Sheryl Silberman v. Department of the Treasury

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SHERYL SILBERMAN, DOCKET NUMBER

Appellant, CH-0752-13-0289-I-1

v.

DEPARTMENT OF THE TREASURY, DATE: March 2, 2015

Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL 1

Rebecca L. Salawdeh, Esquire, Wauwatosa, Wisconsin, for the appellant.

Russ Eisenstein, Esquire, Chicago, Illinois, 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 15-day suspension. 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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

the 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. We MODIFY

the initial decision to supplement the administrative judge’s penalty analysis, but

we agree with the administrative judge that the agency’s penalty did not exceed

the bounds of reasonableness. Except as expressly modified by this Final Order,

we AFFIRM the initial decision.

BACKGROUND

¶2 Effective September 5, 2012, the agency suspended the appellant for 15

days from her GS-11 Revenue Agent position within the Internal Revenue Service

(IRS) based on the following three charges: (1) making false statements in

matters of official interest (22 specifications); (2) misuse of government property

(22 specifications); and (3) inappropriately disclosing taxpayer information to

coworkers (1 specification). Initial Appeal File (IAF), Tab 1 at 12-20, 26-28,

Tab 7, Subtab 4d. The first two charges were based on the appellant’s conduct

over an approximately 1-year time period during which she allegedly used her

government-owned computer during work hours for nonwork-related activity and

failed to properly account for these nonwork time periods on her Examiner’s

Time Input Documents (EITD). IAF, Tab 1 at 12-18. The third charge was based

on an incident where the appellant allegedly disclosed taxpayer information to

two coworkers who did not have a need to know such information. Id. at 19.

3

¶3 The appellant appealed her suspension to the Board and requested a hearing.

Id. at 1-11. She disputed all three charges and the reasonableness of her 15-day

suspension. IAF, Tab 32 at 15-28, 41-45. She also raised the affirmative

defenses of retaliation for protected equal employment opportunity (EEO) activity

and harmful procedural error. 2 Id. at 28-41; see IAF, Tab 28 at 2-3.

¶4 After holding a hearing, the administrative judge issued an initial decision

affirming the appellant’s suspension. IAF, Tab 34, Initial Decision (ID) at 2, 35.

The administrative judge sustained all three charges, found a nexus between the

sustained misconduct and the efficiency of the service, and determined that the

penalty was within the bounds of reasonableness. ID at 2-18, 34-35.

Additionally, she found that the appellant failed to prove her affirmative

defenses. ID at 18-33.

¶5 The appellant has filed a petition for review of the initial decision. Petition

for Review (PFR) File, Tab 1. The agency has filed a response in opposition to

the appellant’s petition for review. PFR File, Tab 4. The appellant has filed a

reply to the agency’s response. PFR File, Tab 5.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge correctly found that the agency proved the charge of

making false statements in matters of official interest.

¶6 The agency charged the appellant with 22 specifications of making false

statements in matters of official interest. IAF, Tab 1 at 12-16. In sustaining all

22 specifications of the charge, the administrative judge considered the hearing

testimony of the appellant, the appellant’s supervisor, the deciding official, and

the agency investigator. ID at 3-6, 8-10. The administrative judge also

considered the appellant’s oral reply to the proposed suspension and the Treasury

Inspector General for Tax Administration (TIGTA) report of investigation (ROI).

2

Although the appellant claimed discrim ination based on her age and sex on the initial

appeal form, she later decided not to raise such claims. IAF, Tab 1 at 8; see IAF,

Tab 28 at 2.

4

ID at 6-11. Based on the record evidence and testimony, the administrative jud ge

found that the appellant “intentionally made misrepresentations with reckless

disregard for the truth.” ID at 11.

¶7 In her petition for review, the appellant reiterates her argument that the

agency failed to prove that she had the requisite intent to sustain the falsification

charge. PFR File, Tab 1 at 9-14, Tab 5 at 7-9; see IAF, Tab 32 at 22-25.

Specifically, she argues that she lacked the intent to defraud the agency because

“she believed that [the disputed hours] balanced out and that she did actually

perform work for the Agency for the full time reported on her time sheets” by

working at home on evenings and weekends. PFR File, Tab 1 at 11. We do not

find the appellant’s argument persuasive. Even assuming that she worked the

disputed hours at home, she still demonstrated a reckless disregard for the truth

by not properly accounting for her time on her EITDs, which would be sufficient

to sustain the charge. See ID at 3, 5-6; Reid v. Department of the

Navy, 118 M.S.P.R. 396, ¶ 11 (2012). She also benefited by making false

statements because she was paid for time during which she conducted nonwork-

related activity. See infra ¶¶ 8-10; see also Leatherbury v. Department of the

Army, 524 F.3d 1293, 1300 (Fed. Cir. 2008). She thus fails to provide on review

a reason to disturb the administrative judge’s determination that the agency

proved all 22 specifications of the falsification charge. See Crosby v. U.S. Postal

Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the

administrative judge’s findings when the administrative judge considered the

evidence as a whole, drew appropriate references, and made reasoned

conclusions).

The administrative judge correctly found that the agency proved the charge of

misuse of government property.

¶8 The agency charged the appellant with 22 specifications of misuse of

government property. IAF, Tab 1 at 17-18. In finding that the agency proved all

22 specifications of this charge, the administrative judge considered the testimony

5

of the deciding official, the appellant’s supervisor, and the appellant, her training

history, and the ROI. ID at 12-14.

¶9 In her petition for review, the appellant reiterates her claim that she used

her computer for work-related reasons during a portion of the times described in

specifications 2, 14, 16, 17, and 19 of the misuse of government property charge.

PFR File, Tab 1 at 6, 8-9, Tab 5 at 5-7; see IAF, Tab 32 at 17-20. She also

repeats her claim that the agency failed to provide any support for specifications

4 and 20. PFR File, Tab 1 at 7-9, Tab 5 at 6-7; see IAF, Tab 32 at 20-21. In

order to prove this charge, the agency must show that the appellant used the

government property as charged, and that such use was improper or unauthorized,

regardless of whether the misuse was intentional. See Rogers v. Department of

Justice, 60 M.S.P.R. 377, 388-89 (1994).

¶10 We agree with the administrative judge that the agency proved the charge of

misuse of government property. The ROI clearly shows that the appellant

conducted an approximate amount of nonwork-related activity during each of the

times described in the contested specifications. See IAF, Tab 7, Subtab 4c

at 1178-79, 1182-83. Even assuming that the agency did not prove the contested

specifications by a preponderance of the evidence, the appellant has not disputed

the remaining 15 specifications, and we would still sustain the overall charge.

See Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990)

(where more than one event or factual specification supports a single charge,

proof of one or more, but not all, of the supporting specifications is sufficient to

sustain the charge).

The administrative judge correctly found that the agency proved the charge of

inappropriately disclosing taxpayer information to coworkers.

¶11 The agency charged the appellant with one specification of inappropriately

disclosing taxpayer information to coworkers. IAF, Tab 1 at 19. In sustaining

this charge, the administrative judge considered the testimony of the agency

investigator, the appellant’s supervisor, and the appellant, her training record, the

6

ROI, the appellant’s oral reply to the proposed suspension, and a personnel alert.

ID at 14-17. The appellant reasserts on review that it was the common practice in

the office to share taxpayer information with coworkers. PFR File, Tab 1 at

17-18, Tab 5 at 9-11; see IAF, Tab 32 at 26-27. The administrative judge

considered this argument but found it inherently improbable and unpersuasive.

ID at 16-17. The appellant has provided no reason to disturb the administrative

judge’s finding, and we agree with the administrative judge that the agency

proved this charge for the reasons explained in the initial decision. See Crosby,

74 M.S.P.R. at 105-06.

The appellant fails to provide a sufficiently sound reason to overturn the

administrative judge’s credibility determinations.

¶12 The appellant challenges the administrative judge’s credibility

determinations, which she made based on the testimony of the appellant, her

supervisor, the deciding official, and the proposing official. PFR File, Tab 1 at

4-19, 26, Tab 5 at 4-11; see ID at 7-10, 12-16, 24, 28-29. 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 determinations only when it

has “sufficiently sound” reasons for doing so. Haebe v. Department of

Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). We find that the appellant has not

provided any sufficiently sound reason on review to overturn the administrative

judge’s credibility determinations.

¶13 Specifically, the appellant alleges that the testimony of her supervisor, the

proposing official, and the deciding official are not credible because of their

respective bias and retaliatory motive against her. PFR File, Tab 1 at 5, 13-16,

Tab 5 at 10-11. As explained in more detail in our discussion of the appellant’s

EEO retaliation claim, see infra ¶¶ 19-23, we find that she did not establish that

these individuals were biased because of their alleged retaliatory motives against

her.

7

¶14 Further, the appellant argues that the administrative judge improperly

ignored and discredited her testimony for being inconsistent, too general,

uncorroborated, self-serving, and inherently improbable. PFR File, Tab 1 at 5-8,

10-12, 17-18, Tab 5 at 5-8, 10; see ID at 8-11, 13-14, 16. She points to her

coworker’s interview with TIGTA as evidence corroborating her own testimony.

PFR File, Tab 1 at 11-12, Tab 5 at 8; see IAF, Tab 7, Subtab 4c at 1259-60.

However, the coworker’s TIGTA interview was part of the record and the

appellant does not show that the administrative judge erroneously discounted such

evidence. See Marques v. Department of Health & Human Services, 22 M.S.P.R.

129, 132 (1984) (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),

aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table). The appellant also does not

establish how her coworker’s interview supports her testimony because it does

not discuss events within the time period relevant to this appeal. See IAF, Tab 7,

Subtab 4c at 1259-60. The appellant’s general disagreement with the

administrative judge’s credibility determinations does not provide a sufficiently

sound reason to overturn them.

The appellant fails to establish that she was harmed by the agency’s alleged delay

in taking the action.

¶15 On review, the appellant reiterates her argument that she was unduly

prejudiced by the agency’s delay from the time the misconduct occurred (January

2009 through January 2010) until she was actually suspended in September 2012.

PFR File, Tab 1 at 6-7, Tab 5 at 6; see IAF, Tab 7, Subtab 4d, Tab 32 at 45-49.

We find that the agency did not cause prejudicial delay. The appellant’s

suspension may not be sustained if she shows harmful error in the application of

the agency’s procedures in arriving at its decision to suspend her. 5 U.S.C.

§ 7701(c)(2)(A); see Helms v. Department of the Army, 114 M.S.P.R. 447, ¶ 6

(2010). A delay in investigating allegations or initiating disciplinary action

against an employee may constitute procedural error if a law, regulation, or

8

agency policy requires that allegations be investigated and/or disciplinary action

be proposed or taken within a certain time period. See Salter v. Department of

the Treasury, 92 M.S.P.R. 355, ¶¶ 7-9 (2002). The appellant bears the burden of

proof to show harmful error by the agency in effecting an adverse action.

Helms, 114 M.S.P.R. 447, ¶ 6; 5 C.F.R. § 1201.56(c)(3). An agency’s procedural

error is harmful if it is likely to have caused the agency to reach a conclusion

different from the one it would have reached in the absence or cure of the

error. 5 C.F.R. § 1201.56(c)(3).

¶16 Here, the agency proposed the appellant’s suspension in November 2011

based on misconduct that allegedly occurred from January 2009 through January

2010. IAF, Tab 1 at 12-20. In her closing brief, the appellant cited to Article 39,

Section 1(H) of the National Agreement II, which states that an investigation of

an employee should be completed “in as timely a manner as is practicable” and

that adverse actions “will also be administered as timely as possible.” IAF,

Tab 32 at 45; see IAF, Tab 29, Hearing Exhibit (Ex.) 1 at 109. Even assuming

that the agency’s delay in effecting the suspension violated the National

Agreement II, the appellant has not shown that such delay caused harm, i.e., that

the agency likely would not have suspended her in the absence or cure of the

delay. See 5 C.F.R. § 1201.56(c)(3); see, e.g., Cambridge v. Department of

Justice, 111 M.S.P.R. 152, ¶ 11 (2009) (the harmful error standard applies to

alleged violations of a collective bargaining agreement); Social Security

Administration v. Carr, 78 M.S.P.R. 313, 330-32 (1998) (finding that the

appellant was not prejudiced by the agency’s delay in bringing an action even if

her memory had faded), aff’d, 185 F.3d 1318 (Fed. Cir. 1999). Therefore, the

appellant fails to establish that the agency committed harmful error by a delay in

effecting her suspension.

¶17 The Board has also considered “stale charge” claims as raising the equitable

defense of laches, which bars an action when an unreasonable delay in bringing

the action has prejudiced the subject of the action. Salter, 92 M.S.P.R. 355, ¶ 10.

9

The party asserting laches must prove both unreasonable delay and prejudice. Id.

The appellant has not shown that any delay was unreasonable. 3 Her general

claims that the agency’s delay harmed her ability to defend herself because she

and the witnesses had difficulty remembering details regarding her case do not

establish that the delay was prejudicial. See IAF, Tab 32 at 45-49; see, e.g.,

Social Security Administration v. Carr, 78 M.S.P.R. at 330-32. 4 Accordingly, she

has not proved the equitable defense of laches.

The appellant failed to prove that the agency erred by not following negotiated

procedures regarding alternative discipline.

¶18 The appellant asserts that the agency violated Article 38, Section

2(E)-(F)(1) of the National Agreement II by initiating an adverse action, the

proposed 30-day suspension, instead of the “traditional” discipline of a 5-day

suspension considered in the alternative discipline notice. PFR File, Tab 1 at

23-26, Tab 5 at 13-15; see IAF, Tab 7, Subtab 4m, Tab 29, Ex. 1 at 105.

However, the agency was not obligated to propose the 5-day suspension in

3

The appellant’s supervisor testified that he did not believe he had an obligation to

inform the appellant of the TIGTA investigation, which commenced in June 2009.

Hearing Transcript (HT) at 209; see ID at 22; IAF, Tab 7, Subtab 4c at 707. The

investigator completed interviews with the appellant and other witnesses by April 2010.

See, e.g., IAF, Tab 7, Subtab 4c at 735-40. After the TIGTA investigation was

completed in January 2011, IAF, Tab 7, Subtab 4c at 707-08, the proposing official

proposed alternative discipline in June 2011, IAF, Tab 7, Subtab 4m, and the appellant

rejected the alternative discipline offer in June 2011, see IAF, Tab 1 at 36. After the

proposing official proposed the 30-day suspension in November 2011, IAF, Tab 1 at

12-20, the appellant did not provide her written reply until February 2012 and her oral

reply in March 2012, IAF, Tab 7, Subtabs 4h-4i. Part of the delay was caused by the

appellant’s multiple requests for additional time to respond to the proposed suspension.

IAF, Tab 7, Subtab 4j. The deciding official issued the decision letter in August 2012.

IAF, Tab 1 at 26-28.

4

The appellant argues for the first time on review that she was unable to provide

specific evidence of her work-related activity because her apartment building was

destroyed by a fire in May 2013 and because IRS regulations require audit records to be

returned to the taxpayer or shredded after the completion of an audit. PFR File, Tab 1

at 6. Because she failed to raise these arguments below and has not shown that

evidence of such conditions was unavailab le despite due diligence when the record

closed, the Board will not address these claims further. See 5 C.F.R. § 1201.115(d).

10

accordance with Section 2(F)(1) because the appellant never requested

consideration of the alternative discipline option and there was never a meeting

on the subject between the agency and the appellant. See IAF, Tab 1 at 36, Tab

29, Ex. 1 at 105. Thus, we agree with the administrative judge’s finding that the

agency did not breach the collective bargaining agreement because the appellant

declined the agency’s offer of alternative discipline. See ID at 33.

The appellant failed to prove her affirmative defense of retaliation for protected

EEO activity.

¶19 The appellant reiterates on review her affirmative defense of retaliation for

protected EEO activity. PFR File, Tab 1 at 19-23, Tab 5 at 11-13; see IAF,

Tab 32 at 37-41. In order to meet her ultimate burden of proof on retaliation for

EEO activity, the appellant must establish not only that she engaged in protected

activity and that the accused official was aware of that activity but also that there

is a “genuine nexus” between the alleged retaliatory motive and the adverse

action. Rhee v. Department of the Treasury, 117 M.S.P.R. 640, ¶ 26 (2012). To

establish a genuine nexus, the appellant must show that the action was taken

because of the protected activity. Id. This requires the Board to weigh the

severity of the appellant’s alleged misconduct against the intensity of the

agency’s motive to retaliate. Id.

¶20 The appellant contends that her supervisor demonstrated retaliatory intent

by reporting to TIGTA his observation of her nonwork-related use of government

equipment, by imposing a performance improvement plan (PIP) on her, and by

making “derisive comments” about her EEO complaint. PFR File, Tab 1 at 13-16,

18-21, 23, Tab 5 at 10-13. To support her argument that her supervisor initiated

the TIGTA investigation in retaliation for protected EEO activity, the appellant

cites to Rhee. PFR File, Tab 1 at 13, 15-16, Tab 5 at 10. In Rhee, the Board

found that the supervisor’s “referral and repeated inquiries” to TIGTA and “prior

discipline of the appellant” demonstrated a “pattern of retaliation” against her for

her protected activities. Rhee, 117 M.S.P.R. 640, ¶¶ 36-37. Specifically, the

11

supervisor in Rhee spurred an investigation by referring an email exchange to

TIGTA and then by contacting the TIGTA Office of Chief Counsel after TIGTA

initially decided not to investigate the alleged misconduct. Id., ¶¶ 2-4. In

contrast, the supervisor here made an initial report to TIGTA, which then

independently decided to conduct an investigation. See HT at 8-10; see also ID at

28. A retaliatory investigation claim should be considered in determining the

strength of the agency’s evidence supporting the agency’s action.

Rhee, 117 M.S.P.R. 640, ¶ 31. In making this determination, the Board looks at

the investigation’s origins and the reason the matter was referred for

investigation. Id. Here, the administrative judge found that the supervisor

credibly testified that he believed it was his responsibility to report to TIGTA

what he believed could be fraud, waste, and abuse. ID at 28; see HT at 242-44.

Therefore, we agree that the appellant failed to prove that the investigation was

referred for retaliatory reasons. See ID at 27-28.

¶21 The administrative judge also addressed the appellant’s argument that her

placement on a PIP by her supervisor was retaliatory. ID at 19. The

administrative judge stated that, although she considered all the record evidence

as it related to the appellant’s suspension, she could not adjudicate her possible

reprisal claims outside of her suspension in the instant appeal. Id. The appellant

fails to provide a reason to disturb the administrative judge’s finding. See

Crosby, 74 M.S.P.R. at 105-06. The appellant’s last example of her supervisor’s

retaliatory intent is based on statements he made during a TIGTA interview that

he did not feel supported by management and had considered stepping down after

the appellant’s settlement agreement was revoked. See IAF, Tab 7, Subtab 4c at

1253-54. The appellant does not prove that the administrative judge improperly

discounted the supervisor’s statements when they were part of the record. See

Marques, 22 M.S.P.R. at 132.

¶22 The appellant also alleges that the proposing official demonstrated

retaliatory intent by increasing the proposed penalty from a 5-day suspension to a

12

30-day suspension without justification. PFR File, Tab 1 at 21-22, Tab 5 at 12.

The administrative judge considered the appellant’s argument and found credible

the proposing official’s explanations for the increase in penalty, namely, that he

relied on the advice of Labor Relations regarding both proposed suspensions,

sought advice from General Legal Services regarding the 30-day suspension, and

reviewed the ROI before proposing the 30-day suspension. ID at 24-25, 28-29;

see HT at 178-82, 193-95. Moreover, the proposing official based the proposed

30-day suspension on an additional charge of making false statements in matters

of official interest that was not considered in the alternative discipline notice.

IAF, Tab 1 at 12-20, Tab 7, Subtab 4m. The fact that the proposing official

proposed the 30-day suspension after the appellant rejected the agency’s offer of

alternative discipline, by itself, does not establish retaliation. See Betz v.

Department of Justice, EEOC DOC 0120073557, 2009 WL 363135 at *8

(E.E.O.C. Jan. 30, 2009) (temporal proximity alone is not enough to establish that

the agency’s actions were the result of retaliation).

¶23 Finally, the appellant alleges that the deciding official had retaliatory intent

because she was involved in the “unsuccessful” mediation of the appellant’s 2007

EEO complaint. PFR File, Tab 1 at 22-23, Tab 5 at 12. The administrative judge

found that the deciding official credibly testified that the appellant’s prior EEO

complaint had no influence on her decision to suspend the appellant for 15 days.

ID at 29-30; see HT at 119-20. The administrative judge also held that “the

appellant has produced no evidence that [the deciding official] retaliated because

[the appellant] chose to revoke the agreement.” ID at 29. For these reasons, we

find that the appellant has not provided a reason to disturb the administrative

judge’s finding that she failed to prove her affirmative defense of retaliation

based on her prior EEO activities. See ID at 31; Crosby, 74 M.S.P.R. at 105-06.

13

The administrative judge correctly determined that the 15-day suspension

promotes the efficiency of the service and does not exceed tolerable limits of

reasonableness.

¶24 In her petition for review, the appellant argues that the deciding official

misapplied the Douglas factors 5 and the suspension was excessive under the

circumstances. PFR File, Tab 1 at 26-27, Tab 5 at 15. The appellant does not

dispute that the agency proved the existence of a nexus between the sustained

misconduct and the efficiency of the service. Where, as here, all of the agency’s

charges have been sustained, the Board will review an agency-imposed penalty

only to determine if the agency considered all of the relevant Douglas factors and

exercised management discretion within tolerable limits of reasonableness.

Portner v. Department of Justice, 119 M.S.P.R. 365, ¶ 10 (2013). In determining

whether the selected penalty is reasonable, the Board gives due deference to the

agency’s discretion in exercising its managerial function of maintaining employee

discipline and efficiency. Id. The Board will modify a penalty only when it finds

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

imposed clearly exceeded the bounds of reasonableness. Id. However, if the

deciding official failed to appropriately consider the relevant factors, the Board

need not defer to the agency’s penalty determination. Id.

¶25 The administrative judge concluded that the appellant’s 15-day suspension

did not exceed the tolerable limits of reasonableness and sustained the agency’s

action. ID at 34-35. The appellant contends on review that the administrative

judge failed to address her argument that the deciding official improperly applied

the agency’s penalty guidelines. PFR File, Tab 1 at 26-27, Tab 5 at 15; see IAF,

Tab 32 at 32-35. We modify the initial decision to supplement the administrative

judge’s penalty analysis regarding the deciding official’s consideration of the

penalty guidelines. The deciding official testified that she considered the penalty

5

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.

14

guidelines when making her decision. HT at 110-12, 165-67. Specifically, she

testified that she considered the following charges and penalties within the IRS

Guide to Penalty Determinations: (1) category B under disclosure of taxpayer

information, records, and taxpayer privacy violations; (2) category A under false

or misleading statements; and (3) category A under misuse/abuse/loss or damage

to government property. HT at 110-12, 165-67; see IAF, Tab 7, Subtab 4r at 17,

21, 25. Based on the deciding official’s testimony and the penalty guidelines, we

find that the appellant failed to prove that the deciding official inappropriately

followed the penalty guidelines. 6

¶26 We further modify the initial decision to supplement the administrative

judge’s penalty analysis regarding the deciding official’s consideration of

alternative sanctions. The deciding official testified that she considered, among

other things, the appellant’s written reply to the proposed 30-day suspension. HT

at 77. The appellant argued in her written reply that the proposed 30-day

suspension was unreasonable because “[m]anagement originally proposed a five

day suspension based on the same alleged misconduct” and “[n]o new additional

information was received to justify an enhanced penalty.” IAF, Tab 7, Subtab 4i

at 5. The deciding official further testified that she was aware of the proposing

official’s initial offer of alternative discipline in lieu of a 5-day suspension, HT at

147, and a copy of the alternative discipline notice was included in the appellant’s

written reply, IAF, Tab 7, Subtab 4i at 83-84. Based on the deciding official’s

testimony and the appellant’s written reply to the proposed 30-day suspension, we

find that the deciding official properly considered alternative sanctions, including

6

To the extent that the appellant argued that a different version of the penalty

guidelines should have applied, she failed to provide a copy of the different version and

no such version exists in the record. See IAF, Tab 32 at 33-34. Even assuming, as the

appellant claims, that the recommended penalties for a first offense of making false

statements were changed to anything from a written reprimand up to a 20-day

suspension, such a range of penalties is consistent with the appellant’s 15-day

suspension. See id.

15

the lesser penalty of a 5-day suspension initially contemplated by the proposing

official. See IAF, Tab 7, Subtab 4g (deciding official’s checklist); see also HT at

114. Additionally, we find the 15-day suspension to be a reasonable penalty

because it was based on the additional charge of making false statements in

matters of official interest, which was not cited in the alternative discipline

notice. IAF, Tab 1 at 12-20, 26-28, Tab 7, Subtab 4m. We also defer to the

administrative judge’s finding that the proposing official’s explanations for the

increase in penalty were credible. See supra ¶¶ 12-14, 22; see also ID at 24-25,

28-29.

¶27 The appellant further argues that her 15-day suspension is inconsistent with

other lesser penalties that the agency has issued to similarly-situated employees.

PFR File, Tab 1 at 26-27, Tab 5 at 15; see ID at 25-27; IAF, Tab 32 at 43-45. To

establish disparate penalties, 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, but the Board will not have hard and fast rules regarding

the outcome determinative nature of these factors. Boucher v. U.S. Postal

Service, 118 M.S.P.R. 640, ¶ 20 (2012) (citing Lewis v. Department of Veterans

Affairs, 113 M.S.P.R. 657, ¶ 15 (2010)). An appellant’s initial showing of

disparate penalties triggers an agency’s burden to prove a legitimate reason for

the difference in treatment between the appellant and other employees.

Boucher, 118 M.S.P.R. 640, ¶ 24.

¶28 Specifically, the appellant alleges that the deciding official and the

administrative judge improperly discounted her evidence of comparators by

requiring that any comparator be charged with the same three charges as the

appellant. PFR File, Tab 1 at 26, Tab 5 at 15; see ID at 27. The deciding official

testified that she consulted with Labor Relations to find similarly-situated

employees but did not find any valid comparators. HT at 109-10, 128-42. The

16

administrative judge considered the appellant’s evidence of 17 personnel alerts. 7

ID at 25-27; see IAF, Tab 27 at 18-37. The administrative judge’s finding that

the employees in the alerts were not similarly situated to the appellant because of

the number of their charges was not improper. See Reid, 118 M.S.P.R. 396,

¶¶ 22-23 (proffered comparators were not similarly situated for purposes of

establishing a disparate penalties claim where the administrative judge sustained

three charges against the appellant, and the appellant alleged that the

comparators’ misconduct was similar as to only one charge). A reasoned

comparison of the totality of the circumstances surrounding the misconduct

engaged in by the 17 alleged comparators, versus the totality of the circumstances

surrounding the appellant’s misconduct, does not show that the misconduct

engaged in by the comparator employees was as serious as, or more serious than,

the misconduct engaged in by the appellant. See Portner, 119 M.S.P.R. 365,

¶ 21. For these reasons, we find that the appellant’s 17 proffered comparators

were not similarly situated to her and that she failed to prove her disparate

penalties claim.

¶29 Under the circumstances of this case, we find that the deciding official

properly weighed the relevant Douglas factors and that the 15-day suspension did

not exceed the tolerable limits of reasonableness.

The appellant has failed to prove that the administrative judge was biased or

abused her discretion.

¶30 To the extent the appellant believes that the administrative judge was biased

in favor of the agency, we disagree. PFR File, Tab 1 at 4-5, 13-18, Tab 5 at 4-9.

7

The administrative judge analyzed the appellant’s proffered comparators in the context

of her EEO retaliation claim. See ID at 25-27. The standard for determ ining whether

employees are similarly-situated for purposes of an EEO retaliation claim, however,

differs from the standard for determin ing whether they are similarly-situated for

purposes of a disparate penalties claim. See Lewis, 113 M.S.P.R. 657, ¶ 15 n.5; see a lso

Hooper v. Department of the Interior, 120 M.S.P.R. 658, ¶ 8 (2014). Nonetheless,

applying the standard in Lewis and Boucher, we reach the same conclusion that none of

the proffered comparators were similarly situated.

17

The appellant generally alleges that the administrative judge’s ruling evidenced

bias because she “ignored” the appellant’s evidence. PFR File, Tab 1 at 4-5,

13-18, Tab 5 at 4-9. She also alleges that improper ex parte communications

occurred between the agency representative and the administrative judge, which

indicate favoritism. PFR File, Tab 1 at 14 n.2. The appellant has not proven that

any improper ex parte communications occurred, nor did she timely raise this

issue below through procedures set forth in the Board’s regulations. See 5 C.F.R.

§ 1201.42(b). Moreover, the agency representative declared under penalty of

perjury that the merits of the case were not discussed during the alleged event.

See PFR File, Tab 4 at 10 n.2. We find these broad allegations of bias

insufficient to overcome the presumption of honesty and integrity that

accompanies administrative adjudicators. See Oliver v. Department of

Transportation, 1 M.S.P.R. 382, 386 (1980).

¶31 Additionally, the appellant alleges that the administrative judge improperly

interrupted the appellant’s examination of her supervisor during the hearing. PFR

File, Tab 1 at 13-15; see HT at 214-16, 236-37. She further argues that the

administrative judge erroneously thought that her supervisor could not retaliate

against the appellant because he was not the proposing or deciding o fficial. PFR

File, Tab 1 at 13; see HT at 214-15. Although the administrative judge expressed

doubt as to the relevance of the supervisor’s retaliatory motive, 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. Sanders v. Social Security Administration, 114 M.S.P.R. 487, ¶ 10

(2010); see 5 C.F.R. § 1201.41(b)(6), (10). The administrative judge allowed the

appellant to present evidence and to examine the supervisor regarding all relevant

issues, including her affirmative defense of retaliation. See HT at 207-39,

258-62. Thus, the appellant has not shown any abuse of discretion by the

administrative judge.

18

¶32 In conclusion, we find no reason to disturb the administrative judge’s

findings that the agency proved all three charges, demonstrated a nexus between

the misconduct and the efficiency of the service, and imposed a penalty within the

tolerable limits of reasonableness. 8 See Crosby, 74 M.S.P.R. at 105-06.

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:

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

8

The appellant requests a ruling on the Board’s jurisdiction over the 5-day suspension

contemplated in the alternative discipline notice. PFR File, Tab 1 at 27, Tab 5 at 16;

see IAF, Tab 32 at 49, 51-57. Under chapter 75, a proposed or effected 5-day

suspension is not appealable to the Board; thus, we lack jurisdiction to consider that

action. See 5 U.S.C. §§ 7512, 7513(d); 5 C.F.R. §§ 752.405(a), 1201.3(a)(1).

19

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

prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e5(f)

and 29 U.S.C. § 794a.

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

20

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.