Robert L Cordova v. Department of Justice

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.