Robert L Cordova v. Department of Justice ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT L. CORDOVA, DOCKET NUMBER
Appellant, DE-0752-21-0154-I-3
v.
DEPARTMENT OF JUSTICE, DATE: November 13, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Casey J. Leier , Esquire, Denver, Colorado, for the appellant.
Lynn Stoppy , Esquire, and Adam W. Boyer , Kansas City, Kansas,
for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
¶1 The agency has filed a petition for review and the appellant has filed a cross
petition for review of the initial decision in this removal appeal, which sustained the
charge of discreditable behavior, found that the appellant failed to prove his
affirmative defenses, and mitigated the removal penalty to a 21-day suspension.
For the reasons discussed below, we DENY the petition for review and cross
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
petition for review. 2 We AFFIRM the initial decision except as expressly
MODIFIED as to the administrative judge’s analyses of the appellant’s First
Amendment, due process, and discrimination claims, as well as the penalty.
Nevertheless, the administrative judge’s mitigation of the removal action to a
21-day suspension is AFFIRMED.
BACKGROUND
¶2 The agency’s Bureau of Prisons (BOP) employed the appellant as a GS-11
Supervisory Correctional Officer at the Federal Correctional Complex (FCC) in
Florence, Colorado. Cordova v. Department of Justice, MSPB Docket No. DE-
0752-21-0154-I-1, Initial Appeal File (IAF), Tab 13 at 12. He also worked as a
Special Investigative Service (SIS) Lieutenant, and in that capacity, he was tasked
with validating prisoners’ gang affiliations and regularly received training about
criminal gang activity inside and outside of the prison. Cordova v. Department of
Justice, MSPB Docket No. DE-0752-21-0154-I-2, Appeal File (I-2 AF),
February 23, 2022 Hearing Transcript (HT 1) at 10-11 (testimony of a Special
Investigative Agent). The agency has identified the Bandidos Motorcycle Club
(the Bandidos) as a group that conducts criminal activity both within and outside of
prisons. Id. at 10-11, 18 (testimony of the Special Investigative Agent); I-2 AF,
February 24, 2022 Hearing Transcript (HT 2) at 10-11 (testimony of the deciding
official). As such, the agency considered the Bandidos a Security Threat Group
(STG). HT 1 at 10-11, 18-20 (testimony of the Special Investigative Agent).
¶3 On January 4, 2021, the agency proposed the appellant’s removal based on a
charge of discreditable behavior. IAF, Tab 13 at 28-31. In support of its charge,
the agency alleged that it discovered YouTube videos posted by the appellant in
which he was photographed posing with members of the Bandidos. Id. at 28-30.
2
At the time of the appellant’s filing of his pleadings on review, the Board’s regulation
expressly allowed a party to file a cross petition for review. 5 C.F.R. § 1201.114(2023). The Board revised this regulation, effective October 7, 2024, removing
references to a cross petition for review but still allowing both parties to file a petition
for review. 5 C.F.R. § 1201.114.
3
The appellant provided both an oral and a written response to the proposal, in
which he acknowledged that he had been photographed with individuals who had
been identified as Bandidos members. Id. at 20-24. However, he explained that
the photographs were taken as part of an annual charitable motorcycle run that he
had set up to memorialize his stepson, who was tragically murdered in 2015 by a
gang member in a case of mistaken identity. Id. at 20-24, 39. The motorcycle run
was held between 2017 and 2019 and raised money for scholarships. Id. at 39.
The appellant acknowledged that he was aware that some Bandidos members
attended the events, which were open to the public, but he denied that he
knowingly associated with individuals engaging in criminal activity or that he
engaged in or endorsed criminal activity. Id. at 23-24. After considering the
appellant’s replies, the deciding official issued a decision letter sustaining the
charge and the removal penalty. Id. at 16-19.
¶4 The appellant timely filed a Board appeal challenging his removal. IAF,
Tab 1. After holding the appellant’s requested hearing, I-2 AF, Tabs 42, 46, 48, the
administrative judge issued an initial decision that sustained the charge of
discreditable behavior and found a nexus between the charge and the efficiency of
the service, but mitigated the removal penalty to a 21-day suspension as the
maximum reasonable penalty, Cordova v. Department of Justice, MSPB Docket
No. DE-0752-21-0154-I-3, Appeal File (I-3 AF), Tab 26, Initial Decision (ID)
at 1-2, 8-12, 17-25. The administrative judge also concluded that the appellant
failed to establish any of his affirmative defenses. ID at 12-17.
¶5 The agency has filed a petition for review of the initial decision, arguing
that the administrative judge erred by mitigating the removal penalty. Petition for
Review (PFR) File, Tab 1. The appellant has filed a response to the petition for
review and a cross petition for review. PFR File, Tabs 5-6. In his cross petition
for review, the appellant argues that the agency did not prove its charge, reasserts
his affirmative defenses that the agency violated his rights under the First
Amendment and his right to due process and discriminated against him based on
4
race, disagrees with the administrative judge’s conclusion that the agency proved
a nexus between his misconduct and the efficiency of the service, and alleges that
the administrative judge made erroneous rulings on discovery and witnesses. PFR
File, Tab 5. The agency has responded to the appellant’s cross petition for
review. PFR File, Tab 8. 3
DISCUSSION OF ARGUMENTS ON REVIEW
We deny the appellant’s cross petition for review.
The administrative judge correctly sustained the charge.
¶6 In his cross petition for review, the appellant asserts that the administrative
judge erred by finding that the agency met its burden of proving the discreditable
behavior charge and argues that the photographs he posted with Bandidos
members were improperly taken out of context and there was no evidence that
anyone perceived the agency in a negative light or that the agency suffered any
adverse effects due to the alleged misconduct. PFR File, Tab 5 at 10-12. We are
not persuaded. The Board has not required that an agency identify negative
publicity as an element of the charge of discreditable conduct, and we decline to
add such an element here. See Faitel v. Veterans Administration, 26 M.S.P.R.
465, 469-70 (1985) (referencing the perceptions of a witness that he believed the
appellant was kidding when the appellant made the alleged offending statement in
affirming an administrative judge’s finding that an agency did not prove that the
statement discredited the appellant or the agency); Ott v. Department of the Army,
3
The administrative judge ordered the agency to provide interim relief as of the date of
the issuance of the initial decision. ID at 26-27. With its petition for review, the
agency submitted a certification of its compliance with the interim relief order along
with evidence that it returned the appellant to duty effective January 15, 2023. Petition
for Review File (PFR), Tab 1 at 1, 19-21; see 5 C.F.R. § 1201.116(a). In response, the
appellant questions whether the agency has fully complied with its interim relief
obligation. PFR File, Tab 6 at 4. Because we deny the agency’s petition for review and
affirm the initial decision, the issue of the agency’s compliance with the interim relief
order is now moot. Any issue of compliance with the Board’s final order may be raised
to the regional office in accordance with 5 C.F.R. § 1201.181.
5
20 M.S.P.R. 90, 91-92 (concluding, without discussing whether the conduct
resulted in notoriety, that removal was an appropriate penalty for the charges of
failure to follow instructions and bringing discredit on the agency based upon an
appellant’s unauthorized representations to a volunteer that the agency would pay
her), aff’d, 758 F.2d 667 (Fed. Cir. 1984) (Table).
¶7 As the administrative judge correctly observed, like a charge of “conduct
unbecoming,” a charge of “discreditable behavior” is a general charge and has no
specific elements of proof; it is established by proving that the appellant
committed the acts alleged in support of the broad label. ID at 9; see Canada v.
Department of Homeland Security, 113 M.S.P.R. 509, ¶ 9 (2010) (concluding that
a charge of “conduct unbecoming” has no specific elements of proof; it is
established by proving that the employee committed the acts alleged in support of
the broad label). The agency’s Standards of Employee Conduct do not explicitly
define the word “discredit;” however, they state that employees are required to
“[c]onduct themselves in a manner that fosters respect for the [BOP].” IAF,
Tab 16 at 49-68. Consistent with this expectation, the common meaning of
“discreditable” is “injurious to reputation” or “disgraceful.” Merriam-Webster’s
Collegiate Dictionary 331 (10th ed. 2002). Consistent with this definition, the
administrative judge concluded that the appellant’s conduct created a perception
among agency officials that he had been compromised. ID at 9-11. For the
reasons discussed below, we agree.
¶8 The appellant does not dispute that, as alleged by the agency, he posted a
YouTube video that contained photographs in which he posed with members of
the Bandidos. PFR File, Tab 5 at 7. He also does not disagree with the
administrative judge’s conclusion that he was aware that he posted photos of
himself with Bandidos members and that the Bandidos was on the agency’s STG
list. ID at 9-10. His argument is that his actions were not discreditable because
the photos were among others included in the video that did not have Bandidos
6
members and the agency failed to produce evidence that there was any damage to
its reputation. PFR File, Tab 5 at 10-11; IAF, Tab 13 at 46-56.
¶9 The appellant’s claim is belied by the fact that the agency began
investigating his misconduct after it received an anonymous envelope that
contained the photos. HT 1 at 18 (testimony of the Special Investigative Agent);
IAF, Tab 13 at 46-56. The employee who received the photos recognized that
they included members of the Bandidos. HT 1 at 18-20 (testimony of the Special
Investigative Agent). He reported the pictures to wardens at two BOP
institutions, and one of the wardens referred the matter to the agency’s Office of
Internal Affairs (OIA). Id. at 20-22, 28-29 (testimony of the Special Investigative
Agent). This chain of events supports the conclusion that an anonymous
individual within or outside the BOP felt that the appellant’s conduct called the
BOP’s reputation into question and that, once known to the agency, it also viewed
the appellant’s conduct as potentially damaging. Therefore, we decline to disturb
the administrative judge’s finding that the appellant brought discredit to the
agency by posting pictures of himself with members of the Bandidos.
The agency did not violate the appellant’s First Amendment rights.
¶10 On review, the appellant reargues that the agency’s decision to discipline
him for his wholly off-duty actions infringed on his First Amendment freedoms of
speech, association, and religion. PFR File, Tab 5 at 12-17. The administrative
judge thoroughly considered the appellant’s arguments regarding his freedom of
speech and association rights, acknowledging that the Supreme Court has
recognized that public employees, like the appellant, enjoy constitutionally
protected interests in these freedoms, Connick v. Myers, 461 U.S. 138, 142
(1983); Pickering v. Board of Education, 391 U.S. 563, 568 (1968), but that those
rights must be balanced against “the employer’s interest in maintaining an
efficient workplace,” ID at 11 (quoting Shahar v. Bowers, 114 F.3d 1097, 1112
(11th Cir. 1997) (en banc) (Tjoflat, J., concurring)); see Smith v. Department of
Transportation, 106 M.S.P.R. 59, ¶ 46 (2007). In addressing the issue of whether
7
employee speech is protected by the First Amendment, the Board must determine
(1) whether the speech addressed a matter of public concern and, if so,
(2) whether the agency’s interest in promoting the efficiency of the service
outweighs the employee’s interest as a citizen. Smith, 106 M.S.P.R. 59, ¶ 46.
¶11 The administrative judge implicitly found that the appellant’s speech
addressed a matter of public concern. ID at 11. We discern no reason to disturb
this implicit finding, which the parties do not dispute on review. After applying
the balancing test set forth by the Supreme Court in Pickering, the administrative
judge determined that the agency’s interest in preventing its officers from
creating the impression that they might be compromised by criminal entities
significantly outweighed “the appellant’s interest in his relationships with
members of the Bandidos.” ID at 11-12; see Smith, 106 M.S.P.R. 59, ¶¶ 45-49
(applying the Supreme Court’s Pickering balancing test to the appellant’s First
Amendment claim).
¶12 The appellant argues that his free speech and association interests more
broadly included his pursuit of charitable fundraising. PFR File, Tab 5 at 15-16.
As he observes, “charitable appeals for funds . . . involve a variety of speech
interests—communication of information, the dissemination and propagation of
views and ideas, and the advocacy of causes—that are within the protection of the
First Amendment.” Id. (quoting Village of Schaumberg v. Citizens for a Better
Environment, 444 U.S. 620, 632 (1980)). Here, the appellant posted the videos
containing the photographs at issue to promote a motorcycle run. IAF, Tab 13
at 40. That run, in turn, was to honor his stepson and “raise money for
scholarship programs so that young people can pursue educational opportunities
and break the cycle of poverty and being underprivileged.” Id. at 21-22, 40;
I-2 AF, February 28, 2022 Hearing Transcript (HT 3) at 84-85 (testimony of the
appellant). The agency has not disputed that the appellant’s purpose was, at least
in part, charitable in nature. PFR File, Tab 8 at 5-6. Therefore, to the extent that
the administrative judge suggested that the appellant’s interest as a citizen was
8
limited to associating with Bandidos members, we modify the initial decision to
recognize his broader charitable interests and desire to honor his stepson. 4
¶13 Nonetheless, we are not convinced that these private interests outweigh
those of the Government. The Government’s interests include “whether the
statement impairs discipline by superiors or harmony among coworkers, has a
detrimental impact on close working relationships for which personal loyalty and
confidence are necessary, or impedes the performance of the speaker’s duties or
interferes with the regular operation of the enterprise.” Rankin v. McPherson,
483 U.S. 378, 388 (1987) (citing Pickering, 391 U.S. at 570-73). A law
enforcement officer’s First Amendment rights are much narrower than those of
other kinds of public employees. Chambers v. Department of the Interior,
103 M.S.P.R. 375, ¶ 37 (2006) (citing, among other cases, O’Donnell v. Barry,
148 F.3d 1126, 1135 (D.C. Cir. 1998) (“because of the special degree of trust and
discipline required in a police force there may be a stronger governmental interest
in regulating the speech of police officers than in regulating the speech of other
governmental employees”)), aff’d in part, vacated and remanded in part on other
grounds, 515 F.3d 1362 (Fed. Cir. 2008). The First Amendment rights of a
supervisory law enforcement officer are even more limited than the narrow rights
of rank-and-file officers. Id. (citations omitted); see Brown v. Department of
Transportation, 735 F.2d 543, 547-48 (Fed. Cir. 1984) (considering a public
employee’s supervisory position as weighing in favor of the agency’s interests
under Pickering). The reason for allowing greater restraints on the speech of law
enforcement officers than on other kinds of public employees is that law
enforcement work requires a high degree of discipline and harmony among
officers; confidentiality; protection of close working relationships that require
loyalty and confidence; minimal disruption to the public safety mission; and
4
To the extent that the appellant generally states on review that his videos were “anti-
gang,” he has not pointed to any evidence that he raised this argument below or that it is
based on new evidence that was not previously available. PFR File, Tab 5 at 16.
Therefore, we have not considered this argument further.
9
fostering uniformity and esprit de corps. Chambers, 103 M.S.P.R. 375, ¶ 37
(citations omitted); see, e.g., Oladeinde v. City of Birmingham, 230 F.3d 1275,
1293 (11th Cir. 2000) (“In a law enforcement agency, there is a heightened need
for order, loyalty, morale and harmony, which affords a police department more
latitude in responding to the speech of its officers than other government
employers”) (citations omitted). 5
¶14 The appellant was a Lieutenant in SIS, a department within the BOP
responsible for identifying prisoners’ affiliations with STGs and providing annual
training to BOP staff on STGs. HT 1 at 12-13 (testimony of the Special
Investigative Agent); HT 2 at 10-11, 31 (testimony of the deciding official). As
an SIS Lieutenant, the appellant held a “prominent position” and “served as a
liaison between the Agency and outside law enforcement” on gang activity. HT 2
at 31 (testimony of the deciding official). In removing the appellant, the deciding
official observed that the appellant was “a federal law enforcement officer . . .
responsible for supervising, protecting and caring for staff and the inmate
population, and maintaining and enhancing the security of the institution.” IAF,
Tab 13 at 17. She also expressed concern that the appellant had lost the
“confidence” of his superiors and that his public posting of photos of himself with
Bandidos members could “negatively impact” the agency’s reputation. Id. In
sum, the appellant’s posting of photographs with the members of an STG was
antithetical to the agency’s mission and his specific duties, undermined him as a
supervisor and law enforcement officer, and ultimately posed a risk to the safety
of inmates and staff. While we acknowledge the validity of the appellant’s
interests in honoring his stepson and raising money for scholarships, we find that
those interests are outweighed by the agency’s interests in the security of inmates
and staff.
5
Because we are persuaded by the reasoning in Oladeinde, we rely on that decision here.
See Moncada v. Executive Office of the President, Office of Administration , 2022 MSPB
25, ¶ 17 n.6.
10
¶15 The appellant also argues that the agency’s restriction on his freedom of
association was overly broad because it punished him for “guilt by association”
despite his lack of support for the Bandidos. PFR File, Tab 5 at 13-14; I-2 AF,
Tab 51 at 18. The Government may not punish employees “who join an
organization but do not share its unlawful purposes and who do not participate in
its unlawful activities.” Elfbrandt v. Russell, 384 U.S. 11, 17-19 (1966).
Restrictions on joining organizations must be “narrowly drawn” by requiring
“‘specific intent’ to further the illegal aims of the organization.” Id. at 18-19(citation omitted).
¶16 We are not convinced. The reasoning in Elfbrandt does not apply here
because the agency did not punish the appellant for being a member of the
Bandidos. In the proposed removal, the agency recognized that “it is reasonable
and not unusual that while attending events such as . . . . memorial rides for
fundraising events . . . that photos will be taken.” IAF, Tab 13 at 29. However, it
faulted the appellant for posing for photos with Bandidos members and posting
those photos “to advertise for [his] fundraising events.” Id. at 28-29. Because he
was not punished for membership, the appellant’s argument that other employees
were also improperly punished for associational activity is not material to his
freedom of association claim. PFR File, Tab 5 at 14-15.
¶17 Regarding the appellant’s argument that the agency violated his First
Amendment religious free exercise rights by taking the challenged action, the
administrative judge did not analyze this argument, and so we take the
opportunity to do so here. 6 We modify the initial decision to incorporate our
analysis of this claim.
¶18 The appellant argued below and reargues on review that as a devout
Catholic, the tenets of his religious beliefs require that he exercise forgiveness
and not condemn or judge others, and that these religious beliefs required him to
6
Although the appellant withdrew his affirmative defense of religious discrimination,
I-2 AF, Tab 51 at 20, his argument that the agency’s actions violated his right to free
exercise of his religion is a distinct argument.
11
show acceptance toward gang members and potential criminals and to not exclude
them, including by permitting them to take part in the annual charity events.
I-2 AF, Tab 22 at 5, Tab 51 at 5, 24; HT 3 at 6, 36-37 (testimony of the
appellant).
¶19 The appellant also cites the recent decision in Kennedy v. Bremerton School
District, 597 U.S. 507 (2022), in which the Supreme Court held that a school
district’s decision to suspend a public high school football coach for refusing to
cease offering a midfield prayer at the end of each game violated his religious
free exercise rights under the First Amendment. I-3 AF, Tab 13; PFR File, Tab 5
at 12-17. The appellant argues that Kennedy stands for the proposition that, in
order to burden an employee’s sincerely held religious beliefs, the Government
must satisfy “strict scrutiny” by showing that its chosen course of action was
justified by a compelling government interest and was narrowly tailored in
pursuit of that interest. Kennedy, 597 U.S. at 525 (citing Church of Lukumi
Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993)). The appellant
argues that because he was photographed with the Bandidos members in pursuit
of his religious beliefs of acceptance and forgiveness and because the agency
could have taken a less restrictive action than removing him, such as by requiring
that he put a disclaimer on the videos denouncing any association to the agency,
the agency’s removal action failed to satisfy the stringent requirements of strict
scrutiny and must be reversed. PFR File, Tab 5 at 16-17.
¶20 The appellant’s argument relies on a fundamental misinterpretation of the
court’s free exercise jurisprudence. As set forth in Kennedy, under the Court’s
free exercise precedent, to trigger strict scrutiny, the appellant must first show
that the Government burdened his religious practices pursuant to a policy that is
not “neutral” or “generally applicable.” Kennedy, 597 U.S. at 525-27;
Employment Division, Department of Human Resources of Oregon v. Smith ,
494 U.S. 872, 878-89 (1990), superseded by statute on other grounds as
recognized by Ramirez v. Collier, 595 U.S. 411 (2022). Unlike in Kennedy, in
12
which the Court determined that the government’s policies were at least in part
directed at restricting the employee’s religious practices, here, the appellant has
not alleged and there is no evidence in the record suggesting that the agency’s
policy was not “neutral” or “generally applicable,” or was directed at his religious
practices in any way. Kennedy, 597 U.S. at 526-27. Accordingly, the appellant’s
reliance on Kennedy is misplaced.
¶21 The proposing official recommended removal on the basis that the appellant
violated the provision of the Standards of Employee Conduct cited above. IAF,
Tab 13 at 29. That provision required that employees avoid discrediting the BOP.
IAF, Tab 13 at 29, Tab 16 at 53. Because this standard is neutral and generally
applicable, “rational basis” review applies, under which the appellant’s free
exercise claim will fail if the Government can demonstrate that its rule is
rationally related to a legitimate government purpose. Parents for Privacy v.
Barr, 949 F.3d 1210, 1238 (9th Cir. 2020); 7 Puglisi v. United States, 564 F.2d
403, 409 (Ct. Cl. 1977). As the administrative judge correctly concluded in
analyzing the appellant’s freedom of speech and freedom of association claims,
the agency has a legitimate interest in preventing its officers from creating the
impression that they might be compromised by criminal entities, and the appellant
has not offered any evidence or argument to the contrary. ID at 11-12. Based on
the foregoing, we conclude that the administrative judge properly sustained the
charge of discreditable behavior.
The agency did not violate the appellant’s due process rights.
¶22 The appellant also argues in his cross petition for review that the
administrative judge erred by denying his due process affirmative defense. PFR
File, Tab 5 at 20-21. Specifically, the appellant argues that in sustaining the
discreditable conduct charge, the deciding official received and considered
7
While decisions of the U.S. Court of Appeals for Federal Circuit are controlling
authority for the Board, other circuit courts’ decisions are considered persuasive, but
not controlling, authority. Moncada, 2022 MSPB 25, ¶ 17 n.6. We are persuaded by
the reasoning in Parents for Privacy.
13
photographs and materials that were not included in the appellant’s YouTube
videos. Id. He asserts that these additional materials were prejudicial and
intended to improperly influence the deciding official, constituting a due process
violation. Id. The appellant also argues that the administrative judge erred by
crediting the deciding official’s testimony that, although she received a copy of a
report prepared by the agency’s OIA investigating the appellant’s potential
misconduct that was not included in the materials provided to the appellant, she
did not read the report or consider it as part of the removal decision. Id. at 21; ID
at 14.
¶23 As to the appellant’s argument that the deciding official considered images
that the appellant did not post, the appellant raised this argument below. PFR
File, Tab 5 at 8, 20-21; I-2 AF, Tab 51 at 11-12; I-3 AF, Tab 21 at 15. Because
the administrative judge did not address this argument, we do so here. We
discern no due process error.
¶24 Due process requires that an agency provide an appellant with an
explanation of its evidence before making its removal decision. Rawls v. U.S.
Postal Service, 94 M.S.P.R. 614, ¶ 20 (2003) (citing Gilbert v. Homar, 520 U.S.
924, 929 (1997) (stating that the “pretermination process need only include oral
or written notice of the charges, an explanation of the employer’s evidence, and
an opportunity for the employee to tell his side of the story”) (citing Cleveland
Board of Education v. Loudermill, 470 U.S. 532, 545-46 (1985) (citation
omitted))), aff’d per curiam, 129 F. App’x 628 (Fed. Cir. 2005). This
requirement is met when the proposed removal provides the appellant with the
specific facts and circumstances underlying the charge against him and he has an
opportunity to make a meaningful response. Chin v. Department of Defense,
2022 MSPB 34, ¶ 19; see Mattison v. Department of Veterans Affairs ,
123 M.S.P.R. 492, ¶¶ 12-13 (2016) (concluding that due process requirements
were met when the agency provided the appellant with notice of the charges
14
underlying his indefinite suspension, an explanation, access to the evidence the
deciding official would consider, and an opportunity to respond).
¶25 The agency provided the four images in question to the appellant and the
deciding official with the proposal notice. IAF, Tab 13 at 25-26, Tab 16 at 9-12;
HT 1 at 26-27, 63-66 (testimony of the Special Investigative Agent); HT 2 at 16,
19 (testimony of the deciding official). From their content, it is evident that they
are stock images of Mexican Mafia and Los Sureños gang symbols and tattoos
rather than images related to the appellant’s specific activities. IAF, Tab 16
at 9-12; HT 1 at 63-67 (testimony of a Special Investigative Agent). The
deciding official’s testimony reflects that she understood a set of 18 images,
which included these four images, were from the appellant’s online postings.
HT 2 at 16, 19, 80-82 (testimony of the deciding official). However, the
appellant’s attorney did not question the deciding official specifically about the
four images in question. Therefore, it is unclear if her general understanding of
where the images came from included those four.
¶26 Neither the proposed removal nor the removal decision alleged that the
appellant participated in gang activity, was a member of a gang, or was associated
with the Mexican Mafia or Los Sureños. IAF, Tab 13 at 16-19, 28-30. Even
assuming the deciding official mistakenly believed the four images were posted
by the appellant, the proposed removal and removal decision did not rely on or
cite to activity reflected in these images. IAF, Tab 13 at 16-19, 28-30. Nor did
the appellant elicit any testimony from the deciding official suggesting she
considered them to be material to her decision, which specified that the appellant
posted images with members of the Bandidos. Id. Thus, we are not persuaded
that the appellant was unable to respond to these images or that the deciding
official weighed that without notifying the appellant of their significance.
¶27 Similarly, to the extent that the appellant argues that these materials were
provided to the deciding official in error, he has not shown that any error
substantially prejudiced his rights such that the outcome was probably affected.
15
See Chin, 2022 MSPB 34, ¶ 18 (observing that it is the appellant’s burden to
prove that a procedural error occurred and that the error substantially prejudiced
his rights such that the outcome was probably affected). We modify the initial
decision to find that the agency did not violate the appellant’s due process rights
or commit harmful error by providing the four images in question to the deciding
official.
¶28 In connection with his second due process argument, the appellant asserts
that the deciding official relied on an OIA report that the agency did not provide
to him until after he was removed. PFR File, Tab 5 at 21; I-2 AF, Tab 51
at 20-21. We discern no error in the administrative judge’s decision to credit the
deciding official’s testimony stating that although she received the OIA report by
email, she did not read it or rely on it in making the removal decision. ID at 14.
¶29 A deciding official violates an employee’s due process rights when she
relies upon new and material ex parte information as a basis for her decisions on
the merits of a proposed charge or the penalty to be imposed. Lange v.
Department of Justice, 119 M.S.P.R. 625, ¶ 8 (2013) (citing Norris v. Securities
and Exchange Commission, 675 F.3d 1349, 1353-54 (Fed. Cir. 2012) (“A
deciding official’s knowledge of an employee’s background only raises due
process or procedural concerns where that knowledge is a basis for the deciding
official’s determinations on either the merits of the underlying charge or the
penalty to be imposed”) (citing Ward v. U.S. Postal Service, 634 F.3d 1274, 1280
(Fed. Cir. 2011))). The requirements of due process are triggered when the
deciding official actually considers this information without notifying the
employee. Lange, 119 M.S.P.R. 625, ¶¶ 11, 15. When a deciding official knows
or is aware of the information but does not consider it, the employee’s due
process rights are not implicated. Id.¶30 The Board must give deference to an administrative judge’s credibility
determinations when they are based, explicitly or implicitly, on the observation of
the demeanor of witnesses testifying at a hearing; the Board may overturn such
16
determinations only when it has “sufficiently sound” reasons for doing so. Haebe
v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Even if an
administrative judge does not discuss a witness’s demeanor, the Board must defer
to her findings when they are “necessarily intertwined with issues of credibility
and an analysis of [a witness’s] demeanor at trial.” See Purifoy v. Department of
Veterans Affairs, 838 F.3d 1367, 1372-73 (Fed. Cir. 2016) (holding that the Board
erred in failing to defer to an administrative judge’s determination that a
petitioner had rehabilitative potential when the administrative judge’s finding was
based “at least in part” on the petitioner’s hearing testimony that he had
participated in treatment for the substance abuse that led to his unexcused
absences without relapse and that he cared about his job).
¶31 In crediting the deciding official’s testimony on this point, the
administrative judge made specific credibility findings, relying on the Board’s
decision in Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987).
Although she did not expressly discuss the deciding official’s demeanor, the
administrative judge’s decision to credit her testimony was intertwined with her
determination that the deciding official did not violate the appellant’s due process
rights because she did not consider the OIA report. ID at 13-14. Accordingly, we
conclude that the administrative judge did not err by denying the appellant’s due
process affirmative defense. 8
We agree with the administrative judge that the appellant failed to prove
his Title VII discrimination affirmative defenses, but we clarify the basis
for that finding.
¶32 In his cross petition for review, the appellant argues that the administrative
judge erred in finding that the appellant did not prove his race and national origin
8
The appellant does not challenge the administrative judge’s determination that the
deciding official’s receipt of the OIA report was not harmful error, and we discern no
basis to disturb that finding. ID at 14.
17
discrimination claims. PFR File, Tab 5 at 17-19. We affirm the administrative
judge’s determination as modified here. 9 ID at 14-17.
¶33 An appellant may prove discrimination based on evidence of “suspicious
timing, ambiguous statements oral or written, behavior toward or comments
directed at other employees in the protected group, and other bits and pieces from
which an inference of discriminatory intent might be drawn,” also known as
“convincing mosaic.” Pridgen v. Office of Management and Budget, 2022 MSPB
31, ¶ 24 (quoting Troupe v. May Department Stores Co., 20 F.3d 734, 737 (7th
Cir. 1994). The appellant argues that he proved discrimination based on what he
identifies as the deciding official’s “incompetence” and “irregularities.” PFR
File, Tab 5 at 18-19. He provides a number of examples, such as the deciding
9
The administrative judge appears to have applied a burden-shifting analysis to the
appellant’s discrimination claim. ID at 14-17. However, she did not identify any facts
that gave rise to an inference of discrimination, and she determined that the appellant
did not prove that the deciding official was “motivated by a discriminatory animus.” Id.
at 16-17. To the extent that the administrative judge suggested otherwise, we clarify
that her factual findings amount to a determination that the appellant did not prove that
his race or national original were motivating factors in his removal. See Wilson v.
Small Business Administration, 2024 MSPB 3, ¶¶ 13-14, 16-17 (explaining that in order
to prove that discrimination was the but-for cause of an agency’s action using the
burden-shifting framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04
(1973), an employee must first present at least some circumstantial evidence of
discrimination); see Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282
(1984) (holding that an adjudicatory error that is not prejudicial to a party’s substantive
rights provides no basis for reversal of an initial decision). The appellant alleged
discrimination based on race and national origin. I-2 AF, Tab 22 at 5, Tab 51 at 19-20.
Although he generally reasserts his national origin discrimination claim on review, he
provides no specific arguments concerning the merits of that claim. PFR File, Tab 5
at 17-19. Except as clarified here, we discern no basis to disturb the administrative
judge’s finding that the appellant failed to prove national origin discrimination. To the
extent that the administrative judge identified the appellant’s national origin
discrimination claim as one of “ethnic origin” discrimination in the initial decision, ID
at 14, we find that her description of the appellant’s claim did not impact the outcome,
see Equal Employment Opportunity Commission Compliance Manual, § 2IIA1b,
2009 WL 2966754 (Aug. 6, 2009) (“National origin discrimination includes
discrimination based on place of origin or on the physical, cultural, or linguistic
characteristics of a national origin group.”). She elsewhere properly characterized the
appellant’s national origin discrimination claim. E.g., I-2 AF, Tab 25 at 1. The parties
have not challenged her characterization of the appellant’s discrimination claims on
review.
18
official’s failure to ask the appellant certain questions when he responded to the
proposed removal, failure to consult with others, and failure review or provide the
OIA report. Id. He similarly argued below that the deciding official’s
“subjective decision making is highly suspicious.” I-2 AF, Tab 51 at 19-20. The
administrative judge did not directly address this argument, but we discern no
error. We cannot infer discriminatory intent from what appears to be an alleged
lack of diligence by the deciding official or subjective perception of unfairness in
the agency’s process of reaching its removal decision when the alleged facts
reflect no racial bias.
¶34 One method by which an appellant may establish discrimination under
Title VII is evidence relating to the treatment of similarly situated employees.
Pridgen, 2022 MSPB 31, ¶¶ 24, 27. However, this method of proof requires the
appellant to prove that others outside his protected groups were treated better.
Id., ¶ 24. The administrative judge found that the appellant’s only valid
comparator for his disparate treatment claim was BOP Lieutenant J.M., but that
J.M. was also Hispanic, and therefore the appellant failed to show disparate
treatment. ID at 16; I-2 AF, Tab 31 at 190. The administrative concluded that
another alleged comparator, BOP Deputy Captain J.N., was not similarly situated
to the appellant. ID at 16 (citing I-2 AF, Tab 51 at 17).
¶35 J.M. was pictured in a photograph with a Bandidos member that the
appellant posted online. HT 2 at 125 (testimony of J.M.); PFR File, Tab 5 at 7.
The agency initially proposed J.M.’s removal for discreditable behavior for
posing for the photograph. I-2 AF, Tab 31 at 190-91. The deciding official
reduced the penalty to a 21-day suspension. Id. at 192-95. The agency proposed
J.N.’s removal for Conduct Unbecoming a Management Official based on his past
membership in a motorcycle club that was associated with “a criminal gang.” Id.
at 184-86. The deciding official in his case reduced the penalty to a 10-day
suspension. Id. at 187-89. The proposing and deciding officials in each instance
were different for the appellant, J.M., and J.N. I-2 AF, Tab 31 at 186, 189, 191,
19
195. Like the appellant, both J.M. and J.N. identify as Hispanic. HT 2 at 107
(testimony of employee J.M.); HT 1 at 161 (testimony of employee J.N.).
Without more, the appellant has raised no inference of discrimination based on
the agency’s treatment of other members of the same protected class. Further, as
the administrative judge concluded, J.N. is not a valid comparator. In addition to
J.N.’s conduct and supervisory chain differing from those of the appellant, J.N.
also worked in a different facility and held a different position than the appellant.
Id. at 160-61 (testimony of J.N.); IAF, Tab 13 at 12, 28.
¶36 On review, the appellant argues that the fact that colleagues J.M. and J.N.
were disciplined is evidence that the agency targeted Hispanic employees. PFR
File, Tab 5 at 17-18. The appellant similarly argued below that only “Hispanic
employees,” i.e., J.M., J.N., and himself, were disciplined for “being pictured
with some outlaw motorcycle person or person affiliated with an outlaw
motorcycle club.” I-2 AF, Tab 51 at 17. To the extent that the administrative
judge did not address this argument, we modify the initial decision to do so here.
¶37 An appellant who lacks evidence of discriminatory intent may nonetheless
prove discrimination under a disparate impact theory. Wards Cove Packing Co.,
Inc. v. Atonio, 490 U.S. 642, 645-56 (1989), superseded by statute on other
grounds as stated in Texas Department of Housing & Community Affairs v.
Inclusive Communities Project, Inc., 576 U.S. 519 (2015). To establish a prima
facie case of a disparate impact, an employee must: (1) identify the specific
employment practices that are allegedly responsible for any observed statistical
disparities; and (2) offer statistical evidence of a kind and degree showing the
practices at issue have caused the disparate impact. Warner v. Department of the
Interior, 115 M.S.P.R. 281, ¶ 8 (2010); Stern v. Federal Trade Commission,
46 M.S.P.R. 328, 333 (1990); Tien E. v. Department of Veterans Affairs, EEOC
Appeal No. 2023001451, 2024 WL 1461081, at *4 (Mar. 21, 2024) (citing Watson
v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988)).
20
¶38 The appellant argued below that “being pictured with some outlaw
motorcycle person or person affiliated with an outlaw motorcycle club is
something brand new and appears to have been directed only at Hispanic
employees.” I-2 AF, Tab 51 at 17. For purposes of our analysis here, we assume
that the appellant has identified a “practice” of disciplining employees for
affiliation to an STG or criminal gang. An appellant seeking to prove a disparate
impact claim “must offer statistical evidence of a kind and degree sufficient to
show that the practice in question has caused [the discipline of individuals]
because of their membership in a protected group.” Watson, 487 U.S. at 994.
Here, the appellant has not provided any background data, such as the number of
employees who engaged in this misconduct, from which to determine that
discrimination might be the motive for his, J.M.’s, and J.N.’s discipline. Further,
we cannot assume that these three employees are a statistically significant sample
absent further information about the number of employees in the workforce and
their demographics. In sum, the appellant has not met his burden to prove a
prima facie case of discrimination based on a disparate impact theory. We
supplement the initial decision by adding this finding.
The agency proved nexus.
¶39 The administrative judge found that the appellant’s off-duty misconduct had
a nexus to the efficiency of the service because the deciding official credibly
testified that the appellant’s actions caused her to “los[e] confidence in [his]
ability to perform his duties as a [F]ederal law enforcement officer.” ID at 17-19;
HT 2 at 2, 32, 37-38 (testimony of the deciding official). On review, the
appellant argues that the deciding official “barely knew” him and “failed to
attempt to obtain . . . evidence concerning [the appellant’s] trustworthiness, his
honesty and truthfulness.” PFR File, Tab 5 at 11-12 (spelling error corrected).
We discern no error in the administrative judge’s nexus finding.
¶40 An agency may establish nexus between off-duty misconduct and the
efficiency of the service by preponderant evidence by showing that the
21
misconduct adversely affects the agency’s trust and confidence in the appellant’s
job performance. Chin, 2022 MSPB 34, ¶ 23. The deciding official explained
that the appellant’s conduct caused her to become concerned that he might not be
able to make “sound correctional decisions . . . [about] what’s best for the
institution” as opposed to making those decisions based on “bias[] toward a group
of inmates.” HT 2 at 38 (testimony of the deciding official). A deciding
official’s unchallenged hearing testimony that the appellant’s misconduct
adversely affected the agency’s trust and confidence in the appellant’s job
performance establishes a nexus between his off-duty misconduct and the
efficiency of the service. Adams v. Defense Logistics Agency, 63 M.S.P.R. 551,
555-56 (1994). The appellant has not pointed to any requirement that a deciding
official investigate whether a nexus exists, and we are aware of none. Further, we
discern no error in the administrative judge’s agreement with the opinion of the
deciding official. ID at 18.
¶41 The appellant has not challenged the administrative judge’s alternative
finding that the agency established nexus because posting photographs with
individuals associated with the Bandidos was antithetical to the agency’s mission.
ID at 18-19. We discern no error in her finding. Doe v. Department of Justice,
113 M.S.P.R. 128, ¶ 20 (2010) (providing that nexus may be proven by showing
that an employee engaged in off-duty misconduct that is directly opposed to the
agency’s mission); see Hunter v. Department of Justice, 110 M.S.P.R. 219, ¶¶ 2,
7 (2008) (concluding that the agency proved nexus when the appellant, a BOP
employee, provided information to a BOP inmate that, contrary to the agency’s
mission, could have been used to cause or perfect a plan to breach security).
Therefore, the appellant’s arguments regarding nexus do not provide a basis for
granting review.
22
The administrative judge did not abuse her discretion in her rulings
denying some of the appellant’s motions to compel and some of his
proposed witnesses.
¶42 We find unpersuasive the appellant’s argument that the administrative judge
erred by denying nine of his proposed witnesses and his motion to compel the
agency to provide information regarding potential comparators. PFR File, Tab 5
at 5-6, 21-25. An administrative judge has wide discretion to control the
proceedings, including the authority to exclude testimony she believes would be
irrelevant, immaterial, or unduly repetitious. Parker v. Department of Veterans
Affairs, 122 M.S.P.R. 353, ¶ 21 (2015). Prior to the hearing, the administrative
judge approved four witnesses requested jointly by the appellant and the agency,
including the appellant himself, and another six witnesses requested by the
appellant. I-2 AF, Tab 24 at 1. She denied 13 additional witnesses that the
appellant requested. Id. She provided the appellant with an opportunity to call
these witnesses on rebuttal. Id. (discussion on the record).
¶43 The Board has found that an appellant fails to preserve for review an
administrative judge’s ruling excluding requested witnesses when he does not
object at the hearing despite being offered an opportunity to do so. Sanders v.
Social Security Administration, 114 M.S.P.R. 487, ¶ 9 (2010). After the appellant
testified as the last approved witness in the case, the administrative judge
provided the appellant’s attorney with an opportunity to call the rebuttal
witnesses if their testimony was material to a disputed fact. February 28, 2022
Hearing Transcript (HT 3) at 90-94. In response, the appellant named only four
of the nine witnesses he lists on review. Compare id., with PFR File, Tab 5
at 22-24. To the extent that the appellant challenges the exclusion of another five
of his requested witnesses, we find that he has not preserved this issue and do not
consider it further.
¶44 As to the four witnesses the appellant sought to call on rebuttal at the
hearing, they consisted of his former Captain and former Warden and two of his
23
former coworkers. HT 3 at 90-94 (discussion on the record). The administrative
judge denied these witnesses because the issues on which the appellant’s attorney
indicated that the witnesses would testify were matters the appellant had already
addressed in his testimony or that were not in dispute, or because the attorney
indicated that they would testify about their opinions as to whether the
appellant’s conduct was acceptable. Id. In essence, she concluded that their
testimony would be irrelevant, immaterial, or repetitious. On review, the
appellant restates why he would like to call these witnesses and concludes that the
testimony is relevant. PFR File, Tab 5 at 22-24. However, he does not address
any error in the administrative judge’s reasoning, and we discern none.
Therefore, we decline to find that the administrative judge abused her discretion.
¶45 The appellant also argues that the administrative judge improperly denied
two motions to compel information related to his discrimination claim. Id.
at 24-25. An administrative judge has broad discretion in ruling on discovery
matters, and the Board will not find reversible error in such rulings absent an
abuse of discretion. Dieter v. Department of Veterans Affairs, 2022 MSPB 32,
¶ 25. We find no such abuse here.
¶46 The appellant argues that the administrative judge improperly denied, in
part, his November 29, 2021 motion to compel. PFR File, Tab 5 at 24; I-2 AF,
Tabs 16, 18. In particular, he argues that he was denied “information to ascertain
whether the [BOP] had punished employees for membership, affiliation or
association with groups such as the KKK or Neo-Nazi.” PFR File, Tab 5 at 24.
He argues that this information was relevant to his claim of national origin
discrimination. Id. The appellant has not identified the specific discovery
requests at issue. However, based on his allegations on review, he appears to be
referring to his requests that the agency admit that it “ha[d] no record of any
white employee of the agency who was removed from employment for his or her
affiliation with the Ku Klux Klan,” “being pictured with one or more members of
24
the Klux Klan,” and “because of affiliation with a Neo-Nazo group.” IAF Tab 16
at 16-17, 24.
¶47 In denying the appellant’s motion as to these requests, the administrative
judge determined that the specific information the appellant sought was not
relevant or reasonably calculated to lead to the discovery of admissible evidence.
I-2 AF, Tab 18 at 2; see 5 C.F.R. § 1291.72(a)-(b) (limiting the scope of
discovery to relevant information, meaning information that appears reasonably
calculated to lead to the discovery of admissible evidence). We agree. To be
similarly situated for purposes of a Title VII claim, comparators must have
reported to the same supervisor, been subjected to the same standards governing
discipline, and engaged in conduct similar to the appellant’s without
differentiating or mitigating circumstances. Pridgen, 2022 MSPB 31, ¶ 27. The
absence of discipline would not shed light on any of the necessary elements of
establishing that an individual is a valid comparator for a claim of disparate
treatment.
¶48 The appellant also appears to allege that the administrative judge erred in
denying, in part, his August 10, 2022 motion to compel. PFR File, Tab 5
at 24-25; I-3 AF, Tab 8 at 5-6. We are not persuaded.
¶49 While this case was pending before the administrative judge, and after the
record would otherwise have closed, the Board issued its decision in Singh v. U.S.
Postal Service, 2022 MSPB 15. I-2 AF, Tab 45 at 1. As relevant here, the Board
held that, while not outcome determinative, in most cases, an employee from
another work unit or supervisory chain will not be a proper comparator for
purposes of a claim of disparate penalties. 10 Id., ¶ 13. In light of Singh, the
administrative judge permitted the parties to conduct additional discovery
“limited to the issue of disparate penalties under Singh.” I-3 AF, Tab 2 at 1.
10
The issue of disparate penalties is discussed further, below, in connection with the
agency’s argument on petition for review.
25
¶50 The appellant argues that the administrative judge abused her discretion in
denying his August 10, 2022 motion to compel as it concerned his request for
information about employees in the agency’s Western Region who were
disciplined “for being associated with a person or group that was labeled or
identified as a security risk or security risk group or part of a criminal
organization.” PFR File, Tab 5 at 24-25. The administrative judge denied the
appellant’s motion to compel on the basis that the information requested would
not “lead to probative admissible evidence” on the issue of disparate penalties.
I-3 AF, Tab 14 at 1. On review, the appellant argues that the administrative
judge’s ruling prevented him from developing his national original discrimination
claim. PFR File, Tab 5 at 25.
¶51 Given that discovery was limited to the issue of disparate penalties rather
than discrimination, the appellant’s claim that the administrative judge prevented
him from discovering information related to national origin discrimination is
inapposite. The appellant was employed in the North Central Region. IAF,
Tab 13 at 12. As such, the appellant’s request for information about employees in
the Western Region was not reasonably calculated to lead to the discovery of
admissible evidence on the issue of disparate penalties. See Singh, 2022 MSPB
15, ¶ 13. The appellant argues that information concerning Western Region
employees is potentially relevant to his discrimination claim because J.M. and
J.N. were disciplined by Western Region officials. PFR File, Tab 5 at 25.
However, the appellant has not claimed that he was prevented from discovery of
any details related to J.M. and J.N. J.M. and J.N.’s proposed removals and the
resulting decision letters are in the record, and J.M. and J.N. also testified at the
hearing. I-2 AF, Tab 31 at 178-95; HT 1 at 160-70 (testimony of J.N.); HT 2
at 106-26 (testimony of J.M.). Therefore, the appellant has failed to show any
abuse of discretion by the administrative judge.
26
We deny the agency’s petition for review.
¶52 The administrative judge found that the agency failed to prove that the
deciding official properly considered three factors in deciding the appellant’s
penalty of removal. ID at 19-25. These factors concerned the agency’s table of
penalties, an employee who was issued a lesser penalty, and the appellant’s
rehabilitative potential. ID at 21-25. After weighing these and other relevant
factors, the administrative judge concluded that the maximum reasonable penalty
under the circumstances was a 21-day suspension. ID at 25. The agency contests
the administrative judge’s findings. PFR File, Tab 1 at 5-16. Upon review of the
record, we agree with the administrative judge that the maximum reasonable
penalty for the appellant’s misconduct is a 21-day suspension.
¶53 When the agency’s charge has been sustained, the Board will review an
agency-imposed penalty only to determine if the agency considered all of the
relevant factors and exercised management discretion within tolerable limits of
reasonableness. Chin, 2022 MSPB 34, ¶ 24; Douglas v. Veterans Administration,
5 M.S.P.R. 280, 306 (1981). In Douglas, 5 M.S.P.R. at 305-06, the Board listed
12 nonexhaustive factors that are relevant in assessing the penalty to be imposed
for an act of misconduct, including the consistency of the penalty with any
applicable agency table of penalties, the consistency of the penalty with those
imposed upon other employees for the same or similar offenses, and the
employee’s potential for rehabilitation. In determining whether the selected
penalty is reasonable, the Board gives due weight to the agency’s discretion in
exercising its managerial function of maintaining employee discipline and
efficiency. Chin, 2022 MSPB 34, ¶ 24. However, if the deciding official failed
to appropriately consider the relevant factors, the Board need not defer to the
agency’s penalty determination. Id.The deciding official properly considered the table of penalties.
¶54 The administrative judge found that the agency failed to prove that the
deciding official properly considered its table of penalties because the table was
27
not in the record. ID at 21. As the agency argues on review, and the appellant
concedes, the table is in the record. PFR File, Tab 1 at 5-7, Tab 6 at 4-5; IAF,
Tab 16 at 69-82. Additionally, as the agency correctly notes, the deciding official
testified at the hearing that she reviewed the table of penalties and determined
that the closest analogous penalty was agency penalty number 55, “Misconduct
off the job,” which carried a penalty range for a first offense from official
reprimand up to removal. HT 2 at 25, 33-34 (testimony of the deciding official).
Accordingly, we agree with the agency and reverse the administrative judge’s
finding that the agency failed to prove that the deciding official considered the
table of penalties.
J.M. was not a valid comparator for purposes of determining the
consistency of the appellant’s penalty with those imposed upon other
employees for the same or similar offenses.
¶55 The administrative judge found that the deciding official failed to weigh the
fact that J.M., who was disciplined for being pictured in a photograph with a
Bandidos member that the appellant posted online, was issued a 21-day
suspension. ID at 22-25; I-2 AF, Tab 31 at 190-95. In finding that J.M.’s
situation was similar to the appellant’s, the administrative judge reasoned that
J.M. was in the same supervisory chain and worked at the same facility as the
appellant. ID at 23. The agency disagrees that J.M.’s situation was similar to
that of the appellant. PFR File, Tab 1 at 7-8, 11-16. We agree with the agency
and reverse the administrative judge’s findings concerning disparate penalties.
¶56 In assessing an agency’s penalty determination, the relevant inquiry is
whether the agency knowingly and unjustifiably treated employees who engaged
in the same or similar offenses differently. Singh, 2022 MSPB 15, ¶ 14 (citing
Facer v. Department of the Air Force, 836 F.2d 535, 539 (Fed. Cir. 1988)). As
noted above, while not outcome determinative, in most cases, an employee from
another work unit or supervisory chain will not be a proper comparator. Id., ¶ 13.
The agency argues that the administrative judge incorrectly determined that J.M.
28
was employed at the same facility as the appellant and was in the same
supervisory chain. PFR File, Tab 1 at 12-13. Instead, it argues that J.M. was
assigned to a different facility than the appellant at the time of his misconduct
and was disciplined by different proposing and deciding officials. Id. at 8, 12.
The agency is correct that at the time of the charged misconduct, J.M. was
working at a different facility than the appellant and was assigned to a different
supervisory chain. I-2 AF, Tab 16 at 121; HT 2 at 113-14 (testimony of the
purported comparator employee). Further, as discussed above in connection with
the appellant’s discrimination claims, different proposing and deciding officials
were involved in J.M.’s and the appellant’s cases. To the extent that the
administrative judge found otherwise, the record does not support her conclusion.
However, this does not end the inquiry.
¶57 A valid comparator could also include an employee who, although not
within the same work unit or supervisory chain, engaged in misconduct that has
an unusually close connection to the appellant’s misconduct. Singh, 2022 MSPB
15, ¶ 13 (citing Williams v. Social Security Administration , 586 F.3d 1365,
1368-69 (Fed. Cir. 2009). Such an unusually close connection could include, as
here, involvement in the same underlying events. Williams, 586 F.3d 1365,
1366-69. In Williams, the Board affirmed the petitioner’s removal for falsely
claiming dependents on a tax return. Id. at 1366-67. In doing so, the petitioner
was aided by a coworker who submitted fraudulent tax returns for a number of
clients, of whom the petitioner was one. Id. The agency initially removed the
petitioner’s coworker, but a witness at the petitioner’s Board appeal hearing
testified that the agency later reemployed the coworker. Id. at 1368-69. The
Board sustained the petitioner’s removal. Id. at 1367.
¶58 The U.S. Court of Appeals for the Federal Circuit held that, even if the
petitioner’s coworker were not in the same chain of command, his allegedly more
favorable treatment could be relevant to determining whether the petitioner was
subject to a disparate penalty. Id. at 1368-69. The court reasoned that the
29
coworker’s conduct was more serious than the petitioner’s because the coworker,
unlike the petitioner, “originated and organized the tax fraud scheme, actively
carried it out and was criminally convicted for his participation in it.” Id. The
court remanded the case to the Board to develop the record on the coworker’s
potentially more favorable treatment and reconsider the issue of disparate
penalties. Id.¶59 In arguing that the administrative judge incorrectly concluded that the
appellant and J.M. were valid comparators for purposes of a disparate penalties
analysis, the agency points to the appellant’s more serious misconduct. PFR File,
Tab 1 at 12-14. The agency alternatively argues that the deciding official could
not have knowingly treated the appellant differently because J.M. was removed
after the appellant. Id. at 14-15.
¶60 The deciding official did not testify regarding whether or how she weighed
J.M.’s discipline when removing him. As the agency correctly observes on
review, the decision mitigating J.M.’s proposed removal to a 21-day suspension
was not issued until 7 months after the decision to remove the appellant was
issued in this case. IAF, Tab 13 at 16-19; I-2 AF, Tab 31 at 192. However,
J.M.’s and the appellant’s proposed removals were issued in the same month,
January 2021, and were both based on the same charge of discreditable conduct
arising out of the appellant’s YouTube postings that included images of
Bandidos. IAF, Tab 13 at 28-29; I-2 AF, Tab 31 at 190-91. Given the close
factual connection between the two matters, we cannot presume, as the agency
asks us to do, that the deciding official in the appellant’s case had no knowledge
as to what had happened or what might occur regarding J.M.’s proposed removal.
PFR File, Tab 1 at 14-15.
¶61 However, we do not agree with the administrative judge that the agency’s
failure to explain the difference in treatment reflects that the appellant was
treated more harshly than J.M. ID at 24-25. First, the nature of the appellant’s
misconduct was more serious than that of J.M. The appellant admittedly posted
30
on social media multiple photos of himself with members of the Bandidos. IAF,
Tab 13 at 23-24, 28. J.M. appeared in one photo with a Bandidos that J.M. did
not post–the appellant did. I-2 AF, Tab 31 at 190, Tab 44 at 7; IAF, Tab 13 at 49;
HT 2 at 117-20, 124-25 (testimony of J.M.). On the other hand, the appellant’s
misconduct occurred in the context of a charity event he organized to honor a
deceased, close family member, a significant mitigating factor that was not
present for J.M. Therefore, despite the initial similarity between the misconduct
committed by the appellant and J.M., we find that the circumstances surrounding
their misconduct differ in meaningful ways. Consequently, we agree with the
agency that J.M. was not a valid comparator employee, and we reverse the
administrative judge’s finding to this effect.
We agree with the administrative judge that the appellant’s strong
rehabilitative potential weighs in favor of mitigating the removal penalty.
¶62 The administrative judge disagreed with the deciding official’s conclusion
that the appellant did not show rehabilitative potential. ID at 21-22. The agency
contests this conclusion. PFR File, Tab 1 at 9-11. We agree with the
administrative judge.
¶63 As noted above, one of the Douglas factors is the potential for the
employee’s rehabilitation. Social Security Administration v. Levinson,
2023 MSPB 20, ¶ 44, aff’d, 2024 WL 3579909 (Fed. Cir. July 30, 2024). The
Board considers expressions of remorse as reflecting rehabilitative potential and
thus militating in favor of a lesser penalty. Id. Conversely, an individual’s
rationalizations and lack of remorse may reflect little rehabilitative potential and
thus be aggravating factors. Id.¶64 Here, the appellant apologized for his behavior. The appellant admitted that
he had posted the videos containing the offending photographs on YouTube and
agreed to take care not to use such materials to publicize his son’s charity in the
future. IAF, Tab 13 at 24. He disclaimed any association with criminal activity.
Id. at 23-24. He also stated that, as a consequence of being alerted to the
31
agency’s concerns, he would refrain from engaging in the charged activity in the
future. Id. at 24; see Shelly v. Department of the Treasury, 75 M.S.P.R. 677,
684-85 (1997) (finding that the appellant had rehabilitation potential and
mitigating her removal to a demotion based on, among other things, her testimony
that she would not engage in the charged misconduct in the future). He
voluntarily removed the YouTube videos in May 2020, immediately after he was
alerted to the fact that the agency had concerns about them, which was before the
agency completed its investigation into the potential wrongdoing and well before
his removal was proposed, providing further evidence of the appellant’s
acknowledgement of his wrongdoing. I-2 AF, Tab 16 at 49; HT 1 at 96-97,
100-01 (testimony of an OIA Special Agent), HT 3 at 54-55 (testimony of the
appellant); see Singletary v. Department of the Air Force, 94 M.S.P.R. 553, ¶ 15
(2003) (noting that an employee’s immediate admission of misconduct and
expression of remorse upon an initial inquiry by an agency is of some mitigating
weight), aff’d, 104 F. App’x 155 (Fed. Cir. 2004). During his oral reply to the
proposal, the appellant apologized for the incident. IAF, Tab 13 at 21. Given the
above, we agree with the administrative judge that the deciding official should
have, but did not, acknowledge and consider the appellant’s remorse. IAF,
Tab 13 at 17; ID at 21-22.
¶65 As the deciding official observed, the appellant also sought to justify his
misconduct. HT 2 at 35 (testimony of the deciding official). She acknowledged
that the appellant’s desire to honor his stepson’s legacy was a mitigating factor
but also considered that “there were other pictures he could have posted” instead
of “the pictures specifically with the Bandidos.” HT 2 at 35 (testimony of the
deciding official). However, we reject the implication that the fact that the
appellant mounted a defense against the agency’s charges indicates that he lacked
remorse or failed to admit to wrongdoing, and we are not persuaded by the
agency’s attempt to argue otherwise. PFR File, Tab 1 at 9-11; see Raco v. Social
Security Administration, 117 M.S.P.R. 1, ¶¶ 12, 16 (2011) (affirming an
32
administrative judge’s determination that an agency improperly concluded that an
appellant who admitted to her misconduct and apologized lacked remorse because
she also provided an explanation of her behavior and the mitigating factors that
weighed in her favor).
We find that a 21-day suspension is the maximum reasonable penalty for
the charge of discreditable behavior based on the specific facts of this
case.
¶66 When, as here, the Board sustains the agency’s charge but finds that the
agency failed to weigh the relevant mitigating factors, the Board may mitigate the
agency’s original penalty to the maximum reasonable penalty. Raco,
117 M.S.P.R. 1, ¶ 13. Because we agree with the administrative judge that the
agency did not recognize the appellant’s expressions of remorse, which suggest a
strong rehabilitative potential, we conclude that she correctly decided to reweigh
the Douglas factors. However, we have reversed her finding that the agency
failed to prove that removal was consistent with its table of penalties and her
determination that J.M. was given a disparate penalty for the same or similar
misconduct. After reweighing the Douglas factors, we agree that a 21-day
suspension, rather than removal, is the maximum reasonable penalty.
¶67 Like the administrative judge, we acknowledge the seriousness of the
charge against the appellant, and we do not minimize its gravity. ID at 20-21;
see, e.g., Brown v. Department of the Navy, 229 F.3d 1356, 1361 (Fed. Cir. 2000)
(stating that “off-duty conduct that is inconsistent with the agency’s mission and
that undermines confidence in the employee can . . . justify the employee’s
removal”). This is particularly true when, as here, the employee holds a
supervisory position with law enforcement duties. Luongo v. Department of
Justice, 95 M.S.P.R. 643, ¶ 13 (2004) (noting that a higher standard of conduct
and a higher degree of trust are required of supervisory correctional officers as
both law enforcement and supervisors), aff’d, 123 F. App’x 405 (Fed. Cir. 2005).
But see, e.g., Reid v. Department of the Navy, 118 M.S.P.R. 396, ¶ 32 (2012)
33
(acknowledging that law enforcement and supervisory status do not preclude
penalty mitigation); Ludlum v. Department of Justice, 87 M.S.P.R. 56, ¶ 31
(stating that law enforcement status does not preclude penalty mitigation), aff’d,
278 F.3d 1280 (Fed. Cir. 2002).
¶68 On the other hand, the appellant’s discipline-free 18 years of service and 3
previous years of Outstanding performance ratings are mitigating factors. IAF,
Tab 13 at 12, 17; I-2 AF, Tab 27 at 12, 19, 25; ID at 3, 25; see Chin, 2022 MSPB
34, ¶¶ 4, 28-33 (mitigating a removal for the serious charge of larceny to a 90 -day
suspension based on the appellant’s 30 years of discipline-free Federal service,
successful job performance, lack of repetition of the misconduct, the de minimis
value of the items taken, and the fact that he did not have custody or control over
the stolen items as a part of his official duties); Reid, 118 M.S.P.R. 396, ¶¶ 30-32
(finding that an appellant’s admission to his errors and his 18 years of
discipline-free service with positive performance, among other factors, warranted
mitigating his demotion to a letter of reprimand). We also find that the fact that
the appellant’s misconduct arose in the context of a charity event honoring his
late stepson is a significant mitigating factor.
¶69 The appellant’s conduct demonstrated an error in judgment that warrants
discipline. However, he promptly took responsibility for his actions and
indicated that he would not engage in similar conduct in the future. Considering
his potential for rehabilitation along with his lengthy Federal service, positive
performance record, lack of prior discipline, and the tragic personal
circumstances surrounding his conduct, we find that a 21-day suspension is the
maximum reasonable penalty under the unique circumstances of this case.
ORDER
¶70 We ORDER the agency to cancel the appellant’s removal and substitute a
21-day suspension without pay, and to restore the appellant effective February 19,
2021. See Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir.
34
1984). The agency must complete this action no later than 20 days after the date
of this decision.
¶71 We also ORDER the agency to pay the appellant the correct amount of back
pay, interest on back pay, and other benefits under the Office of Personnel
Management’s regulations, no later than 60 calendar days after the date of this
decision. We ORDER the appellant to cooperate in good faith in the agency’s
efforts to calculate the amount of back pay, interest, and benefits due, and to
provide all necessary information the agency requests to help it carry out the
Board’s Order. If there is a dispute about the amount of back pay, interest due,
and/or other benefits, we ORDER the agency to pay the appellant the undisputed
amount no later than 60 calendar days after the date of this decision.
¶72 We further ORDER the agency to tell the appellant promptly in writing
when it believes it has fully carried out the Board’s Order and of the actions it has
taken to carry out the Board’s Order. The appellant, if not notified, should ask
the agency about its progress. See 5 C.F.R. § 1201.181(b).
¶73 No later than 30 days after the agency tells the appellant that it has fully
carried out the Board’s Order, the appellant may file a petition for enforcement
with the office that issued the initial decision on this appeal if the appellant
believes that the agency did not fully carry out the Board’s Order. The petition
should contain specific reasons why the appellant believes that the agency has not
fully carried out the Board’s Order, and should include the dates and results of
any communications with the agency. 5 C.F.R. § 1201.182(a).
¶74 For agencies whose payroll is administered by either the National Finance
Center of the Department of Agriculture (NFC) or the Defense Finance and
Accounting Service (DFAS), two lists of the information and documentation
necessary to process payments and adjustments resulting from a Board decision
are attached. The agency is ORDERED to timely provide DFAS or NFC with all
documentation necessary to process payments and adjustments resulting from the
35
Board’s decision in accordance with the attached lists so that payment can be
made within the 60-day period set forth above.
NOTICE TO THE APPELLANT REGARDING
YOUR RIGHT TO REQUEST
ATTORNEY FEES AND COSTS
You may be entitled to be paid by the agency for your reasonable attorney
fees and costs. To be paid, you must meet the requirements set forth at Title 5 of
the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The
regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If
you believe you meet these requirements, you must file a motion for attorney fees
and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.
You must file your motion for attorney fees and costs with the office that issued
the initial decision on your appeal.
NOTICE OF APPEAL RIGHTS 11
The initial decision, as supplemented by this Final Order, constitutes the
Boards final decision in this matter. 5 C.F.R. § 1201.113. You may obtain 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
11
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.
36
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
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.
37
(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 .
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.
38
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 competent jurisdiction. 12 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).
12
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.
39
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.
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations
DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.
☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.
Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:
☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***
☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards
until notified to do so by DFAS Civilian Pay.***
☐ 6) All relevant benefit election forms (e.g., TSP, FEHB, etc.).
☐ 7) Outside earnings documentation. Include record of all amounts earned by the
employee in a job undertaken during the back pay period to replace federal
employment. Documentation includes W-2 or 1099 statements, payroll
documents/records, etc. Also, include record of any unemployment earning
statements, workers’ compensation, CSRS/FERS retirement annuity payments,
refunds of CSRS/FERS employee premiums, or severance pay received by the
employee upon separation.
Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63).
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
collected (if applicable).
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement (if applicable).
2. Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address to
return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions (if applicable).
6. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump Sum
Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.