Fred J. Wilkie, Petitioner, v. Department of the Air Force, Respondent, 928 F.2d 411 (Fed. Cir. 1991)

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US Court of Appeals for the Federal Circuit - 928 F.2d 411 (Fed. Cir. 1991)

Feb. 11, 1991


MSPB

AFFIRMED.

Before RICH, PLAGER and CLEVENGER, Circuit Judges.

DECISION

PER CURIAM.


Fred J. Wilkie (Wilkie) appeals the final decision of the Merit Systems Protection Board (Board) in Docket Number BN07529010008 sustaining his demotion from the position of Supervisory General Engineer, GM-801-14, to Civil Engineer, GS-812-13. We affirm.

OPINION

Wilkie was demoted by the Department of the Air Force because of his alleged (1) insubordinate defiance of authority, refusal to comply with proper orders, and insolence; (2) making false, malicious and unfounded statements against a co-worker with the intent to damage or destroy her reputation, authority and official standing; (3) deliberately discriminating against a co-worker by making sexist slurs and acting in an insulting manner toward that co-worker; and (4) careless workmanship and neglect of duties.

The Administrative Judge (AJ) in his Initial Decision of February 7, 1990, which became final on July 9, 1990, when the Board denied Wilkie's petition for review, sustained each of the allegations against Wilkie. Wilkie does not challenge the findings of the AJ on the merits of the allegations. Instead, Wilkie contends that he was deprived of a fair hearing because the AJ denied Wilkie's pretrial motions to compel answers to certain interrogatories and appearances under subpoenas of certain potential witnesses.

The AJ found Wilkie's motions essentially argumentative, not designed to obtain relevant information, not in compliance with Board procedures, and, with respect to proffered witnesses, repetitious.

Under 5 C.F.R. Sec. 1201.71, the AJ has the duty to allow discovery that will produce relevant information necessary to prepare a case. Under 5 C.F.R. Sec. 1201.81(b), subpoenas may issue, inter alia, only upon a showing of general relevance, and under 5 C.F.R. Sec. 1201.41(b) the AJ can properly exclude proffers of repetitious or irrelevant evidence or testimony.

The AJ's evidentiary rulings are subject to reversal only if they are "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 7703(c) (1988); Hambsch v. Department of Treasury, 796 F.2d 430, 435 (Fed. Cir. 1986).

Wilkie bears the burden of establishing the relevancy and absence of repetitiousness of proferred evidence or testimony that is ruled inadmissible by the AJ. Because he failed to carry his burden, both before the AJ and here, the decision of the Board is affirmed.