                       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

                                           04-3408

                                   KEVIN M. WHITELEY,

                                                                       Petitioner,

                                              v.

                               DEPARTMENT OF JUSTICE,

                                                                       Respondent.

                           ___________________________

                               DECIDED: June 1, 2005
                           ___________________________


Before NEWMAN, SCHALL, and DYK, Circuit Judges.

PER CURIAM.


      Petitioner Kevin M. Whiteley (“Whiteley”) seeks review of the final decision of the

Merit Systems Protection Board (“Board”). Whiteley v. Dep’t of Justice, No. DA-0752-

03-0349-I-1 (M.S.P.B. June 28, 2004). We affirm.

                                    BACKGROUND

      Before his removal from service on March 21, 2003, Whiteley was employed as a

Criminal Investigator (Special Agent) in the Beaumont Field Office of the Bureau of

Alcohol, Tobacco and Firearms (“ATF”).

      The events leading to Whiteley’s removal are as follows. On October 12, 2001,

Whiteley and his then-girlfriend Andrea Ray (“Ray”) were involved in a domestic

dispute, which resulted in injury to Ray. Whiteley’s supervisors told him to refrain from
contact with Ray, but Whiteley continued to contact her.           On various occasions

Whiteley, inter alia, used his ATF credentials in an attempt to locate Ray, communicated

to Ray that he intended to harm himself, and used his government owned vehicle to

search for Ray.

         Following an internal investigation, the agency issued a Notice of Proposed

Removal on October 7, 2002.        The notice contained four charges, three of which

contained multiple specifications:1 1) conduct unbecoming an ATF Special Agent, 2)

willful misuse of a government owned vehicle, 3) misuse of official position/identification,

and 4) use of poor judgment.

         The conduct unbecoming charge contained two specifications. Specification 1

was titled “Domestic Violence” and alleged that on October 12, 2001, Whiteley threw

Ray into a column in their home, causing a bruise on her arm. He then threw a pewter

cross at her, resulting in a deep cut and severe pain. Ray attempted to escape, but

Whiteley followed her to the bedroom, where he pushed her to the floor and into a bed

frame. The impact of her head with the floor and bed frame resulted in a cut over her

eye that required five stitches to close. Specification 2 was titled “Threatening to Harm

Yourself” and alleged that during a December 21, 2001, incident Whiteley showed his

firearm to Ray and stated, “I don’t care anymore,” which was a threat that Whiteley

intended to harm himself.

         The willful misuse of a government owned vehicle charge contained two

specifications. The second specification alleged that on January 16, 2002, Whiteley



         1
               We do not describe specifications not sustained by the administrative
judge.



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used his government owned vehicle to search for Ray. The search included stops at

Ray’s apartment building, a bar, and a Wal-Mart.              The misuse of official

position/identification charge contained one charge. It alleged that approximately two

days after Whiteley and Ray ceased cohabitating that Whiteley visited a store where

Ray had told Whiteley she worked. Whiteley identified himself as an ATF agent and

displayed his ATF credentials to a store employee, and asked to speak with Ray.

        The use of poor judgment charge contained three specifications.       All three

specifications alleged that immediately following the incident of October 12, 2001,

Whiteley’s supervisors told Whiteley not have any contact with Ray.        Despite this

advice, the specifications alleged that Whiteley (1) called Ray numerous times on the

telephone from December 23 through 27, 2001; (2) called and visited her workplace on

December 28, 2001; and (3) went to a Wal-Mart where Whiteley had been told Ray was

shopping on January 16, 2002, and delivered mail to Ray’s apartment on preceding

days.

        Upon review of the record evidence, consideration of Whiteley’s oral response,

and application of the factors set forth in Douglas v. Veterans Administration, 5

M.S.P.R. 280 (1981), the deciding official issued a final decision on March 18, 2003,

sustaining all the charges and removing Whiteley from federal service in order to

promote the efficiency of the service.

        Whiteley appealed to the Board.      The administrative judge issued an initial

decision on March 10, 2004, sustaining all of the specifications described above. The

administrative judge found a nexus between the conduct and the efficiency of the

service.   The administrative judge also found that the deciding official “considered




04-3408                                  3
relevant mitigating and aggravating factors” and “that the removal penalty was within the

range of reasonable penalties.” Whiteley v. Dep’t of Justice, No. DA-0752-03-0349-I-1,

slip op. at 16 (M.S.P.B. Mar. 10, 2004).

      The full Board denied Whiteley’s petition for review.       We have jurisdiction to

review the Board’s decision pursuant to 28 U.S.C. § 1295(a)(9).

                                     DISCUSSION

      Our review of the Board is limited. The Board’s decision must be affirmed unless

it is found to be arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law; obtained without procedures required by law, rule or regulation; or

unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000); Yates v. Merit Sys.

Prot. Bd., 145 F.3d 1480, 1483 (Fed. Cir. 1998).

      Whiteley only seeks review of the Board’s decision as it pertains to the charges

of conduct unbecoming and use of poor judgment. Therefore, we do not address the

charges of misuse of official position/identification and willful misuse of a government

owned vehicle. Whiteley argues that because the charges of conduct unbecoming and

poor judgment were the most serious, and those charges were not properly sustained,

we should remand to the Board for consideration of a penalty short of removal.

      We affirm the Board’s decision regarding the charge of conduct unbecoming.

Whiteley first argues that the administrative judge improperly relied on hearsay

evidence in sustaining the charge.         The administrative judge relied on the written

statement of Ray; however, neither party called Ray as a witness. We have previously

held that “hearsay evidence is admissible and may be sufficient in board proceedings.”

Campbell v. Dep’t of Transp., FAA, 735 F.2d 497, 502 (Fed. Cir. 1984).           Indeed,




04-3408                                    4
“hearsay evidence may be used in Board proceedings and may be accepted as

preponderant evidence even without corroboration if, to a reasonable mind, the

circumstances are such as to lend it credence.” Kewley v. Dep’t of Health and Human

Servs., 153 F.3d 1357, 1364 (Fed. Cir. 1998). Reliance on hearsay evidence by the

administrative judge here was proper. Ray’s signed, written statement was made to

agency investigators under oath. The administrative judge also found her testimony

consistent with the record. There is no inconsistency with the Board’s decisions as to

when hearsay may be relied upon by the Board. See Borninkhof v. Dep’t of Justice, 5

M.S.P.R. 77, 83-87 (1981).

      Second, Whiteley argues that the administrative judge erred in finding Whiteley’s

testimony not credible and finding Ray’s version credible.          Whiteley specifically

complains that the administrative judge relied on evidence of Whiteley’s lack of self-

control in finding his version of the events concerning the domestic dispute not credible.

The administrative judge’s reliance on that evidence was not in error. Whiteley’s own

testimony establishes his lack of self-control on previous occasions. That evidence may

be considered to corroborate Ray’s version of the events, which suggested that the

injuries she sustained during the domestic dispute with Whiteley were not inflicted by

accident. Fed. R. Evid. 404(b); see 1 Stephen A. Saltzburg et al., Federal Rules of

Evidence Manual § 404.02[12] & n.36 (8th ed. 2002). In this sense the evidence bears

on the relative credibility of Ray’s and Whiteley’s accounts of the dispute, as the

administrative judge found.

      Whiteley also agues that the poor judgment charge cannot be sustained. This

charge stems from Whiteley’s continued contact with Ray after his supervisors told him




04-3408                                 5
to cease contact with her. Whitely argues that the charge is based on the violation of an

“order” that the agency did not have the authority to issue. In Whiteley’s view, his

supervisors had no authority to order him to cease a personal relationship that was not

inherently improper. We need not reach the poor judgment charge because it is clear

that the agency would have removed Whiteley based on the charges of conduct

unbecoming, willful misuse of a government owned vehicle, and misuse of official

position/identification alone.

       “When the most serious charges or a majority of the charges have been

invalidated, it may be appropriate for us to vacate the penalty and remand for

reconsideration of the penalty in light of the significant change in the number and

seriousness of the sustained charges.” Hathaway v. Dep’t of Justice, 384 F.3d 1342,

1353 (Fed. Cir. 2004) (quotations and alterations omitted).     The conduct unbecoming

charge was inherently more serious than the poor judgment charge. Neither the agency

nor the administrative judge considered Whiteley’s actions to constitute insubordination

or even disregarding supervisory instructions. We see nothing in the agency’s decision

to suggest it found the poor judgment charge to be the most serious. Accordingly, we

do not reach the merits of the poor judgment charge; no remand would be needed even

if the poor judgment charge were not sustained.

       Finally, Whiteley argues that, even if all charges were sustained, the Board erred

in sustaining the agency’s selection of removal as an appropriate penalty. He argues in

particular that the Board erroneously relied on evidence of his previous referral for

counseling as an aggravating factor to find that he was an unlikely candidate for

rehabilitation. In the context of the administrative judge’s overall decision, the reliance




04-3408                                  6
on the referral for counseling, even if improper, was harmless error, Luongo v. Dep’t of

Justice, 95 M.S.P.R. 643, 649 n.2 (2004), particularly since information disclosed by the

employee in the course of the Employee Assistance Program (“EAP”) counseling itself

was not revealed or relied on by the administrative judge. Cf. Herman v. Dep’t of

Justice, 193 F.3d 1375, 1380 (Fed. Cir. 1999) (finding phone records of calls to EAP not

protected as confidential). “The choice of penalty is committed to the sound discretion

of the employing agency and will not be overturned unless the agency’s choice of

penalty is wholly unwarranted in light of all the relevant factors.” Guise v. Dep’t of

Justice, 330 F.3d 1376, 1382 (Fed. Cir. 2003). We discern no error in the Board’s

review of the agency’s decision to remove Whiteley based on the charged misconduct.

         We have considered Whiteley’s other arguments and find them to be without

merit.

                                       CONCLUSION

         For the foregoing reasons, the decision of the Board is affirmed.

                                           COSTS

         No costs.




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