Thomas Adler v. Department of Justice ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
THOMAS F. ADLER, DOCKET NUMBER
Appellant, NY-0752-16-0266-I-2
v.
DEPARTMENT OF JUSTICE, DATE: December 15, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Joel J. Kirkpatrick , Esquire, Canton, Michigan, for the appellant.
Gregg A. Hand , Springfield, Virginia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s removal action. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to consider the appellant’s additional claims of harmful error and to
supplement the administrative judge’s analysis of his disparate penalties claim,
we AFFIRM the initial decision.
BACKGROUND
¶2 Effective May 29, 2016, the agency removed the appellant from his
Supervisory Criminal Investigator position with the Drug Enforcement
Administration (DEA), Caribbean Division, in San Juan, Puerto Rico. Adler v.
Department of Justice, MSPB Docket No. NY-0752-16-0266-I-1, Initial Appeal
File (IAF), Tab 8 at 35, 39-40. The agency based the appellant’s removal on the
following five charges: (1) making false statements (1 specification); (2) conduct
unbecoming a DEA Special Agent (3 specifications); (3) failure to properly
supervise (5 specifications); (4) poor judgment (3 specifications); and (5) failure
to follow written instructions (1 specification). Id. at 39-40, 157-65.
¶3 The initial decision contains a thorough discussion of the underlying
circumstances surrounding the first two charges. Adler v. Department of Justice,
MSPB Docket No. NY-0752-16-0266-I-2, Appeal File (I-2 AF), Tab 38, Initial
Decision (ID) at 4-12. The appellant does not challenge that discussion on
review, and we decline to repeat it in its entirety. Petition for Review (PFR) File,
Tab 3 at 29. Briefly, charges 1 and 2 are related to the appellant’s efforts (while
serving as the Country Attaché of the Caracas Country Office in Venezuela) to
3
obtain an education allowance for his three children to attend the Department of
Defense (DOD) Domestic Dependent Elementary and Secondary Schools
(DDESS) in Fort Buchanan, Puerto Rico, for the 2007-2008 school year. IAF,
Tab 8 at 157-62. The appellant indicated in his June 2007 request for an
education allowance that he was pursuing such educational benefits pursuant to
Department of State (DOS) Standardized Regulation 276.3, IAF, Tab 11 at 101,
which prohibits an education allowance for a child in the United States who has a
parent residing in the United States, except, as relevant here, “where the
employee establishes that the parent residing in the [United States] is divested of
legal custody of the child,” IAF, Tab 12 at 91. He included with his request a
sworn affidavit dated June 20, 2007, in which his wife claimed that she was
“divested of all legal custody” of their children. IAF, Tab 11 at 103. The agency
granted the appellant’s request for an education allowance. I-2 AF, Tab 7
at 21-22. However, the notice of proposed removal states that, in accordance with
DDESS and DOS regulations, the appellant’s children were not eligible to attend
DDESS at Fort Buchanan for the 2007-2008 school year because he was assigned
to Caracas. 2 IAF, Tab 8 at 157.
¶4 The appellant appealed his removal to the Board, and he requested a
hearing. IAF, Tab 1 at 1-8. He raised the affirmative defenses of a violation of
due process rights and harmful procedural error, and he made a disparate
penalties claim. Id. at 6. The appeal was dismissed without prejudice and was
refiled automatically. I-2 AF, Tab 2 at 1; IAF, Tab 20, Initial Decision at 1-2.
¶5 After holding a hearing, the administrative judge issued an initial decision
affirming the agency’s removal action. ID at 2, 32. Specifically, she sustained
all five charges and found the existence of nexus and that the penalty of removal
is within the limits of reasonableness. ID at 12-27, 29-32. She further found that
2
The appellant admitted in his hearing testimony that the regulations did not allow his
children to attend school in Puerto Rico at the agency’s expense for the 2007-2008
school year. I-2 AF, Hearing Transcript at 526-27.
4
the appellant failed to prove the affirmative defenses of a denial of due process or
harmful error, or his disparate penalties claim. ID at 27-28, 31.
¶6 The appellant has filed a petition for review. PFR File, Tab 3. The agency
has filed a response, PFR File, Tab 5, to which the appellant has replied, PFR
File, Tab 7.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly sustained the charges.
¶7 As properly stated in the initial decision, an agency must prove its charges
in an adverse action appeal by preponderant evidence. ID at 2; see 5 U.S.C.
§ 7701(c)(1)(B). For the following reasons, we find that the administrative judge
properly sustained all five of the agency’s charges. ID at 12-27.
Charge 1: making false statements
¶8 The agency charged the appellant with making false statements in his
July 10, 2007 email to the Executive Assistant to the Deputy Chief of Operations,
Office of Global Enforcement. IAF, Tab 8 at 159. Based on the appellant’s
request for an education allowance indicating that he had sole custody of his
children and that they did not reside with him (in Venezuela), the Executive
Assistant sent the appellant an email asking him to clarify with whom his children
lived. IAF, Tab 11 at 99-100. The appellant responded that his children lived at
his permanent residence in Puerto Rico, “with their grandparents who care for
them and transport them daily to their current school,” and that such childcare
arrangements had been in effect since his arrival as the Country Attaché of the
Caracas Country Office in November 2006. Id. at 99. The appellant further
represented that his spouse transferred custody of their children to him “because
she has a teaching contract that routinely takes her off-island for lengthy
periods.” Id.¶9 As properly explained in the initial decision, to establish a charge of
misrepresentation, falsification, or lying, an agency must prove that the employee
5
(1) supplied wrong information, and (2) knowingly did so with the intention of
defrauding, deceiving, or misleading the agency for his own private material gain.
ID at 14; see Boo v. Department of Homeland Security, 122 M.S.P.R. 100,
¶¶ 10-12 (2014). Here, the administrative judge found that the agency proved that
the appellant intentionally made false statements in his July 10, 2007 email to the
Executive Assistant for his own private material gain, i.e., obtaining an education
allowance. ID at 14. In making that finding, the administrative judge relied on
the Executive Assistant’s sworn statement dated June 3, 2008, and the hearing
testimony of the appellant, his wife, and his wife’s childhood friend. ID at 12-14;
IAF, Tab 11 at 113-15; I-2 AF, Hearing Transcript (HT). In particular, the
Executive Assistant stated that it was her belief that the appellant’s wife “did not
live with the children.” IAF, Tab 11 at 113. The appellant’s wife testified that,
before and after she signed the divestiture affidavit in June 2007, she resided with
the children and took care of them. HT at 414-18 (testimony of the appellant’s
wife). She further testified that, in the summer of 2007, she did not have a job
outside of Puerto Rico. HT at 420-23 (testimony of the appellant’s wife). The
friend of the appellant’s wife testified that she worked for a teaching program in
Illinois and that no formal offer of employment was made to the appellant’s wife.
HT at 430-31, 436 (testimony of the appellant’s wife’s friend).
¶10 In his petition for review, the appellant argues that the administrative judge
erred in sustaining the false statements charge because the evidence does not
prove that he made a false statement with an intent to deceive the agency. PFR
File, Tab 3 at 5-7, 13, 18-20, 23, Tab 7 at 4. Specifically, the appellant makes the
following claims on review: his wife testified that she had intended to take a
teaching position in Illinois for the upcoming school year starting in
September 2007; the undisputed testimony demonstrates that his wife was
planning to relocate to the United States in the weeks before June 20, 2007; the
hearing testimony does not support the administrative judge’s conclusion that his
wife did not have a job offer outside of Puerto Rico on July 10, 2007; he testified
6
that “everything that was required by the rules at the time to obtain the [education
allowance] occurred”; and the former Special Agent in Charge (SAC) V.G.
testified that former SAC J.H. would have approved his request for an education
allowance. PFR File, Tab 3 at 5-6, 19, Tab 7 at 5-6. The appellant further alleges
that the administrative judge failed to consider that he had “numerous telephone
conversations” with the Executive Assistant concerning his children’s schooling.
PFR File, Tab 7 at 6.
¶11 After considering the appellant’s arguments on review, we discern no
reason to disturb the initial decision. We find that the appellant provided an
inaccurate response to the Executive Assistant’s inquiry into his children’s living
situation because he did not reveal that his wife lived with and cared for them in
Puerto Rico. Moreover, the administrative judge acknowledged as true that the
appellant’s wife wanted to return to the United States and was interested in the
teaching program. ID at 14. However, the administrative judge correctly
analyzed the appellant’s email as stating that his wife had a teaching contract that
routinely required her to be off the island, and not stating that she might obtain
employment outside of Puerto Rico in the future. Id. Further, we find that the
above-described hearing testimony of the appellant’s wife and her friend supports
the administrative judge’s conclusion that his wife did not have a job offer
outside of Puerto Rico on July 10, 2007. Id. Therefore, we find that the appellant
falsely stated in his email that his wife “has a teaching contract that routinely
takes her off-island for lengthy periods.” IAF, Tab 11 at 99.
¶12 In addition, as properly explained in the initial decision, the element of
intent may be established by circumstantial evidence, and whether intent has been
proven must be resolved from the totality of the circumstances. ID at 14; see
Hawes v. Office of Personnel Management, 122 M.S.P.R. 341, ¶ 21 (2015). Here,
the administrative judge properly considered the appellant’s testimony that he and
his wife did not intend to deceive the agency and that his wife signed the
divestiture affidavit because she was planning to leave Puerto Rico. ID at 13; HT
7
at 491-94, 505 (testimony of the appellant). Further, we acknowledge that the
appellant testified regarding his belief that he was eligible for an education
allowance and that the children would be taken care of by their grandparents in
Puerto Rico when his wife left to teach in Illinois. HT at 544, 557, 560, 562
(testimony of the appellant). However, we agree with the administrative judge’s
finding that the agency proved the requisite element of intent. ID at 14. We find
that, to support his request for an education allowance, the appellant made
misrepresentations to the agency regarding his wife’s involvement with the
children with a reckless disregard for the truth or with a conscious purpose to
avoid learning the truth. See Boo, 122 M.S.P.R. 100, ¶ 10 (stating that intent may
be inferred when an appellant makes a misrepresentation with a reckless disregard
for the truth or with a conscious purpose to avoid learning the truth). Thus, the
appellant’s allegedly mistaken belief that he qualified for an education allowance
based on his anticipation of future events does not preclude finding intent.
Notably, the Executive Assistant stated in her sworn statement that, based on the
appellant’s response and the divestiture affidavit, she was satisfied that “he had
complied with regulations.” IAF, Tab 11 at 113. Moreover, we find that the
appellant’s arguments regarding having many telephone conversations with the
Executive Assistant and testimony speculating that former SAC J.H. would have
approved his request for an education allowance fail to provide a reason to disturb
the initial decision. Accordingly, we find that the administrative judge properly
sustained charge 1.
Charge 2: conduct unbecoming a DEA Special Agent
¶13 The conduct unbecoming charge contains three specifications. IAF, Tab 8
at 160-62. Regarding specification 1, the agency alleged that the appellant
obtained Diplomatic passports in the summer of 2007 for his children, who used
the passports to travel to Caracas, Venezuela, on August 6, 2007, before departing
for school in Puerto Rico on August 11, 2007. Id. at 160. The agency further
alleged that the children were not entitled to receive the Diplomatic passports
8
because they did not accompany the appellant to his Caracas assignment and were
not residing with him at any time in Caracas. Id. Regarding specification 2, the
agency claimed that the appellant requested reimbursement for travel expenses
incurred by his wife and children when they visited Caracas in August 2007. Id.
at 160-61. The agency further claimed that the sole purpose of their trip was to
obtain educational benefits to which the children were not entitled. Id.Regarding specification 3, the agency asserted that the appellant obtained an
education allowance for his children’s attendance at the DDESS in Fort
Buchanan, Puerto Rico, for the 2007-2008 school year and that he was not
entitled to such educational benefits. Id. at 161-62.
¶14 For the reasons described in the initial decision, we find that the
administrative judge properly sustained all three specifications of the conduct
unbecoming charge. ID at 15-17; IAF, Tab 10 at 99-112; I-2 AF, Tab 7 at 5-11,
15-22, Tab 10 at 14-16; HT at 483-84, 490, 571-76 (testimony of the appellant);
see also Canada v. Department of Homeland Security , 113 M.S.P.R. 509, ¶ 9
(2010) (observing that a charge of conduct unbecoming has no specific elements
of proof and is established by proving that the employee committed the acts
alleged in support of the broad label).
¶15 The appellant argues on review that charges 1 and 2 are “inextricably
linked” such that, if the Board determines that the false statements charge cannot
be sustained, then the conduct unbecoming charge also cannot be sustained. PFR
File, Tab 3 at 7. Specifically, he asserts that, if he did not have an intent to
deceive the agency regarding his eligibility for educational benefits, then both
charges must fail. Id. at 29-30. We are not persuaded by this argument because,
as described above, we find that the administrative judge properly sustained the
false statements charge and correctly found that the agency proved intent
regarding that charge. Moreover, the Board has noted that a charge of conduct
unbecoming does not involve an element of intent. Boo, 122 M.S.P.R. 100, ¶ 14.
9
¶16 In addition, the appellant disputes the administrative judge’s finding that his
claim that the Executive Assistant ordered him to have his children report to
Caracas lacks merit. PFR File, Tab 7 at 6; ID at 16. For the reasons described in
the initial decision, we agree with that finding. ID at 16. In particular, the
administrative judge explained that the information provided by the Executive
Assistant was based on the appellant’s own misleading statements. Id.Charges 3-5: failure to properly supervise, poor judgment, and failure to
follow written instructions
¶17 For the reasons described in the initial decision, we find that the
administrative judge properly sustained the remaining charges of failure to
properly supervise, 3 poor judgment, and failure to follow written instructions. 4 ID
at 17-27.
The appellant has failed to prove the affirmative defenses of a violation of due
process rights and harmful error.
¶18 An appellant bears the burden of proving an affirmative defense by
preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(C). Here, the administrative
judge found that the appellant failed to prove the affirmative defenses of a denial
of due process or harmful error based on the deletion of his agency email account.
3
The administrative judge sustained two of the five specifications of the charge of
failure to properly supervise; thus, she properly sustained that charge. ID at 17-22; see
Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990) (holding that,
when more than one event or factual specification supports a single charge, proof of one
or more, but not all, of the supporting specifications is sufficient to sustain the charge).
4
For the first time in his reply to the agency’s response to the petition for review, the
appellant challenges the administrative judge’s findings regarding charges 3-5. PFR
File, Tab 7 at 6-8. The agency did not raise a factual or legal issue regarding those
charges in its response. PFR File, Tab 5. Therefore, we decline to consider the
appellant’s arguments regarding charges 3-5 that he raised in his reply. E.g., Elder v.
Department of the Air Force, 124 M.S.P.R. 12, ¶ 22 n.3 (2016) (declining to consider
the agency’s arguments that it raised for the first time in its reply to the appellant’s
response to the petition for review); see also 5 C.F.R. § 1201.114(a)(4) (providing that
a reply to a response to a petition for review is limited to the factual and legal issues
raised by another party in the response, and that it may not raise new allegations of
error).
10
ID at 27-28. The appellant disputes that finding on review and reasserts his
claims that the agency committed harmful procedural error and violated his due
process rights by deleting his email account, which allegedly resulted in the loss
of exculpatory evidence. PFR File, Tab 3 at 20-23, Tab 7 at 4-6; I-2 AF, Tab 5
at 31-33.
¶19 For the reasons described in the initial decision, we agree with the
administrative judge’s finding that the appellant failed to prove his due process or
harmful error claims. ID at 27-28. In particular, the record shows that the agency
provided the appellant with notice of the charges underlying his proposed
removal, an explanation of and access to the agency’s evidence, and an
opportunity to respond orally and in writing to the deciding official before he was
removed. IAF, Tab 8 at 39, 43, 45, 75-153, 157-69; see Cleveland Board of
Education v. Loudermill, 470 U.S. 532, 546 (1985) (finding that the essential
requirements of constitutional due process for a tenured public employee are
notice of the charges against him, an explanation of the evidence, and an
opportunity for him to present his account of events). Moreover, the
administrative judge properly relied on the deciding official’s undisputed
testimony that he did not consider anything that was not provided to the appellant
and that any missing emails would not have negated the appellant’s responsibility
to tell the truth. ID at 27-28; HT at 109, 119-20 (testimony of the deciding
official); see 5 C.F.R. § 1201.4(r) (defining “harmful error” as an error by the
agency in the application of its procedures that is likely to have caused the agency
to reach a conclusion different from the one it would have reached in the absence
or cure of the error).
¶20 The appellant further raises on review the following allegations of harmful
procedural error that were not addressed in the initial decision: documents that
the Program Analyst referenced in her interview statement were not included in
the report of investigation (ROI) despite her testimony that she provided the
documents to agency investigators; the ROI contains a fraudulent document
11
attributed to the DDESS in Fort Buchanan, as testified by the school’s Registrar;
the deciding official could not account for the significant lapse of time from when
the agency initiated its investigation in 2007, until the appellant’s removal in
2016; agency investigators failed to re-interview the appellant during the
supplemental investigation and failed to interview his wife, a Foreign Support
Specialist, and a State Department official; and agency investigators failed to
keep a record of interviews with key witnesses that were conducted. 5 PFR File,
Tab 3 at 20-23, Tab 7 at 4-6, 8. As follows, we modify the initial decision to
consider those additional claims of harmful error.
¶21 Even assuming, without deciding, that the agency committed the procedural
errors discussed above, we find that the appellant has failed to prove that such
errors were harmful, i.e., that they caused substantial harm or prejudice to his
rights. See 5 C.F.R. § 1201.4(r). Specifically, the deciding official testified that,
although he read the Program Analyst’s interview statement, he thought he had
enough information to make a decision despite the missing documents referenced
in her statement. 6 HT at 129-31 (testimony of the deciding official); IAF, Tab 12
at 53. The deciding official further testified that, even if the DDESS document
were fraudulent, it would not negate the false statements that the appellant made
5
In his prehearing submission, the appellant timely raised the issues of the lengthy
investigation, the agency’s failure to re-interview him and to keep a record of
interviews, and the missing documents referenced in the Program Analyst’s interview
statement. I-2 AF, Tab 5 at 9-12. The administrative judge did not issue a prehearing
conference summary limiting the issues before the Board, and it appears that the
appellant raised the above-described claims during the hearing. Accordingly, we find
that those claims were timely raised before the close of the record. See 5 C.F.R.
§ 1201.59 (providing that, when there is a hearing, the record ordinarily will close at
the conclusion of the hearing).
6
We find that the appellant has failed to prove his assertion on review that the agency
relied on the missing documents referenced in the Program Analyst’s interview
statement. PFR File, Tab 3 at 22. In particular, the appellant does not dispute the
deciding official’s testimony that he did not see the documents referenced in the
Program Analyst’s interview statement and that he did not consider anything that was
not provided to the appellant. HT at 109, 130-31 (testimony of the deciding official).
12
to the Executive Assistant. HT at 137-39 (testimony of the deciding official);
IAF, Tab 10 at 118-20. Moreover, we find that the appellant has failed to prove
that substantial harm or prejudice to his rights resulted from the lapse of time
from when the agency initiated its investigation, until his removal, or from the
agency’s failure to re-interview him, to interview other witnesses, and to keep a
record of key witness interviews. In particular, the appellant had the opportunity
at the hearing to testify on his behalf and to examine and cross -examine
witnesses, including his wife.
The agency proved nexus and the reasonableness of the penalty.
¶22 The appellant does not dispute, and we discern no reason to disturb, the
administrative judge’s finding that the agency proved the existence of a nexus
between the sustained misconduct and the efficiency of the service. ID at 2, 29;
see 5 U.S.C. § 7513(a); see also Connett v. Department of the Navy, 31 M.S.P.R.
322, 328 (1986) (finding that falsification is inherently destructive of the
agency’s faith in an employee’s trustworthiness and honesty, which are essential
elements in the employer-employee relationship), aff’d, 824 F.2d 978 (Fed. Cir.
1987) (Table).
¶23 However, the appellant challenges the reasonableness of the penalty on
review by reasserting his disparate penalties claim and by alleging that the
deciding official failed to consider alternative sanctions. PFR File, Tab 3 at 7,
24-28, 30-33; I-2 AF, Tab 5 at 33, 38-39. For the reasons described in the initial
decision, we agree with the administrative judge’s finding that the deciding
official properly considered the relevant Douglas factors, 7 including the
mitigating circumstances of the appellant’s length of service and the lack of a
prior disciplinary record. ID at 29-31; HT at 95 (testimony of the deciding
official). We find that the appellant incorrectly asserts that the deciding official
7
In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of 12 relevant factors to be considered in determining
the appropriateness of an imposed penalty.
13
testified that he did not consider alternative sanctions. PFR File, Tab 3 at 27.
Based on our review of the hearing testimony, we find that the administrative
judge properly characterized the deciding official’s testimony as stating that he
considered imposing a penalty other than removal, such as a demotion. ID at 31;
HT at 96 (testimony of the deciding official). Thus, we find that the deciding
official properly considered alternative sanctions. Moreover, we agree with the
administrative judge’s finding that the penalty of removal is within the limits of
reasonableness. ID at 32; see, e.g., Phillips v. Department of the Interior,
95 M.S.P.R. 21, ¶ 18 (2003) (holding that the agency’s removal penalty for the
sustained charge of falsification was within the bounds of reasonableness), aff’d,
131 F. App’x 709 (Fed. Cir. 2005).
We modify the initial decision to supplement the administrative judge’s
analysis of the appellant’s disparate penalties claim.
¶24 The consistency of the penalty with those imposed upon other employees
for the same or similar offenses is one of the factors for consideration in
determining the reasonableness of the penalty. Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305 (1981). The appellant submitted exhibits N
through W, as evidence of alleged comparator employees for purposes of his
disparate penalties claim. I-2 AF, Tab 11 at 48-72, Tabs 12-13, Tab 14 at 4-11.
The administrative judge found that the alleged comparators were not sufficiently
similar to the appellant to lead a reasonable person to conclude that he was
treated differently than similarly situated employees. ID at 31. In considering
the disparate penalties claim, the administrative judge cited Ellis v. U.S. Postal
Service, 121 M.S.P.R. 570, ¶ 11 (2014), for a proposition set forth in Lewis v.
Department of Veterans Affairs, 113 M.S.P.R. 657, ¶¶ 15-16, 18 (2010). ID at 31.
¶25 Since the issuance of the initial decision, the Board has issued Singh v. U.S.
Postal Service, 2022 MSPB 15, ¶¶ 10-18, a precedential decision reinstating our
former law governing the analysis of disparate penalties claims and overruling
Lewis and other decisions. As follows, we modify the initial decision to analyze
14
the appellant’s disparate penalties claim consistent with Singh. The fact that two
employees come from different work units and/or supervisory chains remains an
important factor in determining whether it is appropriate to compare the penalties
they are given. Id., ¶ 13. In most cases, employees from another work unit or
supervisory chain will not be proper comparators. Id. There must be a close
connection between the misconduct or some other factor for an employee from
another work unit or supervisory chain to be a proper comparator for disparate
penalty purposes. Id.
¶26 Here, we find that the appellant has failed to allege a valid comparator
because none of the proffered employees purportedly engaged in “the same or
similar offenses,” i.e., a supervisory law enforcement officer who intentionally
made false statements, engaged in conduct unbecoming and poor judgment, and
failed to properly supervise and to follow instructions. Douglas, 5 M.S.P.R.
at 305; PFR File, Tab 3 at 25-28; see Singh, 2022 MSPB 15, ¶ 17 (observing that
the Board should not attempt to weigh the relative seriousness of various offenses
in order to determine whether two employees who committed different acts of
misconduct were treated disparately). Therefore, we find that the appellant has
failed to establish that the agency imposed disparate penalties. We further find
that the deciding official’s testimony that he searched for, but did not find,
comparable cases of employees charged with similar misconduct proves that the
agency considered the corresponding Douglas factor. HT at 82-87 (testimony of
the appellant); see Douglas, 5 M.S.P.R. at 305.
¶27 Accordingly, we affirm the agency’s removal action.
NOTICE OF APPEAL RIGHTS 8
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
8
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
15
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
16
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See 42 U.S.C.
§ 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
17
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
18
competent jurisdiction. 9 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
9
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
19
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.