        NOTE: This disposition is nonprecedential.

  United States Court of Appeals
      for the Federal Circuit
              __________________________

                  ANTHONY T. LEE,
                     Petitioner,
                            v.
           DEPARTMENT OF THE ARMY,
                  Respondent.
              __________________________

                      2010-3176
              __________________________

   Petition for review of the Merit Systems Protection
Board in case no. DC0752100186-I-1.
               __________________________

              Decided: February 14, 2011
              __________________________

   ANTHONY LEE, Jacksonville, Florida, pro se.

    JEFFREY D. KLINGMAN, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent. With
him on the brief were TONY WEST, Assistant Attorney
General, JEANNE E. DAVIDSON, Director, and ALAN J. LO
RE, Assistant Director.
               __________________________
2                                              LEE v. ARMY

    Before RADER, Chief Judge, NEWMAN and LINN, Circuit
                          Judges.
PER CURIAM.
    Anthony Lee appeals a final decision of the Merit Sys-
tems Protection Board (“Board”) affirming his removal
from a position as an engineering technician with the
Army Corps of Engineers (“Corps”). Lee v. Dep’t of Army,
No. AT-0752-10-0186-I-1 (M.S.P.B. Oct. 26, 2010). For
the following reasons, this court affirms.
                       BACKGROUND
    The Corps hired Lee as an engineering technician in
August 2000. Beginning in 2007, Lee’s performance
ratings began to decline, and after a poor midyear review
in May 2009, the Corps placed Lee on a performance
improvement plan. The plan required Lee to demonstrate
an acceptable level of performance in several areas,
including (1) delivering quality work product on time and
within budget; (2) maintaining collaborative working
relationships with his colleagues; and (3) applying techni-
cal standards, criteria, policies, and regulations to pro-
duce accurate, high quality work product free of
significant errors and omissions. The plan warned that
the Corps may remove Lee if he failed to demonstrate the
necessary level of performance in each of these areas.
    According to the Corps, Lee’s performance did not im-
prove after the Corps placed him on the plan. Lee repeat-
edly produced inaccurate and untimely work product,
which the Corps often assigned to other engineering
technicians to correct. He also refused to follow instruc-
tions, ignored feedback from his coworkers, and acted in a
manner his supervisor later described as “completely
unprofessional, discourteous, and disruptive.”       Lee’s
conduct led the Corps to issue him a letter of reprimand
for “discourtesy and conduct unbecoming a federal em-
ployee.” The Corps later suspended Lee for five days for
discourtesy and insubordination based on his ongoing
LEE v. ARMY                                                3
pattern of misconduct. After a confrontation between Lee
and his supervisor, the Corps removed Lee for conduct
unbecoming a federal employee and unsatisfactory work
performance effective December 10, 2009.
    On November 25, 2009, Lee appealed his removal to
the Board. During a hearing before an administrative
judge, Lee challenged the Corps’s characterization of the
events leading to his removal, arguing that the Corps had
relied on false testimony and evidence to support its
narrative. He also contended that the Corps removed him
in retaliation for whistleblowing and for filing a complaint
with the Equal Employment Opportunity Commission. In
a comprehensive initial decision, the administrative judge
sustained all of the charges brought by the Corps. She
concluded that the witnesses presented by the Corps were
more credible than Lee and found no support for Lee’s
contention that the Corps presented false evidence. The
administrative judge also concluded that Lee failed to
establish that the Corps had removed him in reprisal for
either whistleblowing or filing a complaint with the Equal
Employment Opportunity Commission. After the initial
decision became final, Lee timely appealed the decision to
this court. We have jurisdiction to hear his appeal under
5 U.S.C. § 7703.
                        DISCUSSION
     This court must affirm a Board decision unless it is
“(1) arbitrary, capricious, an abuse of discretion, or other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c).
   In a lengthy informal brief, Lee contends that the
Board committed numerous “violations” that effectively
denied him a fair and unbiased hearing. These violations
generally fall into one of three categories: (1) allowing the
Corps to submit incompetent and false evidence;
4                                               LEE v. ARMY

(2) denying him the opportunity to present his case; and
(3) ignoring or incorrectly applying relevant legal princi-
ples. He also suggests that he was removed because he
made statements protected by the Whistleblower Protec-
tion Act. This court addresses each of these issues in
turn.

                             I.

    Lee argues that the Board’s decision is not supported
by substantial evidence. He contends that the adminis-
trative judge relied mainly on hearsay instead of “certi-
fied” supporting documents. “It has long been settled,
however, that hearsay evidence may be used in Board
proceedings . . . .” Kewley v. Dep’t of Health & Human
Servs., 153 F.3d 1357, 1364 (Fed. Cir. 1998). To the
extent that Lee contends that a Board decision cannot be
supported by substantial evidence if it relies largely on
witness testimony, this court has concluded otherwise.
See, e.g., Barber v. U.S. Postal Serv., 186 Fed. App’x 1020,
1021-22 (Fed. Cir. 2006) (concluding that an agency
decision that relied primarily upon witness testimony was
supported by substantial evidence). Lee also argues that
many of the witnesses presented by the Corps gave false
testimony or submitted false affidavits. But other than
asserting that this evidence is false and drawing dubious
inferences from the record, Lee has provided no evidence
to support this accusation. Moreover, this is essentially a
challenge to the Board’s credibility determinations and
such determinations “are virtually unreviewable on
appeal.” Bieber v. Dep’t of the Army, 287 F.3d 1358, 1364
(Fed. Cir. 2002).

                            II.

    Lee next contends that the Board erred by allowing
him to present evidence during the removal hearing but
not at a prehearing conference. The purpose of a prehear-
LEE v. ARMY                                                5
ing conference, however, is not to present evidence. A
prehearing conference provides an opportunity for the
participants to further define the issues and, when possi-
ble, to settle the dispute. See 5 C.F.R. § 1201.41(b)(12)
(explaining that a presiding official may “hold prehearing
conferences for the settlement and simplification of is-
sues”). Lee argues that even when he was allowed to
present his case, the administrative judge did not allow
him to present all of his evidence. The admissibility of
evidence “fall[s] within the sound discretion of the [B]oard
and its officials. This court will not overturn the [B]oard
on such matters unless an abuse of discretion is clear and
is harmful.” Curtin v. Office of Pers. Mgmt., 846 F.2d
1373, 1378 (Fed. Cir. 1988) (internal citations omitted).
Lee has neither established that the Board abused its
discretion by denying his request to present evidence nor
shown that he was harmed by the denial.

                            III.

     Lee asserts that the Board incorrectly applied “Code
1201.43(b)” and failed to take into account “Merit System
principles, the law, ethics, and basic language written in
the [Board] Judge Handbook.” He also repeatedly argues
that the Board failed to properly apply “Title 5/7 proce-
dures.”      We understand Lee’s mention of “Code
1201.43(b)” as reference to 5 C.F.R. § 1201.43(b), which
concerns a judge’s ability to dismiss an appeal if a party
fails to participate. This section is simply irrelevant here.
After reviewing the record, this court concludes that Lee’s
vague allegations that the Board misapplied or ignored
unspecified legal principles are baseless.

                            IV.

    Finally, Lee suggests that the Board failed to consider
his claim that the Corps removed him in retaliation for
whistleblowing. But the Board assumed that Lee had
6                                            LEE v. ARMY

demonstrated that the Corps removed him for making
protected statements. The Board concluded, however, that
the Corps had proven by clear and convincing evidence
that it would have removed Lee even if he had not en-
gaged in whistleblowing activity. This court discerns no
error in the Board’s decision.
                       CONCLUSION
     We have considered the other arguments raised by
Lee and find them meritless. Accordingly, this court
affirms the decision of the Merit Systems Protection
Board.
                       AFFIRMED

                          COSTS
    Each party shall bear its own costs.
