2006 

selection in which he was not promoted. Again, the resolution of this issue is dictated 

by this court’s narrow standard of review. Davis’s challenge relies on attacking the 

credibility of his own witness, Ms. Hull, who testified that the March 16, 2006 selection 

was made utilizing the merit promotion process. The Board’s administrative judge 

credited this testimony in denying Davis’s VEOA claim. This court has consistently held 

that “the evaluation of witness credibility is a matter within the discretion of the AJ.” 

Frey v. Dep’t of Labor, 359 F.3d 1355, 1361 (Fed. Cir. 2004). As such, this court must 

accept the administrative judge’s determination of Ms. Hull’s credibility because the 

testimony relied on here was not “inherently improbable or discredited by undisputed 

evidence or physical fact.” Gibson v. Dep’t of Veterans Affairs, 160 F.3d 722, 726 (Fed. 

Cir. 1998) (internal quotation omitted). Accordingly, this court affirms the Board’s denial 

of Davis’s VEOA claim. 

2008-3292 6
2008-3292 7

 V 

Because the Board’s decision is fully supported by substantial evidence, in 

accordance with law, and not procedurally defective, arbitrary, or capricious, this court 

affirms. 

AFFIRMED