Opinion

Mark Jimenez v. Department of Transportation

Court: Merit Systems Protection Board
Filed: Jul 3, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.2%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MARK JIMENEZ, DOCKET NUMBER

Appellant, SF-0752-19-0069-I-1

DEPARTMENT OF DATE: July 3, 2024

TRANSPORTATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Jesse Ortiz , Sacramento, California, for the appellant.

Lindsay M. Nakamura , Esquire, El Segundo, California, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

sustained his removal. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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 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

properly construe and analyze the charge, we AFFIRM the initial decision.

BACKGROUND

On August 6, 2018, the agency issued a notice proposing to remove the

appellant from his Airway Transportation Systems Specialist position with the

agency’s Federal Aviation Administration, based on a charge of unacceptable

conduct (five specifications). Initial Appeal File (IAF), Tab 7 at 101-10. In the

first specification, the agency alleged that, between February 2014 and August

2016, the appellant submitted five altered or fabricated Air Force (AF)-938 forms

titled “Request for Authorization for Active Duty Training/Active Duty Tour”

when he had not been ordered to appear for military duty on the dates listed on

the forms. 2 Id. at 102. The agency alleged that the appellant falsified the AF-938

forms either by changing his report and/or release dates for military duty, or by

altering a previously used AF-938 form to reflect military duty that was

completely fabricated. Id. For example, the agency alleged that the appellant

altered an AF-938 form dated July 31, 2013, by changing the report and release

dates for military duty from September 16-18, 2013, to February 24-28, 2014, and

During the period at issue, the appellant was a Master Sergeant in the Air Force

Reserve Command. IAF, Tab 7 at 101.

then submitted this form, even though no order had been issued directing him to

report for military duty from February 24-28, 2014. Id.

In specification 2 of the charge, the agency alleged as follows: on nine

occasions between March 2014 and May 2016, the appellant submitted Office of

Personnel Management Standard Form 71 (SF-71) forms requesting paid military

leave totaling 190 hours for the period from February 24, 2014, to April 20, 2016;

his military leave requests were approved and the appellant did not report to work

on the dates for which leave was requested; these leave requests were based on

falsified military orders 3 or were not supported by underlying military orders and,

therefore, the appellant knew that he was not entitled to receive paid military

leave for the dates listed on the SF-71 forms; and, by placing his electronic

signature on each form, the appellant certified that he understood that

falsification of the form may be grounds for disciplinary action, including

removal. IAF, Tab 7 at 103.

In the third specification, the agency alleged that the appellant was absent

without leave (AWOL) for 200 hours because the military leave requests at issue

in specification 2, plus an additional military leave request for 10 hours on

August 20, 2016, were based on altered AF-938 forms and thus his absence from

work on the dates listed on the SF-71 forms was unauthorized. Id. at 103-04.

The fourth specification of the charge consists of four parts, each of which

involves the appellant’s alleged falsification or improper coding of his time and

attendance records. IAF, Tab 7 at 104-06. In part A, the agency alleged that,

between July 2014 and December 2016, the appellant submitted 17 leave requests

for a total of 191 hours that were approved by the agency. Id. at 104-05. The

agency alleged that, although the appellant did not report to work for the hours of

his approved leave, he recorded his time in the agency’s timekeeping system to

Four of the SF-71 forms at issue in this specification were based on the AF-938 forms

described in the first specification. IAF, Tab 7 at 103.

show that he was working those 191 hours and, therefore, no leave was deducted

from his leave balance even though he was absent from work. Id. at 104.

In part B, the agency alleged that, in four separate instances totaling 90

hours in November and December 2015, the appellant failed to report to work

despite not having submitted an SF-71 form requesting leave, and then marked

himself as present and working in the agency’s timekeeping system. IAF, Tab 7

at 105.

In part C, the agency alleged that, although the appellant exhausted his 120

allowable hours of military leave for Fiscal Year 2016 as of January 4, 2016, in

May, July and August of 2016, he improperly coded his time and attendance

record for military leave totaling 70 hours. Id.

In part D, the agency alleged that the appellant falsified his time and

attendance records to reflect that he worked on Sunday, when he did not. IAF,

Tab 7 at 105-06. The agency alleged that, as a result, the appellant was paid 90

hours of Sunday premium pay he was not entitled to receive. Id.

In the fifth specification of the charge, the agency alleged that the appellant

was not forthcoming and candid during an Office of Inspector General (OIG)

investigation into his alleged misconduct, as evidenced by the transcript of his

April 28, 2017 interview. IAF, Tab 7 at 106.

After the appellant responded to the proposal, IAF, Tab 7 at 38-100, the

proposing official, who was also the deciding official, found that the agency

proved the charge in its entirety with the exception of part D of specification 4

pertaining to premium pay, id. at 32, and issued a decision removing the appellant

effective October 10, 2018, id. at 31-37.

The appellant filed an appeal of his removal with the Board. IAF, Tab 1.

He initially requested a hearing but subsequently withdrew his request. Id. at 2,

Tab 39. The appellant stipulated to the facts underlying the specifications of the

charge. IAF, Tab 36 at 4, 6; Tab 38 at 1. He raised an affirmative defense of

retaliation for his prior equal employment opportunity (EEO) activity. 4 IAF,

Tab 35 at 7.

Based on the written record, the administrative judge issued an initial

decision that affirmed the appellant’s removal. IAF, Tab 44, Initial Decision (ID)

at 1, 16. The administrative judge found that: the agency proved the charge by

preponderant evidence, ID at 10; the appellant did not prove his affirmative

defense, ID at 10-12; and the penalty of removal is reasonable and promotes the

efficiency of the service, ID at 12-16.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. The agency has responded to the petition. PFR File, Tab 3.

ANALYSIS

We modify the administrative judge’s analysis of the unacceptable conduct

charge, still finding that the agency proved the charge.

In analyzing the unacceptable conduct charge, the administrative judge

stated that, to prove this charge, the agency must show that the appellant engaged

in the conduct with which he is charged. ID at 10. The administrative judge

noted that the parties stipulated to the facts as set forth in the specifications of the

charge, and he found the parties’ stipulations sufficient to prove all of the

specifications. Id.; IAF, Tab 36 at 6, Tab 38 at 1. The administrative judge

further found that the actions described in the specifications constitute

unacceptable conduct. ID at 10. Therefore, the administrative judge found, the

agency proved the charge. Id.

Although the appellant does not challenge this finding on review, 5 PFR

File, Tab 1 at 4-5, we find that the administrative judge incorrectly interpreted the

As discussed further below, the appellant initially raised other affirmative defenses,

including retaliation for filing a grievance and discrimination based on his race and

national origin, but withdrew those affirmative defenses during the prehearing

conference. IAF, Tab 1 at 4, Tab 14 at 1, Tab 17 at 6, Tab 35 at 7.

The appellant also does not challenge the administrative judge’s finding that the

agency proved that there is a nexus between the charge and the efficiency of the service.

PFR File, Tab 1 at 4-5; ID at 12-13. We discern no reason to disturb this finding.

charge. Where, as here, the agency has employed a generic label for the charge,

the Board must look to the specifications to determine what conduct is the basis

for the charge. Lachance v. Merit Systems Protection Board, 147 F.3d 1367,

1372 (Fed. Cir. 1998). In resolving the issue of how a charge should be construed

and what elements require proof, the Board examines the structure and language

of the proposal notice and the decision notice. See Boltz v. Social Security

Administration, 111 M.S.P.R. 568, ¶ 16 (2009) (finding that, although the agency

used the general charge of inappropriate behavior, the specifications and

circumstances showed that the agency charged the appellant with intentional

falsification; thus the agency was required to prove the elements of falsification).

Falsification

Based on our review of the record, we find that specifications 1, 2, and 4

should be construed as a falsification charge. As set forth above, in specification

1, the agency explicitly alleged that the appellant falsified AF-938 forms on five

separate occasions either by changing his report and/or release dates for military

duty, or by altering a previously used AF-938 form to reflect military duty that

was completely fabricated. IAF, Tab 7 at 102. The agency also alleged that the

appellant then submitted these altered or fabricated forms even though he had not

been ordered to appear for military duty on the dates listed on the forms. Id.

In specification 2, the agency alleged that the appellant submitted SF-71

forms requesting paid military leave; however, these leave requests were based on

falsified military orders or were not supported by underlying military orders and,

therefore, the appellant knew that he was not entitled to receive paid military

leave for the dates listed on the SF-71 forms. IAF, Tab 7 at 103. The agency

further alleged that, by placing his electronic signature on each form, the

appellant certified that he understood that falsification of the form may be

grounds for discipline. Id.

As for the fourth specification, the agency alleged that the appellant

falsified his time and attendance records by recording his time in the agency’s

timekeeping system to show that he was working during hours in which he had

not reported to work; thus, no leave was deducted from his leave balance even

though he was absent from work. IAF, Tab 7 at 104-06.

In addition to the specifications, the notice of proposed removal included a

section entitled “Discussion” in which the proposing official addressed the

appellant’s misconduct in greater detail. Id. at 106-09. The proposing official

alleged that the appellant altered military documents, which he then submitted to

management “with the intent to deceive for [his] own material gain of being

absent from work without actually performing military duty, and without using

any of [his] accrued leave.” Id. at 108. The proposing official also noted that the

appellant admitted to altering his military orders by printing out a date, which he

then cut and pasted onto an AF-938, and then making a photocopy of the form.

Id.; IAF, Tab 8 at 195-96.

The proposing official further alleged that the appellant’s submission of

leave requests after the date for which leave was requested and his failure to

properly enter his time in the agency’s timekeeping system indicated that he was

intentionally deceptive and knowingly made false entries in the timekeeping

system. IAF, Tab 7 at 107. She alleged that the appellant was attempting to

obfuscate the truth of his time and attendance by submitting leave requests and

then not recording the leave taken in the system. Id. The proposing official

stated that she did not believe that this was simple error or misunderstanding. Id.

In sum, although the agency charged the appellant with unacceptable

conduct, these specifications and the accompanying discussion of the appellant’s

actions show that the agency charged the appellant with falsification of his

military orders and his time and attendance records. See George v. Department of

the Army, 104 M.S.P.R. 596, ¶ 8 (2007), aff’d, 263 F. App’x 889 (Fed. Cir. 2008).

To establish a charge of falsification, the agency must prove the following

by preponderant evidence: (1) the appellant supplied incorrect information; and

(2) he did so knowingly with intent to defraud, deceive, or mislead the agency for

his own private material gain. Boo v. Department of Homeland Security,

122 M.S.P.R. 100, ¶¶ 10-12 (2014). Whether the element of intent has been

proven must be resolved from the totality of the circumstances. See Rodriguez v.

Department of Homeland Security, 108 M.S.P.R. 525, ¶ 9 (2008); Blake v.

Department of Justice, 81 M.S.P.R. 394, ¶ 27 (1999). Intent may be inferred

when a misrepresentation is made with reckless disregard for the truth or with a

conscious purpose to avoid learning the truth. See Haebe v. Department of

Justice, 81 M.S.P.R. 167, ¶ 17 (1999), rev’d on other grounds, 288 F.3d 1288

(Fed. Cir. 2002).

The record shows that the appellant intended to deceive the agency by

altering AF-938 forms and submitting them to management. In his April 28, 2017

interview with OIG agents, the appellant stated that he altered the forms so that

he could have extra time to work out and calm down. IAF, Tab 8 at 195-96; Tab

28 at 111. We find that the appellant’s admission that he altered these documents

so that he could take additional time off without using his leave is sufficiently

probative to establish that he knowingly supplied incorrect information with the

intention of defrauding, deceiving, or misleading the agency for his own material

gain. See Hoofman v. Department of the Army, 118 M.S.P.R. 532, ¶¶ 9-10 (2012)

(finding that the appellant’s admission that he had been drinking and was in the

driver’s seat of the vehicle with the engine running and the charging police

officer’s affidavit were sufficiently probative to prove that he had been driving

under the influence), aff’d, 526 F. App’x 982 (Fed. Cir. 2013). Accordingly, we

find that the agency proved the falsification charge.

AWOL

We next consider specification 3, which charged the appellant with 200

hours of AWOL. IAF, Tab 7 at 103-04. The agency alleged that, because the

appellant’s leave requests for those hours were based on altered AF-938 forms,

his absence from work on the dates listed those leave requests was unauthorized.

Id. at 103.

To prove an AWOL charge, an agency must demonstrate that the employee

was absent without authorization and, if the employee requested leave, that the

request was properly denied. Savage v. Department of the Army, 122 M.S.P.R.

612, ¶ 28 n.5 (2015), overruled in part on other grounds by Pridgen v. Office of

Management and Budget, 2022 MSPB 31, ¶¶ 23-25. Here, it is undisputed that

the military leave requests were based on military orders which had been falsified

to reflect that the appellant had military duty on days when he did not. IAF, Tab

36 at 6. Given these circumstances, we find that the appellant’s absence on those

days was unauthorized. Accordingly, we find that the agency proved this charge.

Lack of Candor

For specification 5, the agency alleged that the appellant was “not fully

forthcoming and candid during the course of the OIG investigation into [his]

misconduct . . . as evidenced by the transcript of [his] interview conducted on

April 28, 2017.” IAF, Tab 7 at 106, Tab 8 at 106-278. In particular, the agency

alleged the appellant was evasive and non-responsive when questioned as to

whether he had altered the AF-938 forms so that he could take extra days off

work. IAF, Tab 7 at 106.

We find that this specification charges the appellant with lack of candor, as

the agency alleged that the appellant acted with a level of intent to knowingly

give incomplete or inaccurate information to the interviewers. IAF, Tab 7 at 106.

Id. To prove a lack of candor charge, the agency must prove that an appellant

was not fully forthcoming and candid as to all facts and information relevant to

the matter at issue, whether or not such information was specifically elicited. See

Ludlum v. Department of Justice, 278 F.3d 1280, 1284 (Fed. Cir. 2002). Lack of

candor may involve a failure to disclose something that, in the circumstances,

should have been disclosed to make a statement accurate and complete. Id.

Although a lack of candor charge does not require an affirmative

misrepresentation, it does involve an element of deception, and an agency

alleging lack of candor must prove the appellant knowingly gave incorrect or

incomplete information. Fargnoli v. Department of Commerce, 123 M.S.P.R.

330, ¶¶ 16-17 (2016).

The record reflects that the appellant admitted that he was not honest

during the first half of his OIG interview because he was “apprehensive” but that

he later “came clean” at the end of his interview. IAF, Tab 28 at 106-07. Thus,

we find that the agency has proven that the appellant knowingly provided

incorrect or incomplete information during his OIG interview.

The appellant failed to prove his affirmative defense of retaliation for EEO

activity.

On review, the appellant contends that the administrative judge erred in

finding that he failed to prove his affirmative defense of reprisal for his prior

EEO activity. PFR File, Tab 1; ID at 10-12. As explained in the initial decision,

the protected EEO activity at issue consists of the appellant seeking EEO

counseling on July 6, 2018, regarding his claim that he was wrongfully denied a

promotion, and engaging in a mediation session on October 3, 2018. PFR File,

Tab 1 at 8-10; IAF, Tab 42 at 9-10. He argues that, because the agency knew of

his misconduct before his EEO activity, but did not remove him until after,

retaliatory motive can be inferred. PFR File, Tab 1 at 10. We are not persuaded.

Although the appellant cites the Warren standard 6 in arguing that he proved

his EEO reprisal claim, the Warren standard is not applicable here. PFR File,

Tab 1 at 8-10. The record shows that the appellant’s underlying EEO activity

involved claims of discrimination based on race and color. IAF, Tab 7 at 20. To

prove an affirmative defense of retaliation for such Title VII EEO activity, the

appellant must show that retaliation was a motivating factor in the agency's

decision. Pridgen, 2022 MSPB 31, ¶¶ 19-21, 30. An appellant may prove his

claim by a combination of direct or indirect evidence, including suspicious

timing, statements, or actions by agency officials from which an inference of

discrimination might be drawn, evidence concerning the agency's treatment of

similarly situated individuals outside the appellant's protected class, and evidence

that the agency's stated reasons for the action were pretextual. Id. ¶ 24.

The administrative judge found that it was undisputed that the appellant

engaged in EEO activity by seeking EEO counseling prior to the removal decision

and by engaging in a mediation session. ID at 11. However, he found that the

appellant failed to prove by preponderant evidence that retaliation was a

motivating factor in his removal because there was no evidence that would

support a finding of retaliation for prior EEO activity. ID at 11-12. In doing so,

the administrative judge considered the appellant’s argument that the retaliatory

motive could be inferred based on the temporal proximity between the activity

but did not find it persuasive based on the record evidence. ID at 12. We agree.

The record contains the unchallenged declaration and supporting emails of

a Human Resources Specialist who was assigned to assist the proposing and

deciding official with facilitating the appellant’s removal. IAF, Tab 41 at 20-27.

This evidence reflects that the proposing official authorized the drafting of the

Under the Warren standard, for an appellant to prevail on an affirmative defense of

retaliation for protected activity, he must show that (1) he engaged in protected activity;

(2) the accused official knew of the activity; (3) the adverse action under review could

have been retaliation under the circumstances; and (4) there was a genuine nexus

between the alleged retaliation and the adverse action. See Warren v. Department of the

Army, 804 F.2d 654, 656-58 (Fed. Cir. 1986).

notice of the proposed removal on April 17, 2018, prior to the appellant engaging

in protected EEO activity when he sought EEO counseling on July 6, 2018, or

filed his EEO complaint on November 6, 2018. IAF, Tab 7 at 19-21, Tab 41 at

20-21. She then, in her role as deciding official, decided to remove the appellant

after reviewing his August 21, 2018 written reply but prior to the EEO mediation

on October 3, 2018. IAF, Tab 7 at 22, 27, Tab 41 at 20, 23-25, 27. Moreover, the

appellant identified no direct evidence of retaliation for EEO activity or

comparator evidence, and he stipulated to the facts underlying the specifications

in support of the removal action. In light of these considerations, and considering

the evidence as a whole, we agree with the administrative judge’s conclusion that

the appellant has not shown that his EEO activity was a motivating factor in his

removal. ID at 11-12.

The appellant waived his affirmative defense of reprisal for filing a grievance.

The appellant appears to reassert his affirmative defense of reprisal for

filing a grievance on review. PFR File, Tab 1 at 9; IAF, Tab 7 at 12-14. In

Thurman v. U.S. Postal Service, 2022 MSPB 21, ¶¶ 17-18, we set forth a set of

nonexhaustive factors for consideration when determining whether an appellant

will be deemed to have waived or abandoned a previously raised affirmative

defense. The factors include: (1) the thoroughness and clarity with which the

appellant raised his affirmative defense; (2) the degree to which the appellant

continued to pursue his affirmative defense in the proceedings below after

initially raising it; (3) whether the appellant objected to a summary of the issues

to be decided that failed to include the potential affirmative defense when he was

specifically afforded an opportunity to object and the consequences of his failure

were made clear; (4) whether the appellant raised his affirmative defense or the

administrative judge’s processing of the affirmative defense claim in his petition

for review; (5) whether the appellant was represented during the course of his

appeal before the administrative judge and on petition for review, and if he was

not, the level of knowledge of Board proceedings possessed by the appellant; and

(6) the likelihood that the presumptive abandonment of the affirmative defense

was the product of confusion, or misleading or incorrect information provided by

the agency or the Board. Id., ¶ 18.

As indicated in the prehearing conference summary, the appellant, through

his attorney, clarified that the only affirmative defense he was raising was

retaliation for his prior EEO activity and he withdrew his affirmative defenses of

reprisal for filing a grievance and discrimination on the basis of his race and

national origin. IAF, Tab 35 at 7. The appellant had the opportunity to object to

the administrative judge’s prehearing conference summary but did not. Id.

Subsequently, he stipulated that he was limiting his affirmative defense claim to

retaliation based on his EEO complaint, in which he alleged that he was

wrongfully denied a promotion. IAF, Tab 36 at 6, Tab 38 at 1.

Throughout this appeal, the appellant was represented by an attorney and

there is no evidence that his waiver of these affirmative defenses was due to

confusion or misleading or incorrect information provided by the administrative

judge or the agency. When weighing all these factors together, we find that the

appellant waived the affirmative defense of reprisal for filing a grievance and we

will not consider this issue further.

We do not consider the appellant’s laches claim.

The appellant also appears to raise an affirmative defense of laches on

review, arguing that the agency improperly delayed issuing the proposed removal.

PFR File, Tab 1 at 9-10. The record reflects that the appellant first raised this

argument in his April 5, 2019 closing brief. 7 IAF, Tab 42 at 10. Because the

appellant submitted his closing brief after the March 22, 2019 deadline for filing

an objection to administrative judge’s ruling in the prehearing conference

summary that the Board would consider no affirmative defense other than the

appellant’s EEO retaliation claim, IAF, Tab 35 at 7, the administrative judge

The appellant’s closing brief is largely the same as his petition for review. Compare

IAF, Tab 42 at 6-10, with PFR File, Tab 1 at 5-10.

properly did not address this affirmative defense on review, and we do not

address it here.

The administrative judge correctly found that the penalty of removal was

reasonable.

On review, the appellant also alleges that the penalty of removal was too

severe and should have been mitigated to a “written or verbal reprimand, remedial

training, suspension and/or demotion.” PFR File, Tab 1 at 7. He also disagrees

with the administrative judge’s finding that the deciding official properly

considered certain Douglas factors and seeks to reweigh the factors. Id. at 5-8.

When, as here, 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 Douglas factors and exercised management discretion within

tolerable limits of reasonableness. 8 Portner v. Department of Justice,

119 M.S.P.R. 365, ¶ 10 (2013), overruled on other grounds by Singh v. U.S.

Postal Service, 2022 MSPB 15, ¶ 17. In determining whether the selected penalty

is reasonable, the Board gives due deference to the agency’s discretion in

exercising its managerial function of maintaining employee discipline and

efficiency. Id. The Board will modify a penalty only when it finds that the

agency failed to weigh the relevant factors or that the penalty the agency imposed

clearly exceeded the bounds of reasonableness. Id.

The appellant first asserts that his removal should have been mitigated

because he has an exemplary work record with no prior discipline, a history of

leadership, and has been recognized for his achievements in the past. PFR File,

Tab 1 at 5-6. As observed by the administrative judge, the deciding official

properly considered these mitigating factors, in addition to the appellant’s

military service, but determined that they were “not sufficient to overcome the

pattern of completely unacceptable conduct described in the proposal.” ID at 14;

In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board

articulated a nonexhaustive list of factors relevant to the penalty determination in

adverse actions.

IAF, Tab 7 at 32, 34. The appellant reasserts his argument that his situation is

“nearly identical” to the facts in Gleason v. Federal Deposit Insurance

Corporation, 29 M.S.P.R. 330 (1985), in which the Board, relying on the

appellant’s prior 22 years of service with the agency, found that the penalty of

removal was excessive and substituted a more appropriate penalty in its place.

PFR File, Tab 1 at 5-6; IAF, Tab 42 at 6. The administrative judge considered

this argument below and determined that Gleason was distinguishable from the

instant appeal. ID at 15. We agree.

In Gleason, the Board mitigated the penalty of removal to a 60-day

suspension for an appellant with 22 years of Federal service when only one

charge of falsification of travel vouchers was sustained, which resulted in the

appellant receiving $8.10 to which he was not entitled. Gleason, 29 M.S.P.R.

330, 331 & n.1. Here, as observed by the administrative judge, the appellant

engaged in a pattern of misconduct over a 2-year period which resulted in

significant material gain to the appellant. ID at 15. The record reflects that the

appellant received approximately $15,000 of excess pay for hours he did not

actually work. IAF, Tab 7 at 109. Therefore, we agree with the administrative

judge’s determination that Gleason is distinguishable from the facts of this appeal

and does not provide a basis to mitigate the penalty.

Next, the appellant reasserts his argument that the offense for which he was

charged has no negative effect on his ability to technically perform his job duties

at a satisfactory level. PFR File, Tab 1 at 6-7; IAF, Tab 42 at 7-8. However, the

deciding official considered the impact of his misconduct on the performance of

his job duties. IAF, Tab 7 at 33. She noted that he is “responsible to make

judgment calls that influence the safety of hundreds of aircrafts daily” and she

emphasized the importance of his ability to follow the agency’s policies and

procedures. Id. Ultimately, she determined that she had lost confidence in her

ability to trust the appellant’s judgment and honesty. Id.

The appellant also argues that his penalty should be mitigated because he

accepted responsibility for the charge and has vowed to never repeat it. PFR File,

Tab 1 at 6-7; IAF, Tab 42 at 7-8. However, the administrative judge agreed with

the deciding official’s assessment that the appellant had failed to take full

responsibility for his actions. ID at 15; IAF, Tab 7 at 33. The deciding official

noted that the appellant’s “lack of true remorse” is apparent by how he minimized

the misconduct, such as calling it a “lapse in judgment,” and that his

characterization of the separate court proceeding indicated to her that he “fail[ed]

to accept responsibility for or recognize the severity of [his] misconduct.” 9 IAF,

Tab 7 at 33. Thus, she properly considered these factors.

The appellant also argues that the agency has not demonstrated that the

penalty of removal is consistent with the agency’s penalty table. PFR File, Tab 1

at 7; IAF, Tab 42 at 8-9. The administrative judge found that the appellant,

contrary to his argument on review, failed to demonstrate that removal was

inconsistent with the agency’s table of penalties. ID at 15. We agree. As

observed by the administrative judge, the table of penalties lists removal as a

sanction for first offenses involving, as applicable here, forgery, providing false

or misleading information on government records, or lack of candor. ID at 15;

IAF, Tab 9 at 194-95. We observe that, although the table of penalties does not

include a penalty for the general charge of “unacceptable conduct,” it does

include penalties for the underlying conduct as described in the specifications.

IAF, Tab 9 at 194-203. Thus, removal is consistent with the agency’s penalty

table. 10

On January 24, 2018, the appellant pled guilty to a misdemeanor count for violation of

California Penal Code section 487(A) (Grand Theft). IAF, Tab 23 at 5, Tab 9 at 229.

Similarly, the appellant asserts that the agency did not demonstrate that the imposed

penalty was consistent with those imposed on other employees. PFR File, Tab 1 at 7;

IAF, Tab 42 at 8. However, in order to trigger the agency’s burden, the appellant must

show that the charge and circumstances surrounding the charge are substantially similar

to those committed by a comparator. See Voss v. U.S. Postal Service, 119 M.S.P.R.

324, ¶ 6 (2013). Here, the appellant did not identify a comparator and thus the agency’s

burden was not triggered. Id

Finally, the appellant argues that the agency did not meet its burden of

establishing that there was no less drastic alternative sanction that could have

been taken to deter the conduct at issue. PFR File, Tab 1 at 7-8. However, the

deciding official, who was also the proposing official, stated that she “considered

proposing a lesser penalty,” but that “the severity and duration of [the]

misconduct warrant[ed] nothing less than a proposed removal.” IAF, Tab 7 at

108. Thus, alternative sanctions were properly considered but deemed

inappropriate due to the severity of the conduct charged.

In light of the above, we agree with the administrative judge that the

deciding official correctly weighed the relevant Douglas factors, and that the

penalty of removal was reasonable. See Scheffler v. Department of Army,

117 M.S.P.R. 499, ¶ 16 (2012) (recognizing that the Board has consistently held

that the penalty of removal for falsification and dishonest activity is within the

bounds of reasonableness because such activity raises serious doubts regarding

the appellant’s reliability, trustworthiness, and continued fitness for

employment), aff’d per curiam, 522 F. App’x 913 (Fed. Cir. 2013).

NOTICE OF APPEAL RIGHTS 11

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

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

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.

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

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 .

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

competent jurisdiction. 12 . The court of appeals must receive your petition for

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.

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