Sean McNab v. Department of the Army

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2014 MSPB 79

Docket No. CH-0752-13-4643-I-1

Sean McNab,
Appellant,
v.
Department of the Army,
Agency.
October 7, 2014

Bobby R. Devadoss, Esquire, Dallas, Texas, for the appellant.

James L. Roth, Esquire, Chicago, Illinois, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
Vice Chairman Wagner issues a separate opinion concurring in part and
dissenting in part.

OPINION AND ORDER

¶1 The appellant has filed a petition for review of the initial decision that
affirmed his removal. We DENY the petition for review. Except as modified by
this Opinion and Order to find that the appellant (1) meets the definition of an
individual with a disability under the Americans with Disabilities Act
Amendments Act (ADAAA), and (2) did not prove that he was subject to a
disparate penalty, we AFFIRM the initial decision.
 2

BACKGROUND
¶2 The agency removed the appellant from the position of Contract Specialist,
GS-11, for the charges of (1) absence without leave (AWOL), and (2) failure to
follow leave restriction letter procedures, effective September 5, 2013. 1 Initial
Appeal File (IAF), Tab 5 at 15-22 of 24 (first submission). At issue were
24 instances of AWOL, totaling 192 hours, and 51 instances of failure to follow
leave restriction letter procedures, all falling between July 31, 2012, and July 2,
2013. Id. at 16, 19-20 of 24.
¶3 Prior to removing the appellant, the agency was aware that he suffered from
medical conditions. In October 2012, the agency received medical documentation
that referenced the appellant’s generalized anxiety disorder, major depressive
disorder, and alcohol dependence. 2 IAF, Tab 17 at 5, Tab 18 at 13, Tab 19 at 15
of 62. Both the proposal and removal notices also referenced the appellant’s
medical conditions as a mitigating factor. Specifically, they reflect that the
appellant entered a rehabilitation treatment facility on October 13, 2012, for
generalized anxiety disorder, major depressive disorder, and alcohol dependence;
and that he reentered a rehabilitation facility for an undisclosed “severe medical
condition” in April 2013. IAF, Tab 5 at 17, 21 of 24 (first submission).
¶4 The appellant filed an appeal, challenging his removal as factually
“incomplete, inaccurate and false”; not taken to promote the efficiency of the
service; and motivated by disability discrimination. IAF, Tab 1 at 6, Tab 18 at 1.

1
At the time of his removal, the appellant was under leave restrictions pursuant to
letters dated March 23, 2012, and March 27, 2013. IAF, Tab 5 at 19 of 24 (first
submission), 8-10 of 24 (second submission), 16-18 of 26.
2
The appellant again submitted medical documentation in August 2013, in connection
with a request for Family and Medical Leave Act protection for leave taken in
July 2013 for bipolar disorder, anxiety, and depression. IAF, Tab 17 at 5, Tab 19 at 13
of 62, 4-5 of 32. However, the dates for which he sought protection occurred after the
period of time relied on by the agency in removing him. IAF, Tab 5 at 19-20 of 24
(first submission), Tab 19 at 13 of 62.
 3

He further alleged that he was not provided with the materials underlying the
removal. IAF, Tab 1 at 6, Tab 18 at 1. The appellant originally requested a
hearing but later withdrew that request. IAF, Tab 1 at 2, Tab 6. Therefore, his
appeal was decided on the written record. IAF, Tab 10 at 1, Tab 20, Initial
Decision (ID) at 1. The administrative judge sustained both charges, found the
appellant’s affirmative defenses unproven, and affirmed the appellant’s removal. 3
ID at 5, 8, 22.
¶5 The appellant has filed a petition for review, challenging the administrative
judge’s findings that he was not disabled under the ADAAA and that the agency
did not subject him to a disparate penalty, commit harmful procedural error, or
violate his due process rights. Petition for Review (PFR) File, Tab 1. The
agency has responded to the petition for review. PFR File, Tab 3.

3
The administrative judge found that 24 of 51 instances listed under the charge of
failure to follow leave restriction letter procedures were also listed under the AWOL
charge and therefore properly merged these specifications into the AWOL charge. ID
at 7 (citing Westmoreland v. Department of Veterans Affairs, 83 M.S.P.R. 625, ¶ 6
(1999) (a charge of failure to follow leave requesting procedures must be merged into
an AWOL charge where it is based on the same misconduct and involves the same
elements of proof), aff’d, 19 F. App’x 868 (Fed. Cir. 2001), overruled on other grounds
as recognized in Pickett v. Department of Agriculture, 116 M.S.P.R. 439, ¶ 11 (2011)).
Nonetheless, the administrative judge found the remaining 27 instances were sufficient
to sustain the charge of failure to follow leave restriction letter procedures. ID at 7-8.
On review, the appellant does not challenge the administrative judge’s finding that the
agency proved the charges and the nexus of the charges to the efficiency of the service.
See ID at 5, 8, 19. We see no reason to disturb these well-reasoned findings. See
Adams v. Department of Labor, 112 M.S.P.R. 288, ¶¶ 2, 9 (2009) (nexus established for
the charges of failure to follow leave requesting procedures, resulting in AWOL, and
failure to complete a work assignment where the appellant’s supervisor was forced to
find a replacement for the appellant, the appellant’s conduct was a detriment to
effective workplace operations, and his supervisor lost all confidence in him and his
reliability); see also Valenzuela v. Department of the Army, 107 M.S.P.R. 549, ¶ 9 n.*,
¶¶ 14, 20 (2007) (there was a clear nexus between the removal for prolonged AWOL
and the efficiency of the service).
 4

ANALYSIS
The appellant is disabled under the ADAAA but nonetheless did not prove his
claim of disability discrimination.
¶6 On petition for review, the appellant argues that the administrative judge
erred in denying his affirmative defense of disability discrimination on the basis
that he was not substantially limited in a major life activity. PFR File, Tab 1 at 8.
While we agree with the appellant that he has met his burden to show that he is
disabled, we nonetheless find that he has failed to prove that the agency violated
the ADAAA. 4 Under the ADAAA, it is illegal for a covered entity to
discriminate against a qualified individual on the basis of disability. 42 U.S.C.
§ 12112(a).
¶7 An appellant who raises a claim of disability discrimination must first
establish that he is a disabled person entitled to the protection of the disability
discrimination laws. Doe v. Pension Benefit Guaranty Corporation,
117 M.S.P.R. 579, ¶ 38 (2012). A disability is defined, in pertinent part, as “a
physical or mental impairment that substantially limits one or more major life
activities.” 42 U.S.C. § 12102(1)(A). The ADAAA liberalized the definition of
disability. Doe, 117 M.S.P.R. 579, ¶ 38. One aspect of the liberalized definition
was to expand major life activities to “the operation of a major bodily function,”
including brain function. ADAAA, Pub. L. No. 110-325, § 4(a), 122 Stat. 3553,
3555 (2008) (codified at 42 U.S.C. § 12102(2)(B)). Under the ADAAA, the
Equal Employment Opportunity Commission (EEOC) is charged with issuing
regulations regarding employee rights and is specifically authorized to implement
the definition of disability under the statute. 42 U.S.C. §§ 12116, 12205a. The

4
As a federal employee, the appellant’s claim of discrimination on the basis of
disability arises under the Rehabilitation Act of 1973. However, the regulatory
standards for the ADAAA have been incorporated by reference into the Rehabilitation
Act, and the Board applies them to determine whether there has been a Rehabilitation
Act violation. Sanders v. Social Security Administration, 114 M.S.P.R. 487, ¶ 16
(2010) (citing 29 U.S.C. § 791(g); 29 C.F.R. § 1614.203(b)).
 5

EEOC’s regulations implementing the ADAAA list conditions that “it should
easily be concluded . . . substantially limit the major life activities indicated.”
29 C.F.R. § 1630.2(j)(3)(iii). Among those items listed is “major depressive
disorder,” which is identified as “substantially limit[ing] brain function.” Id.
¶8 When the agency issued the proposed removal letter, the appellant had been
diagnosed with, along with alcohol dependence and anxiety, major depressive
disorder. IAF, Tab 5 at 17, 21 of 24 (first submission), Tab 17 at 5, Tab 19 at 15,
52 of 62. Further, the proposing official was aware of these diagnoses. IAF,
Tab 18 at 18. Although the proposing official was “not necessarily [aware of] the
severity of the conditions,” knowledge of the severity of the appellant’s major
depressive disorder is not necessary for a determination that it is a disability
under the ADAAA. Id. Thus, we find that the appellant met the definition of an
individual with a disability. 5 We modify the initial decision to reflect this
finding.
¶9 Although the administrative judge found the appellant not to be disabled,
she also found that (1) the agency did not breach its obligation to provide the
appellant with reasonable accommodation, and (2) the appellant provided no
evidence that his disability was a motivating factor in his removal. ID at 12-16.
The appellant has not challenged these well-reasoned findings on review, and we
adopt them. Therefore, the appellant failed to prove his claims that he was
denied reasonable accommodation and that he was subject to disparate treatment
in connection with his major depressive disorder or any other stated conditions.

5
Because we find below that the appellant did not otherwise prove his disability
discrimination claim, we do not reach the issue of whether he was a “qualified
individual with a disability.” See 42 U.S.C. § 12112(a).
 6

The appellant did not prove that he was subject to a disparate penalty.
¶10 On petition for review, the appellant alleges that the administrative judge
applied the wrong standard to his claim of disparate penalties. 6 PFR File, Tab 1
at 6-8; see IAF, Tab 18 at 6-7 (raising the disparate penalties claim). However,
the initial decision is devoid of any discussion of disparate penalties. We
therefore modify the initial decision to address the appellant’s contention,
nonetheless finding the appellant has not met his burden concerning his disparate
penalties claim. 7
¶11 Where, as here, all of the agency’s charges are sustained, the agency’s
penalty determination is entitled to deference and should be reviewed only to
determine whether it is within the parameters of reasonableness. See Payne v.
U.S. Postal Service, 72 M.S.P.R. 646, 650 (1996). Among those factors the
Board will review in determining the reasonableness of the penalty is its
consistency with those imposed upon other employees for the same or similar
offenses. Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981).
The appellant’s allegation that the agency treated him disparately to another
employee, without claiming prohibited discrimination, is an allegation of
disparate penalties to be proven by the appellant. Lewis v. Department of
Veterans Affairs, 113 M.S.P.R. 657, ¶ 5 (2010). The appellant has the initial

6
The appellant also refers to his argument as one alleging “disparate treatment.” PFR
File, Tab 1 at 6. However, based on the argument itself, he is seeking review of the
penalty determination, as distinct from seeking review of the finding that he did not
prove his affirmative defense of disparate treatment under the ADAAA. E.g., id. at 7
(asserting that he is not seeking review of an affirmative defense); see Chavez v. Small
Business Administration, 121 M.S.P.R. 168, ¶ 19 (2014) (explaining that disparate
penalty and disparate treatment are different theories that have different elements of
proof).
7
Although we find that the administrative judge erred in failing to adjudicate this
claim, we do not find remand necessary because the record is complete, allowing us to
address this claim. See Davis v. Department of Defense, 82 M.S.P.R. 347, ¶ 12 (1999)
(it is unnecessary to remand an appeal for further adjudication when the record is
complete with respect to the issue under review).
 7

burden of showing that there is enough similarity between both the nature of the
misconduct and other factors to lead a reasonable person to conclude that the
agency treated similarly-situated employees differently. Boucher v. U.S. Postal
Service, 118 M.S.P.R. 640, ¶¶ 20, 24 (2012). We find that the appellant did not
meet this initial burden.
¶12 In an attempt to meet this burden, the appellant points to the agency’s
responses to his discovery requests. PFR File, Tab 1 at 7. The agency admitted
in discovery that within the appellant’s immediate supervisory rating chain there
had been other employees who were charged with AWOL but were not
terminated. 8 IAF, Tab 18 at 18. The agency additionally admitted that other
employees within the deciding official’s chain of command were charged with
AWOL and/or failure to follow leave procedures but were not terminated. Id.
at 18-19; see id at 20 (conceding that within the appellant’s “Activity” and/or
supervisory rating chain, the agency had not terminated every employee found
guilty of “AWOL and/or Failure to Follow Leave Letter Procedures”). The
agency denied that there were “no other employees within the Deciding Official’s
chain of command who were charged with AWOL and/or Failure to Follow Leave
Procedures who were not terminated.” Id. at 19. The agency declined to provide
specific information, such as the identity of, penalty issued to, or race or
disability of, any individual so charged. Id. at 24.
¶13 The appellant has provided some evidence that other employees received
lesser discipline for one or both of the charges that serve as the basis for his
removal. However, these facts are not sufficient for a reasonable person to
conclude that the agency treated similarly-situated employees differently. There
were distinguishing factors that led the agency to treat these employees more
leniently. For example, the deciding official provided a sworn statement, in

8
The appellant’s immediate supervisor was also the individual who proposed his
removal. IAF, Tab 5 at 22 of 24 (first submission), Tab 19 at 12 of 62.
 8

which he specifically indicated that he had removed another employee besides the
appellant for AWOL, notwithstanding the fact that the other employee “had
significantly less sustained AWOL” instances than did the appellant. IAF, Tab 19
at 5 of 32. The deciding official also emphasized the special “time sensitive”
nature of the appellant’s responsibilities in his Douglas factor checklist for
assessing which penalty to impose. In that checklist, the deciding official
indicated that the appellant’s AWOL adversely affected his ability to do his job
because he was the responsible official “for a few of the critical procurements”
and his absences put the agency “in jeopardy of missing critical milestone dates,”
which in turn caused its acquisition schedules to suffer. IAF, Tab 19 at 51 of 62.
The deciding official also remarked that, because of the appellant’s extensive
absences, the deciding official and others were repeatedly forced to stop what
they were doing so as to cover for the appellant at the last minute. See id. The
deciding official believed that this disrupted the agency’s mission and put great
stress on the appellant’s colleagues.
¶14 Furthermore, the appellant himself served a 5-day suspension in July 2012,
prior to his removal, for the charges of AWOL, failure to follow leave restriction
procedures, and discourtesy toward a supervisor. IAF, Tab 5 at 18-23 of 24
(second submission), 4-6 of 26, Tab 19 at 15 of 16, 5 of 32. In addition, other
distinguishing factors might include the number of absences and whether the
comparison employees were, like the appellant, on leave restriction. See Weber
v. U.S. Postal Service, 47 M.S.P.R. 360, 362-64 (1991) (finding removal
warranted where an employee on leave restriction was informed that his past
pattern of unscheduled absences was unacceptable and that he could be
disciplined for further such conduct, but he continued to fail to maintain a regular
work schedule).
¶15 Moreover, the appellant did not fully avail himself of the discovery process
to obtain information related to the disparate penalty issue. The appellant, who
was represented by an attorney, had the option of filing a motion to compel the
 9

agency to disclose such relevant information, but he chose not to do so. See
5 C.F.R. § 1201.74; see also Carter v. Department of Labor, 29 M.S.P.R. 500,
502 (1985) (employee not entitled to have agency produce documents absent
showing how such information was relevant and material to specific issues). This
is so, despite the fact that the administrative judge suspended the case for 30 days
to allow the parties additional time to engage in discovery. IAF, Tab 14.
Additionally, even though the appellant had the opportunity, if he wished, to
further develop the record through testimony on the disparate penalty issue, he
opted instead to cancel the scheduled hearing and to request a decision based only
on the parties’ written submissions. IAF, Tab 6. Therefore, based on the
evidence presented by the appellant, we find that he has not met his initial burden
regarding disparate penalties, and we affirm the penalty of removal. 9
The administrative judge properly concluded that the appellant did not prove his
claims of harmful procedural error or violation of due process.
¶16 The appellant argues on petition for review that the administrative judge
erred in crediting the agency’s assertion that he did not request the materials
underlying his proposed removal. PFR File, Tab 1 at 10-11. Under Office of
Personnel Management regulations, an agency is required to provide an employee
the opportunity to review any materials on which it relied in support of the

9
The appellant does not challenge the administrative judge’s finding that the penalty of
removal was within the tolerable limits of reasonableness, and we affirm that finding on
review. ID at 19-22; see Payne v. U.S. Postal Service, 72 M.S.P.R. 646, 650 (1996)
(when all of the agency’s charges are sustained, but some of the underlying
specifications are not sustained, the agency’s penalty determination is entitled to
deference and should be reviewed only to determine whether it is within the parameters
of reasonableness); see also McCauley v. Department of the Interior, 116 M.S.P.R. 484,
¶ 14 (2011) (penalty of removal for more than 20 consecutive workdays of AWOL
does not exceed the tolerable limits of reasonableness, particularly where the employee
has prior discipline for the same offense); Johnson v. General Services Administration,
46 M.S.P.R. 630, 635 (finding removal for the charges of failure to follow proper leave
procedures and AWOL to be within the bounds of reasonableness), aff’d, 944 F.2d 913
(Fed. Cir. 1991) (Table).
 10

charges. 5 C.F.R. § 752.404(b)(1). Failure to comply with this regulation is
procedural error and, if harmful to the appellant, would provide a basis for
reversal of the action. Forrester v. Department of Health & Human Services,
27 M.S.P.R. 450, 453 (1985). In a sworn affidavit submitted prior to the close of
record, the appellant stated that, although he requested the materials relied upon
from the individual listed in the proposed removal, the agency did not provide
them. IAF, Tab 18 at 12-13. The agency provided a sworn declaration from the
identified individual, indicating that he received no such request. IAF, Tab 19
at 29-30 of 32.
¶17 When an administrative judge’s findings are not based on the observation
of witnesses’ demeanor, the Board is free to reweigh the evidence and substitute
its own judgment on credibility issues. Haebe v. Department of Justice, 288 F.3d
1288, 1302 (Fed. Cir. 2002). In this instance, we agree with the administrative
judge that the appellant’s claim that he requested the underlying materials is not
credible. ID at 17. The appellant did not provide any details such as when, or
how, the request was made. ID at 17; IAF, Tab 18 at 12-13. Further, although
the appellant was in contact with the agency via email to request an extension in
his response to the proposed removal, noticeably absent from his messages are
any request for the underlying materials. ID at 17; IAF, Tab 19 at 6-8 of 32.
Therefore, the appellant failed to prove his affirmative defense of harmful
procedural error.
¶18 We likewise affirm the administrative judge’s finding that the agency
did not violate the appellant’s due process rights. ID at 18. Procedural due
process guarantees are not met if the employee has notice of only certain charges
or portions of the evidence and the deciding official considers new and material
information; therefore, it is constitutionally impermissible to allow a deciding
official to receive additional material information that may undermine the
objectivity required to protect the fairness of the process. Stone v. Federal
Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999). The
 11

appellant challenges the administrative judge’s finding on review, claiming that
“the burden should have been on the agency” to prove that it provided the
appellant with the materials underlying his proposed removal or that he never
requested this information. PFR File, Tab 1 at 10. The appellant is correct that
the agency must comply with the minimum requirements of due process. See
Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985) (an
agency’s failure to provide a tenured public employee with an opportunity to
present a response, either in person or in writing, to an appealable agency action
that deprives him of his property right in his employment constitutes an
abridgement of his constitutional right to minimum due process of law, i.e., prior
notice and an opportunity to respond). However, regardless of the allocation of
burdens, we find, as discussed above, that the weight of the evidence establishes
that the appellant did not request the underlying materials. Therefore, we decline
to find that the agency violated the appellant’s due process rights.

ORDER
¶19 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
§ 1201.113(c)).

NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
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 United States 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:
 12

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 United States
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
 13

prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.

FOR THE BOARD:

______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
 SEPARATE OPINION OF ANNE M. WAGNER, CONCURRING IN PART AND
DISSENTING IN PART

in

Sean McNab v. Department of the Army

MSPB Docket No. CH-0752-13-4643-I-1

¶1 I agree that the agency proved its charges of absence without leave (AWOL)
and failure to follow leave restriction procedures, and with the majority’s
conclusion that the appellant failed to prove his affirmative defenses of disability
discrimination, harmful procedural error, and violation of his due process rights.
I dissent from the majority’s analysis of the disparate penalties issue and its
determination that penalty of removal was within the tolerable limits of
reasonableness and would, instead, remand this appeal for further adjudication to
allow the Board to determine those issues on the basis of a fully-developed
record, as is required by Williams v. Social Security Administration, 586 F.3d
1365, 1368 (Fed. Cir. 2009).
¶2 One of the grounds upon which the appellant challenged the penalty of
removal as unreasonable was that the agency had imposed a more severe penalty
on him than it had imposed upon other employees for the same or similar
offenses. The basis for the appellant’s position was the agency’s admissions in
discovery that: (1) “within the Appellant’s immediate supervisory rating chain
there have been other employees who were charged with AWOL and were not
terminated”; and (2) “there were other employees under the Deciding Official’s
chain of command who were charged with AWOL and/or Failure to Follow Leave
Procedures that were not terminated . . . .” IAF, Tab 18 at 18-19. The agency,
however, refused to provide any information concerning such employees in
response to the appellant’s discovery requests, in redacted form or otherwise, on
 2

the grounds that the appellant’s requests sought documents and information
protected by the Privacy Act. 1
¶3 As the majority recognizes, the administrative judge’s initial decision is
devoid of any discussion or analysis of this issue. Majority Opinion, ¶ 10.
Nonetheless, rather than remanding for further development of the record, the
majority instead concludes that the appellant has not met his burden concerning
his disparate penalties claim, finding that the record evidence is: (1) insufficient
for a reasonable person to conclude that the agency treated similarly-situated
employees differently, but (2) sufficiently complete for the Board to consider
distinguishing factors upon which the agency “might” have relied in treating
other employees more leniently. Id., ¶¶ 12-15. The majority’s analysis and
conclusions cannot be reconciled with Federal Circuit or Board precedent, which
places the evidentiary burden on this issue upon the agency, not the appellant,
and which requires that such determinations be based on evidence contained in a
fully-developed record, rather than on mere speculation.
¶4 In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the
Board set forth a nonexhaustive list of factors that are generally recognized as
relevant in arriving at a penalty determination. One of the Douglas factors that
agencies are required to consider in determining an appropriate penalty for
employee misconduct is “consistency of the penalty with those imposed upon
other employees for the same or similar offenses.” Id.; see Williams, 586 F.3d
1365, 1368 (Fed. Cir. 2009). Despite the majority’s repeated references to the

1
The agency’s blanket refusal was not supportable. See 5 C.F.R. § 293.311
(identifying, as available to the public, information from an Official Personnel File such
as the name, present and past position titles, duty stations, and position descriptions of
present and former federal employees); see also Eaks v. Department of Justice,
18 M.S.P.R. 328, 333 (1983) (the administrative judge did not abuse his discretion in
imposing sanctions on the agency when it offered nothing more in support of its
resistance to discovery than its conclusory assertion that the Privacy Act prohibited the
production of information).
 3

appellant’s “burden,” it is well-established that a disparate penalties argument is
not an affirmative defense. Chavez v. Small Business Administration,
121 M.S.P.R. 168, ¶ 9 (2014); Downey v. Department of Veterans Affairs,
119 M.S.P.R. 302, ¶ 11 (2013); Malinconico v. U.S. Postal Service, 14 M.S.P.R.
542, 544 (1983) (the presiding official erroneously considered the appellant’s
claim of disparate penalties as an affirmative defense and improperly placed the
burden of proof on the appellant). Rather, it is an attack on the agency’s penalty
determination, i.e., an argument that the agency failed to carry its burden on the
penalty issue. See Douglas, 5 M.S.P.R. at 307-08 (the agency bears the burden of
proving the appropriateness of the penalty) (citing 5 U.S.C. § 7701(c)(1)).
Although the appellant must raise the disparate penalties issue, the agency bears
the evidentiary burden on the matter. Miille v. Department of the Air Force,
28 M.S.P.R. 248, 251 (1985); Bivens v. Tennessee Valley Authority, 8 M.S.P.R.
458, 463 (1981); Woody v. General Services Administration, 6 M.S.P.R. 486, 488
(1981).
¶5 The Board has recently clarified that, to “trigger” the agency’s evidentiary
burden on disparate penalties, 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 conclude that the agency
treated similarly-situated employees differently. Boucher v. U.S. Postal Service,
118 M.S.P.R. 640, ¶ 20 & n.4 (2012); Lewis v. Department of Veterans Affairs,
113 M.S.P.R. 657, ¶¶ 12, 15 (2010). 2 The agency’s burden was clearly triggered

2
Despite references in prior Board opinions such as Lewis to the appellant’s “initial
burden,” it is clear from the analysis in those cases that the appellant’s burden is only to
raise the issue of disparate penalties. This is because a deciding official does not have
to consider each of the Douglas factors in making his penalty determination. See Nagel
v. Department of Health & Human Services, 707 F.2d 1384, 1386 (Fed. Cir. 1983)
 4

in this case. Here, the agency’s admissions that within the appellant’s immediate
supervisory rating chain there had been other employees who were charged with
AWOL but were not terminated, and that other employees within the deciding
official’s chain of command were charged with AWOL and/or failure to follow
leave procedures but were not terminated, plainly are sufficient to lead a
reasonable person to conclude that the agency treated similarly-situated
employees differently. Thus, it was incumbent upon the agency to prove a
legitimate reason for the difference in treatment by a preponderance of the
evidence.
¶6 The majority’s conclusion that this evidence fails to satisfy the appellant’s
burden turns longstanding Board precedent on its head, transforming an
appellant’s obligation to raise the disparate penalties issue into an evidentiary
burden of proof on the matter. This is especially inappropriate when the issue is
the consistency of the penalty because it is the agency, not the appellant, that
possesses information concerning comparator employees.
¶7 In the absence of any record evidence on comparators to support its
conclusion that “[t]here were other distinguishing factors that led the agency to
treat these employees more leniently,” the majority cites the deciding official’s
uncorroborated and vague statement in his declaration that “[r]emoval was also
consistent with the penalty imposed in other AWOL cases in which I have been
the Deciding Official . . . . In that case I removed an employee for AWOL who
had significantly less sustained AWOL compared to this case.” IAF, Tab 19 at 5
of 32 (emphasis added); see Majority Opinion, ¶ 13. In light of the agency’s

(“The [B]oard never intended that each factor be applied mechanically, nor did it intend
mandatory consideration of irrelevant factors in a particular case.”); Chavez,
121 M.S.P.R. 168, ¶ 9; Douglas, 5 M.S.P.R. at 306 (not all of the factors will be
pertinent in every case, and it must be borne in mind that the relevant factors are not to
be evaluated mechanistically). Rather, the deciding official must consider the relevant
Douglas factors implicated by the facts of the case before him. Portner v. Department
of Justice, 119 M.S.P.R. 365, ¶ 10 (2013).
 5

refusal to offer any evidence to support or clarify this statement, it is of little, if
any, probative value and certainly does not amount to a “fully-developed record”
upon which the Board can determine this issue. The other grounds cited by the
majority, such as the deciding official’s emphasis on the time-sensitive nature of
the appellant’s responsibilities, the disruption that his absences caused, and his
prior disciplinary record, would only be relevant to the disparate penalties
analysis had the agency produced evidence concerning the nature of the
comparator employees’ responsibilities, whether their absences caused
comparable disruptions, and whether they had comparable disciplinary records.
Yet, the agency failed to do so here.
¶8 The majority compounds its error by offering its own possible reasons for
the agency’s difference in treatment, stating “distinguishing factors might include
the number of absences, and whether the comparison employees were, like the
appellant, on leave restriction.” Majority Opinion, ¶ 14 (emphasis added). 3 The
record, however, shows none of these facts. 4 Speculation as to why the agency
might have imposed different penalties is no substitute for record evidence. Cf.
Williams, 586 F.3d at 1369 (“We decide cases on the record before us, not on the
basis of facts stated by counsel. The record before the Board, which is the only

3
The majority also states that the appellant does not challenge the administrative
judge’s finding that the penalty of removal was within the tolerable limits of
reasonableness, and affirms that finding on review. Majority Opinion, ¶ 15 n.10. I
disagree. By challenging the penalty on the ground that the agency had imposed a more
lenient penalty on employees for the same or similar offenses, the appellant is
contending that the agency’s determination is not an exercise of management discretion
within tolerable limits of reasonableness.
4
Rather than drawing an adverse inference based on the agency’s failure to offer any
evidence on an issue upon which it bears the burden of proof, the majority instead faults
the appellant for failing to fully avail himself of the discovery process. Majority
Opinion, ¶ 15. Because, as stated above, the agency’s admissions establish that it
treated similarly-situated employees differently, it was incumbent upon the agency, not
the appellant, to offer additional evidence on this issue.
 6

record we have, does not establish government counsel’s factual description of
what occurred, and we cannot base our decision on those statements.”).
¶9 I neither express nor intimate any views as to what would be an appropriate
resolution of this case, but only my view that the appropriate disposition of this
case is to remand it to the administrative judge for further proceedings. See id.
On remand, the administrative judge should: (1) develop, as fully as possible, the
facts relating to whether the agency conscientiously considered the consistency of
the penalty here with those imposed upon other employees for the same or similar
offenses; (2) make findings and conclusions on that issue; and (3) based on that
augmented record and those findings and conclusions, redetermine whether the
agency met its burden to establish the appropriateness of the penalty in this case.
See id. Under similar circumstances, the Board in Voss v. U.S. Postal Service,
119 M.S.P.R. 324 (2013), recently remanded an appeal for the administrative
judge to reconsider the reasonableness of the penalty in light of the appellant’s
claim of disparate penalties, with instructions to allow the parties to submit
supplemental evidence and argument, including a hearing, if requested, so that
the administrative judge may analyze the appellant’s claim based on a
fully-developed record. I believe that the Board should take the same approach in
this case.
¶10 Accordingly, I respectfully dissent from the majority’s decision to not
remand this appeal for further development of the record on disparate penalties
and reconsideration of whether the agency-imposed penalty is entitled to
deference as an exercise of management discretion within tolerable limits of
reasonableness.

______________________________
Anne M. Wagner
Vice Chairman