Filed: Dec. 29, 2016
Latest Update: Mar. 03, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD FABRIAN B. WILSON, DOCKET NUMBER Appellant, AT-0752-15-0194-I-1 v. UNITED STATES POSTAL SERVICE, DATE: December 29, 2016 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Brandi Nave, Esquire, Washington, D.C., for the appellant. Sandra W. Bowens, Esquire, Memphis, Tennessee, 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 a
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD FABRIAN B. WILSON, DOCKET NUMBER Appellant, AT-0752-15-0194-I-1 v. UNITED STATES POSTAL SERVICE, DATE: December 29, 2016 Agency. THIS FINAL ORDER IS NONPRECEDENTIAL 1 Brandi Nave, Esquire, Washington, D.C., for the appellant. Sandra W. Bowens, Esquire, Memphis, Tennessee, 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 af..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FABRIAN B. WILSON, DOCKET NUMBER
Appellant, AT-0752-15-0194-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: December 29, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Brandi Nave, Esquire, Washington, D.C., for the appellant.
Sandra W. Bowens, Esquire, Memphis, Tennessee, 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
erroneous application of the law to the facts of the case; the administrative
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 and AFFIRM the initial decision, which is now the Board ’s final
decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 Effective February 28, 2014, the agency removed the appellant, a
preference-eligible Tractor Trailer Operator at the Memphis, Tenn essee
Processing and Distribution Center, for unacceptable conduct , alleging that, on
December 12, 2013, he pulled a coworker from his vehicle, threw him against the
truck, and pinned him down against the truck by placing a forearm at the bottom
of his neck. Initial Appeal File (IAF), Tab 1 at 1, Tab 7 at 26-29, 140. The union
grieved the appellant’s removal on his behalf, and the grievance proceeded to
arbitration. IAF, Tab 7 at 13‑23, 32‑48. On June 30, 2014, after holding a
hearing, the arbitrator issued an award sustaining the charge of unacceptable
conduct and finding no evidence of discrimination. Id. at 21, 23. In sustaining
the charge, the arbitrator noted that “[i]t is undisputed that [the appellant] was
involved in a physical altercation with a co-worker on the evening of
December 12, 2013. The victim filed charges and [the appellant] was found
guilty of assault/bodily harm by the State of Tennessee.” 2 Id. at 21. Nonetheless,
2
The record contains a copy of the Memphis police report of the incident and the
resulting arrest of the appellant based on a criminal charge of simple assault. IA F,
Tab 7 at 77‑81. According to the September 4, 2014 final agency decision on the
3
the arbitrator mitigated the removal penalty to a time-served suspension. Id.
at 23. The agency returned the appellant to work pursuant to the arbitration
award on July 5, 2014. IAF, Tab 1 at 16.
¶3 The appellant also filed a formal equal employment opportunity (EEO)
complaint in which he claimed that the agency discriminated against him on the
basis of sex when it proposed his removal on January 8, 2014, and when it
removed him effective February 28, 2014. Id. at 8, 17-18. In a
September 4, 2014 final agency decision (FAD), the agency found that the
evidence did not support a finding that the appellant was subjected to
discrimination as alleged. Id. at 21-22. The FAD notified the appellant of his
right to appeal the decision to the Board as a mixed‑case appeal. Id. at 21.
¶4 On October 3, 2014, the appellant appealed his “long term suspension” to
the Board and requested a hearing. Id. at 1-2. He argued that the time‑served
suspension imposed by the arbitrator was too harsh for a “minor altercation” and
asserted that the agency’s action was discriminatory because “the Postal Service
should have known the long term suspension was too harsh.” Id. at 5. The
administrative judge issued several orders regarding the Board ’s jurisdiction and
directed the appellant to clarify whether he was seeking to appeal the arbitr ator’s
award, a matter over which the Board would lack jurisdiction, or the underlying
removal action. IAF, Tab 2 at 2‑3, Tab 15 at 2-5. The administrative judge
explained that, if the appellant were appealing the underlying removal, then
collateral estoppel would preclude relitigation of the charged misconduct, but that
collateral estoppel would not be applied to the arbitrator’s penalty determination
because it was determined “by accident,” i.e., by reference to the length of time
taken by the appeal or administrative review process. IAF, Tab 15 at 3. The
administrative judge further explained that the Board would review the penalty
appellant’s discrimination complaint, “he was found guilty of assault and was sentenced
to 11 months and 29 days of diversion in late March 2014.” IAF, Tab 1 at 15.
4
determination de novo and could sustain the removal and order it reinstated,
notwithstanding the arbitration award mitigating the penalty to a time‑served
suspension. Id. The appellant responded, confirming that he sought to challenge
the removal action, not the arbitrator’s award. IAF, Tab 6 at 5-7, Tab 18 at 4-7.
The administrative judge also apprised the appellant of his burden and elements
of proof as to his discrimination affirmative defense. IAF, Tab 20 at 4‑5.
¶5 After holding a hearing, the administrative judge issued an initial decision
applying collateral estoppel to the merits of the removal acti on and reviewing the
appropriateness of the penalty and the discrimination issues de novo. IAF,
Tab 25, Initial Decision (ID) at 3. The administrative judge found that the
agency’s selected penalty of removal was within the tolerable limits of
reasonableness and entitled to deference and that the appellant failed to establish
his affirmative defense. ID at 3‑8. Thus, the administrative judge held that the
agency could reinstate the removal if it deemed it appropriate and if it were not
precluded from doing so by its own regulations or any applicable collective
bargaining agreement (CBA). ID at 8.
¶6 The appellant has filed a petition for review of the initial decision , and the
agency has responded in opposition. Petition for Review (PFR) File, Tabs 1, 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 Preference-eligible employees of the U.S. Postal Service, like the appellant,
are entitled to simultaneously pursue both a grievance pursuant to a CBA and a
Board appeal under 5 U.S.C. § 7513. Milligan v. U.S. Postal Service,
106 M.S.P.R. 414, ¶ 7 (2007). An appeal under 5 U.S.C. § 7513 is a de novo
proceeding. Id. The burden and standards of proof in such a proceeding are
governed by 5 U.S.C. § 7701, and do not include review of an arbitrator’s
findings under a deferential or any other standard. Id. However, when a Postal
grievance goes to arbitration, collateral estoppel may preclude relitigation of the
5
underlying adverse action in a subsequent Board appeal. Farrelly v. U.S. Postal
Service, 86 M.S.P.R. 230, ¶ 9 (2000), aff’d, 13 F. App’x 910 (Fed. Cir. 2001).
¶8 Applying the doctrine of collateral estoppel is appropriate when: (1) the
issue previously adjudicated is identical to that now presented; (2) that issue was
actually litigated in the prior case; (3) the previous determination of that issue
was necessary to the resultant judgment; and (4) the party pre cluded by the
doctrine was fully represented in the prior action. Id. Here, the issue before the
Board is identical to that adjudicated by the arbitrator, the removal was actually
litigated in an evidentiary hearing on the grievance, the previous determi nation of
the issues was necessary to the resulting judgment, and the appellant was fully
represented in the arbitration proceedings. IAF, Tab 7 at 13‑23. Thus, we agree
with the administrative judge that the record in this case establishes that the
requirements of collateral estoppel are satisfied. ID at 2.
¶9 Nonetheless, the application of collateral estoppel is discretionary and, even
when the criteria have been met, there are circumstances in which it is improper
to apply collateral estoppel. Milligan, 106 M.S.P.R. 414, ¶ 9; Hay v. U.S. Postal
Service, 103 M.S.P.R. 167, ¶ 19 (2006); see Kroeger v. U.S. Postal Service,
865 F.2d 235, 239 (Fed. Cir. 1988). As relevant here, the Board has held that
collateral estoppel should not be applied when the prior decision involves a pure
question of law—such as whether the length of the suspension may be
“determined by accident”—or when the prior decision is facially incorrect under
the Board’s interpretation of civil service law. Milligan, 106 M.S.P.R. 414, ¶ 10;
Montalvo v. U.S. Postal Service, 50 M.S.P.R. 48, 50‑51 (1991).
¶10 The Board’s case law requires the body reviewing the appropriateness of a
disciplinary action to consider the Douglas factors in assessing the
reasonableness of the penalty. 3 Milligan, 106 M.S.P.R. 414, ¶ 11; Douglas v.
3
In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305‑06 (1981), the Board
articulated a nonexhaustive list of 12 factors that are relevant in assessing the
appropriate penalty for an act of misconduct. These so-called Douglas factors include
6
Veterans Administration, 5 M.S.P.R. 280, 305‑06 (1981). Our reviewing court
has stated that, when a penalty is “determined by accident,” i.e., by reference to
the length of time taken by the appeal or othe r administrative review process,
“rather than by a process of logical deliberation and decision” and a consideration
of the Douglas factors, the selected penalty is “inherently arbitrary.” Greenstreet
v. Social Security Administration, 543 F.3d 705, 709-10 (Fed. Cir. 2008) (quoting
Cuiffo v. United States, 131 Ct. Cl. 60, 69 (1955)); see Milligan, 106 M.S.P.R.
414, ¶ 13; Montalvo, 50 M.S.P.R. at 50. The Board cannot sustain penalties that
are arbitrary on their face and may not apply collateral estoppel to an arbitrary
penalty selected by an arbitrator. See Milligan, 106 M.S.P.R. 414, ¶¶ 13-14.
¶11 In the instant matter, the arbitrator found that the testimony of the
proposing official, C.T., was “to say the least, inconsistent” and concluded that
“the Notice of Proposed Removal was issued because of the zero tolerance for
workplace violence and not for just cause.” IAF, Tab 7 at 23. Thus, the
arbitrator found that C.T. “violated the appellant's due process rights by not
considering his overall record and/or any mitigating factors which included
[18] years of service with no discipline on file.” Id. The arbitrator noted that the
appellant “appeared to be very remorseful for his actions and testified that he had
no ill will toward the victim” and found that the appellant could be rehabilitated .
Id. Nonetheless, because the appellant “was found guilty of assault/bodily harm
by the State of Tennessee and he is guilty of unacceptable conduct,” the arbitrator
“sustained [the grievance] to the extent that [the appellant] shall be returned to
work with no back pay and his time off considered a long term suspension.” Id.
¶12 Although the arbitrator considered some of the Douglas factors, his analysis
was focused on whether removal was an appropriate penalty and the opinion does
not contain any findings or analysis regarding the appropriate length of the
the nature and seriousness of the offense, the appellant’s past disciplinary record, his
past work record, his potential for rehabilitation, and mitigating circumstances
surrounding the offense. Id.
7
suspension.
Id. at 13‑23. Thus, the arbitrator’s imposition of a time-served
suspension is arbitrary, and the Board will not apply collateral estoppel to the
arbitrator’s penalty determination. See Milligan, 106 M.S.P.R. 414, ¶¶ 13‑14.
The Board has held that the proper course of action in such a case is to apply
collateral estoppel to the arbitrator’s decision regarding the charged misconduct
and then apply the Douglas factors to the arbitrator’s factual findings to
determine the appropriate penalty. Jones v. U.S. Postal Service, 110 M.S.P.R.
489, ¶ 7 (2009); Milligan, 106 M.S.P.R. 414, ¶ 14. Here, following Jones and
Milligan, the administrative judge applied collateral estoppel to the arbitrator’s
findings on the merits of the removal action and conducted a de novo review of
the agency’s penalty determination. ID at 2-3.
¶13 On review, the appellant argues, in part, that the administrative judge
misinterpreted Jones and Milligan and erred by “conduct[ing] a hearing in which
he reached a completely different and adverse decision without any consideration
for collateral estoppel to the merits of the arbitration a ward.” PFR File, Tab 1
at 4-5. In Milligan, as noted above, the Board found that, when an arbitration
decision imposes a time‑served suspension, the length of which is based solely on
the time taken by the grievance proceedings, “[t]he proper course of action is to
apply collateral estoppel to the arbitrator’s decision with regard to the charged
misconduct . . . and then apply the Douglas factors to [the arbitrator's factual
findings] to determine the appropriate penalty.” Milligan, 106 M.S.P.R. 414,
¶¶ 13‑14. The Board further explained that, in such a case, the Board reviews the
agency’s penalty determination de novo under 5 U.S.C. § 7513 and can uphold
the removal action originally imposed by the agency. Id., ¶¶ 14-15, 19. In Jones,
the Board dismissed the appeal for lack of jurisdiction because the appellant in
that case sought Board review of the arbitrator’s award, rather than the underlying
8
removal action. 4 See Jones, 110 M.S.P.R. 489, ¶¶ 4, 8-9. Consistent with Jones
and Milligan, after confirming the appellant’s intent to appeal the underlying
removal, the administrative judge correctly applied collateral estoppel to the
arbitrator’s decision sustaining the charge and reviewed the penalty determination
de novo. 5 ID at 3-8. The appellant’s contentions to the contrary are incorrect and
provide no basis to disturb the initial decision.
¶14 After reviewing the agency’s penalty determination and considering the
deciding official’s hearing testimony, the administrative judge found that the
deciding official properly considered the relevant Douglas factors and that the
appellant failed to establish his disparate penalties claim. ID at 6 -7. As such, he
concluded that, although harsh, the removal penalty was within the tolerable
limits of reasonableness and was entitled to deference. ID at 7. On review, the
4
The Board typically has jurisdiction to review an arbitration decision under 5 U.S.C.
§ 7121(d) when the subject matter of the grievance is one over which the Board has
jurisdiction, the appellant has alleged discrimination as stated in 5 U.S.C. § 2302(b)(1)
in connection with the underlying action, and a final decision has been issued.
Anderson v. U.S. Postal Service, 109 M.S.P.R. 558, ¶ 4 (2008). However, a Postal
Service employee does not have a right of Board review of an arbitration decision
because 5 U.S.C. § 7121 does not apply to the U.S. Postal Service. Id.
5
The Board has, in some non-Postal Service cases, deferred to the arbitrator’s findings
of fact concerning the mitigation issue and conclusion that the evidence warranted
mitigation of the removal. See, e.g., Fulks v. Department of Defense, 100 M.S.P.R.
228, ¶ 29 (2005). We find that it is not appropriate to apply collateral estoppel or
otherwise defer to the arbitrator’s findings or conclusions regarding mitigation here,
however, because the arbitrator did not properly apply the Board’s case law in his
penalty analysis. IAF, Tab 7 at 23. As discussed below, the Board will review an
agency-imposed penalty only to determine if the agency considered the relevant
Douglas factors in imposing the penalty and whether the imposed penalty clearly
exceeded the bounds of reasonableness. See Davis v. U.S. Postal Service, 120 M.S.P.R.
457, ¶ 6 (2013); Douglas, 5 M.S.P.R. at 306. Here, the arbitrator’s analysis focused on
the proposing official’s consideration of the Douglas factors in proposing the removal
and did not address or consider the deciding official’s consideration of the Douglas
factors in imposing the removal. IAF, Tab 1 at 13-23. Because the Board will not
apply collateral estoppel to determinations that are facially incorrect under the Board’s
interpretation of civil service laws, Montalvo, 50 M.S.P.R. at 50-51, we do not apply
collateral estoppel to the arbitrator’s determinations that the agency failed to consider
the relevant Douglas factors in imposing the removal or that mitigation is warranted.
9
appellant argues, as he did below, that the deciding official failed to consider the
Douglas factors and that the agency treated other employees more leniently for
similar misconduct. PFR File, Tab 1 at 5-6. These arguments constitute mere
disagreement with the administrative judge’s well‑reasoned findings and implied
credibility findings and provide no basis to disturb the initial decision. See Forte
v. Department of Navy, 123 M.S.P.R. 124, ¶ 16 (2016) (finding that mere
disagreement with the administrative judge’s implied credibility findings provides
no basis for disturbing the initial decision); Davison v. Department of Veterans
Affairs, 115 M.S.P.R. 640, ¶ 9 (2011) (finding that mere disagreement with an
administrative judge’s explained findings is not a basis to grant a petition for
review). Nonetheless, we have reviewed the administrative judge’s penalty
analysis and, for the reasons that follow, find no reason to disturb it.
¶15 As noted above, we adopt the arbitrator’s decision sustaining the single
charge of unacceptable conduct based on the appellant’s assault of a coworker in
the workplace. When, as here, all of the agency’s charges have been sustained,
the Board will review an agency-imposed penalty only to determine if the agency
considered all of the relevant factors and exercised management discretion within
tolerable limits of reasonableness. Davis v. U.S. Postal Service, 120 M.S.P.R.
457, ¶ 6 (2013); Douglas, 5 M.S.P.R. at 306. In making such a 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. Davis, 120 M.S.P.R. 457, ¶ 6. Thus, the Board will
modify a penalty only when it finds that the agency failed to weigh the relevant
factors or that the penalty clearly exceeded the bounds of reasonableness. Id.
¶16 The Board has articulated factors to be considered in determining the
propriety of a penalty, such as the nature and seriousness of the offense, the
employee’s past disciplinary record, the supervisor’s confidence in the
employee’s ability to perform his assigned duties, the consistency of the penalty
10
with the agency’s table of penalties, and the consistency of the penalty with those
imposed on other employees for the same or similar offenses. Id., ¶ 7. Not all of
the factors will be pertinent in every instance, and so the relevant factors must be
balanced in each case to arrive at the appropriate penalty. Id. The seriousness of
the appellant’s offense is always one of the most important factors in assessing
the reasonableness of an agency’s penalty determination. Id.
¶17 The removal decision reflects that the deciding official considered the
appellant’s 18 years of service and his lack of prior discipline, but that he
concluded that removal was warranted due to the seriousness of the appellant’s
behavior and the agency’s zero tolerance policy for violent behavior in the
workplace. IAF, Tab 7 at 26. The deciding official noted that he was not aware
of any appropriate alternative sanction because “[i]ssuing a lesser penalty would
subject this office to an untenable situation” and the appellant’s return to work
“may instill fear in [his] coworker(s) who are aware of the altercation.” Id. The
deciding official also noted that removal was consistent with the penalty imposed
on other employees for the same or similar offenses. Id. In the initial decision,
the administrative judge discussed the deciding official’s hearing testimony
regarding his assessment of the penalty and found that he “conscientiously
considered the Douglas factors.” ID at 6-7. The appellant’s bare contentions to
the contrary on review provide no basis to disturb this finding. PFR File, Tab 1
at 5. Thus, the agency’s penalty determination is entitled to deference unless it
clearly exceeds the bounds of reasonableness. See Davis, 120 M.S.P.R. 457, ¶ 6.
¶18 As noted above, the consistency of the penalty with those imposed upon
other employees for the same or similar offenses is one factor to be considered in
determining the reasonableness of an agency-imposed penalty. Id., ¶ 7; Douglas,
5 M.S.P.R. at 305. To establish disparate penalties, the appellant must show that
the charges and circumstances surrounding the charged behavior are substantially
similar. Voss v. U.S. Postal Service, 119 M.S.P.R. 324, ¶ 6 (2013). If an
appellant makes such a showing, then the agency must prove a legitimate reason
11
for the difference in treatment by a preponderance of the evidence before the
penalty can be upheld. Id. To trigger the agency’s burden, the appellant must
show that there is enough similarity between both the nature of the misconduct
and other factors, such as whether the appellant and the comparator were in the
same work unit, had the same supervisor and/or deciding official, and whether the
events occurred relatively close in time, to lead a reasonable person to conclu de
that the agency treated similarly situated employees differently. Id. However,
the Board will not have hard and fast rules regarding the outcome determinative
nature of these factors. Id. (citing Lewis v. Department of Veterans Affairs,
113 M.S.P.R. 657, ¶¶ 12, 15 (2010)).
¶19 The administrative judge found that the misconduct of the first proffered
comparator, B.P., who attempted to put a piece of paper into her supervisor’s
pocket, was trivial compared to the appellant’s physical altercation, which
involved a criminal assault. ID at 6. The administrative judge further determined
that the other three alleged comparators, S.M., W.B., and E.C., were treated the
same as the appellant because the agency imposed their removals after they
engaged in a physical altercation with a coworker. ID at 6‑7. The administrative
judge explained that the fact that the agency ultimately reduced t he penalties
imposed on S.M., W.B., and E.C. as a result of litigation was not relevant to the
disparate penalty claim. Id. Thus, the administrative judge concluded that the
appellant failed to establish his disparate penalties claim. ID at 7. On review, the
appellant challenges this finding, arguing that “[t]he fact that the discipline was
mitigated indicates that the agency should have known that [it] would not prevail
in an adverse action which was similar.” PFR File, Tab 1 at 5.
¶20 The record reflects that the agency removed W.B. and S.M., who were
charged with engaging in a physical altercation with each other, effective
March 14, 2007. IAF, Tab 19 at 42-43, 46-47. During the hearing, a labor
relations official, J.B., testified that S.M. and W.B. were later returned to work
through “some other process.” IAF, Tab 24, Hearing Compact Disc (HCD)
12
(testimony of J.B.). The record also contains a proposal notice and decision letter
showing that the agency removed E.C. for assault and improper conduct on
March 14, 2007. IAF, Tab 19 at 19-25. However, the agency appears to have
returned E.C. to work as well, as evidenced by a redacted Postal Service Form 50
in the record dated November 16, 2013, documenting an unascertainable
personnel action. IAF, Tab 7 at 138. In addition, J.B. testified that the agency
proposed E.C.’s removal again in 2013 and that she ultimately served a 7‑day
suspension. 6 HCD (testimony of J.B.). The record reflects, furthermore, that the
agency suspended B.P. for 7 days in 2014 after she put a piece of paper into a
supervisor’s pocket. IAF, Tab 7 at 119‑22.
¶21 We agree with the administrative judge that a physical altercation is not
substantially similar in nature to placing a piece of paper in someone ’s pocket,
even where such contact is unwanted. ID at 6. Regarding W.B., S.M., and E.C.,
we agree that the agency treated them the same as it did the appellant by
removing them for engaging in a physical altercation in the workplace. ID at 6‑7.
As the administrative judge correctly noted, the fact that W.B., S.M., and E.C.
ultimately received a lesser penalty after exercising their appeal or grievance
rights to challenge their removals does not change the fact that the agency
initially imposed their removal, as it did the appellant’s removal. Id.; see, e.g.,
Davis, 120 M.S.P.R. 457, ¶ 10 (stating that an agency is not required to explain
the difference in treatment when another employee receives a lesser penalty,
despite apparent similarities in circumstances, as the result of a settlement
agreement). Moreover, S.M., W.B., and E.C. did not have the same deciding
official as did the appellant and their 2007 removals did not occur relatively close
in time to the appellant’s 2014 removal. IAF, Tab 19 at 19-25, 42‑43, 46‑47.
6
The record does not contain any documentation regarding a proposed action against
E.C. in 2013. However, the FAD notes that the agency proposed E.C.’s removal on at
least two occasions. IAF, Tab 1 at 17.
13
¶22 The appellant’s contentions on review, even if true, do not establish that
there is enough similarity between both the nature of his misconduct and other
factors to lead a reasonable person to conclude that the agency treated similarly
situated employees differently. See Voss, 119 M.S.P.R. 324, ¶ 6. Accordingly,
we discern no basis to disturb the administrative judge’s finding that the appellant
failed to establish his disparate penalties claim.
¶23 As stated above, the Board’s function is not to displace management’s
responsibility or to decide what penalty it would impose, but to assure that
managerial judgment has been properly exercised and that the penalty selected by
the agency does not exceed the maximum limits of reasonableness . Davis,
120 M.S.P.R. 457, ¶ 6. Recognizing that the Board must afford proper deference
to the agency’s primary discretion in managing its workforce, the administrative
judge found that removal was a reasonable penalty in this case. ID at 7. On
review, the appellant has not presented any evidence or argument tending to show
that the agency abused its managerial judgment or that the deciding official
overlooked mitigating factors. PFR File, Tab 1. Therefore, we agree that the
agency acted within the tolerable limits of its discretion in removing the
appellant. See Bree v. Department of Health & Human Services, 49 M.S.P.R. 68,
72 (1991) (stating that “[p]hysical altercations at the worksite directly affect the
agency’s obligation to maintain a safe workplace, and, by their very nature, are
disruptive to the efficiency of the service”).
¶24 Finally, the appellant generally disagrees with the administrative judge’s
finding that he did not establish his affirmative defense of disparate treatment
based on sex. PFR File, Tab 1 at 5. In considering an appellant’s affirmative
defense of discrimination, the Board will first inquire whether the appellant has
shown by a preponderance of the evidence that discrimination was “a motivating
factor in the contested personnel action, even if it was not the only reason. ”
Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 41 (2015). As discussed
above, the appellant has not shown that the agency treated him more harshly than
14
any similarly situated comparator employee. Moreover, he has failed on review,
as he did below, to provide any evidence tending to show that the real reason for
the agency’s action was discriminatory animus, as opposed to the reason
articulated by the agency. PFR File, Tab 1. Accordingly, we find no reason to
disturb the administrative judge’s finding on this issue. ID at 5.
¶25 In light of the foregoing, we affirm the initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this fina l decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). 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:
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.
15
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
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.
