                     NOTE: This disposition is nonprecedential.

United States Court of Appeals for the Federal Circuit
                                     2009-3185


                              STEPHEN R. WEEKES,

                                                          Petitioner,

                                         v.

                    DEPARTMENT OF HOMELAND SECURITY,

                                                          Respondent.


      Stephen R. Weekes, of Brooklyn, New York, pro se.

       Jacob A. Schunk, 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 Bryant G. Snee, Deputy Director.

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                      NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                      2009-3185

                               STEPHEN R. WEEKES,

                                               Petitioner,

                                          v.

                     DEPARTMENT OF HOMELAND SECURITY,

                                               Respondent.


Petition for review of the Merit Systems Protection Board in NY0752080266-I-1.

                          __________________________

                          DECIDED: November 10, 2009
                          __________________________


Before MAYER, PROST, and MOORE, Circuit Judges.

PER CURIAM.

      Petitioner Stephen R. Weekes appeals a decision of the Merit Systems

Protection Board (“Board”) affirming the decision to remove him from his position as an

Officer with U.S. Customs and Border Protection (“CBP”), a component of the

Department of Homeland Security. For the reasons that follow, we affirm.

                                   BACKGROUND

      Mr. Weekes began his employment with the federal government in 1990 as an

Immigration Inspector, and was reclassified as a CBP Officer beginning in March of

2003. In November of 2007, the agency’s disciplinary review board notified Mr. Weekes

of his proposed removal based on four charges, three of which were ultimately
sustained by the agency’s “deciding official” in approving his removal: lack of candor,

conduct unbecoming a CBP Officer, and failure to report a removable alien. Over Mr.

Weekes’s protest, his removal went into effect on May 23, 2008. He appealed to the

Board. The Board did not sustain the “lack of candor” or “failure to report” charges. It

did, however, sustain the “conduct unbecoming” charge based on two of the four

specifications provided by the agency.

      The first sustained specification described Mr. Weekes’s behavior during an April

2007 interview with special agents from CBP’s Office of Internal Affairs. The agents

were interviewing Mr. Weekes about an incident that took place between Mr. Weekes

and a Mr. Knowles during a union meeting, in which Mr. Weekes either purposefully

“swatted/cuffed” or “inadvertent[ly]” touched the back of Mr. Knowles’s head.         Mr.

Weekes admitted before the Board that during the interview, he told the special agents

that “they were like FBI rejects and whining little girls” and that “they were like two

clowns.”

      The second sustained specification described another interview between Mr.

Weekes and the CBP special agents, which took place on June 12, 2007. Apparently,

the bulk of the interview went well, but at the end of the meeting the agents brought up

the fact that the next day they planned to interview Mr. Weekes regarding his alleged

failure to report a removable alien—his brother, who was convicted of possessing a

controlled substance. Mr. Weekes admitted that he asked what would happen if he did

not show up for the interview, put his feet up on a table, crossed his arms, and said that

if he was asked questions he would just respond “nope, nope, nope.” He also stated




2009-3185                                   2
that at the end of the interview, when he thought he was not going to receive a copy of

his statement, he reached out and took it from one of the agents.

       The Board sustained the “conduct unbecoming” charge based on these two

specifications. With regard to the first, the Board found that Mr. Weekes “behaved

unprofessionally toward the agents. . . . he uttered the phrase ‘FBI rejects’ and

compared them to little girls and clowns. . . . [Mr. Weekes] was the subject of an

investigation and was expected to be cooperative and respectful.” As to the second, the

Board noted that Mr. Weekes “behaved unprofessionally when discussing the subject

matter of the next day’s interview and in taking the statement away from [the special

agent]. . . . [he] had options other than to forcefully take the statement.”

       Mr. Weekes now appeals to this court. We have jurisdiction to hear this case

under 28 U.S.C. § 1295(a)(9).

                                       DISCUSSION

       We 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); see Parrott v. Merit Sys. Prot. Bd., 519

F.3d 1328, 1334 (Fed. Cir. 2008).

       Mr. Weekes makes a number of arguments in support of his claim that we should

reverse the Board.     First, he states that some witnesses lied in their reports and

affidavits, in effect challenging the Board’s credibility determinations. As a preliminary

matter, we note that “an evaluation of witness credibility is within the discretion of the

Board and . . . such evaluations are virtually unreviewable on appeal.” King v. Dep’t of

Health & Human Servs., 133 F.3d 1450, 1453 (Fed. Cir. 1998) (internal quotation marks


2009-3185                                     3
omitted). Further, the administrative judge issuing the Board’s initial decision carefully

examined each and every charge before her and, as required by the burden of proof,

gave Mr. Weekes the benefit of the doubt. For instance, she did not sustain the “lack of

candor” charge based on Mr. Weekes’s statements about the altercation with Mr.

Knowles because Mr. Knowles did not testify and the administrative judge “did not have

an opportunity to assess his credibility.” Most importantly, the Board sustained the

specifications against Mr. Weekes based on his own admissions, not based on

statements by the special agents or other third parties.           Thus, any credibility

determinations the administrative judge made have no bearing on the Board’s decision.

      Mr. Weekes also argues that the affidavits relied upon by the Board are

impermissible hearsay evidence.      “It has long been settled, however, that 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 & Human Servs., 153 F.3d

1357, 1364 (Fed. Cir. 1998). In addition, as we just pointed out, the specifications were

sustained based on Mr. Weekes’s admissions; thus, third-party hearsay evidence

played no part in supporting the charge.

      Next, Mr. Weekes claims he was denied representation at the interviews in

violation of the rule announced in NLRB. v. J. Weingarten, Inc., 420 U.S. 251 (1975).

The record does not support his claim.          The Board found that at the April 2007

interview, Mr. Weekes in fact appeared with his counsel, Ms. Snyder. Although Ms.

Snyder was asked to leave the room by one of the special agents, she was ultimately

permitted back into the interview room while Mr. Weekes wrote out answers to the




2009-3185                                   4
agents’ questions.   Likewise, during the June 12, 2007 interview Mr. Weekes was

accompanied by an attorney named Mr. Brown. To the extent that Mr. Weekes is

claiming he did not have counsel, he has offered no evidence to support that claim. To

the extent that Mr. Weekes feels that any challenge to his representatives somehow

violated his rights by effectively depriving him of counsel, the Supreme Court has made

it clear that an employer does not have to permit a union representative at an interview;

this leaves “the employee the choice between having an interview unaccompanied by

his representative, or having no interview and forgoing any benefits that might be

derived from one.” Weingarten, 420 U.S. at 258. Mr. Weekes chose to stay at the

interview and answer questions in the presence of his attorney; no right was violated.

      Mr. Weekes also claims that his speech should be protected because he was

acting “as his own representative.” As explained above, however, Mr. Weekes was not

acting as his own representative—in fact, he was represented at both interviews. Nor

can that designation excuse the behavior at issue here. See, e.g., Webster v. Dep’t of

the Army, 911 F.2d 679, 688 (Fed. Cir. 1990) (upholding removal of employee based on

“discourteous” behavior and citing with approval Roberson v. Veterans Admin., 27

M.S.P.R. 489, 494 (1985) for the notion that “abusive language and disrespectful

behavior can constitute just cause for removal”). The citation provided by Mr. Weekes

is not to the contrary. See Dep’t of the Air Force, Grissom Air Force Base, 51 F.L.R.A.

7 (1995) (noting that in some cases a union representative may “use ‘intemperate,

abusive, or insulting language without fear of restraint or penalty’ if he or she believes

such rhetoric to be an effective means to make the union’s point” but that the conduct

may become so “outrageous and insubordinate” that it constitutes flagrant misconduct).




2009-3185                                   5
      Mr. Weekes further argues that his behavior took place (1) while he was acting in

his capacity as a union official, not in his capacity as a CBP Officer; (2) while he was on

annual leave; and (3) in the case of the July 2007 interview, at least in part after the

interview was over. As long as the agency can prove that the removal of Mr. Weekes

promoted the efficiency of the service, however, nothing prevents the agency from

relying upon off-duty behavior. See, e.g., Brown v. Dep’t of the Navy, 229 F.3d 1356,

1361 (Fed. Cir. 2000); Allred v. Dep’t of Health & Human Servs., 786 F.2d 1128, 1130

(Fed. Cir. 1986). The Board explicitly found that the agency satisfied its burden of

proving that Mr. Weekes’s removal would promote the efficiency of the service, as his

behavior “raises serious questions about his judgment and his ability to exercise self-

discipline.” We are also unconvinced by Mr. Weekes’s apparent argument that once the

interview is technically over, an employee is free to behave unprofessionally toward

those that just conducted the interview.

      Mr. Weekes also claims that the Board held him to an impermissibly high

standard when it noted that “[l]aw enforcement officers are held to a higher standard of

conduct.” Regardless of whether Mr. Weekes’s position is technically classified as a

“law enforcement officer” by CBP, however, the Board has repeatedly held that

“[p]ositions not classified as law enforcement positions, but which are analogous, for

example, security officers, may be held to a higher standard of conduct as well.” Padilla

v. Dep’t of Justice, 64 M.S.P.R. 416, 423 (1994); see Jones v. Dep’t of the Army, 52

M.S.P.R. 501, 506-07 (1992).

      Finally, Mr. Weekes challenges harshness of his penalty, claiming that the Board

failed to consider any mitigating factors. As the Board noted, however, Mr. Weekes




2009-3185                                   6
received four prior disciplinary actions during his eighteen years of federal service (three

of which related to disrespectful and disruptive language or behavior), and while the

Board considered the fact that he had not had any disciplinary action in the recent past,

“his statements and actions on April 10, 2007 and June 12, 2007 reflected a

continuation of disrespectful behavior.” The Board also specifically mentioned that Mr.

Weekes did not apologize for his behavior. We agree with the Board that the relevant

Douglas factors were considered and Mr. Weekes’s removal is within the limits of

reasonableness.     See Malloy v. U.S. Postal Serv., 578 F.3d 1351, 1357 (Fed. Cir.

2009); Douglas v. Veterans Admin., 5 M.S.P.R. 280, 306 (1981).

       The Board’s decision to affirm the agency’s specifications and proposed removal

action is supported by substantial evidence and is not arbitrary, capricious, or an abuse

of discretion. To the extent that Mr. Weekes makes other arguments, we find them to

be without merit.

                                      CONCLUSION

       For the reasons stated above, we affirm.

                                         COSTS

       Each party shall bear its own costs.




2009-3185                                     7
