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

04-3257

LARRY N. VITATOE, Petitioner,

v. GENERAL SERVICES ADMINISTRATION, Respondent.

_____________________ DECIDED: April 7, 2005

_____________________

Before MICHEL, Chief Judge , RADER and LINN, Circuit Judges

. PER CURIAM. Larry N. Vitatoe petitions for review of the final decision of the Merit Systems Protection Board (“Board”) sustaining hi s removal by the General Services Administration (“Agency”) for misconduct. Vitatoe v. Gen. Services Admin. , No. DA0752-02-0582-I-2 (M.S.P.B. Mar. 9, 2004) (“ Final Decision ”). Because the charge against Vitatoe was supported by substant ial evidence, and both the Agency and the Board considered the relevant factors in determining the reasonable ness of the penalty,

we affirm

.I. BACKGROUND Vitatoe was employed as an I n formati on Technology Representative, GS-13, with the Agency’s Feder al Telecommunications Service, Greater Southwest Region, located in New Orle ans, Louis i ana. Vitatoe v. Gen. Services Admin. , No. DA-0752-02- 0582-I-2 (M.S.P.B. Mar. 31, 2003) (“ Initial Decis i on ”). In April 2002, Vitatoe was serving as a Technical Representative on task MC 17123T2, a “services task for the Naval Reserve Recruiting Command in New Orleans.” Id. , slip op. at 2. Following the issuance of a request for proposal, three contra ctors timely filed pr oposals. Vitatoe was assigned to review the three submitted propos als and to evaluate each contractor’s pas t performance. Two of the biddi ng contractors listed J a n Bra ndon at the U.S. Army Corp of Engineers as a reference for their past performance. Although Vitatoe attempted to contact Brandon by telephone, he never spoke wit h her directly or via any other means of communication. Id . Instead, he spoke by telephone with Tina Harris, one of Brandon’s subordinat es, who de clined to pr ovide past per formance scores for the two bidders, stating that Brandon wa s the appropriate person to give such information. Vitatoe, nevertheless , provided past performance scores that he represented as originating from the U. S. Army Corp of Engineers to the Contracting Officer for tas k MC 17123T2. On June 17, 2002, the Agency removed Vitatoe from his position for fabricating these scores. On November 7, 2002, Vitatoe ti mely appealed h i s removal t o the Board. Before the Board, Vitatoe withdrew his r equest for a hearing. The Administrative Judge thus decided his appeal based upon t he written evidence of record, which included declarations fr om Brandon and Harris. Initial Dec i sion , slip op. at 3-4. Th e

04-3257 2Administrative Judge s u stained the Agency’ s charge of misconduct and determined that removal was fully wa rranted. Id. , slip op. at 2. The Administrative Judge noted that Vitatoe had served for over twenty-seven years in federal service and had bee n disciplined for negligence in carrying out his duties on two prior occasions. Id

. , slip o p

. at 8. The Administrative J udge also noted that although the Agency’s dec i ding official did not believe Vitatoe’s acti ons were malicious or for per sonal gain, they effectively destroyed the trust and confidence she had pl aced in him. Based upon this evidenc e , the Administrative Judge conc luded that Vitatoe’s pattern of evading responsibility reflected a poor rehabilit ative potential. Id. , slip op. at 9. The Administrative Judge thus upheld the removal. Vitatoe petitioned the full Board for review of the Initial Decision. Concluding that Vitatoe had not shown any new, previously unavailable evidence or that the Administrative Judge made an error in law or regulation that affected the outcome of the appeal, the full Board declined to review Vita toe’s appeal, thereby rendering the Initial Decis i on final. Final Decis i on , slip op. at 2. Vitatoe timely appealed to this court. We h a ve jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). II. DISCUSSI ON Congress has expres sly limited the scope of our review in an appeal from the Board. Specifically, we must affirm the Boar d’s dec ision unless we find it to be arbitrary, capricious, an abuse of discret ion, or otherwise not in a ccordanc e with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by subst antial ev idence. 5 U. S.C. § 7703(c) (2000); Ellis on v. Merit Sys.

04-3257 3Prot. Bd. , 7 F.3d 1031, 1034 (Fed. Cir. 1993). “Under the substantial evidence standard of review, a court will not over turn an agenc y decision if it is supported by ‘such relevant evidenc e as a reasonable mind might accept as adequate to su pport a conclusion.’” Jacobs v. Dep’t of Justice , 35 F.3d 1543, 1546 (F ed. Cir. 1994) ( quoting Co nsol. Ed iso n Co. v. Nat’l Labor Relations Bd. , 305 U.S. 197, 199 (1938)). On appeal, Vitatoe contends that the Ad ministrative Judge com m itted multiple factual errors in sustaining the misconduct char ge. Vitatoe claims that all errors ar e directed to the Adm i nistrative Judge’s failur e to appreciate that (1) the com m unication he submitted to the Contracting Officer was not a final product, but instead simply a draft; and (2) he planned to verify the scores with Brandon. In Vitatoe’s own words, “it was a draft, a draft, a draft, ba sed on inf o rmation that had yet to be verified.” As support for his contention, Vitatoe claims t hat his communication to the C ontracting Officer s t ated that he sought “rev i ew and comment .” V i tatoe also points out that Harris stated that Brandon woul d return his call. We conclude that the charges against Vitatoe were supported by substantia l evidenc e. The recor d establishes that Vit a toe knowingly subm itted fabricated past performanc e scores for tw o bi dders. H a rri s sw ore that she spoke w i t h Vi tatoe and refused to supply him with the requested scores, instead offering to hav e Brand o n return his call. Nev e rtheless, Vitatoe wr ote the communication to the Contracting Officer five days later without ever having spoken wit h Brandon. Vitatoe’s use of the words “review and c o mment,” we conclude, in no way connote that his communication to Brandon was a draft, pending confirmati on from Brandon. Rather, these words merely seek a response from the recipient of the communication. In any ev ent, even if

04-3257 4a mere draft, the communication contained fabricated scores and false attribution. Hence, as the Administrative Judge explai ned in his decis ion, “[r]egardless of the reason, in supplying techni cal evaluation data under such false pretenses, [Vitatoe] engaged in ‘misconduct . . . that impairs th at trustworthiness of the employ ee.’” Initia l Decis i on , slip op. at 7. Vitatoe als o appears to argue that the Administrative Judge committed legal error in sustaining the penalty of removal by not considering all of the relevant mitigating factors. In reviewing the appropriatene ss of an agency-imposed penalty, the Board must first ascertain that the Agency consider ed the relevant twelve factors set forth in Douglas v. Veterans Administration , 5 M.S.P.R. 280 (1981). Hayes v. Dep’t of Navy , 727 F.2d 1535, 1540 (Fed. Cir. 1984) . Then the Board itself must make findings on these factors. Although the Board need not make findings on factors that are not relevant, “failure to consider a significant m i tigating c i rcumstance constitutes an abus e of discretion.” Van Grossen v. Dep’t of Housing & Urban Dev

. , 748 F.2d 1579, 1581 (Fed. Cir. 1984). “This court will not distur b the agenc y’s choic e unless the severity of its action appears totally unwarranted in light of the rele vant factors.” DeWitt v. Dep’t of Navy , 747 F.2d 1442, 1445 (F ed. Cir. 1984) (citing Brewer v. U.S. Postal Serv. , 647 F.2d 1093, 1098 (Fed. Cir. 1981)). “Whether th is court would have chosen a different penalty is irrelevant.” Webster v. Dep’t of Army , 911 F.2d 679, 686 (Fed. Cir. 1990) (citing Hunt v. Dep’t of Health & Human Services , 758 F.2d 608, 611 (Fed. Cir. 1985)). Here, Vitatoe fails to specify any particular Doug las factor that he believ e s was ignored and that weighs in favor of imposing a lesser penalty. Our review of the record indic a tes that the Board cons idered all the releva nt factors, particu larly m i tigation and

04-3257 5rehabilitation. The Administrative Judge noted that Vitatoe had been employed for over twenty-seven years in federal service and h ad been previous ly disciplined on two prior occasions for negligence in carrying out his assignment s, receiving an office r eprimand in 2001 and a five-day sus pens ion in 2002. T he Administrative Judge adopted the deciding official’s view that Vitatoe’s pr ior infractions, coupled with the present misconduct, showed a persistent “‘neglect of duty.’” Initial Decis i o n , sl i p op. at 8. The Administrative Judge further observed that the deciding o fficia l determined that the multiple inf r actions by Vitatoe destroyed her trust and confidence in him to perform his job as a technology represent ative. The Administrative Judge thus determined that Vitatoe exhibited a very low rehabilitation pot ential. Because the record shows that the Board considered the relevant factors in as sessing the appropriat eness of the pena lty, and the penalty of removal was not unreas onable, we decline to find an abuse of discretion. Accordingly, for the foregoing reasons, Boar d’s decis ion is affirmed.

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