Opinion

Thomas Adler v. Department of Justice

Court: Merit Systems Protection Board
Filed: Dec 15, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 14.6%

holding that, when 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

How later courts described this case

holding that, when 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
finding that the essential requirements of constitutional due process for a tenured public employee are notice of the charges against him, an explanation of the evidence, and an opportunity for him to present his account of events

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

THOMAS F. ADLER, DOCKET NUMBER

Appellant, NY-0752-16-0266-I-2

DEPARTMENT OF JUSTICE, DATE: December 15, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Joel J. Kirkpatrick , Esquire, Canton, Michigan, for the appellant.

Gregg A. Hand , Springfield, Virginia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

affirmed the agency’s removal action. Generally, we grant petitions such as this

one only in the following circumstances: the initial decision contains erroneous

findings of material fact; the initial decision is based on an erroneous

interpretation of statute or regulation or the erroneous application of the law to

the facts of the case; the administrative judge’s rulings during either the course of

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

the appeal or the initial decision were not consistent with required procedures or

involved an abuse of discretion, and the resulting error affected the outcome of

the case; or new and material evidence or legal argument is available that, despite

the petitioner’s due diligence, was not available when the record closed. Title 5

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).

After fully considering the filings in this appeal, we conclude that the petitioner

has not established any basis under section 1201.115 for granting the petition for

review. Therefore, we DENY the petition for review. Except as expressly

MODIFIED to consider the appellant’s additional claims of harmful error and to

supplement the administrative judge’s analysis of his disparate penalties claim,

we AFFIRM the initial decision.

BACKGROUND

¶2 Effective May 29, 2016, the agency removed the appellant from his

Supervisory Criminal Investigator position with the Drug Enforcement

Administration (DEA), Caribbean Division, in San Juan, Puerto Rico. Adler v.

Department of Justice, MSPB Docket No. NY-0752-16-0266-I-1, Initial Appeal

File (IAF), Tab 8 at 35, 39-40. The agency based the appellant’s removal on the

following five charges: (1) making false statements (1 specification); (2) conduct

unbecoming a DEA Special Agent (3 specifications); (3) failure to properly

supervise (5 specifications); (4) poor judgment (3 specifications); and (5) failure

to follow written instructions (1 specification). Id. at 39-40, 157-65.

¶3 The initial decision contains a thorough discussion of the underlying

circumstances surrounding the first two charges. Adler v. Department of Justice,

MSPB Docket No. NY-0752-16-0266-I-2, Appeal File (I-2 AF), Tab 38, Initial

Decision (ID) at 4-12. The appellant does not challenge that discussion on

review, and we decline to repeat it in its entirety. Petition for Review (PFR) File,

Tab 3 at 29. Briefly, charges 1 and 2 are related to the appellant’s efforts (while

serving as the Country Attaché of the Caracas Country Office in Venezuela) to

obtain an education allowance for his three children to attend the Department of

Defense (DOD) Domestic Dependent Elementary and Secondary Schools

(DDESS) in Fort Buchanan, Puerto Rico, for the 2007-2008 school year. IAF,

Tab 8 at 157-62. The appellant indicated in his June 2007 request for an

education allowance that he was pursuing such educational benefits pursuant to

Department of State (DOS) Standardized Regulation 276.3, IAF, Tab 11 at 101,

which prohibits an education allowance for a child in the United States who has a

parent residing in the United States, except, as relevant here, “where the

employee establishes that the parent residing in the [United States] is divested of

legal custody of the child,” IAF, Tab 12 at 91. He included with his request a

sworn affidavit dated June 20, 2007, in which his wife claimed that she was

“divested of all legal custody” of their children. IAF, Tab 11 at 103. The agency

granted the appellant’s request for an education allowance. I-2 AF, Tab 7

at 21-22. However, the notice of proposed removal states that, in accordance with

DDESS and DOS regulations, the appellant’s children were not eligible to attend

DDESS at Fort Buchanan for the 2007-2008 school year because he was assigned

to Caracas. 2 IAF, Tab 8 at 157.

¶4 The appellant appealed his removal to the Board, and he requested a

hearing. IAF, Tab 1 at 1-8. He raised the affirmative defenses of a violation of

due process rights and harmful procedural error, and he made a disparate

penalties claim. Id. at 6. The appeal was dismissed without prejudice and was

refiled automatically. I-2 AF, Tab 2 at 1; IAF, Tab 20, Initial Decision at 1-2.

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

affirming the agency’s removal action. ID at 2, 32. Specifically, she sustained

all five charges and found the existence of nexus and that the penalty of removal

is within the limits of reasonableness. ID at 12-27, 29-32. She further found that

The appellant admitted in his hearing testimony that the regulations did not allow his

children to attend school in Puerto Rico at the agency’s expense for the 2007-2008

school year. I-2 AF, Hearing Transcript at 526-27.

the appellant failed to prove the affirmative defenses of a denial of due process or

harmful error, or his disparate penalties claim. ID at 27-28, 31.

¶6 The appellant has filed a petition for review. PFR File, Tab 3. The agency

has filed a response, PFR File, Tab 5, to which the appellant has replied, PFR

File, Tab 7.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge properly sustained the charges.

¶7 As properly stated in the initial decision, an agency must prove its charges

in an adverse action appeal by preponderant evidence. ID at 2; see 5 U.S.C.

§ 7701(c)(1)(B). For the following reasons, we find that the administrative judge

properly sustained all five of the agency’s charges. ID at 12-27.

Charge 1: making false statements

¶8 The agency charged the appellant with making false statements in his

July 10, 2007 email to the Executive Assistant to the Deputy Chief of Operations,

Office of Global Enforcement. IAF, Tab 8 at 159. Based on the appellant’s

request for an education allowance indicating that he had sole custody of his

children and that they did not reside with him (in Venezuela), the Executive

Assistant sent the appellant an email asking him to clarify with whom his children

lived. IAF, Tab 11 at 99-100. The appellant responded that his children lived at

his permanent residence in Puerto Rico, “with their grandparents who care for

them and transport them daily to their current school,” and that such childcare

arrangements had been in effect since his arrival as the Country Attaché of the

Caracas Country Office in November 2006. Id. at 99. The appellant further

represented that his spouse transferred custody of their children to him “because

she has a teaching contract that routinely takes her off-island for lengthy

periods.” Id.

¶9 As properly explained in the initial decision, to establish a charge of

misrepresentation, falsification, or lying, an agency must prove that the employee

(1) supplied wrong information, and (2) knowingly did so with the intention of

defrauding, deceiving, or misleading the agency for his own private material gain.

ID at 14; see Boo v. Department of Homeland Security, 122 M.S.P.R. 100,

¶¶ 10-12 (2014). Here, the administrative judge found that the agency proved that

the appellant intentionally made false statements in his July 10, 2007 email to the

Executive Assistant for his own private material gain, i.e., obtaining an education

allowance. ID at 14. In making that finding, the administrative judge relied on

the Executive Assistant’s sworn statement dated June 3, 2008, and the hearing

testimony of the appellant, his wife, and his wife’s childhood friend. ID at 12-14;

IAF, Tab 11 at 113-15; I-2 AF, Hearing Transcript (HT). In particular, the

Executive Assistant stated that it was her belief that the appellant’s wife “did not

live with the children.” IAF, Tab 11 at 113. The appellant’s wife testified that,

before and after she signed the divestiture affidavit in June 2007, she resided with

the children and took care of them. HT at 414-18 (testimony of the appellant’s

wife). She further testified that, in the summer of 2007, she did not have a job

outside of Puerto Rico. HT at 420-23 (testimony of the appellant’s wife). The

friend of the appellant’s wife testified that she worked for a teaching program in

Illinois and that no formal offer of employment was made to the appellant’s wife.

HT at 430-31, 436 (testimony of the appellant’s wife’s friend).

¶10 In his petition for review, the appellant argues that the administrative judge

erred in sustaining the false statements charge because the evidence does not

prove that he made a false statement with an intent to deceive the agency. PFR

File, Tab 3 at 5-7, 13, 18-20, 23, Tab 7 at 4. Specifically, the appellant makes the

following claims on review: his wife testified that she had intended to take a

teaching position in Illinois for the upcoming school year starting in

September 2007; the undisputed testimony demonstrates that his wife was

planning to relocate to the United States in the weeks before June 20, 2007; the

hearing testimony does not support the administrative judge’s conclusion that his

wife did not have a job offer outside of Puerto Rico on July 10, 2007; he testified

that “everything that was required by the rules at the time to obtain the [education

allowance] occurred”; and the former Special Agent in Charge (SAC) V.G.

testified that former SAC J.H. would have approved his request for an education

allowance. PFR File, Tab 3 at 5-6, 19, Tab 7 at 5-6. The appellant further alleges

that the administrative judge failed to consider that he had “numerous telephone

conversations” with the Executive Assistant concerning his children’s schooling.

PFR File, Tab 7 at 6.

¶11 After considering the appellant’s arguments on review, we discern no

reason to disturb the initial decision. We find that the appellant provided an

inaccurate response to the Executive Assistant’s inquiry into his children’s living

situation because he did not reveal that his wife lived with and cared for them in

Puerto Rico. Moreover, the administrative judge acknowledged as true that the

appellant’s wife wanted to return to the United States and was interested in the

teaching program. ID at 14. However, the administrative judge correctly

analyzed the appellant’s email as stating that his wife had a teaching contract that

routinely required her to be off the island, and not stating that she might obtain

employment outside of Puerto Rico in the future. Id. Further, we find that the

above-described hearing testimony of the appellant’s wife and her friend supports

the administrative judge’s conclusion that his wife did not have a job offer

outside of Puerto Rico on July 10, 2007. Id. Therefore, we find that the appellant

falsely stated in his email that his wife “has a teaching contract that routinely

takes her off-island for lengthy periods.” IAF, Tab 11 at 99.

¶12 In addition, as properly explained in the initial decision, the element of

intent may be established by circumstantial evidence, and whether intent has been

proven must be resolved from the totality of the circumstances. ID at 14; see

Hawes v. Office of Personnel Management, 122 M.S.P.R. 341, ¶ 21 (2015). Here,

the administrative judge properly considered the appellant’s testimony that he and

his wife did not intend to deceive the agency and that his wife signed the

divestiture affidavit because she was planning to leave Puerto Rico. ID at 13; HT

at 491-94, 505 (testimony of the appellant). Further, we acknowledge that the

appellant testified regarding his belief that he was eligible for an education

allowance and that the children would be taken care of by their grandparents in

Puerto Rico when his wife left to teach in Illinois. HT at 544, 557, 560, 562

(testimony of the appellant). However, we agree with the administrative judge’s

finding that the agency proved the requisite element of intent. ID at 14. We find

that, to support his request for an education allowance, the appellant made

misrepresentations to the agency regarding his wife’s involvement with the

children with a reckless disregard for the truth or with a conscious purpose to

avoid learning the truth. See Boo, 122 M.S.P.R. 100, ¶ 10 (stating that intent may

be inferred when an appellant makes a misrepresentation with a reckless disregard

for the truth or with a conscious purpose to avoid learning the truth). Thus, the

appellant’s allegedly mistaken belief that he qualified for an education allowance

based on his anticipation of future events does not preclude finding intent.

Notably, the Executive Assistant stated in her sworn statement that, based on the

appellant’s response and the divestiture affidavit, she was satisfied that “he had

complied with regulations.” IAF, Tab 11 at 113. Moreover, we find that the

appellant’s arguments regarding having many telephone conversations with the

Executive Assistant and testimony speculating that former SAC J.H. would have

approved his request for an education allowance fail to provide a reason to disturb

the initial decision. Accordingly, we find that the administrative judge properly

sustained charge 1.

Charge 2: conduct unbecoming a DEA Special Agent

¶13 The conduct unbecoming charge contains three specifications. IAF, Tab 8

at 160-62. Regarding specification 1, the agency alleged that the appellant

obtained Diplomatic passports in the summer of 2007 for his children, who used

the passports to travel to Caracas, Venezuela, on August 6, 2007, before departing

for school in Puerto Rico on August 11, 2007. Id. at 160. The agency further

alleged that the children were not entitled to receive the Diplomatic passports

because they did not accompany the appellant to his Caracas assignment and were

not residing with him at any time in Caracas. Id. Regarding specification 2, the

agency claimed that the appellant requested reimbursement for travel expenses

incurred by his wife and children when they visited Caracas in August 2007. Id.

at 160-61. The agency further claimed that the sole purpose of their trip was to

obtain educational benefits to which the children were not entitled. Id.

Regarding specification 3, the agency asserted that the appellant obtained an

education allowance for his children’s attendance at the DDESS in Fort

Buchanan, Puerto Rico, for the 2007-2008 school year and that he was not

entitled to such educational benefits. Id. at 161-62.

¶14 For the reasons described in the initial decision, we find that the

administrative judge properly sustained all three specifications of the conduct

unbecoming charge. ID at 15-17; IAF, Tab 10 at 99-112; I-2 AF, Tab 7 at 5-11,

15-22, Tab 10 at 14-16; HT at 483-84, 490, 571-76 (testimony of the appellant);

see also Canada v. Department of Homeland Security , 113 M.S.P.R. 509, ¶ 9

(2010) (observing that a charge of conduct unbecoming has no specific elements

of proof and is established by proving that the employee committed the acts

alleged in support of the broad label).

¶15 The appellant argues on review that charges 1 and 2 are “inextricably

linked” such that, if the Board determines that the false statements charge cannot

be sustained, then the conduct unbecoming charge also cannot be sustained. PFR

File, Tab 3 at 7. Specifically, he asserts that, if he did not have an intent to

deceive the agency regarding his eligibility for educational benefits, then both

charges must fail. Id. at 29-30. We are not persuaded by this argument because,

as described above, we find that the administrative judge properly sustained the

false statements charge and correctly found that the agency proved intent

regarding that charge. Moreover, the Board has noted that a charge of conduct

unbecoming does not involve an element of intent. Boo, 122 M.S.P.R. 100, ¶ 14.

¶16 In addition, the appellant disputes the administrative judge’s finding that his

claim that the Executive Assistant ordered him to have his children report to

Caracas lacks merit. PFR File, Tab 7 at 6; ID at 16. For the reasons described in

the initial decision, we agree with that finding. ID at 16. In particular, the

administrative judge explained that the information provided by the Executive

Assistant was based on the appellant’s own misleading statements. Id.

Charges 3-5: failure to properly supervise, poor judgment, and failure to

follow written instructions

¶17 For the reasons described in the initial decision, we find that the

administrative judge properly sustained the remaining charges of failure to

properly supervise, 3 poor judgment, and failure to follow written instructions. 4 ID

at 17-27.

The appellant has failed to prove the affirmative defenses of a violation of due

process rights and harmful error.

¶18 An appellant bears the burden of proving an affirmative defense by

preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(C). Here, the administrative

judge found that the appellant failed to prove the affirmative defenses of a denial

of due process or harmful error based on the deletion of his agency email account.

The administrative judge sustained two of the five specifications of the charge of

failure to properly supervise; thus, she properly sustained that charge. ID at 17-22; see

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

when 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).

For the first time in his reply to the agency’s response to the petition for review, the

appellant challenges the administrative judge’s findings regarding charges 3-5. PFR

File, Tab 7 at 6-8. The agency did not raise a factual or legal issue regarding those

charges in its response. PFR File, Tab 5. Therefore, we decline to consider the

appellant’s arguments regarding charges 3-5 that he raised in his reply. E.g., Elder v.

Department of the Air Force, 124 M.S.P.R. 12, ¶ 22 n.3 (2016) (declining to consider

the agency’s arguments that it raised for the first time in its reply to the appellant’s

response to the petition for review); see also 5 C.F.R. § 1201.114(a)(4) (providing that

a reply to a response to a petition for review is limited to the factual and legal issues

raised by another party in the response, and that it may not raise new allegations of

error).

ID at 27-28. The appellant disputes that finding on review and reasserts his

claims that the agency committed harmful procedural error and violated his due

process rights by deleting his email account, which allegedly resulted in the loss

of exculpatory evidence. PFR File, Tab 3 at 20-23, Tab 7 at 4-6; I-2 AF, Tab 5

at 31-33.

¶19 For the reasons described in the initial decision, we agree with the

administrative judge’s finding that the appellant failed to prove his due process or

harmful error claims. ID at 27-28. In particular, the record shows that the agency

provided the appellant with notice of the charges underlying his proposed

removal, an explanation of and access to the agency’s evidence, and an

opportunity to respond orally and in writing to the deciding official before he was

removed. IAF, Tab 8 at 39, 43, 45, 75-153, 157-69; see Cleveland Board of

Education v. Loudermill, 470 U.S. 532, 546 (1985) (finding that the essential

requirements of constitutional due process for a tenured public employee are

notice of the charges against him, an explanation of the evidence, and an

opportunity for him to present his account of events). Moreover, the

administrative judge properly relied on the deciding official’s undisputed

testimony that he did not consider anything that was not provided to the appellant

and that any missing emails would not have negated the appellant’s responsibility

to tell the truth. ID at 27-28; HT at 109, 119-20 (testimony of the deciding

official); see 5 C.F.R. § 1201.4(r) (defining “harmful error” as an error by the

agency in the application of its procedures that 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).

¶20 The appellant further raises on review the following allegations of harmful

procedural error that were not addressed in the initial decision: documents that

the Program Analyst referenced in her interview statement were not included in

the report of investigation (ROI) despite her testimony that she provided the

documents to agency investigators; the ROI contains a fraudulent document

attributed to the DDESS in Fort Buchanan, as testified by the school’s Registrar;

the deciding official could not account for the significant lapse of time from when

the agency initiated its investigation in 2007, until the appellant’s removal in

2016; agency investigators failed to re-interview the appellant during the

supplemental investigation and failed to interview his wife, a Foreign Support

Specialist, and a State Department official; and agency investigators failed to

keep a record of interviews with key witnesses that were conducted. 5 PFR File,

Tab 3 at 20-23, Tab 7 at 4-6, 8. As follows, we modify the initial decision to

consider those additional claims of harmful error.

¶21 Even assuming, without deciding, that the agency committed the procedural

errors discussed above, we find that the appellant has failed to prove that such

errors were harmful, i.e., that they caused substantial harm or prejudice to his

rights. See 5 C.F.R. § 1201.4(r). Specifically, the deciding official testified that,

although he read the Program Analyst’s interview statement, he thought he had

enough information to make a decision despite the missing documents referenced

in her statement. 6 HT at 129-31 (testimony of the deciding official); IAF, Tab 12

at 53. The deciding official further testified that, even if the DDESS document

were fraudulent, it would not negate the false statements that the appellant made

In his prehearing submission, the appellant timely raised the issues of the lengthy

investigation, the agency’s failure to re-interview him and to keep a record of

interviews, and the missing documents referenced in the Program Analyst’s interview

statement. I-2 AF, Tab 5 at 9-12. The administrative judge did not issue a prehearing

conference summary limiting the issues before the Board, and it appears that the

appellant raised the above-described claims during the hearing. Accordingly, we find

that those claims were timely raised before the close of the record. See 5 C.F.R.

§ 1201.59 (providing that, when there is a hearing, the record ordinarily will close at

the conclusion of the hearing).

We find that the appellant has failed to prove his assertion on review that the agency

relied on the missing documents referenced in the Program Analyst’s interview

statement. PFR File, Tab 3 at 22. In particular, the appellant does not dispute the

deciding official’s testimony that he did not see the documents referenced in the

Program Analyst’s interview statement and that he did not consider anything that was

not provided to the appellant. HT at 109, 130-31 (testimony of the deciding official).

to the Executive Assistant. HT at 137-39 (testimony of the deciding official);

IAF, Tab 10 at 118-20. Moreover, we find that the appellant has failed to prove

that substantial harm or prejudice to his rights resulted from the lapse of time

from when the agency initiated its investigation, until his removal, or from the

agency’s failure to re-interview him, to interview other witnesses, and to keep a

record of key witness interviews. In particular, the appellant had the opportunity

at the hearing to testify on his behalf and to examine and cross -examine

witnesses, including his wife.

The agency proved nexus and the reasonableness of the penalty.

¶22 The appellant does not dispute, and we discern no reason to disturb, the

administrative judge’s finding that the agency proved the existence of a nexus

between the sustained misconduct and the efficiency of the service. ID at 2, 29;

see 5 U.S.C. § 7513(a); see also Connett v. Department of the Navy, 31 M.S.P.R.

322, 328 (1986) (finding that falsification is inherently destructive of the

agency’s faith in an employee’s trustworthiness and honesty, which are essential

elements in the employer-employee relationship), aff’d, 824 F.2d 978 (Fed. Cir.

1987) (Table).

¶23 However, the appellant challenges the reasonableness of the penalty on

review by reasserting his disparate penalties claim and by alleging that the

deciding official failed to consider alternative sanctions. PFR File, Tab 3 at 7,

24-28, 30-33; I-2 AF, Tab 5 at 33, 38-39. For the reasons described in the initial

decision, we agree with the administrative judge’s finding that the deciding

official properly considered the relevant Douglas factors, 7 including the

mitigating circumstances of the appellant’s length of service and the lack of a

prior disciplinary record. ID at 29-31; HT at 95 (testimony of the deciding

official). We find that the appellant incorrectly asserts that the deciding official

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

articulated a nonexhaustive list of 12 relevant factors to be considered in determining

the appropriateness of an imposed penalty.

testified that he did not consider alternative sanctions. PFR File, Tab 3 at 27.

Based on our review of the hearing testimony, we find that the administrative

judge properly characterized the deciding official’s testimony as stating that he

considered imposing a penalty other than removal, such as a demotion. ID at 31;

HT at 96 (testimony of the deciding official). Thus, we find that the deciding

official properly considered alternative sanctions. Moreover, we agree with the

administrative judge’s finding that the penalty of removal is within the limits of

reasonableness. ID at 32; see, e.g., Phillips v. Department of the Interior,

95 M.S.P.R. 21, ¶ 18 (2003) (holding that the agency’s removal penalty for the

sustained charge of falsification was within the bounds of reasonableness), aff’d,

131 F. App’x 709 (Fed. Cir. 2005).

We modify the initial decision to supplement the administrative judge’s

analysis of the appellant’s disparate penalties claim.

¶24 The consistency of the penalty with those imposed upon other employees

for the same or similar offenses is one of the factors for consideration in

determining the reasonableness of the penalty. Douglas v. Veterans

Administration, 5 M.S.P.R. 280, 305 (1981). The appellant submitted exhibits N

through W, as evidence of alleged comparator employees for purposes of his

disparate penalties claim. I-2 AF, Tab 11 at 48-72, Tabs 12-13, Tab 14 at 4-11.

The administrative judge found that the alleged comparators were not sufficiently

similar to the appellant to lead a reasonable person to conclude that he was

treated differently than similarly situated employees. ID at 31. In considering

the disparate penalties claim, the administrative judge cited Ellis v. U.S. Postal

Service, 121 M.S.P.R. 570, ¶ 11 (2014), for a proposition set forth in Lewis v.

Department of Veterans Affairs, 113 M.S.P.R. 657, ¶¶ 15-16, 18 (2010). ID at 31.

¶25 Since the issuance of the initial decision, the Board has issued Singh v. U.S.

Postal Service, 2022 MSPB 15, ¶¶ 10-18, a precedential decision reinstating our

former law governing the analysis of disparate penalties claims and overruling

Lewis and other decisions. As follows, we modify the initial decision to analyze

the appellant’s disparate penalties claim consistent with Singh. The fact that two

employees come from different work units and/or supervisory chains remains an

important factor in determining whether it is appropriate to compare the penalties

they are given. Id., ¶ 13. In most cases, employees from another work unit or

supervisory chain will not be proper comparators. Id. There must be a close

connection between the misconduct or some other factor for an employee from

another work unit or supervisory chain to be a proper comparator for disparate

penalty purposes. Id.

¶26 Here, we find that the appellant has failed to allege a valid comparator

because none of the proffered employees purportedly engaged in “the same or

similar offenses,” i.e., a supervisory law enforcement officer who intentionally

made false statements, engaged in conduct unbecoming and poor judgment, and

failed to properly supervise and to follow instructions. Douglas, 5 M.S.P.R.

at 305; PFR File, Tab 3 at 25-28; see Singh, 2022 MSPB 15, ¶ 17 (observing that

the Board should not attempt to weigh the relative seriousness of various offenses

in order to determine whether two employees who committed different acts of

misconduct were treated disparately). Therefore, we find that the appellant has

failed to establish that the agency imposed disparate penalties. We further find

that the deciding official’s testimony that he searched for, but did not find,

comparable cases of employees charged with similar misconduct proves that the

agency considered the corresponding Douglas factor. HT at 82-87 (testimony of

the appellant); see Douglas, 5 M.S.P.R. at 305.

¶27 Accordingly, we affirm the agency’s removal action.

NOTICE OF APPEAL RIGHTS 8

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 9 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the