Marvin Hagan v. Department of the Army

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

MARVIN HAGAN, DOCKET NUMBER
Appellant, DC-0752-16-0705-I-1

v.

DEPARTMENT OF THE ARMY, DATE: February 27, 2023
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Marvin Hagan, APO, pro se.

Kim E. Dixon, Esquire, Scott Air Force Base, Illinois, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which
upheld his removal. Generally, we grant petitions such as this one only in the
following circumstances: the initial decision contains erroneous findings of
material fact; the initial decision is based on an erroneous interpretation of statute

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

or regulation or the erroneous application of the law to the facts of the case; the
administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abuse of
discretion, and the resulting error affected the outcome of the case; or new and
material evidence or legal argument is available that, despite the petitioner’s due
diligence, was not available when the record closed. Title 5 of the Code of
Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). After fully
considering the filings in this appeal, we conclude that the petition er has not
established any basis under section 1201.115 for granting the petition for review.
Therefore, we DENY the petition for review. Except as expressly MODIFIED by
this Final Order to analyze the appellant’s discrimination claim under the
appropriate standard, we AFFIRM the initial decision.

BACKGROUND
¶2 The appellant was employed as a Supervisory Traffic Management
Specialist, GS-2130-12, with the agency’s Transportation Brigade in Izmir,
Turkey. Initial Appeal File (IAF), Tab 10 at 14. On February 8, 2016, the
agency proposed the appellant’s removal on one charge of lack of candor (three
specifications). IAF, Tab 8 at 43-46. The agency alleged that when the appellant
initially pursued his position, he completed the Optional Form (OF) 306,
Declaration for Federal Employment and answered question 12 untruthfully,
which read:
During the last 5 years, have you been fired from any job for any
reason, did you quit after being told that you would be fired, did you
leave any job by mutual agreement because of specific problems, or
were you debarred from Federal employment by the Office of
Personnel Management or any other Federal agency? If “Yes,” use
item 16 to provide the date, an explanation of the problem, reason for
leaving and the employer’s name and address[.]
Id. at 43. Specification one alleged that the appellant marked the “no” box in
response to question 12, but was previously terminated from a probationary
 3

appointment at the U.S. Army Garrison Dugway, at Dugway Proving Ground,
Utah, on March 14, 2012. Id. at 43-44. Specification two alleged that despite
answering “no” to question 12, he had an additional termination from a position
at the Pensacola Navy Air Station in May 2010. Id. at 44. Specification three
alleged that, on his Standard Form 144, completed at the same time as the
OF-306, the appellant certified that “[t]he prior Federal civilian and uniformed
service listed on my application/résumé and listed above constitutes my entire
record of Federal employment,” and that he failed to list his prior Federal service
with the agency at the Dugway Proving Ground between November 7, 2011, and
March 14, 2012. Id.
¶3 In his response to the proposal, the appellant explained that he answered
“no” to the question because of a previous conversation he had with a human
resources representative at the Dugway Proving Ground, wherein the
representative told the appellant that the termination did not constitute a firing,
and therefore, the appellant believed that he did not need to include it on the
OF-306. IAF, Tab 8 at 5. To support this explanation, the appellant provided the
deciding official with a February 2016 email between himself and the human
resources representative wherein the two discussed the nature of a probationary
termination and how it relates to an application for unemployment compensation.
Id. at 7-8; IAF, Tab 10 at 87-88. To verify the email, the deciding official
contacted the human resources representative to inquire about the alleged
conversation. IAF, Tab 10 at 73.
¶4 The deciding official provided the appellant with a notice of consideration
of additional material, which included the February 2016 email from the human
resources representative and a previous OF-306 that the appellant completed in
2011, after his termination from the Pensacola Navy Air Station in 2010, on
which he marked “yes” to question 12. Id. at 73-76. The appellant responded,
reiterating his claim that the human resources representative told him that his
termination was not considered a firing, but acknowledging that the conversation
 4

also included a discussion regarding applications for unemployment
compensation. Id. at 55-56. In his response, he also challenged the human
resources representative’s memory of the conversation. Id. at 56. The appellant
also submitted an additional email from the human resources representative ,
written after the deciding official’s notice of consideration of additional material ,
wherein the human resources representative confirms that his February 2016
email was intended to communicate his understanding of the rules applicable to
applications for unemployment compensation. Id. at 71-72.
¶5 Approximately one week later, the deciding official issued a second notice
of consideration of additional material, including another OF-306 for a position at
Guantanamo Bay, Cuba, for which the appellant applied after the probationary
termination from the Dugway Proving Ground but before completing the OF-306
at issue in this appeal. Id. at 49-52. The form showed that the appellant
answered “yes” to question 12, indicating that he had been fired from a position.
Id. at 51. The appellant responded to the notice and claimed that he marked “yes”
on the Guantanamo Bay OF-306 “to keep things simple and address questions on
[the] OF-306 in more detail by calling the hiring official.” Id. at 34. He also
stated that despite his earlier conversation with the human resources
representative from the Dugway Proving Ground, he “did not feel [he] had
sufficient knowledge” regarding the differences between a firing and a separation
during a probationary period. Id. The appellant also stated that it was only after
his time at Guantanamo Bay that he gained the information and experience that
led him to answer “no” on the OF-306 at issue in this appeal. Id.
¶6 On June 13, 2016, the deciding official issued a decision finding that the
agency proved specifications one and two but dismissing specification three as
unsupported by the evidence. 2 IAF, Tab 10 at 15-17. He stated that he

2
The deciding official issued a final decision on June 10, 2016, IAF, Tab 10 at 26 -28,
but, at the request of the appellant, rescinded the decision to allow the appellant to
 5

considered the appellant’s written and oral responses and concluded that the
penalty of removal was reasonable and promoted the efficiency of the service. Id.
at 15.
¶7 The appellant timely appealed his removal action to the Board , arguing that
the agency committed harmful procedural error and engaged in prohibited
personnel practices and that the removal was in retaliation for other protected
activities under 5 U.S.C. § 2302. IAF, Tab 1 at 3. After holding a hearing, IAF,
Tab 36, Hearing Compact Disc (HCD), the administrative judge issued an initial
decision sustaining specifications one and two, and therefore, the single charge of
lack of candor, IAF, Tab 37, Initial Decision (ID) at 9-10. The administrative
judge also found that the penalty of removal was reasonable and promoted the
efficiency of the service. ID at 12-15. He found, moreover, that the appellant
failed to prove his discrimination claim. ID at 10-12.
¶8 The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 5. The appellant argues that the administrative judge
improperly sustained a charge of falsification rather than lack of candor and that
he erred in his credibility determinations. Id. at 5-6, 9-11. The appellant also
makes various arguments regarding due process, procedural error, discrimination,
and the appropriateness of the penalty of removal. Id. at 6-9, 11-20. The agency
has filed a response to the appellant’s petition. PFR File, Tab 7.

DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly found that the agency proved its charge.
¶9 Generally, an agency is required to prove its charges in an adverse action
appeal by preponderant evidence. 3 5 U.S.C. § 7701(c)(1)(B). To prove lack of

return from overseas before the effective date of the removal, id. at 23-25. The
deciding official reissued an updated final decision on June 13, 2016. Id. at 15-22.
3
A preponderance of the evidence is that degree of relevant evidence that a reasonable
person, considering the record as a whole, would accept as sufficient to find that a
contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).
 6

candor, the agency must demonstrate that the employee gave incorrect or
incomplete information and that he did so knowingly. Fargnoli v. Department of
Commerce, 123 M.S.P.R. 330, ¶ 17 (2016). Although it is a broader and more
flexible concept than falsification and does not require an affirmative
misrepresentation, lack of candor does involve an element of deception. Ludlum
v. Department of Justice, 278 F.3d 1280, 1284 (Fed. Cir. 2002).
¶10 There is no dispute that the appellant was terminated from two different
positions or that he checked “no” to question 12 on the OF-306 at issue here.
IAF, Tab 8 at 48-50, 52, 57. Rather, the crux of this case deals with the
appellant’s intentions and explanations for why he answered “no” on that form.
¶11 To resolve that question, the administrative judge considered hearing
testimony from the human resources specialist at the Dugway Proving Ground
regarding the conversation he had with the appellant concerning that termination.
ID at 3-5; HCD (testimony of the human resources specialist). That witness
testified that it was unlikely that he told the appellant he was not fired and that it
was not uncommon to speak with a terminated employee ab out unemployment
compensation. HCD (testimony of the human resources specialist) . He discussed
the February 2016 emails between him and the appellant and explained that the
rules applicable to unemployment compensation applications differ from those
applicable to Federal employment applications. Id. He further testified that if he
had been a terminated probationer completing a subsequent OF-306, he would
find it necessary to answer “yes” to question 12. Id. The administrative judge
also considered testimony from the director of the agency’s civilian pe rsonnel
office regarding the OF-306. ID at 5-6; HCD (testimony of the director of
civilian personnel). She testified that answering “yes” to question 12 would not
automatically result in the withdrawal of an employment offer and that she would
consider a probationary termination a firing. Id.
¶12 The administrative judge also considered testimony from the appellant, who
stated that the human resources specialist from the Dugway Proving Ground told
 7

him that he had not been fired and could answer “no” to a question of whether he
had been fired on any unemployment compensation forms. ID at 6; HCD
(testimony of the appellant). He further testified th at after his termination from
the Dugway Proving Ground, he applied to a position at Guantanamo Bay and
answered “yes” to question 12 on the OF-306 to “keep things simple,” despite his
earlier conversation with the human resources specialist. Id. He stated that it
was only after his time at Guantanamo Bay that he formed the belief that he could
answer “no” to question 12 on subsequent Federal employment applications. Id.
¶13 The administrative judge did not credit the appellant’s explanations of his
varying responses to question 12 and found that “there are too many contradictory
events in his own behavior” to conclude that he made his representation
unknowingly. 4 ID at 7. Accordingly, the administrative judge issued an initial
decision finding that the agency proved specifications one and two by
preponderant evidence and sustained the charge. However, instead of referring to
the charge as “lack of candor,” the administrative judge wrote that “the charge of
falsification is sustained.” ID at 9.
¶14 On review, the appellant argues that the administrative judge erred in
sustaining a falsification charge. PFR File, Tab 5 at 5-6. He argues that he was
not on notice of a falsification charge and that, for the administrative judge to
sustain a falsification charge, the agency would have had to prove that he
intended to defraud the agency, which it did failed to do. Id.; see O’Lague v.
Department of Veterans Affairs, 123 M.S.P.R. 340, ¶ 6 (2016), aff’d per curiam,
698 F. App’x 1034 (Fed. Cir. 2017). We agree with the appellant that the
administrative judge erred in his finding, but only to the extent that he mislabeled
the charge by referring to it as a charge of “falsification ,” rather than one of “lack

4
The administrative judge’s finding regarding the appellant’s credibility reads: “There
are too many contradictory events in his own behavior to conclude that he made the
representation, “YES,” unknowingly.” ID at 7. We find the administrative judge’s
using the word “yes” to be a typographical error.
 8

of candor.” In the initial decision, the administrative judge correctly discussed
the charge of lack of candor, ID at 2-10, and explained that it requires proof that
the appellant gave incorrect or incomplete information and that he did so
knowingly, ID at 9 (citing Fargnoli, 123 M.S.P.R. 330, ¶ 17). Moreover, prior to
the hearing, the administrative judge issued a summary of the telephonic
prehearing conference wherein he provided the parties with their burdens of
proof, including the correct standard for the agency to prove a lack of candor
charge. IAF, Tab 28 at 2. Therefore, we find that the administrative judge’s
error did not prejudice the appellant’s substantive rights and provides no basis for
reversing the initial decision. See Panter v. Department of the Air Force,
22 M.S.P.R. 281, 282 (1984).
¶15 The appellant also challenges the administrative judge’s credibility
determinations regarding his own testimony and the human resources specialist’s
testimony. PFR File, Tab 5 at 9-11. Specifically, the appellant argues that he had
no reason to mislead the agency for his own gain because he was hired for two
other positions despite answering “yes” to question 12 on the respective OF-306s.
Id. at 10. He also argues that the human resource specialist’s testimony is
inconsistent and reflects “a poor memory.” Id. at 9-10. When an administrative
judge has made credibility determinations that were explicitly or implicitly based
on the witness’s demeanor while testifying at the hearing, the Board must defer to
those credibility determinations and may overturn such determinations only when
it has “sufficiently sound” reasons for doing so. Purifoy v. Department of
Veterans Affairs, 838 F.3d 1367, 1372-73 (Fed. Cir. 2016); Haebe v. Department
of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). Here, the administrative judge
appropriately relied on the factors set forth in Hillen v. Department of the Army,
35 M.S.P.R. 453, 458 (1987), to assess witness credibility and found the appellant
to be not credible. ID at 6-10. Given the administrative judge’s implicit
demeanor-based findings and our considering the appellant’s arguments on
 9

review, we find that the appellant has failed to provide a “sufficiently sound”
reason to disturb these conclusions.
¶16 Accordingly, we agree with the administrative judge that the agency proved
the charge of lack of candor by preponderant evidence, and we will not disturb
the initial decision in that regard.

The appellant failed to prove that any ex parte communications violated his due
process rights.
¶17 The appellant appears to argue on review that there may have been ex parte
communications between his previous employer at the Dugway Proving Grounds
and the proposing and deciding officials in this case. 5 PFR File, Tab 5 at 8, 19.
He asserts that these communications had an adverse impact against him. Id. at 8.
He also argues that the proposing and deciding officials considered statements
from his coworkers regarding his “manner of operating and [] conduct” and
details surrounding a ship loading mission. Id. at 14; IAF, Tab 8 at 44. The
appellant argues that these communications created a negative opinion of him in
the proposing and deciding officials’ minds and that he had no opportunity to
address the coworkers’ statements, which constituted a due process violation. 6 Id.
at 15.
¶18 Although an appellant’s right to due process can extend to ex parte
information provided to a deciding official, only ex parte communications that

5
On review, the appellant alleges that the proposing official stated in his proposal
notice that “previous employers” complained about the appellant. PFR File, Tab 5 at 6.
However, upon review of the proposal notice, the proposing official referenced
“co[]workers and multiple employees.” IAF, Tab 8 at 44. Nonetheless, we will address
the appellant’s allegations regarding communications with previous employers.
6
The agency argues in its response to the appellant’s petition for review that the
appellant failed to raise this issue below, and therefore, the Board should not consider
it. PFR File, Tab 7 at 19; see Banks v. Department of the Air Force, 4 M.S.P.R. 268,
271 (1980). We have reviewed the record, and although the appellant did not actively
pursue a due process claim as an affirmative defense, his prehearing submission briefly
discussed his concern regarding the coworkers’ statements and his inability to rebut
them. IAF, Tab 26 at 3-4. Accordingly, we will consider his due process claim here.
 10

introduce new and material evidence to the deciding official constitute due
process violations. Ward v. U.S. Postal Service, 634 F.3d 1274, 1279-80 (Fed.
Cir. 2011); Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368,
1376-77 (Fed. Cir. 1999). The ultimate question is whether the information is “so
substantial and so likely to cause prejudice that no employee can fairly be
required to be subjected to a deprivation of property under such circumstances.”
Stone, 179 F.3d at 1377.
¶19 Regarding the appellant’s speculation that the proposing or deciding official
spoke with his previous employer at the Dugway Proving Grounds, the appellant
has failed to present any evidence that any communications occurred at all. He
did not provide any names of the parties involved in the alleged communications,
nor did he provide evidence of the contents of the alleged communications.
¶20 Regarding the appellant’s allegation that the deciding official relied on
statements made by the appellant’s coworkers concerning his manner of operating
and conduct and an incident regarding a ship loading mission, the deciding
official stated in his Douglas 7 factor analysis that he did not consider those
statements for the purpose of the instant removal action, IAF, Tab 10 at 19, and
the appellant did not question the deciding official on this matter at the hearing to
establish otherwise, HCD (the appellant’s questioning of the deciding official).
Based on the foregoing, we find that the appellant has failed to prove that any ex
parte communications occurred or that, if any communications did occur, they
introduced new and material evidence or information tha t was so substantial and
so likely to cause prejudice to the appellant that he could not fairly be re quired to
be subjected to a deprivation of property under the circumstances. Ward,
634 F.3d at 1279-80; Stone, 179 F.3d at 1376-77. Therefore, we find that the
appellant has failed to prove that the agency violated his due process rights.

7
In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
established criteria to consider when imposing a penalty.
 11

The appellant failed to prove that the agency engaged in any harmful procedural
error.
¶21 The appellant also argues on review that the agency committed various
procedural errors. Specifically, he alleges that, despite it being standard agency
procedure, the agency never asked him to recertify his OF-306. PFR File, Tab 5
at 6. He also argues that the agency failed to exercise due diligence when it did
not contact prior employers as references, id. at 6-7, and that it mishandled his
security clearance paperwork, id. at 8. Regarding the appellant’s first two
arguments, it does not appear that he raised these issues below, and generally, the
Board will not consider an argument raised for the first time on review absent a
showing that it is based on new and material evidence not previously available
despite the party’s due diligence. Banks v. Department of the Air Force,
4 M.S.P.R. 268, 271 (1980). Here, the appellant has failed to prove that any
evidence surrounding the agency’s alleged errors was not available to him below
despite his due diligence.
¶22 Regarding the appellant’s assertion that the agency mishandled his security
clearance paperwork, the appellant appears to have raised the issue briefly in his
prehearing submission, IAF, Tab 26 at 5, and we will consider it here. For a
procedural error to warrant reversing an agency action, the appellant must
establish that the agency committed a procedural error that likely had a harmful
effect on the outcome of the case before the agency. Powers v. Department of the
Treasury, 86 M.S.P.R. 256, ¶ 10 (2000); 5 C.F.R. § 1201.56(c). Here, the
appellant has failed to show that any error in the agency’s proces sing of his
security clearance occurred at all or that it had a harmful effect on the outcome of
his removal. 8 Therefore, we find that the appellant has failed to prove that the
agency committed harmful procedural error.

8
As to the appellant’s argument that the agency committed harmful procedural error
when it failed to ask him to recertify his OF-306, PFR File, Tab 5 at 6, we find that he
has failed to show that it had a harmful effect on the outcome of his removal action.
 12

The appellant failed to prove his discrimination claim.
¶23 The appellant also argues that his removal was the result of discrimination
based on his race and religion. PFR File, Tab 5 at 18-21. He claims that,
although he may have engaged in unrelated misconduct, other employees of
another race and religion had engaged in the same conduct. Id. He argues that
the agency, however, chose to remove him on the lack of candor charge so that it
would not have to remove the other employees for the same unrelated
misconduct. Id. at 18. He also asserts that because the proposing official had
been in contact with a previous employer, and that employer allegedly had
discriminated against the appellant in the past, it was reasonable to assume that
the employer’s communication influenced the proposing official in a
discriminatory way. Id. at 7-8.
¶24 The administrative judge considered the appellant’s discriminat ion claim
and found that the appellant failed to present preponderant evidence that the
agency’s action was due to racial discrimination. ID at 12. In analyzing the
appellant’s discrimination claim, he applied the burden-shifting analysis of
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). ID at 20-21.
¶25 Because the administrative judge did not also consider the appellant’s
discrimination claim under the motivating factor framework set forth in Pridgen
v. Office of Management and Budget, 2022 MSPB 31, we modify the initial
decision to do so. 9 Based on our review of the record, we find that the appellant
failed to meet his initial burden of showing by preponderant evidence that any
prohibited consideration was a motivating factor in his removal. He has failed to
provide any evidence that the agency declined to impose discipline for the

Notably, he has not even alleged that he would have changed his answer on question 12
from “no” to “yes” if given the opportunity to recertify.
9
In the summary of the telephonic prehearing conference, the administrative judge
correctly informed the appellant of his burden of proof. IAF, Tab 28 at 2-4. Thus, the
appellant was on proper notice of what he was required to prove. See Burgess v. Merit
Systems Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985).
 13

unrelated misconduct in which several employees allegedly engaged simply to
avoid disciplining employees of a different race or religion than the appellant. He
also has failed to present any evidence showing that the agency lied about its
reasons to remove him for lack of candor, and he has failed to present any
incriminating statements from agency employees in support of this claim. He has
failed, moreover, to provide any evidence that the agency’s general treatment of
employees in the same protected classes as the appellant differs from any other
class of employees who have committed similar misconduct. See Pridgen,
2022 MSPB 31, ¶¶ 23-25. Therefore, we agree with the administrative judge’s
finding that the appellant failed to prove his affirmative defense.
¶26 On review, the appellant argues that the administrative judge restricted his
examination of the proposing and deciding officials to exclude questions
regarding discrimination. PFR File, Tab 5 at 7. We find the appellant’s argument
to be meritless. Regarding the proposing official, the administrative judge
explicitly informed the appellant on the record that one of the reasons the
proposing official was approved as a witness to testify at the hearing was to
respond to the appellant’s questions concerning discrimination. HCD (statement
of the administrative judge). Further, we have reviewed the hearing testimony
from the deciding official, and it appears that the appellant did not pursue any
line of questioning directed at his discrimination claim. HCD ( the appellant’s
questioning of the deciding official). Therefore, we find that the administrative
judge provided the appellant with a sufficient opportunity to question those two
witnesses on the issue of discrimination.
¶27 The appellant further argues on review that the administrative judge erred
when he only considered the appellant’s allegation of race discrimination and that
he also should have considered religious discrimination. PFR File, Tab 5 at 8.
To the extent that the administrative judge limited his review of the appellant’s
discrimination claim, we find no reversible error. The appellant failed to provide
any evidence of a prohibited consideration—racial or religious—and the
 14

appellant’s burden of proof as established in 42 U.S.C. § 2000e-16 is the same
regardless of whether the alleged discrimination was based on race or on religion.
Accordingly, we find no basis to disturb the initial decision in this regard. See
Panter, 22 M.S.P.R. at 282 (stating that an adjudicatory error that is not
prejudicial to a party’s substantive rights provides no basis for revers ing an initial
decision). 10

The penalty of removal was reasonable.
¶28 In his petition for review, the appellant renews his arguments concerning
the penalty of removal. PFR File, Tab 5 at 11-17. When all of the agency’s
charges are sustained, the Board will review the agency-imposed penalty only to
determine if the agency considered all relevant factors and exercised management
discretion within the tolerable limits of reasonableness. Ellis v. Department of
Defense, 114 M.S.P.R. 407, ¶ 11 (2010). In determining whether the selected
penalty is reasonable, the Board defers to the agency’s discretion in exercising its
managerial function of maintaining employee discipline and efficienc y. Archerda
v. Department of Defense, 121 M.S.P.R. 314, ¶ 25 (2014). The Board recognizes
that its function is not to displace management’s responsibility or to decide what
penalty it would impose, but to assure that management’s judgment has been
properly exercised and that the penalty selected by the agency does not exceed
the maximum limits of reasonableness. Id. Thus, the Board will modify a
penalty only when it finds that the agency failed to weigh the relevant factors or
that the penalty the agency imposed clearly exceeded the bounds of
reasonableness. Id.

10
The appellant also argues on review that he did not file an equal employment
opportunity (EEO) complaint with the agency’s EEO office because it informed him
that any discrimination claim could be adjudicated by the Board. PFR File, Tab 5 at 18.
However, the appellant has failed to provide any evidence of this assertion.
Additionally, he argues that he did not strenuously pursue his discrimination claim
before the Board because he feared that the Board may view his appeal negatively due
to his religion. Id. We find this argument unpersuasive, as the appellant has offered no
legal or logical reason for his presumption.
 15

¶29 In the removal notice and hearing testimony, the deciding official
emphasized the nature of the appellant’s supervisory position, which meant that
he was held to a higher standard of conduct. HCD (testimony of the deciding
official); IAF, Tab 10 at 18-19. He also stated that the appellant’s potential for
rehabilitation was low because there was no way to avoid the lack of trust and
confidence that the appellant’s actions created. HCD (testimony of the deciding
official); IAF, Tab 10 at 20-21. The deciding official also considered lesser
penalties, but he believed that there would still be a lack of confidence. HCD
(testimony of the deciding official). Based on the deciding official’s testimony
and the decision notice, the administrative judge found that he properly
considered the Douglas factors, that the penalty of removal was within the
tolerable bounds of reasonableness, and that it promoted the efficiency of the
service. ID at 15.
¶30 On review, the appellant argues that the penalty of removal was too harsh
and that the deciding official did not correctly consider the Douglas factors. PFR
File, Tab 5 at 12-17. He argues that it was “a stretch” for the deciding official to
claim he lost trust and confidence in him and that the deciding official provided
no basis for concluding that he lacked the potential for rehabilitation. Id.
at 13-14, 16. He also argues that the deciding official ignored mitigating factors
such as the alleged discrimination. Id. at 16-17.
¶31 We have reviewed the record and, like the administrative judge, find no
error in the deciding official’s selecting removal as the appropriate penalty. The
deciding official provided a sufficient discussion regarding why he lost trust and
confidence in the appellant, explaining that the appellant was in a supervisory
position serving overseas and, therefore, “his ethical character and
trustworthiness must be beyond reproach” and “his integrity and candor cannot be
compromised.” IAF, Tab 10 at 30. The deciding official also explained his
conclusion that the appellant lacked the potential for rehabilitation and stated that
the appellant’s decision to omit information when applying to the position made
 16

him unsure that he would not omit information in the performance of his daily
duties. Id.
¶32 Insofar as the appellant argues that the alleged discrimination should be
considered a mitigating factor, we already have considered that allegation as an
affirmative defense. Supra ¶¶ 23-25. To the extent that he is attempting to assert
a disparate penalty argument on the bases of race and religion, the Board has held
that appropriate comparators must have engaged in the same or similar offense as
the appellant. Singh v. U.S. Postal Service, 2022 MSPB 15, ¶ 10. Here, the
appellant alleges that he and other employees of a different race all engaged in
conduct unrelated to a charge of lack of candor. PFR File, Tab 5 at 18. He
asserts that, if the agency had disciplined the appellant for that misconduct ,
instead of for lack of candor, it would have been required to discipline the other
employees of a different race as well. Id. Thus, the appellant argues that the
agency’s charging him with lack of candor indicates he was treated differently
from other employees so that the agency could properly remove him without
having to remove others of a different race. Id. The appellant’s argument fails,
however, because the relevant inquiry for a disparate penalty analysis
concentrates on the conduct charged in the disciplinary action and not on any
ancillary misconduct in which the appellant and others may have engaged. See
Singh, 2022 MSPB 15, ¶¶ 10, 17; Douglas, 5 M.S.P.R. at 305. There is no
evidence, nor has the appellant asserted, that the alleged comparators engaged in
lack of candor or any conduct similar thereto. Accordingly, we find the
appellant’s argument to be meritless.
¶33 Next, the appellant argues that the penalty of removal is not consistent with
the agency’s table of penalties. PFR File, Tab 5 at 11. Specifically, he argues
that agency’s table of penalties has no section that includes “lack of candor,” and
that its reliance on a category of misconduct concerning a refusal to cooperate in
an authorized inquiry or investigation is misplaced. Id. at 12. He states that he
was “completely open, honest, and straight forward” during an October 2015
 17

Army Regulation 15-6 investigation. Id. We find the appellant’s argument to be
meritless. The agency’s charge does not reference or include any intern al
investigation, but rather relies solely on the appellant’s Federal employment
application form. Moreover, the Board is not bound by an agency’s table of
penalties, and it is only one factor to be considered in assessing the
reasonableness of a penalty. Phillips v. Department of the Interior, 95 M.S.P.R.
21, ¶ 17 (2003), aff’d, 131 F. App’x 709 (Fed. Cir. 2005).
¶34 After considering the appellant’s arguments related to the penalty on
review, we agree with the administrative judge’s conclusion that the deciding
official properly considered the Douglas factors before selecting the penalty of
removal. Further, given the seriousness of a lack of candor charge and the
appellant’s supervisory role, we also agree with the administrative judge that the
penalty of removal is within the tolerable bounds of reasonableness and promotes
the efficiency of the service. See Wrocklage v. Department of Homeland
Security, 769 F.3d 1363, 1370 (Fed. Cir. 2014) (stating that lack of candor is a
serious charge that carries with it the possibility of sever e penalties); Edwards v.
U.S. Postal Service, 116 M.S.P.R. 173, ¶ 14 (2010) (expressing that agencies are
entitled to hold supervisors to a higher standard than nonsupervisors because they
occupy positions of trust and responsibility). Although the appellant may
disagree with the penalty, none of his arguments on review provide any basis to
disturb the initial decision. 11
¶35 We have considered the appellant’s other arguments on review, but we
conclude that a different outcome is not warranted. Accordingly, we affirm the
initial decision.

11
The appellant also argues on review that the deciding official only relied on one
Douglas factor in arriving at his decision to remove the appellant. PFR File, Tab 5
at 14. He points to the Douglas factors worksheet wherein the deciding official states
that he “decided this removal action for the reasons stated in Douglas factor #1 [sic]
only.” Id.; IAF, Tab 10 at 19. However, the worksheet itself makes clear that the
deciding official considered multiple factors. Id. at 18-21.
 18

NOTICE OF APPEAL RIGHTS 12
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation an d
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).

12
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
 19

If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
 20

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, cos ts, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
 21

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in section
2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),
(B), (C), or (D),” then you may file a petition for judicial review either with the
U.S. Court of Appeals for the Federal Circuit or any court of appeals of
competent jurisdiction. 13 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The

13
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
 22

Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.