Keith R. Hankins v. Department of the Army

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KEITH R. HANKINS, DOCKET NUMBER

Appellant, DA-0752-13-0423-I-1

v.

DEPARTMENT OF THE ARMY, DATE: September 8, 2014

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Andrea Goplerud, Esquire, and Jessica L. Parks, Esquire, Washington,

D.C., for the appellant.

Norbert S. Walker, El Paso, Texas, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 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 when:

the initial decision contains erroneous findings of material fact; the initial

decision is based on an erroneous interpretation of statute or regulation or the

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

erroneous application of the law to the facts of the case; the 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. See 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, and based on the following points and authorities, 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 and AFFIRM

the initial decision, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b).

¶2 The appellant was a GS-13 Supervisory Range Officer for the agency at

Fort Bliss, Texas. Initial Appeal File (IAF), Tab 6, Subtab 4A. As such, the

appellant was responsible for supervising staff and carrying out various functions

at the Fort Bliss training complex and firing range. IAF, Tab 6, Subtab 4E. On

November 14, 2011, the appellant was designated primary Accountable Officer at

the Range Branch. 2 IAF, Tab 6, Subtab 4F at 6. This means that the appellant

was responsible for maintaining formal accounting records for range property in

accordance with Army Regulation (AR) 735-5 § 2-12, Policies and Procedures for

Property Accountability. Id., Subtab 4L at 2, 18-19. During the time period in

question, the appellant worked at Site Monitor, a Fort Bliss administrative

facility. Hearing Compact Disc (HCD) (testimony of the appellant). 3

¶3 This case concerns the mishandling of certain property delivered to Site

Monitor. The agency constructed some “mock villages” on the range for

2

It appears that the appellant did not actually receive this memorandum designating

him Accountable Officer until November 22, 2011. IAF, Tab 6, Subtab 4F at 6.

3

There are portions of the hearing transcript in the record, but the record does not

contain a complete transcript.

3

purposes of combat training. See id. In May 2011, Site Monitor began receiving

and storing furniture destined to furnish these mock villages and create a realistic

combat environment for the soldiers training there. 4 Id.; IAF, Tab 4, Subtab 4D

at 24, 26. There was a large amount of furniture involved—over 3,000 pieces.

HCD (testimony of the proposing official).

¶4 In January 2012, some agency employees informed the appellant’s first-line

supervisor that a certain employee was misappropriating Site Monitor furniture.

IAF, Tab 6, Subtab 4K at 1. The agency investigated the matter internally, and

several employees were disciplined as a result. IAF, Tab 6, Subtab 4F at 2-4,

Tab 14 at 14-45; HCD (testimony of the proposing and deciding officials).

Among those disciplined was the appellant, whom the agency removed on three

charges: (1) “Failure to observe a written regulation or procedures in

safeguarding Army property”; (2) “Misuse of Position and Army Property”; and

(3) “Failure to cooperate in a properly authorized investigation.” IAF, Tab 6,

Subtabs 4A, 4B, 4D. Under the first charge, the agency alleged that there was no

inventory or accounting of the furniture when Site Monitor received it, that it was

released to training areas without proper documentation, and that this failure was

in violation of AR 735-5. IAF, Tab 6, Subtab 4C at 1, Subtab 4L. Under the

second charge, the agency alleged that the appellant allowed two employees to

take furniture for their personal use. IAF, Tab 6, Subtab 4C at 1. Under

charge 3, the agency alleged that, during two investigatory interviews, the

appellant was evasive and refused to answer questions directly, candidly, and

completely. Id. at 2.

¶5 The appellant proceeded through the formal equal employment opportunity

(EEO) process and, after the agency issued a final decision finding no

4

The parties frequently refer to this furniture as “DRMO furniture.” “DRMO” stands

for “Defense Reutilization and Marketing Office,” which is apparently the Department

of Defense component that originally acquired the furniture for the government. IAF,

Tab 14 at 10. The record does not indicate the dates that the furniture deliveries

spanned.

4

discrimination, he appealed to the Board. IAF, Tab 1, Tab 6, Subtab 3. After a

hearing, the administrative judge issued an initial decision finding that the agency

failed to prove charge 2. IAF, Tab 17, Initial Decision (ID) at 7-10.

Nevertheless, he sustained charges 1 and 3, and found that these charges alone

supported the removal penalty. ID at 2-7, 10-13, 15-17. The administrative

judge also considered the appellant’s claim that his removal was in retaliation for

protected EEO activity but found that the appellant failed to prove this

affirmative defense. ID at 13-15.

¶6 The appellant has filed a petition for review, arguing that the administrative

judge erred in sustaining charges 1 and 3, that the removal penalty was not

reasonable for these two charges, and that the administrative judge did not

analyze his EEO retaliation defense properly. Petition for Review (PFR) File,

Tab 5. The agency has filed a response to the petition for review, PFR File,

Tab 8, and the appellant has filed a reply to the agency’s response, PFR File,

Tab 9.

Charge 1

¶7 As to charge 1, “Failure to observe a written regulation or procedures in

safeguarding Army property,” the appellant argues that under Mendez v.

Department of the Treasury, 88 M.S.P.R. 596 (2001), the charge should not be

sustained because his failure to account for the furniture was consistent with his

training and prior agency practice. PFR File, Tab 5 at 13. We disagree. Mendez,

88 M.S.P.R. 596, ¶ 2, involved a charge of negligence in the performance of

duties. The Board found that the appellants were not negligent even though they

failed to follow the agency handbook because their actions were consistent with

their training, knowledge, and experience, as well as actual agency practices. Id.,

¶¶ 24-28. Charge 1 in this case contains no element of negligence or intent. IAF,

Tab 6, Subtab 4D at 1. The issue is strictly whether the appellant’s actions

5

violated written agency regulation or procedure. We find that the Board’s

analysis in Mendez does not apply to the facts of this case.

¶8 It is undisputed that the appellant made no accounting of the furniture in

question. The issue is whether AR 735-5 required him to do so. 5 There is a great

deal of evidence and argument in this appeal concerning what accounting, if any,

the appellant and various other agency employees believed AR 735-5 to require.

As far as proof of charge 1 is concerned, the subjective beliefs of these individual

employees are irrelevant except to the extent that they shed light on the question

of what AR 735-5 objectively requires. In this regard, there appear to be two

factual disputes: (1) whether the furniture is “durable” or “expendable” under

AR 735-5, chapter 7; and (2) whether Site Monitor was the “user” of the furniture

for purposes of AR 735-5, chapter 7. PFR File, Tab 5 at 10-16; HCD (testimony

of the proposing official). The appellant argues that, under AR 735-5, end users

need to account for durable property but do not need to account for expendable

property. PFR File, Tab 5 at 10-16. Thus, to prove its charge, the agency must

show either that the furniture was durable property or that Site Monitor was not

the end user. He argues that the agency is unable to show either. Id.

¶9 As to the first question, we agree with the appellant that the agency failed to

show that the Site Monitor furniture was durable property. The appellant

explained why he believed that the furniture was expendable property, and this

explanation makes sense on its face, i.e., that the furniture was destined for use as

training aids and would likely be rendered unserviceable during that process. See

AR 735-5, § 7-4c; IAF, Tab 6, Subtab 4L at 25, Tab 9 at 6; HCD (testimony of

5

The agency argues that the appellant’s failure to account for the furniture also violated

a May 27, 2009 memorandum concerning “Accountability of Garrison and Quarters

Furnishings.” IAF, Tab 6, Subtab 4F at 34-35. We find that the agency failed to prove

that this memorandum applied to the furniture stored at Site Monitor. There is no

evidence that the Site Monitor furniture was intended to furnish any garrison or

quarters, and there is unrebutted testimony that this memorandum was meant to address

the specific situation of a troop realignment that was occurring at that time. HCD

(testimony of the appellant).

6

the appellant). There is no countervailing explanation from the agency as to why

the furniture should be classified as durable property. All that the agency

provided was a conclusory assertion from a Logistics Management Specialist

stating, without elaboration or specific reference to any written agency policy or

procedure, that the Site Monitor furniture was classified as durable. 6 IAF, Tab 6,

Subtab 4F at 67. In fact, our review of the actual language of the regulation

leaves us wanting an explanation of why even furniture put to normal use should

be classified as “durable” rather than “nonexpendable.” See AR 735-5, §§ 7-2,

7-6; IAF, Tab 6, Subtab 4L at 24, 26. The agency’s responses regarding this

technical regulation are insufficient for us to replicate its analysis of the issue

much less reach the same conclusion. See Glover v. West, 185 F.3d 1328, 1332

(Fed. Cir. 1999) (regulatory analysis begins with the language of the regulation

itself).

¶10 Nevertheless, we find that the agency proved that Site Monitor was not the

“user” of the furniture and was therefore required to account for it regardless of

whether it was durable or expendable. See AR 735-5, §§ 7-5a, 7-7a (accounting

for nonexpendable, expendable, and durable property is all the same until it is

issued to the user); IAF, Tab 6, Subtab 4L at 25-26. The appellant cites a single

line of the hearing transcript in which the deciding official appears to state that

the appellant himself was the end user of the furniture. PFR File, Tab 5 at 16,

109. However, this snippet of the deciding official’s testimony is not an accurate

reflection of the evidence as a whole. In fact, on the very transcript page that the

appellant cites, the deciding official appears also to state that the soldiers in the

training areas were the end users. Id. at 109. We think that the better evidence

comes from the proposing official, who testified on this specific matter for more

6

The proposing official echoed the Logistics Management Specialist’s opinion during

his hearing testimony, but likewise did not explain it or tie his conclusion to the actual

language of any written policy or procedure. HCD (testimony of the proposing

official).

7

than 5 minutes and gave reasoned, explained, clear, and unequivocal testimony

that the ranges in the field were the end users—not Site Monitor. HCD

(testimony of the proposing official). This comports with our understanding of

how the arrangement with the furniture actually worked, and it is consistent with

the employees at Site Monitor having created at least one receipt when they

issued furniture to one of the individual ranges, thus indicating that the ranges

were distinct entities for purposes of property accountability. See IAF, Tab 6,

Subtab 4F at 20.

¶11 Because Site Monitor was not the “user” of the furniture within the meaning

of AR 735-5, it was required to keep an accounting of it. See AR 735-5, § 7-5a;

IAF, Tab 6, Subtab 4L at 25. As the Accountable Officer at Site Monitor, the

appellant was required to “maintain a formal set of property accounting records

that show, on a continuing basis, the item identification, gains and losses, on hand

balances, and the conditions and locations of all property assigned to the property

account.” AR 735-5 § 2-12a; IAF, Tab 6, Subtab 4L at 18-19. It is undisputed

that he failed to do so. On this basis, charge 1 is sustained.

Charge 2

¶12 The administrative judge did not sustain charge 2, in which the agency

alleged that the appellant allowed two employees to take furniture for personal

use without authorization. ID at 7-10; IAF, Tab 6, Subtab 4D at 1. The agency

has not challenged the administrative judge’s findings on this charge and

therefore we will not disturb them on review. See 5 C.F.R. § 1201.115 (the Board

normally will consider only issues raised in a petition or cross petition for

review).

Charge 3

¶13 Regarding charge 3, “Failure to cooperate in a properly authorized

investigation,” the appellant argues that the agency failed to prove the charge

because it could not identify a single question that the appellant refused to answer

8

or answered untruthfully. PFR File, Tab 5 at 16-22. In particular, the appellant

challenges the administrative judge’s finding that the appellant was being evasive

when he responded “I have no recollection” in response to the question, “Were

you aware that . . . furniture was taken from Site Monitor for personal use?” PFR

File, Tab 5 at 17; ID at 12-13; IAF, Tab 6, Subtab 4F at 73. The appellant

advances a facially plausible explanation on review, asserting that the ambiguity

in his answer is due to the lack of a time frame in the question. PFR File, Tab 5

at 17. However, considering that the appellant asked for and received

clarification multiple times during the interviews concerning various other

questions, see HCD (testimony of the appellant, the proposing official, and the

interview witness), we do not believe that he would have declined to ask for

clarification on this point if he found the question ambiguous. Nevertheless, in

the context of this question, we think that the answer can fairly be construed as a

“no,” albeit an indirect one. IAF, Tab 6, Subtab 4F at 73. The appellant also

challenges the administrative judge’s disbelief that the appellant did not recall

whether he had told a particular employee that the furniture did not need to be

accounted for. PFR File, Tab 5 at 17-18; ID at 12-13; IAF, Tab 6, Subtab 4F

at 76. We agree with the appellant that there is no basis to doubt the veracity of

this answer.

¶14 The appellant also challenges the administrative judge’s credibility findings

regarding his allegedly “evasive and argumentative” approach to the interviews.

PFR File, Tab 5 at 18-19. Specifically, he argues that, in weighing the testimony

of the appellant against that of the proposing official and the interview witness,

the administrative judge failed to make explicit demeanor findings and failed to

analyze the appellant’s credibility at all. 7 Id. at 19-22. We disagree. First, the

7

The appellant also argues that the administrative judge erred in his credibility

determinations concerning whether the furniture required accounting at Site Monitor.

PFR File, Tab 5 at 21; ID at 6. As explained above, these individual employees’

opinions of what AR 735-5 required are immaterial to the charge. Supra, ¶ 8.

9

Board has long recognized that demeanor-based credibility determinations that an

administrative judge makes during an in-person hearing need not be explicit to be

entitled to deference. See Haebe v. Department of Justice, 288 F.3d 1288, 1301

(Fed. Cir. 2002) (the Board is required to give deference to an administrative

judge’s credibility determinations when they are based explicitly or implicitly on

witness demeanor); Rumsey v. Department of Justice, 120 M.S.P.R. 259, ¶ 12

(2013) (same). Furthermore, the administrative judge conducted a proper

credibility analysis for all relevant witnesses under Hillen v. Department of the

Army, 35 M.S.P.R. 453, 458 (1987), when he compared the agency witnesses’

testimony to one another, reviewed the appellant’s written responses to the

interview questions, and considered the witnesses’ potential bias. ID at 13. We

lack a sufficiently sound basis to disturb these credibility determinations. See

Haebe, 288 F.3d at 1301.

¶15 Although we agree with the appellant that the agency did not show that he

outright refused to answer any questions or that he falsely answered any

particular question, we still find that the agency presented sufficient evidence to

sustain the charge as written. In the notice of proposed removal, the agency

explained that the appellant was evasive, refused to answer questions directly,

and failed to provide candid and complete answers to the interview questions.

IAF Tab 6, Subtab 4D at 2. Based on the agency witnesses’ testimony, which the

administrative judge credited, as well as the appellant’s terse and indirect written

answers to the interview, we agree with the administrative judge that charge 3

should be sustained. See HCD (testimony of the proposing official and the

interview witness); IAF, Tab 6, Subtab 4F at 72-77.

Retaliation for protected EEO activity

¶16 The appellant renews his argument that the agency removed him in

retaliation for his testimony against his first-line supervisor in another

employee’s November 2011 EEO hearing. PFR File, Tab 1 at 27-28.

10

Specifically, he argues that his first-line supervisor may have influenced the

proposing and deciding officials’ actions when he gave the appellant a negative

performance rating and moved the appellant from Site Monitor to division

headquarters shortly after the agency discovered the problem with the Site

Monitor furniture. Id. However, we find that the appellant’s theory of the case is

little more than speculation. Even assuming that his poor performance review

was based on retaliatory animus, there is no evidence that either the proposing or

deciding official took this into account when they removed the appellant. In fact,

the deciding official seems to have considered the appellant to have had a good

work record. IAF, Tab 6, Subtab 4B at 2. Likewise, the appellant’s basis for

arguing that his reassignment to division headquarters was retaliatory is unclear

because he seems to have testified that this was the deciding official’s—not his

first-line supervisor’s—action. See HCD (testimony of the appellant). In any

event, there is no evidence that this reassignment had any influence over the

removal action.

Penalty

¶17 On review, the appellant argues that his alleged failure to cooperate in the

investigation was less serious than the failures to cooperate involved in the cases

that the administrative judge cited in his penalty analysis. PFR File, Tab 5

at 22-23; ID at 16-17. He also argues that the administrative judge failed to

consider or improperly considered several pertinent penalty factors. PFR File,

Tab 5 at 24-27.

¶18 The Board will review an agency-imposed penalty only to determine if the

agency considered all the relevant factors and exercised management discretion

within tolerable limits of reasonableness. Douglas v. Veterans Administration,

5 M.S.P.R. 280, 306 (1981). When not all of the charges are sustained, and the

agency has not indicated that that it desires that a lesser penalty be imposed on

fewer charges, the Board will consider carefully whether the sustained charges

11

merited the penalty imposed by the agency and may mitigate to the maximum

reasonable penalty. Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999);

Douglas, 5 M.S.P.R. at 308. For the following reasons, we disagree with the

appellant that mitigation is warranted.

¶19 In assessing an agency’s penalty determination, the Board will consider the

totality of the circumstances. Brown v. Department of Transportation,

21 M.S.P.R. 572, 573 (1984) (citing Douglas, 5 M.S.P.R. at 305). Chief among

these is the nature and seriousness of the offense and its relation to the

appellant’s duties, position, and responsibilities. Downey v. Department of

Veterans Affairs, 119 M.S.P.R. 302, ¶ 9 (2013); Williams v. Government Printing

Office, 7 M.S.P.R. 183, 185 (1981). In this regard, we find that charge 2—that

the appellant allowed employees to take the furniture for personal use—was the

most serious of all the charges. The deciding official’s penalty determination

relied, in part, on this charge, including the deciding official’s belief that the

appellant actively assisted another employee in taking the furniture. IAF, Tab 6,

Subtab 4B at 2-3; HCD (testimony of the deciding official). However, because

this charge is not sustained, it cannot figure into the penalty analysis. See Mann

v. Department of Health & Human Services, 78 M.S.P.R. 1, 14 (1998).

¶20 As to charges 1, and 3, the deciding official stated that they described “very

serious” offenses as well. IAF, Tab 6, Subtab 4B at 2; HCD (testimony of the

deciding official). We agree that charge 1 is serious to the extent that the

appellant’s failure to follow AR 735-5 involved a large amount of government

property and touched directly upon his duties as Accountable Officer. Although

the appellant argues that there is insufficient evidence to find that his failure to

follow AR 735-5 was knowing and willful, PFR File, Tab 5 at 26, as explained

above, this charge contains no element of intent, supra, ¶ 7. Furthermore, the

military services place great importance on the tracking of people and resources.

Their missions depend on it. We believe that the appellant must have been aware,

12

after his decades-long uniformed and civil service career with the Army, that Site

Monitor should have been keeping some sort of account of the furniture.

¶21 We also agree with the deciding official that charge 3 was very serious. As

the administrative judge pointed out, the Board has upheld the removal penalty

based on a failure-to-cooperate charge alone. ID at 16-17 (citing Weston v.

Department of Housing & Urban Development, 724 F.2d 943, 950-51 (Fed. Cir.

1983), Negron v. Department of Justice, 95 M.S.P.R. 561, ¶ 34 (2004), and

Hamilton v. Department of Homeland Security, 117 M.S.P.R. 384, ¶ 12 (2012)).

The appellant is correct that the nature of his failure to cooperate is different than

those involved in the cases that the administrative judge cited. PFR File, Tab 5

at 22-23. However, we are not persuaded by the appellant’s argument regarding

degrees of non-cooperation; one either cooperates in an investigation or one does

not. The agency showed that the appellant made the interview process

unnecessarily difficult and gave terse and indirect answers to several of the

interview questions. IAF, Tab 6, Subtab 4F at 71-78. This undermined the

purpose of the investigation as surely as if the appellant had provided false

information or no information. Furthermore, the appellant’s behavior is not

excused by any feelings that he may have had that he was being interrogated or

unfairly criticized.

¶22 The administrative judge found that the appellant’s status as a supervisor

was an aggravating factor. ID at 15. The appellant disagrees on the basis that his

supervisory role was not directly implicated in charges 1 and 3. PFR File, Tab 5

at 26. Although the appellant’s supervisory role may not have been directly

implicated in charges 1 or 3, we still find that it is relevant to the penalty

determination and an aggravating factor on the general basis that supervisors are

supposed to be models of conduct and competence and set a good example for

their subordinates. See Sublette v. Department of the Army, 68 M.S.P.R. 82,

89-90 (1995).

13

¶23 The appellant also argues that his work record weighs in favor of

mitigation. PFR File, Tab 5 at 26. We agree. The appellant has a substantial, if

not particularly lengthy, 7-year work history with the agency with no prior

discipline and the highest performance reviews. IAF, Tab 6, Subtab 4A; HCD

(testimony of the appellant); see Bonacchi v. U.S. Postal Service, 40 M.S.P.R.

364, 370 (1989) (the appellant’s 7 years of good service was a mitigating factor).

¶24 The appellant further argues that the administrative judge and the deciding

official erred in concluding that he lacks rehabilitative potential. PFR File, Tab 5

at 26-27. Although the agency failed to prove that the appellant was actively

involved in misappropriating the furniture, it does not appear that the appellant

has ever apologized or otherwise expressed any remorse for his failure to account

for the furniture, or for his conduct during the investigative interviews. This does

not bode well for his rehabilitative potential. See Neuman v. U.S. Postal Service,

108 M.S.P.R. 200, ¶ 26 (2008) (the appellant’s rationalizations and lack of

remorse indicated little potential for rehabilitation and were aggravating factors).

¶25 We also have considered the appellant’s claim of disparate penalties, but we

find that he failed to prove it. PFR File, Tab 5 at 24-25; see Lewis v. Department

of Veterans Affairs, 113 M.S.P.R. 657, ¶ 5 (2010) (the appellant bears the burden

of proving an allegation of disparate penalties). As for two employees whom the

agency reprimanded for failing to follow AR 735-5, IAF, Tab 14 at 31-40, we

find that the agency had legitimate reasons for treating those employees less

harshly than the appellant: they were not supervisors, they were not the

Accountable Officer, and they were not charged with failure to cooperate in an

investigative interview or with abetting the misappropriation of government

property. As for the two employees whom the agency found were actively

involved in misappropriating the furniture, the agency treated them exactly the

14

same as it treated the appellant. It removed them. 8 IAF, Tab 14 at 14-18, 20-23.

The appellant argues that the agency failed to discipline his first-line supervisor

at all, even though he was in charge at Site Monitor and failed to follow a specific

directive to account for the furniture. PFR File, Tab 5 at 25; see HCD (testimony

of the proposing official and the Supervisory Range Specialist). However, we

find that the appellant and his immediate supervisor were in fundamentally

different situations; the appellant’s supervisor was not the Accountable Officer,

and there is no indication that the agency suspected him of assisting with the

misappropriation of property or of not cooperating in an interview. See Davis v.

U.S. Postal Service, 120 M.S.P.R. 457, ¶ 8 (2013) (an agency may rebut a

disparate penalties argument by providing a legitimate reason for the difference in

treatment).

¶26 Considering the totality of the evidence, including the nature and

seriousness of the misconduct at issue, the appellant’s good work record, his lack

of expressed remorse, and his supervisory status, we agree with the administrative

judge that the removal penalty is within the tolerable limits of reasonableness.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request further review of this final decision.

Discrimination Claims: Administrative Review

You may request review of this final decision on your discrimination

claims by the Equal Employment Opportunity Commission (EEOC). See Title 5

of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you

submit your request by regular U.S. mail, the address of the EEOC is:

8

As the appellant points out on review, the other employees’ removals were mitigated

during the grievance process. PFR File, Tab 5 at 24; IAF, Tab 14 at 19, 24. We find,

however, that the outcome of proceedings in another forum has no bearing on whether

the agency imposed disparate penalties.

15

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit your request 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, NE

Suite 5SW12G

Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after

your receipt of this order. If you have a representative in this case, and your

representative receives this order before you do, then you must file with EEOC no

later than 30 calendar days after receipt by your representative. If you choose to

file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your

discrimination claims, you may file a civil action against the agency on both your

discrimination claims and your other claims in an appropriate United States

district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with

the district court no later than 30 calendar days after your receipt of this order. If

you have a representative in this case, and your representative receives this order

before you do, then you must file with the district court no later than 30 calendar

days after receipt by your representative. If you choose to file, be very careful to

file on time. 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

16

prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and

29 U.S.C. § 794a.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.