Weekes v. Dept. Of Homeland Security

NOTE: This disposition is nonprecedential.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NOTE: This disposition is nonprecedential.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
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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