Opinion

James Fred v. Department of the Army

Court: Merit Systems Protection Board
Filed: Apr 24, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.9%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JAMES F. FRED, DOCKET NUMBER

Appellant, CH-0752-17-0556-I-1

DEPARTMENT OF THE ARMY, DATE: April 24, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Charles Allenberg , Esquire, Virginia Beach, Virginia, for the appellant.

Leslie J. Hackett , Tomah, Wisconsin, for the appellant.

David D. Gorman and Danielle Vice , Springfield, Illinois, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

affirmed his removal. 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

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 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

clarify the administrative judge’s disparate penalty analysis to comport with our

recent holding in Singh v. U.S. Postal Service, 2022 MSPB 15, we AFFIRM the

initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

The appellant was a Surface Maintenance Mechanic, WG-10. Initial

Appeal File (IAF), Tab 4 at 41. In 2009, and again in 2014, he successfully

completed “Travel Card 101” training, which is a training program used to outline

the proper use and limitations of a Government Travel Charge Card (GTCC). Id.

at 91, 104. He also twice completed forms acknowledging, among other

responsibilities, that the GTCC was for official travel expenses only and that

misuse could result in discipline. Id. at 90, 103. On June 7, 2017, the agency

proposed his removal for “[d]eliberate or negligent Travel Card misuse, abuse,

delinquency and fraud.” Id. at 41. The specifications include 113 unauthorized

charges between January 12, 2015, and May 18, 2017, while the appellant was not

on official travel. Id. Items improperly charged included cell phones, meals,

fuel, and ATM cash advances. Id. The charges totaled $522.58. Id.

The appellant subsequently responded to the proposed removal. IAF, Tab 4

at 75-76. According to the appellant, in 2014, he received a personal credit card

that looked identical to his GTCC. Id. at 75. He claimed that, as a result, he

mistakenly used his GTCC on a few occasions thinking it was his personal card.

Id. He further alleged that the first time he did so he contacted an agency finance

office and was told to “just pay it off no big deal.” Id. He made the same error a

number of times. Id. Because he did not receive any reprimand or counseling for

these incidents, he “began to believe” that it was an acceptable practice so long as

he paid the balance on time. Id. The appellant additionally claimed that it was

his understanding that he could use his GTCC a few days prior to being on travel

status to ensure that the card was working and to make purchases for the

upcoming travel, such as for fuel, snacks, and personal hygiene products. Id.

The appellant further admitted to receiving the GTCC training, but claimed that,

during the 2014 time period, he was on medication for mild post-traumatic stress

disorder, anxiety, and sleep disorder. Id. This medication affected his ability to

absorb and retain the travel card training information. Id. Finally, the appellant

argued that, because this was a first offense and most of the charges would not

have occurred had he been initially warned, the punishment of removal was

unwarranted. Id. at 76.

On August 21, 2017, after reviewing the appellant’s response, the agency

issued a final decision. Id. at 81. The deciding official conducted an analysis of

the Douglas factors and, despite mitigating factors weighing in the appellant’s

favor, decided to uphold the removal. Id. at 84-89; see Douglas v. Veterans

Administration, 5 M.S.P.R. 280, 305-06 (1981) (setting forth a non-exhaustive list

of relevant factors to consider in determining the appropriateness of a penalty).

The appellant filed an appeal with the Board. IAF, Tab 1. In his appeal, he

claimed that the penalty of removal was arbitrary and excessive. Id. at 6. He also

claimed that the deciding official failed to properly consider the Douglas factors,

other employees received lesser penalties for the same conduct, and the agency

did not attempt to determine if he fully understood the proper GTCC usage

procedures. Id. The appellant waived his right to a hearing and requested that

the matter be decided on the written record. IAF, Tab 21 at 1.

The administrative judge issued an initial decision affirming the appellant’s

removal. IAF, Tab 28, Initial Decision (ID). She construed the charge as

“whether the appellant knew, or should have known, he was misusing the

Government travel card issued to him.” ID at 4-5. The administrative judge

found that the agency proved its charge. ID at 9. In reaching her conclusion, she

found that the appellant’s excuses for using the card were not credible. ID at 7-8.

According to the administrative judge, the appellant’s responses varied over the

course of the appeal. Id. He claimed that he used the GTCC in error because it

looked identical to his personal card, he thought he could use the card a few days

before official travel to prepare for it, he thought he had to occasionally use the

card to prevent it from being deactivated, and it was his impression that the use of

the card for personal reasons was “no big deal” so long as he paid it off. Id.

Because the appellant occupied a position of trust and responsibility, and his

misuse of the GTCC negatively impacted the agency’s confidence in his ability to

perform his duties, the administrative judge found that the agency established a

nexus between the misconduct and the agency’s mission. ID at 9-10.

The administrative judge affirmed the removal penalty. ID at 11-14. She

determined that the deciding official appropriately considered the relevant

Douglas factors and reasonably exercised management discretion in making the

penalty determination. ID at 13-14. Although the appellant alleged that others

were subject to lesser penalties, the administrative judge found that he did not

present evidence of any employee whose misconduct was as egregious. ID at 14.

Accordingly, she found that the penalty imposed was reasonable. Id.

The appellant has filed a petition for review, to which the agency has

responded. Petition for Review (PFR) File, Tabs 1, 3. The appellant does not

dispute the finding that he inappropriately used his GTCC, or that a nexus exists

between the misconduct and the agency’s mission. Rather, the appellant’s

argument on review is that the penalty of removal is beyond the bounds of

reasonableness. PFR File, Tab 1 at 4. The appellant seeks a lesser penalty for

numerous reasons. He argues that, although he inappropriately used the card over

a 2-½ year time span, had he been disciplined when he first misused the card, he

would not have repeated the misconduct. Id. at 5. He reasserts that, because

other similar employees engaged in similar misconduct but did not receive such a

harsh penalty, the agency must prove a legitimate reason exists for the difference

in treatment. Id. at 6. He cites several cases in which the Board has found that,

although misuse of a GTCC is a serious offense, it does not warrant removal. Id.

at 6-7. Finally, he provides his own analysis of the Douglas factors and claims

that the deciding official here failed to weigh the relevant mitigating factors. Id.

at 7-8.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant has not challenged the administrative judge’s findings that

the agency proved its charge and established a nexus between the charge and the

efficiency of the service. In fact, the appellant admits that he bears responsibility

for the misuse of his GTCC. PFR File, Tab 1 at 4. Therefore, we discern no

reason to disturb the administrative judge’s well-reasoned findings as to the

charge and nexus. The appellant only disputes that his removal was within the

tolerable limits of reasonableness. We are not persuaded and affirm the removal

penalty.

When, as here, the Board sustains all of the charges in an adverse action, it

will review an agency-imposed penalty only to determine if the agency

considered all of the relevant factors and exercised management discretion within

the tolerable limits of reasonableness. Raco v. Social Security Administration,

117 M.S.P.R. 1, ¶ 13 (2011). 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 recognizes that its function is not to displace management’s

responsibility or to decide what penalty it would impose, but to assure that

management judgment has been properly exercised and that the penalty selected

by the agency does not exceed the maximum limits of reasonableness. Id.

The Board has identified several factors as relevant in determining the

appropriateness of a penalty. Id., ¶ 14 (citing Douglas, 5 M.S.P.R. at 305-06).

Of the non-exhaustive factors listed, the Board has held that the most important

of the Douglas factors is the nature and seriousness of the offense. Id. As the

agency determined, and the administrative judge agreed, the appellant’s offense

was serious. ID at 13-14; IAF, Tab 4 at 84; see Brown v. Department of the

Army, 96 M.S.P.R. 232, ¶ 11 (2004) (finding no question that the appellant’s

instances of unauthorized use of a Government credit card, which included

permitting the account to remain delinquent, was serious).

The appellant cites several decisions in which the Board mitigated a

removal of an employee charged with travel card misuse. PFR File, Tab 1 at 6-7.

However, these cases are distinguishable from the appellant’s case. In Johnson v.

Department of the Treasury, 15 M.S.P.R. 731 (1983), aff’d, 770 F.2d 181 (Fed.

Cir. 1983) (Table), the Board mitigated the penalty to a demotion because, in

large part, the appellant was charged with unintentional misuse of a credit card.

Johnson, 15 M.S.P.R. at 736. Here, the appellant’s misuse was intentional.

ID at 4-9. Additionally, the record indicated that the appellant in Johnson was

not specifically on notice that his conduct was in violation of any agency

regulations. Johnson, 15 M.S.P.R. at 735-36. Likewise, in Nelson v. Veterans

Administration, 22 M.S.P.R. 65 (1984), the Board found a 30-day suspension was

the maximum reasonable penalty for personal use of a Government credit card

when the agency did not prove that the appellant had been put on notice that his

conduct violated the agency’s policies. Nelson, 22 M.S.P.R. at 70-71. Here, the

appellant was specifically on notice of the policies surrounding use of his GTCC,

and even admitted to initially reporting its misuse. IAF, Tab 4 at 75, 90-91,

103-104.

The appellant further claims that the deciding official here failed to

appropriately weigh the mitigating factors. PFR File, Tab 1 at 8. Among those

factors listed by the appellant is that the agency suffered no financial loss. Id.

at 7. Generally, a deciding official need not show that he considered all of the

mitigating factors. Batara v. Department of the Navy, 123 M.S.P.R. 278, ¶ 5

(2016). The Board will independently weigh the relevant factors only if the

deciding official failed to demonstrate that he considered any specific, relevant

mitigating factors before deciding the penalty. Id. Here, the deciding official

stated, as to the seriousness of the offense, that the appellant “did not exceed his

time limitation” for paying the card balance. IAF, Tab 4 at 84. Thus, he

considered not only that the appellant paid off his card, but also that he did so on

time, eliminating any fee for late payment. Id. Nonetheless, he found the

seriousness of the appellant’s misconduct to be an aggravating penalty factor

given the nature of the misconduct and that it occurred 113 times over a 2-½ year

period. Id. Because the deciding official specifically considered the costs

averted by the appellant’s payment of his card, we find he considered that the

agency suffered no financial loss; thus, we are not persuaded by the appellant’s

argument to the contrary.

The remainder of the mitigating factors cited by the appellant were

appropriately analyzed by the deciding official. PFR File, Tab 1 at 7-8; IAF,

Tab 4 at 84-89. In fact, he considered as mitigating factors the appellant’s lack of

prior discipline, past record of performance and years of service, potential for

rehabilitation, and personal circumstances. IAF, Tab 4 at 85-88. The appellant

here is merely trying to substitute his weighing of the factors for that of the

deciding official, an exercise the Board will not conduct in deciding whether a

given penalty is appropriate. See Adam v. U.S. Postal Service, 96 M.S.P.R. 492,

¶ 7 (2004) (explaining that it is not the Board’s role to decide what penalty it

would impose, but rather whether the penalty selected by the agency exceeds the

maximum reasonable penalty), aff’d, 137 F App’x 352 (Fed. Cir. 2005).

In doing so, the appellant argues that his immediate supervisor stated that

he still has confidence in the appellant and the appellant has rehabilitative

potential. PFR File, Tab 1 at 7; IAF, Tab 10 at 20. The penalty judgment

belongs to the agency, not to an appellant’s supervisor, and a supervisor’s

opinions are insufficient to overcome the agency’s judgment concerning the

seriousness of the misconduct and the appropriateness of the agency-imposed

penalty. Batara, 123 M.S.P.R. 278, ¶ 7. The deciding official clearly stated that

the appellant’s misconduct caused a loss in confidence. IAF, Tab 4 at 86. We

discern nothing improper in this determination.

The appellant further claims that, had he been punished earlier, or received

progressive discipline, his misconduct would have stopped and the amount and

length of time of his GTCC misuse would not have been so severe. PFR File,

Tab 1 at 5. However, this argument was similarly weighed by the deciding

official. IAF, Tab 4 at 87. He considered the appellant’s claim that he received

“mixed messages” when the finance office allegedly told him to pay off his card

after the first instance of misuse and he suffered no penalty. Id. However, he

found that the appellant was on clear notice that his conduct was unacceptable

because he received training and acknowledged that the GTCC was for official

travel expenses only. Id. at 87, 90-91, 103-104.

Finally, the appellant reasserts his claim that the agency treated similarly

situated employees more favorably. PFR File, Tab 1 at 6. The administrative

judge found that none of the appellant’s alleged comparators were similar in

terms of the length of time or number of instances of misuse. ID at 3. We agree.

We clarify the administrative judge’s reasoning to comport with the Board’s

recent decision in Singh. As the Board held in Singh, while no single factor is

outcome determinative, 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. Singh,

2022 MSPB 15, ¶ 13. In most cases, employees from another work unit or

supervisory chain will not be proper comparators. Id. Accordingly, 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. The universe of potential comparators will vary

from case to case, but it should be limited to those employees whose misconduct

and/or other circumstances closely resemble those of the appellant. Id.

Here, the employees cited by the appellant are both from different work

units and different supervisory chains. IAF, Tab 4 at 105-114. Although charged

with similar offenses, there is no common factor the appellant shares with the

employees, such as conspiring with them to misuse their cards, to make them

proper comparators for a disparate penalty analysis. See Williams v. Social

Security Administration, 586 F.3d 1365, 1368-69 (Fed. Cir. 2009) (finding the

employees comparators when, despite their different supervisors, the agency’s

discipline stemmed from both employees’ involvement in the same tax fraud

scheme). As such, the deciding official’s analysis of this factor was proper when

he indicated that “[n]o other employee under [his] supervision has committed

offenses similar to those alleged.” IAF, Tab 4 at 86. As he further explained, the

examples provided by the appellant “did not have the [same high] volume of

transactions or length of time” over which those transactions were conducted as

the appellant. Id. at 87.

Based on the foregoing, we agree with the administrative judge that the

deciding official properly considered the relevant Douglas factors and that the

penalty of removal is within the tolerable limits of reasonableness for the

sustained misconduct.

NOTICE OF APPEAL RIGHTS 2

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

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:

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.

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. 3 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