Aaron K. Seay v. Department of the Navy

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

AARON K. SEAY, DOCKET NUMBER
Appellant, SF-0752-14-0091-I-1

v.

DEPARTMENT OF THE NAVY, DATE: September 5, 2014
Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Mary Jo Henderson, Conyers, Georgia, for the appellant.

Jere Diersing and Jessica Langley-DeGroot, San Diego, California, for the
agency.

BEFORE

Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member

REMAND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal from his position of Pipefitter. For the reasons discussed
below, we GRANT the appellant’s petition for review and REMAND the case to
the regional office for further adjudication of the appellant’s affirmative defense

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

of hostile work environment based on race and his claim of disparate penalty, in
accordance with this Order.

DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant worked as a Pipefitter for the agency’s Naval Facilities and
Engineering Command (NAVFAC) in San Diego, California. Initial Appeal File
(IAF), Tab 8 at 46. The agency proposed to remove the appellant based on three
charges: (1) failure to meet a condition of employment; (2) operating a
government vehicle without a license; and (3) lack of candor. Id. at 56-57. The
deciding official found all three charges supported by the evidence and
determined that the misconduct warranted the appellant’s removal. Id. at 47-48.
¶3 The appellant initiated a Board appeal challenging his removal. IAF, Tab 1
at 3. The appellant also alleged affirmative defenses of harmful error, disparate
treatment and hostile work environment based on race, and retaliation for
engaging in prior equal employment opportunity (EEO) and whistleblowing
activity. Id. at 9. The appellant raised a disparate penalty claim. IAF, Tab 16 at
3.
¶4 The administrative judge found that the agency proved the charges of
failure to meet a condition of employment and operating a government vehicle
without a valid license. IAF, Tab 25, Initial Decision (ID) at 3-4. The
administrative judge found that: (1) it was undisputed that the appellant’s license
was suspended for a period of time based on a conviction for driving under the
influence; (2) the appellant’s job description required a valid state driver’s
license; and (3) the appellant operated agency vehicles during the time his license
was suspended. ID at 2-4. The administrative judge did not sustain the agency’s
lack of candor charge, finding that the agency did not demonstrate sufficient
evidence of deception in the appellant’s responses to the agency’s inquiries
regarding his license. ID at 7. The administrative judge found that the appellant
failed to prove any of his affirmative defense claims. ID at 9-12. Finally, the
 3

administrative judge found no valid comparators for a disparate penalty analysis,
and found the penalty of removal to be warranted based on the two proven
charges. ID at 13-15.
¶5 The appellant has filed a timely petition for review of the initial decision.
Petition for Review (PFR) File, Tab 1. The agency has filed a response in
opposition to the petition for review. PFR File, Tab 5.

The appellant did not prove his affirmative defense of harmful procedural error.
¶6 First, we note that the appellant has not challenged in his petition for review
the administrative judge’s determination that the agency established its charges of
failure to meet a condition of employment and operating a government vehicle
without a valid license. PFR File, Tab 1. We see no reason to disturb the
administrative judge’s finding on this.
¶7 The appellant contends in his petition for review that the agency engaged in
harmful procedural error, in making the removal decision, when it relied on a
specific agency policy, referenced as NAVFAC P-300, because he was unaware
of the policy. PFR File, Tab 1 at 15-16. The appellant alleges that the agency
would have selected a different penalty but for its reliance on the NAVFAC P-300
policy, which requires that an individual who is required as part of his job to
operate a vehicle must have a valid driver’s license and must report any
suspension of the license to his supervisor the next working day after the
suspension. Id. at 16; IAF, Tab 8 at 80-81. The administrative judge found that
the appellant did not prove harmful error regarding the two sustained charges, but
he did not make a finding as it related to the third charge because he already
found that the agency did not prove the lack of candor charge. ID at 11-12.
¶8 Reversal of an action is warranted only where procedural error, whether
regulatory or statutory, likely had a harmful effect upon the outcome of the case
before the agency. Baracco v. Department of Transportation, 15 M.S.P.R. 112,
123 (1983), aff’d sub nom. Adams v. Department of Transportation, 735 F.2d 488
(Fed. Cir. 1984). Here, the appellant knew his license was suspended from
 4

July 17, 2012, until February 13, 2013. IAF, Tab 13 at 2. He also knew that he
could only operate vehicles with an ignition interlock device during the time his
license was suspended. See id. at 3 (indicating that, when providing a copy of his
driver’s license to his supervisor, the appellant failed to explain that he was
restricted to driving vehicles with such a device). Despite this, the appellant still
drove a Navy vehicle that did not contain an ignition interlock device at least
three times while his license was suspended. Id. As a result, we find that the
appellant’s lack of knowledge of the NAVFAC P-300 policy did not have a
harmful effect upon the outcome of his case because he knew he needed a valid
driver’s license to operate agency vehicles, regardless of whether he knew of the
NAVFAC P-300 policy.

The appellant did not prove his affirmative defense of retaliation for prior EEO
activity.
¶9 The appellant alleges in his petition for review that his removal was issued
in retaliation for filing an EEO complaint that challenged his nonselection for a
promotional opportunity. PFR File, Tab 1 at 17-18. Where, as here, the record is
complete on the issue of retaliation, the Board’s inquiry proceeds to the ultimate
question of whether, upon weighing the evidence presented by both parties, the
appellant has met his overall burden of proving retaliation by preponderant
evidence. Dwyer v. Department of Veterans Affairs, 107 M.S.P.R. 632, ¶ 7
(2008). “An [appellant] making a retaliation claim under [Title VII] must
establish that his protected activity was a but-for cause of the alleged adverse
action by the employer.” University of Texas Southwestern Medical Center v.
Nassar, 133 S. Ct. 2517, 2534 (2013).
¶10 The administrative judge found that the supervisor who was named in the
EEO complaint was not involved in the appellant’s removal and that neither the
proposing nor deciding official was aware of the prior EEO complaint. ID at 10.
To show retaliation based on circumstantial evidence, as the appellant attempts to
do here, he must demonstrate a “convincing mosaic” of retaliation against him.
 5

Agbaniyaka v. Department of the Treasury, 115 M.S.P.R. 130, ¶ 16 (2010), aff’d,
484 F. App’x 545 (2012). The appellant’s arguments on review are that the
proposing official knew about the prior EEO complaint, contrary to the
administrative judge’s finding, and that the agency is so influenced by a chain of
command structure that the proposing and deciding officials must have known of
the prior EEO activity based on their positions in the command structure relative
to the supervisor named in the EEO complaint. PFR File, Tab 1 at 18-20. The
appellant’s argument must fail. Regardless of their knowledge, there is simply no
evidence that the proposing or deciding officials had any reason to retaliate based
on the appellant’s prior protected activity. To the contrary, the agency proved
that the appellant did not have a valid driver’s license as required for his job and
that he drove an agency vehicle at least three times without a valid driver’s
license. The appellant has presented no evidence that this legitimate,
nondiscriminatory reason for his removal was pretextual. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973) (setting forth the parties’
shifting burdens in a Title VII case). Accordingly, we find that the appellant did
not prove his affirmative defense of retaliation for engaging in protected activity.

The appellant did not prove his affirmative defense of whistleblower reprisal.
¶11 The appellant continues to allege on review that his removal was reprisal
for prior whistleblowing activity. PFR File, Tab 1 at 17. In an adverse action
appeal where the appellant has raised a claim of whistleblower reprisal, once the
agency proves its adverse action case, the appellant must show by preponderant
evidence that he made a disclosure protected under 5 U.S.C. § 2302(b)(8) and that
the disclosure was a contributing factor in the agency’s personnel action. 2

2
Because the appeal was filed after the effective date of the Whistleblower
Enhancement Protection Act (WPEA), we modify the initial decision to analyze the
appellant’s whistleblower reprisal defense under the Board’s current WPEA case law.
King v. Department of the Air Force, 119 M.S.P.R. 663, ¶ 3 (2013); IAF, Tab 1 at 1; see
ID at 10-11 (analyzing the whistleblower defense using pre-WPEA case law).
 6

Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶ 19 (2013). Only if
the appellant establishes a prima facie case of reprisal for whistleblowing does
the burden of persuasion shift to the agency to show by clear and convincing
evidence that it would have taken the same personnel action absent any protected
activity. Clarke v. Department of Veterans Affairs, 121 M.S.P.R. 154, ¶ 19 n.10
(2014); Simmons v. Department of the Air Force, 99 M.S.P.R. 28, ¶ 23 (2005),
aff’d sub nom. Gebhardt v. Department of the Air Force, 186 F. App’x 996 (Fed.
Cir. 2006).
¶12 The appellant alleged below that he disclosed to higher-level management a
safety violation by his supervisor, who was also the proposing official. ID at 10.
The administrative judge found that the proposing official was aware of the
protected disclosure and that the disclosure occurred approximately a week before
the agency decided to remove the appellant. ID at 11. However, he also found,
incorrectly, that the deciding official was unaware of the appellant’s protected
activity when he issued the removal decision. ID at 11. An employee may
demonstrate that a disclosure was a contributing factor in the covered personnel
action through circumstantial evidence, such as the acting official’s knowledge of
the disclosure and the timing of the personnel action. Shibuya, 119 M.S.P.R. 537,
¶ 22. An appellant’s evidence that the official taking the personnel action knew
of the disclosure and that the personnel action occurred within a period of time
such that a reasonable person could conclude that the disclosure was a
contributing factor in the personnel action, i.e., evidence sufficient to meet the
knowledge-time test, satisfies the contributing factor standard. Id. Here, the
appellant copied the deciding official on the email that contained the disclosure,
so, assuming the deciding official received the email and that he read it soon after
he received it, we can surmise that he was aware of the protected disclosure
approximately 1 week before issuing his decision to remove the appellant. IAF,
Tab 13 at 40, Tab 8 at 47; Tab 17 at 7. Under these circumstances, we find that
 7

the appellant proved by way of the knowledge-timing test that his protected
disclosure was a contributing factor in the agency’s decision to remove him.
¶13 Nonetheless, we find it unnecessary to remand the appeal to the
administrative judge, because we find that the agency showed by clear and
convincing evidence that it would have taken the same personnel action absent
the protected activity. Because the administrative judge conducted a hearing on
all material issues in the appeal, including the merits of the appellant’s
allegations of reprisal for whistleblowing, and because our conclusions do not
rest on demeanor-based credibility determinations, we find the record sufficiently
well-developed to address this issue on review. See Chambers v. Department of
the Interior, 116 M.S.P.R. 17, ¶ 11 (2011) (finding remand unnecessary with
regard to the issue of whether the agency met its burden to prove by clear and
convincing evidence that it would have taken the action in the absence of
whistleblowing). When determining whether the agency has shown by clear and
convincing evidence that it would have taken the same personnel action in the
absence of whistleblowing, the Board considers the following factors: the
strength of the agency’s evidence in support of its personnel action; the existence
and strength of any motive to retaliate on the part of the agency’s officials who
were involved in the decision; and any evidence that the agency takes similar
actions against employees who are not whistleblowers, but who are otherwise
similarly situated. Simmons, 99 M.S.P.R. 28, ¶ 23.
¶14 The proposing official proposed the appellant’s removal approximately 4
months before the appellant disclosed that the proposing official had supposedly
committed a safety violation, and he also separately reported the safety violation
to his supervisor. IAF, Tab 8 at 56; ID at 10. The appellant has not disputed the
charges of failure to meet a condition of employment and operating a government
vehicle without a valid license on review. ID at 11; PFR File, Tab 1. As noted
by the administrative judge, the Board has found the penalty of removal to be
reasonable for a charge of failing to remain qualified for one’s position. ID at 14.
 8

Finally, because the deciding official was not the supervisor of the proposing
official, we find no evidence of motive on the part of the deciding official to
retaliate against the appellant for his disclosure. ID at 10-11. Based on the
record evidence, we affirm the administrative judge’s finding that the appellant
failed to prove his affirmative defense of whistleblower reprisal related to his
disclosure of a safety violation by the proposing official.
¶15 The appellant also argued below and on review that the agency engaged in
whistleblower reprisal when it retaliated against him for his participation in EEO
activity. PFR File, Tab 1 at 17; IAF, Tab 13 at 12-14. The WPEA extended the
Board’s individual right of action (IRA) jurisdiction to claims alleging that the
agency took a personnel action because of the employee’s exercise of any appeal,
complaint, or grievance right granted by any law, rule or regulation with regard to
remedying a violation of 5 U.S.C. § 2302(b)(8). 5 U.S.C. §§ 1221(a), 1221(e)(1),
2302(b)(9)(A)(i); Mudd v. Department of Veterans Affairs, 120 M.S.P.R. 365, ¶ 7
(2013). However, the appellant’s EEO activity did not concern remedying an
alleged violation of subparagraph (b)(8). PFR File, Tab 1 at 17; IAF, Tab 13 at
12-13. Therefore, insofar as the appellant alleged that the agency took the
personnel action in reprisal for his participation in EEO activity, the Board lacks
jurisdiction to consider such allegations under the standards applicable to an
affirmative defense of whistleblower reprisal. See Mudd, 120 M.S.P.R. 365, ¶ 7
(applying this rule in the context of a claim of reprisal disclosures made during a
grievance); see also 5 U.S.C. § 1221(i) (indicating that the same standards for
proof of a WPEA IRA claim apply to whistleblower reprisal claims raised in the
context of an adverse action appeal brought under chapter 75 of Title 5). Rather,
the administrative judge correctly applied the standards under employment
discrimination law in adjudicating this claim. See Viens-Koretko v. Department
of Veterans Affairs, 53 M.S.P.R. 160, 163-64 (1992) (declining to apply the lower
standard of proof under the Whistleblower Protection Act to an affirmative
defense of reprisal for EEO activity).
 9

The appellant failed to prove his affirmative defense of disparate treatment based
on race.
¶16 The appellant states in his petition for review that the administrative judge
ruled on the affirmative defense of disparate treatment based on race, even though
the appellant had not raised this defense. PFR File, Tab 1 at 21. In the
appellant’s appeal, he stated that the agency discriminated against him and
perpetuated a hostile work environment based on his race. IAF, Tab 1 at 9.
During the prehearing conference, the appellant was advised of the affirmative
defense of disparate treatment based on race and how to prove this defense. IAF,
Tab 16 at 1-3. There is no evidence that the appellant withdrew this defense at
any point during the appeal process.
¶17 Where, as here, a claim of prohibited employment discrimination under
Title VII is based on circumstantial evidence, an employee first must establish a
prima face case; the burden of going forward then shifts to the agency to
articulate a legitimate, nondiscriminatory reason for its action; and finally, the
employee must show that the agency’s stated reason is merely a pretext for
prohibited discrimination. McDonnell Douglas Corp., 411 U.S. at 802-04. While
the necessary elements of a prima facie case of prohibited discrimination vary
according to the particular facts and circumstances at issue, a person claiming
employment discrimination under Title VII carries the initial burden of showing
actions taken by the employer from which one can infer, if such actions remain
unexplained, that it is more likely than not that such actions were based on an
impermissible criterion. Furnco Construction Corp. v. Waters, 438 U.S. 567,
575 76 (1978). One way in which an employee may establish a prima facie case
is by introducing preponderant evidence to show that he is a member of a
protected group, that he was similarly situated to an individual who was not a
member of the protected group, and that he was treated more harshly or
disparately than the individual who was not a member of his protected group.
Lee v. Environmental Protection Agency, 115 M.S.P.R. 533, ¶ 41 (2010).
 10

¶18 Because the record is complete and the agency has already articulated a
legitimate, nondiscriminatory reason for its action, i.e., the appellant’s failure to
maintain a driver’s license and driving an agency vehicle without a valid driver’s
license, the agency has done everything that would be required of it if the
appellant had made out a prima facie case. See id., ¶ 42. The inquiry proceeds to
the ultimate question of whether, upon weighing all of the evidence, the appellant
has met his overall burden of proving illegal discrimination, that is, whether he
has produced sufficient evidence to show that the agency’s proffered reason was
not the actual reason for the removal and that the agency intentionally
discriminated against him. Id. The evidence to be considered at this stage may
include: (1) the elements of a prima facie case; (2) any evidence the employee
presents to attack the employer’s proffered explanations for its actions; and
(3) any further evidence of discrimination or retaliation that may be available to
the employee, such as independent evidence of discriminatory statements or
attitudes on the part of the employer, or any contrary evidence that may be
available to the employer, such as a strong track record in equal employment
opportunity. Id.
¶19 The administrative judge summarized the appellant’s argument as follows:
the appellant’s third-level supervisor discriminated and retaliated against him on
the basis of his race, and the supervisor influenced the decision to remove the
appellant. ID at 9. The administrative judge found no evidence that the
third- level supervisor had any involvement in the appellant’s discipline. See ID
at 9. The administrative judge also found that the appellant did not allege that
either the proposing or deciding official discriminated against him. ID at 10.
Based on the record evidence, we find the appellant has not produced sufficient
evidence to show that discrimination, and not the agency’s proffered reason, was
the reason for the disciplinary action taken. Therefore, we find that the
administrative judge properly found that the appellant did not prove his defense
of disparate treatment based on race.
 11

The administrative judge did not address the appellant’s affirmative defense of
hostile work environment based on race.
¶20 The appellant states in his petition for review that the administrative judge
did not provide a finding on his affirmative defense of hostile work environment
based on race. PFR File, Tab 1 at 21-22. To prevail on an allegation of hostile
work environment, an employee must show that the complained-of conduct was
severe or pervasive enough to create a working environment that a reasonable
person would find hostile or abusive and that he subjectively perceived the
working environment to be hostile or abusive. Cf. Burlington Industries, Inc. v.
Ellerth, 524 U.S. 742, 767-69 (1998) (recognizing the theory of hostile work
environment in claims of race discrimination, and analogizing it to claims of
sexual harassment); Bates v. Department of Justice, 70 M.S.P.R. 659, 662-63
(1996) (discussion of burden of proof for an allegation of hostile work
environment—sexual harassment). The complained-of conduct must be both
objectively and subjectively discriminatory. Bates, 70 M.S.P.R. at 662-63.
¶21 When an appellant raises an affirmative defense in an appeal by checking
the appropriate box on an appeal form, identifying an affirmative defense by
name, or by alleging facts that reasonably raise such an affirmative defense, the
administrative judge must address the affirmative defenses(s) in any close of
record order or prehearing conference summary and order. Wynn v. U.S. Postal
Service, 115 M.S.P.R. 146, ¶ 10 (2010). Here, the appellant alleged the defense
of hostile work environment based on race in both his initial appeal and in his
prehearing submissions, which were submitted prior to the prehearing conference.
IAF, Tab 1 at 9, Tab 13 at 15-17. An appellant is entitled to pursue a claim that
his removal was the result of a hostile work environment. Mosby v. Department
of Housing & Urban Development, 114 M.S.P.R. 674, ¶ 8 (2010). There is no
evidence in the record, however, that the administrative judge addressed the
affirmative defense in his summary of the telephonic prehearing conference.
IAF, Tab 16. Even if the appellant expressed an intent to withdraw his hostile
 12

work environment claim, which he did not, the administrative judge should have
identified the affirmative defense in the prehearing conference summary,
explained that the Board would no longer consider it when deciding the appeal,
and given the appellant an opportunity to object to withdrawal of the affirmative
defense. 3 Gath v. U.S. Postal Service, 118 M.S.P.R. 124, ¶ 11 (2012). The
record does not establish that the appellant withdrew or abandoned this
affirmative defense, and the administrative judge did not advise the appellant of
his burdens for this affirmative defense, so remand for further adjudication of this
affirmative defense is necessary. Because we are remanding the case for further
proceedings regarding the appellant’s affirmative defense, the administrative
judge must issue a new initial decision that addresses this affirmative defense and
its effect on the outcome of the appeal, if any, giving appropriate consideration to
any additional relevant evidence developed on remand. Id., ¶ 13. If the appellant
succeeds in proving that his removal was due to a hostile work environment based
on race, his removal must be overturned. 4

The administrative judge erred in his disparate penalty analysis.
¶22 The appellant next argues that the administrative judge erred in his
disparate penalty analysis and relied upon overturned case law in rendering his
initial decision. PFR File, Tab 1 at 5-10. The administrative judge found that the
employee put forward by the appellant not to be a valid comparator because the
disciplinary action was issued by a different supervisor over 9 years prior to the
appellant’s removal. ID at 13. The appellant argues on review that the employee

3
The administrative judge’s prehearing conference summary also did not notify the
parties of their opportunity to object to any portion of the summary. IAF, Tab 16.
4
The appeal is being remanded only to address the appellant’s claim of hostile work
environment based on race. As stated above, the Board is affirming the administrative
judge’s finding regarding the appellant’s claim of disparate treatment based on race.
 13

is a valid comparator who received only a written reprimand versus the
appellant’s penalty of removal. 5 PFR File, Tab 1 at 5-6; IAF, Tab 12 at 50-52.
¶23 The Board’s standard for review of penalties is to assure managerial
judgment has been properly exercised within tolerable limits of reasonableness.
Douglas v. Veterans Administration, 5 M.S.P.R. 280, 302 (1981). The Board
must be satisfied that the penalty is within the range allowed by law, regulation,
and any applicable table of penalties, that the penalty was based on consideration
of the relevant factors, and that there has not been a clear error of judgment. Id.
at 301. One of the relevant factors is disparate penalty or the consistency of the
penalty with those imposed upon other employees for the same or similar
offenses. Id. at 305. Following the U.S. Court of Appeals for the Federal
Circuit’s decision in Williams v. Social Security Administration, 586 F.3d 1365,
1368-69 (Fed. Cir. 2009), the Board employs a more flexible approach to this
penalty factor. Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657,
¶¶ 13-15 (2010). To establish disparate penalties, the appellant must show that
there is enough similarity between both the nature of the misconduct and the
other factors to lead a reasonable person to conclude that the agency treated
similarly-situated employees differently, but the Board will not have hard and
fast rules regarding the “outcome determinative” nature of these factors. Boucher

5
The appellant argues on review that the comparator employee has a new disciplinary
proposal pending and alleges that the sole reason the agency has begun the disciplinary
process against this employee is to appear to be treating both employees the same. PFR
File, Tab 1 at 6-7. The appellant alleges that the prior disciplinary proposal was
withdrawn and reissued in April 2014, again to show that both employees are being
treated the same. See id.; PFR File, Tab 6 at 6-7. However, at no point has the
appellant provided information regarding the specific charges filed against the
comparator employee, though does state that the agency has proposed the employee’s
removal based on his lack of a valid driver’s license. Id. at 6. We find no evidence in
the record that the agency is taking this action for a nonlegitimate reason and note that
the allegation is not that the alleged comparator is being treated more favorably than the
appellant but rather that he is being treated the same. Therefore, the appellant has
failed to state a valid claim of disparate penalty regarding this apparent recently issued
discipline.
 14

v. U.S. Postal Service, 118 M.S.P.R. 640, ¶ 20 (2012). Comparator employees
cannot be discounted entirely merely because those employees occupied different
positions or faced fewer charges than did the appellant. Portner v. Department of
Justice, 119 M.S.P.R. 365, ¶¶ 20-21 (2013). If an appellant raises an allegation
of dissimilar penalties for like offenses, the agency must prove, by a
preponderance of evidence, a legitimate reason for the difference in treatment
before the more severe penalty can be upheld. Miille v. Department of the Air
Force, 28 M.S.P.R. 248, 251 (1985).
¶24 The administrative judge erred when he found that the proposed comparator
employee was not appropriate for a disparate penalty analysis because he had a
different supervisor. ID at 13. The Board has previously held that the fact that
two employees are supervised by different individuals may sometimes justify
different penalties; however, an agency must explain why different chains of
command would justify different penalties. Boucher, 118 M.S.P.R. 640, ¶ 22.
The agency has not done so here. Further, the administrative judge erred in
finding the remoteness in time of the comparator’s discipline to be dispositive.
ID at 13. The Board has found that, even when several years have passed
between the appellant’s and the comparator employee’s offenses, the agency still
must provide an explanation for the difference in the penalty, although the lapse
in time will lessen the relevancy of the comparator. 6 Chavez v. Small Business
Administration, 121 M.S.P.R. 168, ¶ 23 (2014); Boucher, 118 M.S.P.R. 640, ¶ 22.
A deciding official must consider the consistency of the penalty as required by
Douglas, but preponderant evidence may justify the difference in treatment based
on the conduct involved. See Davis, 120 M.S.P.R. 457, ¶ 16. We find the
administrative judge’s disparate penalty analysis to be insufficient based on the
Board’s current case law. If the appellant does not prove that his removal was

6
An agency is not foreclosed from proffering evidence that the penalty for a certain
offense was too lenient in the past. Davis v. U.S. Postal Service, 120 M.S.P.R. 457,
¶ 15 (2013).
 15

due to a hostile work environment based on race, the administrative judge must
conduct a new disparate penalty analysis, as part of the new initial decision, that
reviews the appropriate factors as to whether the individual identified by the
appellant is a valid comparator. 7 Should the administrative judge determine he is
a valid comparator, then the administrative judge must determine whether the
agency has explained by preponderant evidence any reasons for differences in
treatment between the appellant and the comparator employee.
¶25 When, as here, the Board sustains fewer than all of the agency’s charges,
the Board will mitigate the agency’s penalty to the maximum reasonable penalty
so long as the agency has not indicated in either its final decision or in
proceedings before the Board that it desires that a lesser penalty be imposed on
fewer charges. Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999); see
also Douglas, 5 M.S.P.R. at 308 (when not all of the charges are sustained, the
Board will carefully consider if the sustained charges merited the penalty
imposed by the agency). The administrative judge did not indicate in the initial
decision whether the agency expressed such a desire. The administrative judge
should include this information in his new initial decision and conduct a new
penalty analysis if the appellant is not successful in proving his affirmative
defense of hostile work environment based on race. 8
¶26 The appellant argued below and continues to argue on review that the
agency could have signed a form from the California Department of Motor

7
As discussed above, the administrative judge must reverse the adverse action in its
entirety if he finds that it was the result of a race-based hostile work environment. In
that event, he would not reach the issue of disparate penalty.
8
On review, the appellant reiterates his argument that the agency’s table of penalties
does not support the agency’s decision to remove him. IAF, Tab 13 at 12; PFR File,
Tab 1 at 3-4. He acknowledges that neither of the two proven charges is listed in the
agency’s table of penalties. PFR File, Tab 1 at 3-4. In addition, as the administrative
judge noted, removal is the reasonable penalty for failing to remain qualified for one’s
position. ID at 14. Therefore, we do not find persuasive the appellant’s argument
regarding the table of penalties.
 16

Vehicles that allowed him to operate a vehicle without an ignition interlock
device. IAF, Tab 13 at 18; PFR File, Tab 1 at 11. The administrative judge
found the agency’s refusal based on risk of liability to be a reasonable exercise of
agency discretion. ID at 3. Here, the appellant is charged with operating a
vehicle without a valid license. IAF, Tab 8 at 47. The deciding official indicated
his loss of trust in the appellant in his Douglas factor review and testified at the
hearing that he felt it was too much liability to assume by signing the form. Id. at
54; Hearing CD (testimony of the deciding official). The appellant has provided
no evidence that the agency signed the form for other employees. The appellant
notes that the form is an accommodation for him and not an obligation for the
agency. PFR File, Tab 1 at 11. Based on the record evidence, we find no reason
to disturb the administrative judge’s finding that the agency’s refusal to sign the
form was a reasonable exercise of agency discretion.
¶27 On remand, if the appellant fails to prove the affirmative defense of hostile
work environment based on race, then the administrative judge may adopt his
original findings regarding the agency’s charges, nexus, and the appellant’s other
affirmative defenses, and may proceed with the penalty analysis.

ORDER

¶28 For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order.

FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.