NOTE: This disposition is nonprecedential. 

United States Court of Appeals 

for the Federal Circuit 

__________________________ 

MARIO G. MANCINI, JR., 

Petitioner, 

v. 

DEPARTMENT OF VETERANS AFFAIRS, 

Respondent. 

__________________________ 

2010-3006 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in CH0752090272-I-1. 

___________________________ 

Decided: July 21, 2010 

___________________________ 

KENNETH J. HEISELE, Weprin, Folkerth & Routh, LLC 

of Dayton, Ohio, for petitioner. 

JOSHUA E. KURLAND, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department 

of Justice, of Washington, DC, for respondent. With him 

on the brief were TONY WEST, Assistant Attorney General, 

JEANNE E. DAVIDSON, Director, and MARTIN F. HOCKEY,

JR., Assistant Director. 
MANCINI v. VA 2

__________________________ 

Before DYK, FRIEDMAN, and MOORE, Circuit Judges. 

PER CURIAM. 

Mario G. Mancini, Jr., (“Mancini”) petitions for review 

of a final order of the Merit Systems Protection Board (the 

“MSPB” or “Board”) affirming a decision of the Department of Veterans Affairs (the “VA” or “agency”). The VA 

removed Mancini for “Inappropriate Conduct,” “Neglect of 

Duty,” “Using Government Computer to Transmit Inappropriate Materials,” and “Providing Inconsistent Statements Under Oath.” See Mancini v. Dep’t of Veterans 

Affairs, No. CH-0752-09-0272-I-1 (M.S.P.B. Aug. 6, 2009) 

(“Final Order”). We affirm. 

I BACKGROUND

Mancini was employed as a vocational rehabilitation 

specialist at the Dayton Veterans Affairs Medical Center 

(“Dayton VA”) from 1992 until January 2, 2009. The four 

charges for which Mancini was removed from this position 

relate to multiple, distinct events that occurred over a 

short period of time. 

Neglect of Duty 

A. Failure to Transfer 

During Fall 2007 and early 2008, Mancini served as a 

counselor to a female veteran (the “Veteran”) with diminished mental capacity who was receiving treatment at the 

Dayton VA. On October 18, 2007, Mancini concluded that 

he believed it was in the Veteran’s best interests for her 

to be transferred to the care of a female vocational reha-
3 MANCINI v. VA

bilitation specialist, Debbie Oberg (“Oberg”). Mancini 

took steps to transfer the Veteran to Oberg, but the 

transfer was never completed, and the Veteran stayed 

under Mancini’s care. The parties dispute whether it was 

Mancini’s or Oberg’s fault that the transfer was not 

completed. Mancini’s failure to complete the transfer of 

the Veteran to Oberg after he had determined that such a 

transfer was necessary became the basis for one of the 

two specifications supporting a Neglect of Duty charge.

B. Improper Supervision of Intern 

On October 19, 2007, Mancini recorded in a progress 

note that the Veteran was “very manipulative and is 

becoming increasingly seductive to male staff” and that 

Mancini “now believes this veteran is extremely problematic in her judgment, insight, physical limitations, relationships with men.” J.A. 884. He further noted that the 

Veteran had asked Mancini’s student intern (the “Intern”) 

to drive her to Florida, which the Intern had declined to 

do. The Intern had also told Mancini that a “friendship” 

had started developing between the Intern and the Veteran. J.A. 175, 177. Mancini testified that he cautioned 

the Intern both that driving the Veteran to Florida and 

that developing a friendship with the Veteran would be 

inappropriate. Later, the Intern disclosed to Mancini that 

the Veteran had called the Intern from Florida. The 

Intern took a break from his internship the following 

academic quarter. On February 29, 2008, the Veteran 

disclosed to Mancini that she had become involved in a 

consensual, sexual relationship with the Intern during his 

break from the internship. Mancini’s allegedly improper 

supervision of the Intern formed a second basis for the 

Neglect of Duty charge against Mancini. 
MANCINI v. VA 4

Providing Inconsistent Statements Under Oath 

Mancini appeared before the First Administrative 

Board of Investigation to provide sworn testimony relating to the relationship between the Intern and the Veteran on March 21, 2008, and April 11, 2008. An alleged 

inconsistency between Mancini’s testimonies on these two 

dates formed the basis for the charge of Providing Inconsistent Statements Under Oath.

Inappropriate Conduct 

A. Provision of Daughter’s Contact Information 

In February 2008, the Veteran expressed an interest 

in motorcycles to Mancini. Mancini provided the Veteran 

with the contact information for his daughter, Candace 

Pickrel (“Pickrel”), who was knowledgeable about motorcycles. Like Mancini, Pickrel was trained to provide 

rehabilitation services, but she was unaffiliated with the 

Dayton VA.

On March 25 or 26, 2008, which was four or five days 

after Mancini first appeared before the Board of Investigation, the Veteran was allegedly raped by another patient (“Mr. K”), who was being treated for sexual 

addiction at the Dayton VA. Pickrel subsequently became 

an advocate for the Veteran with regard primarily to the 

alleged rape, as well as to the Veteran’s treatment and 

personal relationships at the Dayton VA. 

The Code of Professional Ethics for Rehabilitation 

Counselors (the “CPERC”) discourages the development of 

familial relationships with clients “that could impair 

professional judgment or increase the risk of harm to 

clients.” J.A. 397. Mancini’s provision of his daughter’s 

telephone number to the Veteran in February 2008 alleg-
5 MANCINI v. VA

edly violated the CPERC and provided the basis for the 

first of two specifications supporting the charge of Inappropriate Conduct against Mancini. In this specification, 

the agency “noted that Ms. Pickrel became the patient’s 

advocate in matters in which [Mancini] clearly had a 

vested interest.” J.A. 721. 

B. Transportation on Personal Motorcycle 

On April 25, 2008, Mancini transported the Veteran 

off of the Dayton VA premises after-hours on his personal 

motorcycle. Mancini claims he was taking the Veteran “to 

look at a motorcycle to educate her on budgeting skills 

and try to talk her out of buying the motorcycle.” Pet’r’s 

Br. 6. Mancini’s use of his motorcycle to transport the 

Veteran became the basis for the second specification 

supporting the charge of Inappropriate Conduct. 

Using Government Computer to Transmit Inappropriate Materials 

During the investigation of some of the foregoing allegations, an examination of the files in Mancini’s computer 

was conducted. The investigation discovered that 

Mancini had forwarded two emails to his wife and daughter. One email contained a pornographic image of a 

naked woman bending over and another email contained 

a racial joke. These emails provided the basis for a 

charge, Using Government Computer to Transmit Inappropriate Materials. This charge included two specifications relating to the two emails Mancini forwarded to his 

wife and daughter. 

On October 23, 2008, the Dayton VA issued Mancini a 

notice proposing his removal based on the four charges of 

misconduct: (1) Inappropriate Conduct; (2) Neglect of 
MANCINI v. VA 6

Duty; (3) Using Government Computer to Transmit 

Inappropriate Materials; and (4) Providing Inconsistent 

Statements Under Oath. Mancini provided an oral response to the charges. 

In December of 2008, the agency sustained the 

charges and removed Mancini. On January 14, 2009, 

Mancini appealed his removal to the MSPB. An Administrative Judge (“AJ”) issued an Initial Decision sustaining 

all four of the charges, as well as the penalty of removal, 

on May 1, 2009. Mancini v. Dep’t of Veterans Affairs, No. 

CH-0752-09-0272-I-1 (M.S.P.B. May 1, 2009) (“Initial 

Decision”). Mancini filed a petition for review with the 

full Board, which was denied, making the initial decision 

of the AJ the final decision of the Board. Mancini timely 

appealed to this court, and we have jurisdiction over his 

appeal pursuant to 28 U.S.C. § 1295(a)(9). 

II DISCUSSION

Our review of an MSPB decision is limited. We must 

sustain a decision of the Board unless it is “found to be (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.” 

Jacobs v. Dep’t of Justice, 35 F.3d 1543, 1545 (Fed. Cir. 

1994) (citing 5 U.S.C. § 7703(c)). 

A Neglect of Duty and Inappropriate Conduct 

With respect to two of the specifications, we agree 

with Mancini that the decision of the Board is not supported by substantial evidence. First, the Board’s decision with respect to the allegation that Mancini 

improperly supervised the Intern, which is the second 
7 MANCINI v. VA

specification of the Neglect of Duty charge, is plainly 

based on a misapprehension of the record. Mancini points 

out that the Board mistakenly concluded that the rape of 

the Veteran was committed by the Intern, whereas the 

rape was actually committed by a third person, Mr. K. 

The Board’s error on this point appears to have contributed to its decision to sustain this specification. See

Initial Decision, slip op. at 6 (“T]he appellant’s actions 

resulted in harm to [the Veteran]. She pursued complaints about the intern’s actions based on her belief she 

was ‘basically raped’ . . . . I therefore find that disciplinary action based on this specification was warranted . . . 

.”). 

Second, the Board’s decision with respect to the allegation that Mancini provided his daughter’s contact 

information to the Veteran in violation of the CPERC, the 

first specification of the Inappropriate Conduct charge, is 

not supported by substantial evidence. The Board concluded that Mancini had violated the CPERC by providing 

his daughter’s telephone number to the Veteran because 

it was reasonably foreseeable that his daughter would 

become involved as the Veteran’s advocate on issues over 

which he had a “vested interest.” We see no basis in the 

record for this conclusion. The Board’s decision on this 

specification again confuses the Intern and Mr. K. 

Mancini’s daughter’s advocacy efforts related primarily to 

the alleged rape by Mr. K, over which Mancini had no 

vested interest. At the time the daughter’s name was 

provided, the rape by Mr. K had not even occurred, and 

there is no basis for believing that the Veteran would 

even require the services of an advocate. While we conclude that these two specifications are not sustainable, as 

we now discuss, we conclude that Mancini’s challenges to 

the other charges and specifications are without merit. 
MANCINI v. VA 8

With regard to the remaining Neglect of Duty and Inappropriate Conduct specifications, Mancini’s primary 

argument is that the MSPB erred by relying on the testimony of the agency’s witnesses in finding the specifications of these two charges supported by substantial 

evidence. The MSPB found the testimony of the agency’s 

witnesses more persuasive than that of Mancini. We 

have often held that when the MSPB’s credibility determinations are not inherently improbable or discredited by 

undisputed fact, we are not in a position to re-evaluate 

them. See Pope v. U.S. Postal Serv., 114 F.3d 1144, 1149 

(Fed. Cir. 1997); Hambsch v. Dep’t of Treasury, 796 F.2d 

430, 436 (Fed. Cir. 1986); DeSarno v. Dep’t of Commerce, 

761 F.2d 657, 661 (Fed. Cir. 1985); Griessenauer v. Dep’t 

of Energy, 754 F.2d 361, 364 (Fed. Cir. 1985). We find 

nothing in the record here to justify reconsidering the 

Board’s credibility determinations. The first specification 

of the Neglect of Duty charge, which concerned Mancini’s 

failure to transfer the Veteran to a female vocational 

rehabilitation specialist, and the second specification of 

the Inappropriate Conduct charge, which concerned the 

transportation of the Veteran on Mancini’s personal 

motorcycle, are supported by substantial evidence. Since 

each charge is supported by a specification that we have 

sustained, we conclude that all of the charges must be 

sustained. 

B Using Government Computer to Transmit Inappropriate Materials 

The third charge, Using Government Computer to 

Transmit Inappropriate Materials, relates to the emails 

containing sexual and racial innuendos that Mancini sent 

to his wife and daughter. Mancini explains that “[t]his is 

not a situation where [he] was regularly emailing inappropriate materials to mass number of recipients. [He] 
9 MANCINI v. VA

forwarded emails on two occasions to immediate family 

members merely to show what he was receiving at work.” 

Pet’r’s Br. 20-21. To remove Mancini from federal service 

on the basis of these emails, the VA was required to 

prove, among other things, that “a relationship [was 

present] between the misconduct and the objective of 

promoting the efficiency of the service.” See James v. 

Dale, 355 F.3d 1375, 1378 (Fed. Cir. 2004). Mancini 

asserts that the MSPB failed to specify how a nexus 

existed between his conduct in forwarding these emails 

and the efficiency of the Dayton VA. He claims that the 

MSPB “merely parroted the ‘efficiency of the service’ 

language without supporting facts.” Pet’r’s Reply Br. 11. 

We disagree. 

The MSPB described Mancini’s conduct and the contents of the emails in detail. The MSPB then discussed 

how the VA Handbook, Part IX, provides that government 

property may only be used for officially-approved purposes. The MSPB explained that “use of the [government] 

computer to forward messages containing sexual or racial 

innuendos is not appropriate, even assuming the messages were only forwarded to the appellant’s wife and 

daughter. . . . Because improper use of government 

property harms the efficiency of the service, the charge is 

sustained.” Initial Decision, slip op. at 9. We see no error 

in the MSPB’s finding. It is self-evident that using government resources to send racially and sexually charged 

emails is inappropriate; such conduct is a misuse of public 

funds and reflects poorly on the agency. 

C Providing Inconsistent Statements Under Oath 

The fourth charge against Mancini is that he provided 

inconsistent statements under oath. When he was questioned on March 21, 2008, Mancini testified that the 
MANCINI v. VA 10

Intern had informed him that the Intern was developing a 

friendship with the Veteran. While giving sworn testimony on April 11, 2008, however, Mancini claimed that 

the Intern had “never” told him that “a friendship or 

relationship” was developing with the Veteran. J.A. 635. 

Contrary to Mancini’s assertions, we agree with the 

MSPB that his statements were inconsistent. There is 

also no merit to Mancini’s contention that he could not be 

disciplined for making inconsistent statements. We 

therefore sustain the Board’s decision as to this charge. 

D Reasonableness of Penalty 

Finally, Mancini challenges the Board’s determination 

that removal was an appropriate penalty. Mancini argues 

that the MSPB erred in failing to consider all of the 

relevant factors pursuant to Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), which provides a list of 

twelve factors that should be considered in determining 

the appropriateness of a penalty. The Board, however, is 

not required to “consider every one of the 12 Douglas 

factors ‘mechanistically by [a] preordained formula.’” 

Webster v. Dep’t of Army, 911 F.2d 679, 686 (Fed. Cir. 

1990) (quoting Douglas, 5 M.S.P.R. at 306). The deciding 

official here, whose determinations were adopted by the 

MSPB, expressly considered all of the Douglas factors. 

Because we uphold the Board’s decision with respect to 

each of the charges against Mancini and because the 

Board did not err in finding that removal was not an 

inappropriate sanction, we sustain the Board’s decision as 

to penalty. Our decision setting aside the Board’s decision as to the two specifications does not affect the penalty since there is no indication that the agency would 

have reached a different result absent those two specifications. 

AFFIRMED 
11 MANCINI v. VA

COSTS

 No costs.