                 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

                                        05-3197


                                 RAY D. LEWELLING,

                                                       Petitioner,

                                           v.

                         DEPARTMENT OF THE AIR FORCE,

                                                       Respondent.


                           __________________________

                           DECIDED: December 13, 2005
                           __________________________

Before LINN, DYK, and PROST, Circuit Judges.

PER CURIAM.

      Ray D. Lewelling (“Lewelling”) petitions this court for review of the final decision

by the Merit Systems Protection Board (“MSPB” or “Board”) denying his appeal of the

decision of the Department of the Air Force (“Air Force” or “agency”) to remove him from

federal service based upon his unacceptable performance. Lewelling v. Dep’t of the Air

Force, No. DA0752040105-I-1 (M.S.P.B. Apr. 29, 2005) (“Final Decision”). We affirm.

                                  I. BACKGROUND

      On September 15, 2003, the agency issued a notice of proposed removal to

Lewelling who was employed as a machinist. The notice stated that the reason for the

proposed action was Lewelling’s delay in carrying out assigned work in a reasonable
period of time. Seven specific projects were cited. On November 13, 2003, the agency

issued its notice of decision to remove.

       Thereafter, Lewelling appealed to the Board and on February 23, 2004, the

administrative judge conducted a hearing where several witnesses, including the

machine shop supervisor and Lewelling’s supervisor corroborated the agency’s charge

that Lewelling failed to complete his assigned duties within a reasonable amount of

time. Both supervisors testified that the work should have taken no longer than the time

cited in the notice of proposed removal. Furthermore, his supervisor testified that she

took into account excused absences in assessing the timeliness of Lewelling’s work.

       The administrative judge found that the agency’s witnesses were more credible

than Lewelling’s witnesses.    Furthermore, the administrative judge noted that even

Lewelling’s witnesses acknowledged that excused absences from his assignments

should have taken no more than a few hours and failed to support Lewelling’s

contention that the assigned tasks should have taken days, instead of hours, to

complete.   The administrative judge further found that Lewelling failed to prove his

affirmative defense of retaliation for testifying in another case since one person

evaluating Lewelling credibly stated that she did not know that Lewelling testified in this

other case and another credibly stated that she did not know whether Lewelling testified

for or against the agency. Finally, the administrative judge determined that the penalty

of removal was reasonable and appropriate, applying the factors set forth in Douglas v.

Department of Veterans Affairs, 5 M.S.P.R. 280 (1981).          The administrative judge

weighed the seriousness of the offenses, Lewelling’s prior disciplinary history of two

fourteen-day suspensions, and Lewelling’s years of service.




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      Lewelling thereafter petitioned the full Board for review, and on April 29, 2005,

the Board denied Lewelling’s petition and the initial decision became final decision of

the Board. Lewelling timely sought review in this court. We have jurisdiction to review

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

                                    II. DISCUSSION

                                  A. Standard of Review

      This court’s standard of review of the Board is highly deferential.       We must

sustain 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) (2000); Rosete v. Office of Pers. Mgmt., 48

F.3d 514, 516 (Fed. Cir. 1995).        Furthermore, the scope of review for penalty

determinations is especially narrow. This court will not overturn a penalty unless it is

“totally unwarranted or grossly disproportionate to the misconduct.” Mazares v. Dep’t of

the Navy, 302 F.3d 1382 (Fed. Cir. 2002). Moreover, when reviewing performance

determinations by an agency, this court gives “deference to the judgment by each

agency of the employee’s performance in light of the agency’s assessment of its own

personnel needs and standards.” Rogers v. Dep’t of Def. Dependents Sch., 814 F.2d

1549, 1552-53 (Fed. Cir. 1987).

                                       B. Analysis

      On appeal, Lewelling challenges the factual findings of the Board, argues that

“[t]he agency violated rules + [sic] regulations and fabricated statements,” and asks this

court to “[r]everse the lower courts [sic] decision and restore backpay [sic], promotions,




05-3197                                     3
benefits, and any other actions that will make me whole in the condition I would have

been had I not been removed.” In support of his argument, Lewelling first maintains that

the Board incorrectly decided and failed to take into account certain facts, namely that

“[d]ue to the negligence of the union, all of my evidence given to them was not

presented to the arbitrator.” Lewelling additionally argues that the Board applied the

wrong law, and that the Board “did not consider any grounds for relief.”         Finally,

Lewelling maintains that the Board’s decision was wrong because “[a]t no time did the

agency provide evidence to support their claim” and that “[d]uring the hearing, my first-

line supervisor . . . admitted that the accusations were not accurate.”

       In response, the agency maintains that substantial evidence supports the Board’s

decision.   The agency notes that the Board properly considered and weighed the

testimony of both the agency’s witnesses and Lewelling’s witnesses, that the Board

found the agency’s witnesses to be more credible, and that the testimony by Lewelling’s

witnesses was consistent with the agency’s position and did not support Lewelling’s

argument regardless.      The agency also disputes Lewelling’s argument that his

supervisor’s testimony supported his position, noting that the record does not support

this contention but instead that the testimony supported the agency’s position. The

agency points out that Lewelling himself testified at the hearing, as did seven witnesses

that Lewelling called.

       We conclude that the administrative judge’s determinations are supported by

substantial evidence, including the testimony by both the agency’s witnesses and

Lewelling’s witnesses. It is not this court’s function to reweigh evidence or redetermine

the credibility of witnesses, and we review the Board’s decision under a highly




05-3197                                      4
deferential standard.   Lewelling’s broad statements and allegations with regard to

whether the Board applied the wrong law or considered important grounds for relief are

unsubstantiated by citations to the record or reliance on controlling case law. Moreover,

Lewelling’s argument that his union representative failed to present evidence is

unsupported by the record. We conclude that Lewelling’s arguments do not provide a

sufficient basis to overturn the Board’s decision, and we therefore affirm.

                                         COSTS

       No costs.




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