The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LATONYA S. MICKENS, DOCKET NUMBER
Appellant, CH-0752-14-0094-I-1
v.
DEPARTMENT OF DATE: February 6, 2015
TRANSPORTATION,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
LaTonya S. Mickens, Chicago, Illinois, pro se.
Elizabeth S. Martineau, Esquire, Washington, D.C., 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 her 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A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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).
BACKGROUND
¶2 The appellant worked for the agency as an Administrative Program
Assistant. Initial Appeal File (IAF), Tab 4, Subtab 4C, Exhibit F(10)(b). In
2012, the agency proposed to remove her based upon one charge of “misuse of
your government travel card for personal expenses or purchases unauthorized or
not related to official business.” Id., Exhibit F(7)(a). The appellant had
previously been suspended for 14 days for the same offense in 2002. Id., Exhibit
F(7)(e). In response to the proposed removal, the appellant admitted to the
charged misconduct, but alleged, inter alia, that she should not be removed
because other employees did not pay the balance of their government travel cards
and because she had family issues. Id., Exhibit F(9). The deciding official
removed the appellant. Id., Exhibit F(10)(a).
¶3 The appellant filed an equal employment opportunity (EEO) complaint
alleging discrimination based on her race and age. Id., Exhibit A(1). She
appealed her removal to the Board when the agency failed to issue a final agency
decision within 120 days. IAF, Tab 1; see 5 C.F.R. § 1201.154(b)(2). The
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agency subsequently issued its final agency decision finding no discrimination.
IAF, Tab 4, Subtab 4A. On appeal, the appellant alleged discrimination and
disparate penalties and argued that the penalty was not within the tolerable
bounds of reasonableness. IAF, Tab 1. At the hearing, the appellant withdrew
her discrimination claims. Hearing Transcript (HT) at 5. After holding a hearing,
the administrative judge upheld the penalty of removal, finding that the appellant
was not subjected to a disparate penalty. IAF, Tab 39, Initial Decision (ID).
¶4 The appellant has filed a timely petition for review. Petition for Review
(PFR) File, Tab 1. In her petition, she argues that she was not provided certain
information concerning alleged comparators, that the administrative judge did not
fully address some of her alleged comparators, and that the agency should have
provided her additional information about alleged comparators. Id. at 3-4. The
appellant also argues that, because she was not provided certain information until
after the hearing, she was unable to properly cross-examine the proposing
official. Id. The appellant asserts that she would have called an additional
witness had she been provided with the information prior to the hearing. Id. The
agency responds in opposition to the petition. PFR File, Tab 3. In her reply, the
appellant continues to assert that she was subjected to a disparate penalty, argues
that she has new evidence regarding alleged comparators, and appears to
challenge the agency’s inclusion of her late payment history in the proposed
removal. PFR File, Tab 4 at 2-4.
¶5 The Clerk of the Board issued a show cause order instructing the agency to
account for a discrepancy between two different versions of its table of penalties
that were in the record. PFR File, Tab 5. In response, the agency submitted an
affidavit from a senior labor and employee relations specialist who stated that he
accidentally provided an out of date table of penalties to the EEO investigator,
and that the deciding official only considered the newer version of the table of
penalties contained in the record. PFR File, Tab 7 at 4-5. The appellant replied,
arguing that the agency has been unclear about which table it used concerning
4
this and prior discipline, and that the information she received in response to a
Freedom of Information Act (FOIA) request after she filed her petition shows that
other agency employees misused their government travel card multiple times but
never received any disciplinary action. PFR File, Tab 8 at 2-3.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly found that the agency considered the relevant
Douglas factors and that the penalty of removal was within the tolerable limits of
reasonableness.
¶6 When taking an adverse action against an employee, an agency must
establish the following: (1) the charged conduct occurred; (2) a nexus exists
between the conduct and the efficiency of the service; and (3) the particular
penalty imposed is reasonable. Crawford-Graham v. Department of Veterans
Affairs, 99 M.S.P.R. 389, ¶ 16 (2005). In this case, however, the appellant only
challenges the agency’s imposed penalty. PFR File, Tab 1 at 3-4. Where, as
here, all the agency’s charges have been sustained, the Board will review the
agency-imposed penalty only to determine if the agency considered all of the
relevant Douglas factors and exercised management discretion within the
tolerable limits of reasonableness. 2 Woebcke v. Department of Homeland
Security, 114 M.S.P.R. 100, ¶ 7 (2010).
¶7 Based upon our review, we find that the administrative judge properly
sustained the penalty. See ID. At the hearing, the deciding official testified
concerning the aggravating and mitigating factors she considered in her decision
to remove the appellant. HT at 132-44; IAF, Tab 4, Subtab 4C, Exhibit F(10)(a).
In particular, she considered that the agency’s table of penalties established the
range of penalties from a letter of reprimand to removal for a first offense and a
7-day suspension to removal for a second offense of misuse of a travel card. HT
2
In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of 12 factors that are relevant in assessing the penalty to
be imposed for an act of misconduct.
5
at 138; see IAF, Tab 15 at 10. We also give weight to the senior labor and
employee relations specialist’s statement that the deciding official considered the
newer version of the table of penalties contained in the record. PFR File, Tab 7
at 5. Although the appellant has challenged whether the agency used the proper
version of the table of penalties regarding prior discipline, this argument is not
persuasive because she has not cited discipline that was imposed with citations
that correspond to the outdated table. PFR File, Tab 8 at 1-3; see IAF, Tab 15 at
10. We therefore find that the deciding official properly considered the updated
table of penalties.
¶8 The deciding official testified concerning several aggravating factors
weighing in favor of removal as opposed to suspension, including her concern
that the appellant’s conduct was a violation of public trust in that she misused
public funds, that the nature of the appellant’s position involved responsibility for
a significant amount of money, and that she lost confidence in the appellant’s
ability to perform her position. HT at 136-38; IAF, Tab 4, Subtab 4C, Exhibit
F(10a). The deciding official also considered that the appellant did not fully
accept responsibility for her misuse of the credit card and that she did not appear
to show remorse. HT at 132-33. She additionally considered that other
employees knew about the appellant’s misuse based upon her discussions with
them and that misuse of a government travel card is damaging to the
government’s reputation with vendors. HT at 141-42, 144. We find that the
deciding official properly considered these aggravating factors.
¶9 We also find that the deciding official properly considered the appellant’s
prior misconduct from 2002 as an aggravating factor, because there is no agency
prohibition against considering this misconduct. On review, the appellant has not
identified any law, rule, regulation, or policy that would preclude consideration
of the prior suspension. Thus, the appellant has shown no error in consideration
of this prior offense. McGrath v. Department of the Navy, 4 M.S.P.R. 500, 505
(1981) (finding that the appellant introduced no evidence, and cited no rule or
6
regulation, supporting his claim that prior disciplinary actions had “expired”); cf.
Lewis v. Department of the Air Force, 51 M.S.P.R. 475, 485 (1991) (the Board
will discount a prior action when a law, rule, or regulation prohibits the
consideration of such actions after a period of time). The deciding official
testified that the prior discipline, which involved the same charged conduct,
showed that the appellant was put on notice that further action could result in
discipline. HT at 137. We therefore also find that the deciding official
reasonably considered the appellant’s prior discipline as notice concerning the
charged misconduct. 3 Jinks v. Department of Veterans Affairs, 106 M.S.P.R. 627,
¶ 25 (2007) (prior disciplinary action may also be considered as notice that the
appellant had been warned about the type of misconduct involved).
¶10 As mitigating factors, the deciding official reasonably considered the
appellant’s nearly 20 years of service and the fact that she was experiencing
family issues for which she had been proactive in taking advantage of available
agency services. HT at 137. However, despite her consideration of alternative
sanctions, HT at 144, the deciding official concluded that removal was the
appropriate penalty. IAF, Tab 4, Subtab 4C, Exhibit F(10)(a).
¶11 The appellant appears to argue that the deciding official should not have
considered her prior late payments on her government travel card in deciding to
remove her. PFR File, Tab 4 at 3. The proposing official stated in her proposal
letter that the appellant’s misuse of the credit card was “not an isolated incident”
because she had been counseled for late payment and had previously been
suspended for credit card misuse in 2002. IAF, Tab 4, Subtab 4C, Exhibit
F(7)(a). The deciding official testified that she did not consider the appellant’s
prior late payments as a prior offense, but instead considered them to help “frame
the picture” in considering the Douglas factors. HT at 172-74. The deciding
3
According to the agency’s table of penalties, the appellant could be removed for
misuse of a government travel card for a first offense (with the prior offense serving
simply as notice) or for a second offense. IAF, Tab 10 at 15.
7
official stated that, however, if the appellant had not been counseled for late
payments, she still would have removed the appellant. HT at 174.
¶12 We find that, to the extent that the agency considered the appellant’s prior
late payments, this consideration was not improper. It is clear from the agency’s
table of penalties that the letter of counseling for late payments constituted
discipline. IAF, Tab 15 at 10. Because the appellant does not challenge the
validity of this discipline or that she made the late payments, we must find only
that the discipline is verified. Rosenberg v. Department of
Transportation, 105 M.S.P.R. 130, ¶ 34 (2007). Therefore, we find that, to the
extent that this discipline was considered, it was not improper. Lovenduski v.
Department of the Army, 64 M.S.P.R. 612, 615 (1994) (the agency was entitled to
consider repeated counselings of the appellant in determining the proper penalty).
We see no reason to disturb the administrative judge’s finding upholding the
penalty because the deciding official considered all of the relevant Douglas
factors and exercised management discretion within the tolerable limits of
reasonableness. Woebcke, 114 M.S.P.R. 100, ¶ 7.
The appellant has not established that she was subjected to a disparate penalty.
¶13 To establish that she was subjected to a disparate penalty, the appellant
must show that there is enough similarity between both the nature of the
misconduct and the other factors to lead a reasonable person to conclude that the
agency treated similarly-situated employees differently. Lewis v. Department of
Veterans Affairs, 113 M.S.P.R. 657, ¶ 15 (2010). These factors can include proof
that the proffered comparator was in the same work unit, with the same
supervisor, and was subjected to the same standards governing discipline. Id.,
¶ 6. However, the Board does not have hard and fast rules regarding the outcome
determinative nature of these factors. Id., ¶ 15. If the appellant makes this
showing, the agency then must prove a legitimate reason for the difference in
8
treatment by a preponderance of the evidence before the penalty can be upheld. 4
Id., ¶ 6.
¶14 Within the appellant’s regional office, the agency proposed removal of the
only other employee, S.P., who was charged with misuse of a travel card. 5 See
IAF, Tab 10, Subtab 8. The appellant has therefore not established disparate
penalties to S.P., given that they received the same penalty.
¶15 The appellant points to two employees within her regional office, F.P. and
K.B., arguing that they misused their travel cards and were not disciplined. PFR
File, Tab 1 at 4. As to K.B., we agree with the administrative judge’s finding that
she is not a proper comparator because her misuse was inadvertent whereas the
appellant’s misuse was intentional. ID at 6-8. As to F.P., we agree with the
administrative judge that she is not a proper comparator because it is unclear
whether she had any improper charges; she was unavailable to explain certain
charges that appear to have been improper as she is no longer employed with the
agency. ID at 8. The appellant also has identified J.T. as another alleged
comparator and states that she has evidence of many other employees who have
misused their government travel cards. HT at 178; PFR File, Tab 4 at 4.
Regardless of any discovered misconduct, however, a disparate penalty analysis
focuses on charged conduct and a deciding official is not required to consider all
conduct that could have been charged. See Chavez v. Small Business
Administration, 121 M.S.P.R. 168, ¶ 19 (2014) (finding that when conducting a
disparate penalty analysis, the deciding official is not required to consider the
4
A preponderance of the evidence is that degree of relevant evidence that a reasonable
person, considering the record as a whole, wou ld accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).
5
S.P. was not ultimately removed because the agency and S.P. entered into a settlement
agreement allowing S.P. to voluntarily resign as opposed to being removed. IAF, Tab
10, Subtab 9. The appellant has not alleged that the agency unlawfully discrim inated in
its settlement practice, and thus the agency is not required to justify its settlement with
S.P. in response to the appellant’s disparate penalty claim. See Hulett v. Navy,
120 M.S.P.R. 54, ¶ 7 (2013).
9
universe of conduct of other employees under investigation that was both charged
and could have been charged). These employees were not charged with
misconduct, and therefore they are not appropriate comparators. 6
¶16 Below, the appellant specified alleged comparators throughout the agency
who were delinquent on payments and argues that she was treated more harshly
than them. IAF, Tab 36; see PFR File, Tab 1, Tab 4. The appellant, though,
appears to confuse the difference between untimely payment and misuse of the
travel card. It is clear from the agency’s table of penalties that these are two
different charges. IAF, Tab 15 at 10. Additionally, the senior labor and
employee relations specialist testified as to the difference between the two
charges. HT at 187. Accordingly, we find that the appellant was not similarly
situated to employees charged with untimely payment and these employees are
therefore not proper comparators. See Reid v. Department of the
Navy, 118 M.S.P.R. 396, ¶ 22 (2012) (finding that the appellant was not similarly
situated to an alleged comparator where the comparator had not engaged in
similar conduct with respect to all three charges).
¶17 Concerning the remaining alleged comparators, we find that the agency has
proven a legitimate reason for the harsher penalty of removal imposed on the
appellant, because, unlike the alleged comparators, the appellant had a record of
prior discipline for the same misconduct. See Lewis, 113 M.S.P.R. 657, ¶¶ 16-17
(finding that, when the alleged comparator and the appellant are similar situated,
the agency must demonstrate a legitimate basis for the different treatment in order
to meet its burden of proof regarding the reasonableness of the penalty).
Throughout the agency, from January 2002 to March 2013, seven employees were
6
Although the appellant argues that the administrative judge erred by not fully
addressing each of her alleged comparators, we find that this argument is not persuasive
because an administrative judge’s failure to mention all evidence of record in the initial
decision does not mean that she did not consider it. See Marques v. Department of
Health & Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir.
1985).
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disciplined for travel card misuse. IAF, Tab 23. Only one employee was
removed and one employee was terminated during probation. Id. The senior
labor and employee relations specialist testified that, although he searched agency
records from 2003 to March 2013, the appellant was the only agency employee
who had a second charge of misuse of a government travel card. HT at 191.
Based upon this information, we find that the agency has proven a legitimate
reason for the difference in treatment. 7 Accordingly, we find that the appellant
has not established that she was subjected to a disparate penalty and that the
administrative judge properly sustained the penalty of removal. Alaniz v. U.S.
Postal Service, 100 M.S.P.R. 105, ¶ 23 (2005) (finding that the appellant failed to
establish disparate penalties and that the penalty of removal was appropriate
where there were no comparable employees possessing a similar prior
disciplinary record who received a lesser penalty for similar misconduct).
The appellant’s remaining arguments do not provide a basis for reversing the
initial decision.
¶18 The appellant alleges that she was denied discovery and, in particular, that
she needs additional information concerning possible comparators. PFR File, Tab
1 at 3. The Board will not reverse an administrative judge’s rulings on discovery
matters absent a finding that the administrative judge abused her discretion. Fox
v. Department of the Army, 120 M.S.P.R. 529, ¶ 42 (2014). To find that the
administrative judge abused her discretion regarding a discovery ruling, the ruling
must have prejudiced the appellant’s substantive rights. Jones v. Department of
Health & Human Services, 119 M.S.P.R. 355, ¶ 18, aff’d, 544 F. App’x 976 (Fed.
Cir. 2013). The appellant has not shown how the administrative judge abused her
7
To the extent that the administrative judge erred by excluding alleged comparators
based upon their lack of prior charges as opposed to considering this lack of prior
discip line with respect to the agency’s legitimate reason for imposing a greater penalty,
we find that any such error is harmless. See Panter v. Department of the Air Force,
22 M.S.P.R. 281, 282 (1984) (an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision).
11
discretion during the discovery process or how the discovery rulings prejudiced
her substantive rights, and we therefore do not disturb the discovery rulings.
¶19 The appellant also presents arguments concerning her inability to
cross-examine the proposing official about K.B., an alleged comparator, because
an affidavit was submitted after the hearing that contained new information about
K.B. PFR File, Tab 1 at 3-5. The record reflects that the appellant did, however,
cross-examine the proposing official concerning K.B. HT at 106-08. Therefore,
it is unclear how the appellant was prejudiced. Additionally, the appellant chose
not to interview K.B. or call her as a witness, despite having knowledge of her
possible travel card misuse. We therefore see no reason to find that the
administrative judge abused her discretion because the appellant has not
identified how the administrative judge’s procedural rulings prejudiced her
substantive rights. Jones, 119 M.S.P.R. 355, ¶ 18.
¶20 Next, the appellant presents arguments regarding a FOIA request she made
concerning all of the agency’s credit card data, appearing to argue that this
evidence should be considered. PFR File, Tab 8 at 2-3. The Board has held that
the discovery process, and not FOIA, is the proper method for obtaining
information in Board appeals. Ellis v. U.S. Postal Service, 121 M.S.P.R. 570, ¶ 6
(2014). Consequently, information that could have been obtained through the
discovery process, but was instead obtained through a FOIA request, will not be
considered new and material evidence. Id. Although the appellant states that this
evidence is now available, PFR File, Tab 8 at 2-3, she has not submitted it.
Furthermore, this evidence appears to relate to uncharged misconduct and a
deciding official is not required to consider misconduct that was not charged. See
Chavez, 121 M.S.P.R. 168, ¶ 19. Therefore, although we do not consider this
evidence, even if we had considered it, the evidence would not affect our
decision.
¶21 The appellant also argues that the administrative judge did not address all of
the evidence that she submitted. PFR File, Tab 1 at 4. However, we find no error
12
because the administrative judge’s failure to mention all of the evidence of record
does not mean that she did not consider it in reaching her decision. See Marques,
22 M.S.P.R. at 132.
¶22 Finally, we find no reversible error as to the appellant’s challenge to the
status conference order. See PFR File, Tab 4 at 1. The appellant requested that
the administrative judge amend the description of her discovery request in the
order to substitute the word “all” for “any” where the order described the request
as pertaining to “any employee in any office of the agency.” IAF, Tab 27. We
find no reversible error because the appellant has failed to show that her
requested change in language in the order would have affected her substantive
rights. See Panter, 22 M.S.P.R. at 282.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
13
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.