Filed: Nov. 29, 2016
Latest Update: Mar. 03, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DEREK R. WILLIAMS, DOCKET NUMBER Appellant, PH-0752-14-0438-I-2 v. DEPARTMENT OF THE AIR FORCE, DATE: November 29, 2016 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Shaun Southworth, Esquire, Atlanta, Georgia, for the appellant. Jeremiah Crowley, Esquire, Joint Base Andrews, Maryland, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial dec
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD DEREK R. WILLIAMS, DOCKET NUMBER Appellant, PH-0752-14-0438-I-2 v. DEPARTMENT OF THE AIR FORCE, DATE: November 29, 2016 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Shaun Southworth, Esquire, Atlanta, Georgia, for the appellant. Jeremiah Crowley, Esquire, Joint Base Andrews, Maryland, for the agency. BEFORE Susan Tsui Grundmann, Chairman Mark A. Robbins, Member FINAL ORDER ¶1 The appellant has filed a petition for review of the initial deci..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEREK R. WILLIAMS, DOCKET NUMBER
Appellant, PH-0752-14-0438-I-2
v.
DEPARTMENT OF THE AIR FORCE, DATE: November 29, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Shaun Southworth, Esquire, Atlanta, Georgia, for the appellant.
Jeremiah Crowley, Esquire, Joint Base Andrews, Maryland,
for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 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 when:
the initial decision contains erroneous findings of material fact; the initial
decision is based on an erroneous interpretation of statute or regulation or the
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
erroneous application of the law to the facts of the case; the 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 by
this Final Order to supplement the administrative judge’s disparate treatment
analysis, we AFFIRM the initial decision.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 Effective October 21, 2012, the agency converted the appellant from his
position as a GS-9 Computer Assistant to a GS-11 Information Technology (IT)
Specialist (Systems Administration) at the agency’s Expeditionary Center,
Mission Support Operations. Williams v. Department of the Air Force,
MSPB Docket No. PH-0752-14-0438-I-1, Initial Appeal File (IAF), Tab 4 at 66,
68-69, 74, Tab 14 at 25. On October 11, 2013, the agency proposed to remove
him on the basis of one charge of “failure to complete training” with a single
underlying specification, which explained that he had failed to obtain a Level III
Information Assurance Technician (IAT) Certification within 6 months of his
appointment, as required by Department of Defense (DOD) Directive 8570.01-M
for incumbents in his position. IAF, Tab 4 at 43. In a November 15, 2013
decision letter, the deciding official determined that the reasons stated in the
proposal notice were supported by the evidence and imposed the removal
effective November 16, 2013. Id. at 21-23.
3
¶3 The appellant timely appealed his removal to the Board and requested a
hearing. IAF, Tab 1. The appellant argued that the agency charged him with
“failure to complete training”—not “failure to obtain a certification”—and that it
could not prove the “failure to complete training” charge because it did not
provide him any training and could not show that any specific training was
required as a condition of his employment. IAF, Tab 16 at 13-14. The appellant
also raised affirmative defenses of harmful procedural error and a due process
violation in connection with the allegedly defective charge, as well as a race
discrimination claim. Id. at 15; IAF, Tab 17 at 2-6. Prior to the scheduled
hearing, the appellant notified the administrative judge that he would be
unavailable for the hearing as a result of an emergency medical procedure , and, at
the appellant’s request, the administrative judge subsequently dismissed the
appeal without prejudice to refiling. IAF, Tabs 18-19.
¶4 On December 1, 2014, the Board’s regional office automatically refiled the
appeal. Williams v. Department of the Air Force, MSPB Docket
No. PH-0752-14-0438-I-2, Appeal File (I-2 AF), Tab 1. After holding the
requested hearing, the administrative judge affirmed the removal, finding that the
agency proved the charge, established nexus, and showed that the penalty was
reasonable. I-2 AF, Tab 13, Initial Decision (ID) at 3-9, 15-18. She also denied
the appellant’s affirmative defenses. ID at 9-15.
¶5 The appellant has filed a petition for review of the initial decision, the
agency has responded in opposition, and the appellant has replied to the agency’s
response. Petition for Review (PFR) File, Tabs 1, 3-4.
The administrative judge correctly found that the agency proved the charge.
¶6 As noted above, the agency proposed to remove the appellant based on one
charge of “failure to complete training,” supported by a single specification,
which described his failure to complete his Level III IAT Certification within
6 months of his appointment. IAF, Tab 4 at 43. The specification further
indicated that Information Assurance (IA) certification was a condition of his
4
employment and that DOD Directive 8570.01-M required him to achieve a
Level III IAT Certification within 6 months of appointment. Id. The
administrative judge sustained the charge, finding that the agency established by
preponderant evidence that: (1) the appellant’s position required him to achieve
Level III IAT Certification within 6 months of entering into his position; and
(2) he failed to do so. ID at 9.
¶7 The appellant argues on review that the administrative judge abused her
discretion by construing the agency’s “actual charge of ‘failure to complete
training’ as the completely separate and distinct charge of ‘f ailure to obtain
certification.’” PFR File, Tab 1 at 16-20. He further argues, as he did below,
that the agency did not prove the charge of “failure to complete training” because
“there was no training provided” and “no specific training was required as a
condition of employment.” Id. at 18; PFR File, Tab 4 at 5-6.
¶8 An employee must receive advanced written notice stating the specific
reasons for the proposed adverse action. 5 U.S.C. § 7513(b)(1); Smith v.
Department of the Interior, 112 M.S.P.R. 173, ¶ 5 (2009). To satisfy this notice
requirement, an agency is required to state the specific reasons for a proposed
adverse action in sufficient detail to allow the employee to make an informed
reply. Smith, 112 M.S.P.R. 173, ¶ 5. Because the appellant must have full notice
of the charges against him, the Board cannot consider or sustain charges or
specifications that are not included in the proposal notice. Id. However, the
Board will not technically construe the wording or specifications of a charge.
Id.
In resolving the issue of how a charge should be construed, the Board examines
the structure and language of the proposal notice and the decision notice, as well
as the accompanying specifications and circumstances. George v. Department of
the Army, 104 M.S.P.R. 596, ¶ 7 (2007), aff’d, 263 F. App’x. 889 (Fed. Cir.
2008); see Otero v. U.S. Postal Service, 73 M.S.P.R. 198, 202-04 (1997).
Here, although the name of the charge “failure to complete training”
is imprecise, the specification precisely describes the charged
5
conduct. In relevant part, the specification quoted the appellant’s
Standard Core Personnel Document, which provided: “IA
Certification is a condition of employment . . . the incumbent of this
position must achieve Level III [IAT] certification within six months
of assignment of these duties[.] Failure to receive the proper IA
certification may result in removal from this position.” IAF, Tab 4
at 43. The specification further stated that, “[a]s of this date, you
have failed to satisfactorily complete Level III [IAT] Certification.”
Id. In addition, the proposal notice set forth a timeline of relevant
events leading up to the proposed action. Id. at 43-44. Notably, the
proposing official wrote, On 13 Sep 2013, I afforded you a final
opportunity to complete your Level III Assurance Certification. I
reminded you the [L]evel III certification is a condition of
employment . . . I directed you to achieve your [L]evel III
Information Assurance Certification, and turn in your Level III
Certification to me by close of business 4 October 2013 . . . On
Monday, 7 October 2013, I met with you and gave you a
memorandum for record documenting that you have failed to attain
your Level III [IAT] certification by the stated 4 October 2013
deadline. Id. at 44.
The proposing official further noted that, pursuant to DOD Directive
8570.01-M,
[N]ew hires . . . must obtain the appropriate certification within
6 months of being assigned IA functions. As a result of your failures
to complete Level III [IAT] certification, your [ ] System
Administrator privileges were revoked on 31 July 2013.
Consequently, you are no longer able to perform the critic al duties of
your position[.] Id.
¶9 Despite the clarity of the specification and accompanying circumstances,
the appellant urges the Board to technically construe the charge by its label and
require the agency to prove the elements of a “failure to complete training”
charge. PFR File, Tab 1 at 18. However, the appellant’s “exclusive focus on the
heading of the Notice of Proposed Removal is misplaced, as charged offenses are
to be gleaned from the Notice of Proposed Removal as a whole, particularly the
specification(s) supporting the heading.” Allen v. U.S. Postal Service, 466 F.3d
1065, 1070 (Fed. Cir. 2006) (finding that, although the name of the charge in the
proposal notice was “misuse of Postal Service funds,” the specification
6
underlying the charge afforded the appellant sufficient notice of the elements of
the distinct charge of failure to timely pay his Government-issued credit card).
Therefore, we reject the appellant’s contention that the charge must be technically
construed by its label without reference to the rest of the proposal notice.
¶10 Construing the charge in light of the accompanying specification and the
surrounding circumstances, including those explicitly discussed in the proposal
notice, it is clear that the proposed removal was based on the appellant’s failure
to attain his Level III IAT Certification within 6 months of his appointment,
which was a DOD requirement and a condition of his employment. Thus, we
agree with the administrative judge’s implicit interpretation of the charge and
find that the proposal notice charged the appellant with failure to fulfill a
condition of employment; namely, a Level III IAT Certification within 6 months
of his appointment. ID at 3-9.
¶11 To sustain a charge of failure to fulfill a condition of employment, the
agency must show that: (1) the requirement at issue is a condition of
employment; and (2) the appellant failed to meet that condition. Gallegos v.
Department of the Air Force, 121 M.S.P.R. 349, ¶ 6 (2014). As noted above, the
administrative judge found that the agency established by preponderant evidence
that: (1) the appellant’s position required him to achieve Level III IAT
Certification within 6 months of entering into his position; and (2) he failed to do
so. ID at 9. Because the appellant has not challenged these findings on review,
and because we discern no error in the administrative judge ’s well-reasoned
findings regarding these matters, we will not disturb them. See Crosby v. U.S.
Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no basis to disturb the
administrative judge’s findings when she considered the evidence as a whole,
drew appropriate inferences, and made reasoned conclusions on issues
of credibility).
7
The administrative judge correctly denied the appellant’s harmful procedural
error and due process affirmative defenses.
¶12 As noted above, the administrative judge found that the appellant failed to
prove his harmful procedural error or due process affirmative defenses because
the agency’s proposal letter sufficiently placed him on notice of the charge
against him and afforded him a reasonable opportunity to respond. 2 ID at 11. On
review, the appellant challenges this finding, arguing that the agency’s mislabeled
charge deprived him of his right to reply to the charge and caused the agency to
reach a different conclusion than it would have reached absent the error. PFR
File, Tab 1 at 14-15, 17, Tab 4 at 4-5. He also argues that the administrative
judge failed to discuss his evidence and did not sufficiently explain the rationale
underlying her determination that the proposal letter afforded him notice and a
meaningful opportunity to respond. PFR File, Tab 1 at 15-16.
¶13 The Board has held that due process requires that a Federal employee facing
removal be provided “notice of the charges against him, an explanation of the
employer’s evidence, and an opportunity to present his side of the story.”
Alford v. Department of Defense, 118 M.S.P.R. 556, ¶ 6 (2012) (quoting
Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985)). Here, as
discussed above, the appellant received written notice that clearly explained the
reason for his proposed removal. IAF, Tab 4 at 43-45. He further had an
opportunity to make both a written and an oral response to the deciding official ,
which he did, and the deciding official considered those responses in deciding to
impose the removal. Id. at 21, 30, 34-35, 37, 39-41. Because the appellant was
2
In the initial decision, the administrative judge identified the appellant’s claim, that
the agency incorrectly charged him with failure to complete training instead of failure
to obtain Level III IAT Certification, as a harmful procedural error claim but considered
the claim under the framework of a due process claim. ID at 9-11. Although the
administrative judge appears to have conflated the two affirmative defenses, we discuss
them separately here and agree with her finding that the appellant failed to establish an
affirmative defense in connection with the agency’s allegedly defective charge.
8
adequately notified of the charges against him and afforded an opportunity to
respond, we find that he has failed to establish any due process violation.
¶14 A harmful procedural error occurs when the appellant proves that the
agency committed a procedural error, whether regulatory or sta tutory, that likely
had a harmful effect on the outcome of the case before the agency. Tom v.
Department of the Interior, 97 M.S.P.R. 395, ¶ 43 (2004). Here, the appellant
argues that the agency committed a harmful procedural error because, “since the
agency charged [him] with failure to complete training it’s [sic] conclusion
should have been that the charge could not be sustained because it failed to meet
all the elements of the charge.” PFR File, Tab 4 at 5.
¶15 The appellant’s contention that the agency could not prove the charge of
“failure to complete training” does not implicate a harmful procedural error;
rather, this argument goes to the merits of the removal action. As discussed
above, we find that the agency proved the charge, as construed in light of the
specification and accompanying circumstances, by preponderant evidence. We
discern no basis to conclude that the label of the charge constitut ed a harmful
procedural error. To the contrary, we find that the appellant has not been harmed
in the least because the agency labeled the charge as “failure to complete
training” rather than a more precise label, such as “failure to obtain certification”
or “failure to fulfill a condition of employment.” Otero, 73 M.S.P.R. at 203
(finding that the appellant was “not harmed in the least” b ecause the agency used
a “broad label”).
We modify the administrative judge’s disparate treatment analysis but still find
that the administrative judge correctly denied the appellant’s affirmative defense
of race discrimination.
¶16 The appellant also contests the administrative judge’s finding that he failed
to prove his affirmative defense of race discrimination. ID at 11-15; PFR File,
Tab 1 at 20-29, Tab 4 at 6-8. In particular, he argues, as he did below, that the
agency provided formal training to Caucasian employees at the Expeditionary
9
Center, but denied him the formal training needed to pass the Level III IAT
Certification test, which led to his removal. IAF, Tab 16 at 8, 12, 15; PFR File,
Tab 1 at 20-29, Tab 4 at 6-8. In the initial decision, the administrative judge
considered the appellant’s disparate treatment claim and found that he failed to
“demonstrate that he was treated more harshly than an individual who was not a
member of his protected group.” ID at 13. Although we agree with the
administrative judge’s ultimate conclusion that the appellant failed to prove this
affirmative defense, we modify the initial decision to supplement the
administrative judge’s disparate treatment analysis.
¶17 When an appellant asserts an affirmative defense of discrimination or
retaliation under 42 U.S.C. § 2000e-16, the Board first will inquire whether the
appellant has shown by preponderant evidence that the prohibited consideration
was a motivating factor in the contested personnel action. Gardner v. Department
of Veterans Affairs, 123 M.S.P.R. 647, ¶¶ 28, 30 (2016); Savage v. Department of
the Army, 122 M.S.P.R. 612, ¶ 51 (2015). Such a showing is sufficient to
establish that the agency violated 42 U.S.C. § 2000e-16, thereby committing a
prohibited personnel practice under 5 U.S.C. § 2302(b)(1). Naval Station Norfolk
Hearing 2 v. Department of the Navy, 123 M.S.P.R. 144, ¶ 28 (2016); see Savage,
122 M.S.P.R. 612, ¶ 51. If the appellant meets his burden, the Board then will
inquire whether the agency has shown by preponderant evidence that the ac tion
was not based on the prohibited personnel practice, i.e., that it still would have
taken the contested action in the absence of the discrim inatory or retaliatory
motive. Naval Station Norfolk Hearing 2, 123 M.S.P.R. 144, ¶ 28; Savage,
122 M.S.P.R. 612, ¶ 51. If the Board finds that the agency has made that
showing, its violation of 42 U.S.C. § 2000e-16 will not require reversal of the
action. Naval Station Norfolk Hearing 2, 123 M.S.P.R. 144, ¶ 28; Savage,
122 M.S.P.R. 612, ¶ 51.
¶18 An appellant may meet his initial burden of showing that race was a
motivating factor in the adverse action through evidence of disparate treatment of
10
similarly situated comparators. See Savage, 122 M.S.P.R. 612, ¶ 51. For another
employee to be deemed similarly situated for purposes of an affirmative defense
of discrimination based on disparate treatment, all relevant aspects of the
appellant’s employment situation must be “nearly identical” to that of the
comparator employee. Hooper v. Department of the Interior, 120 M.S.P.R. 658,
¶ 6 (2014); Ly v. Department of the Treasury, 118 M.S.P.R. 481, ¶ 10 (2012).
Thus, to be similarly situated, a comparator must have reported to the same
supervisor, been subjected to the same standards governing discipline, and
engaged in conduct similar to the appellant’s withou t differentiating or mitigating
circumstances. Hooper, 120 M.S.P.R. 658, ¶ 6; Ly, 118 M.S.P.R. 481, ¶ 10.
¶19 Here, the appellant argues that R.T., M.C., and F.F. are similarly situated
comparators who were treated more favorably by the agency because the agency
sent them to formal training, but did not send him to formal training, which
resulted in his failure to pass the Level III IAT Certification test and led to his
removal. PFR File, Tab 1 at 20-25, Tab 4 at 6-7. The appellant asserts that R.T.,
a Caucasian Help Desk Technician who worked in the sa me unit and had the same
first- and second-level supervisors as the appellant, is the “key comparator.” PFR
File, Tab 1 at 20-25, Tab 4 at 6-7. According to the appellant, the agency sent
R.T. to formal training to obtain her IAT Certification and later sent her for
additional training that was not necessary for her position. PFR File, Tab 1 at 23.
The appellant also argues that two other Caucasian employees, Infrastructure
Mechanics M.C. and F.F., received training but that the agency denied training
for two African-American employees, E.S. and K.W., and one Filipino-American
employee, R.B. Id. at 24; IAF, Tab 16 at 18-19.
¶20 We find that M.C. and F.F. are not similarly situated to the appellant,
however, because they were Infrastructure Mechanics, while the appellant was an
IT Specialist, and they were not required to obtain an IAT Certification as a
condition of their employment. IAF, Tab 16 at 18-19; I-2 AF, Tab 6, Hearing
Compact Disc (HCD) (testimonies of J.E. and S.B.). In addition, the appellant’s
11
first- and second-level supervisors, J.E. and S.B., explained that M.C. and F.F.
were sent to receive training on new telephone equipment that was being installed
because their job duties required them to install and configure the new equipment .
HCD (testimonies of J.E. and S.B.).
¶21 R.T., on the other hand, is similarly situated to the appellant because she
had the same first- and second-level supervisors as the appellant and her position
required her to obtain an IAT Certification as a condition of employment. IAF,
Tab 16 at 18; HCD (testimony of J.E.). Even though the agency provided formal
training to R.T. but did not provide such training to the appellant, the Board must
still consider whether all of the evidence, taken together as a whole, is sufficient
to satisfy the appellant’s initial burden of showing, by preponderant evidence,
that his race was a motivating factor in his removal. See Gardner, 123 M.S.P.R.
647, ¶¶ 28-30; Savage, 122 M.S.P.R. 613, ¶ 51. For the reasons discussed below,
however, we find that preponderant evidence does not establish that race was a
motivating factor in the agency’s decisions regarding training or in its decision to
remove the appellant for failure to obtain the required certification.
¶22 Although R.T., a similarly situated employee outside the appellant’s
protected class, was provided formal training, J.E. and S.B. explained that R.T.
properly requested the training by submitting a written request in the correct
format describing the requested training and its impact on the mission. HCD
(testimonies of J.E. and S.B.). The appellant avers that he requested training
multiple times prior to his response to the proposed removal . PFR File, Tab 1
at 21-23. However, both his first- and second-level supervisors testified that he
did not request formal training to prepare for the Level III IAT Certification test
before he responded to the proposed removal. HCD (testimonies of J.E. and
S.B.). The administrative judge credited the supervisors’ testimonies, finding
that the appellant did not request formal training in writing until after he
responded to the proposed removal, despite being included on a series of emails
regarding requesting and purchasing training vouchers. ID at 12; IAF, Tab 16
12
at 198-99. The appellant also argues that he was not required to request formal
training in writing, but that he did so in a November 2012 budget plan that he
submitted to his second-level supervisor in January 2013. PFR File, Tab 1 at 8,
21, 26. However, the record does not contain a November 2012 budget plan in
which the appellant requested Level III IAT training. See, e.g., IAF, Tabs 4, 14,
16; I-2 AF, Tabs 8-9. Thus, we find no basis to disturb the administrative judge’s
determination that the appellant failed to properly request training until after the
agency proposed his removal in October 2013—nearly 6 months after the date by
which he was required to have obtained the Level III IAT Certification. ID at 12;
IAF, Tab 4 at 43.
¶23 In addition, J.E. and S.B. testified that no one in their unit had been sent to
formal training to prepare for the Level III IAT Certification test. HCD
(testimonies of J.E. and S.B.). J.E. explained that employees were allowed time
while on duty to study for their certification tests and that there were a variety of
computer-based training programs available for the employees to use. HCD
(testimony of J.E.). K.W., the only other employee in the appellant’s network
operations team whose position required him to obtain the Level III IAT
Certification, obtained the certification without attending formal training.
HCD (testimonies of J.E., S.B., and K.W.). Thus, there is no indication that the
agency treated the appellant any differently than any other employee whose
position required Level III IAT Certification.
¶24 The appellant further argues that the agency violated D OD Directive
8750.01-M by failing to provide him training. PFR File, Tab 1 at 6, 19-29, Tab 4
at 6-7. The provision of DOD Directive 8750.01-M cited by the appellant
provides that “[e]ach category, specialty, and skill level has specific training and
certification requirements . . . These training and certification requirements must
be provided by the Department of Defense at no cost to the government
employees.” PFR File, Tab 1 at 6; IAF, Tab 4 at 83, DOD Directive 8750.01-M,
C2.3.1. We are not persuaded by the appellant’s contention that this provision
13
required the agency to provide him formal training to prepare for the IAT
Level III Certification test. A more plausible reading of this provision is that,
when specific training for a position is required, the agency must provide that
training. When, as here, certification is required, but not any particular training,
DOD Directive 8750.01-M does not impose an obligation on the agency to
provide formal training to prepare for the certification. IAF, Tab 4 at 83-85. In
any event, even if the agency had denied a properly submitted request for training
by the appellant, such matter was within the agency’s managerial discretion and
would not, on its own, raise an inference of discrimination.
¶25 In light of the foregoing, we agree with the administrative judge that the
appellant has failed to establish that discrimination was a motivating factor in the
agency’s decision to remove him for failing to obtain Level III IAT Certification.
ID at 12-15.
The administrative judge correctly determined that removal is within th e tolerable
limits of reasonableness.
¶26 When, as here, all of the agency’s charges are sustained, the Board will
review the agency-imposed penalty only to determine if the agency considered all
the relevant factors and exercised management discretion within the tolerable
limits of reasonableness. Penland v. Department of the Interior, 115 M.S.P.R.
474, ¶ 7 (2010); Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06
(1981) (articulating a nonexhaustive list of 12 factors that are relevant in
assessing the penalty to be imposed for an act of misconduct). In making this
determination, the Board must give due weight to the agency’s primary discretion
in maintaining employee discipline and efficiency, recognizing that the Board’s
function is not to displace management’s responsibility, but to ensure that
managerial judgment has been properly exercised. Penland, 115 M.S.P.R. 474,
¶ 7. The Board will modify or mitigate an agency-imposed penalty only when it
finds that the agency failed to weigh the relevant factors or that the penalty
clearly exceeds the bounds of reasonableness. Id. The Board has held that, in an
14
adverse action resulting from an employee’s failure to maintain a condition of
employment, the most relevant Douglas factors are: (1) the nature of the offense;
(2) its effect on an appellant’s performance of the job; and (3) the availability and
effect of alternative sanctions. Id., ¶ 8.
¶27 In this case, the administrative judge found that the deciding official
considered the relevant evidence, appropriately weighed the Douglas factors, and
exercised his managerial discretion within the tolerable limits of reasonableness.
ID at 16-18; IAF, Tab 4 at 25-31. Specifically, she noted that the deciding
official considered the offense to be serious, found that it precluded the appellant
from performing the essential functions of his position, and that, although the
agency considered reassigning him to a vacant position that did not require
Level III IAT Certification, the agency was unable to find a vacant position for
which he qualified. ID at 16-17; IAF, Tab 4 at 25-31. The administrative judge
also explained that the deciding official found that the appellant had little
potential for rehabilitation because he had been unable to obtain the requisite
certification despite being given time to study while on duty and more than
6 months to prepare to take the certification examination. ID at 17; IAF, Tab 4
at 29. The administrative judge further noted that the deciding official considered
mitigating factors, such as the appellant’s 1 year of service with the agency and
lack of prior discipline, but concluded that these factors did not outweigh the
seriousness of the offense. ID at 17; IAF, Tab 4 at 26, 30.
¶28 On review, the appellant argues that the penalty of removal is outside the
bounds of reasonableness because he only learned of the Level III IAT
Certification requirement in January 2013 and argues again that he requested
formal training, but the agency failed to provide it. PFR File, Tab 1 at 29-31. He
further argues that the deciding official should have given “proper weight” to
other mitigating factors, such as his heavy work load, his illness, his mother’s
illness, and his 2-hour commute. Id. at 31.
15
¶29 As discussed above, we disagree with the appellant’s contention that the
agency was required to provide him formal training to obtain the Level III IAT
Certification. Furthermore, even if the appellant did not learn that he was
required to obtain Level III IAT Certification until January 2013, although he was
appointed in October 2012, he was still afforded nearly 10 months to obtain the
certification. IAF, Tab 4 at 43-45, 48, 51. The appellant’s other arguments
constitute mere disagreement with the weight the deciding official afforded to
each Douglas factor, which does not provide any basis for review. PFR File,
Tab 1 at 29-31, Tab 4 at 8-9; see Kirkland v. Department of Homeland Security,
119 M.S.P.R. 74, ¶ 25 (2013) (explaining that the issue in determining if the
Board should exercise its mitigation authority is whether the agency considered
the relevant Douglas factors and reasonably exercised management discretion in
making its penalty determination). Accordingly, we find no basis to disturb the
administrative judge’s determination that the deciding official considered the
relevant Douglas factors and exercised managerial discretion within the tolerable
limits of reasonableness.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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 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 U.S. 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:
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Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate U.S. 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
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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.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
