                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LULIO E. CALDERON,                              DOCKET NUMBER
                   Appellant,                        AT-0752-14-1000-I-1

                  v.

     DEPARTMENT OF JUSTICE,                          DATE: July 13, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Matthew E. Hughes, Esquire, Washington, D.C., for the appellant.

           Gail Elkins, Esquire, and Kaymi Y. Ross, Washington, D.C., for
             the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

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


     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                      2

     erroneous application of the law to the facts of the case; the administrative
     judge’s rulings during either the course of the appeal or the initial decision
     were not consistent with required procedures or involved an abuse of discretion,
     and the resulting error affected the outcome of the case; or new and material
     evidence or legal argument is available that, despite the petitioner’s due
     diligence, was not available when the record closed.         Title 5 of the Code of
     Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).            After fully
     considering the filings in this appeal, we conclude that the petitioner has not
     established any basis under section 1201.115 for granting the petition for review.
     Therefore, we DENY the petition for review. Except as expressly MODIFIED by
     this Final Order supplementing the administrative judge’s analysis regarding the
     absence without leave (AWOL) charge and the nexus between the charges and the
     efficiency of the service, we AFFIRM the initial decision.

                                          BACKGROUND
¶2         Prior to his removal, the appellant was a Correctional Officer with the
     agency at the Federal Detention Center in Miami, Florida (FDC Miami). Initial
     Appeal File (IAF), Tab 11 at 50.       In this capacity, he was responsible for the
     supervision, care, and correctional treatment of inmates, and the maintenance of
     institutional security. Id. at 56.
¶3         The agency removed the appellant, effective August 25, 2014, based on the
     following charges:     (1) AWOL; (2) giving an inmate something of value in
     violation of agency standards of conduct; (3) off‑duty misconduct; and (4) failure
     to follow policy (2 specifications).      IAF, Tab 11 at 13–16, 23–27, 50.     The
     AWOL charge stemmed from an incident where the appellant was absent from
     work from January 13, 2014, through February 3, 2014, due to his incarceration
     in the Broward County jail for a domestic violence charge. IAF, Tab 11 at 23,
     Tab 33 at 8. The charge of giving an inmate something of value was based on an
     incident in which the appellant gave an inmate, B.V., a bag of commissary items
                                                                                       3

     that B.V. did not pay for and were not hers. IAF, Tab 11 at 24, Tab 33 at 8. The
     off‑duty misconduct charge was based on the appellant’s arrest for and plea of
     “no contest” to a charge of driving under the influence (DUI). IAF, Tab 11 at 25,
     Tab 33 at 9. The failure to follow policy charge was based on incidents in which
     the appellant: (1) allowed inmate B.V. to go through a bag of inmate mail; and
     (2) took a tray of food intended for inmates and ate it. IAF, Tab 11 at 25–26,
     Tab 33 at 9–10.
¶4        The appellant filed a timely Board appeal challenging his removal. IAF,
     Tab 1.   He did not dispute that the agency proved the charges of off‑duty
     misconduct, giving an inmate something of value, or failure to follow policy.
     IAF, Tab 13 at 4–6, Tab 33 at 8–10; Hearing Transcript (HT) at 37–41, 48, 62
     (testimony of the appellant). 2 However, he contested the AWOL charge, claiming
     that, when he called his supervisor, Lieutenant L.G., from jail on January 14,
     2014, Lieutenant L.G. told him that he would place him on annual leave until he
     was released. HT at 10–11 (testimony of the appellant). In contrast, during the
     Board hearing, Lieutenant L.G testified that he had granted the appellant
     emergency annual leave for only January 14, 2014, and told the appellant that he
     needed to call back and speak with their supervisor, Captain D.A., or an
     Administrative Lieutenant, because he was not authorized to grant the appellant
     unscheduled annual leave. HT at 95–98 (testimony of Lieutenant L.G.).
¶5        Following the hearing, the administrative judge issued an initial decision,
     finding that the agency proved all of the charges and specifications. IAF, Tab 31,
     Initial Decision (ID).   Based on the appellant’s admissions during his Board
     appeal and in his response to the notice of proposed removal, she found that the
     agency proved the charges of giving an inmate something of value, off‑duty


     2
       A complete copy of the Hearing Transcript was attached to the agency’s response to
     the appellant’s petition for review. Petition for Review File, Tab 9 at 23–336.
                                                                                          4

     misconduct, and failure to follow agency policies.        ID at 2–3.     Regarding the
     AWOL charge, she found that, although Lieutenant L.G. may have granted the
     appellant annual leave on January 14, 2014, the appellant’s absences on the
     remaining days at issue in the charge were unauthorized. ID at 5 n.2. She further
     found that, regardless of whether the appellant requested annual leave during his
     telephone conversation with Lieutenant L.T., or retroactively from Captain D.A.
     upon his release and return to work, the agency properly denied the appellant’s
     request because he was needed on duty, and no one, including the appellant, knew
     how long he would be incarcerated. ID at 5. Finally, the administrative judge
     found that the agency proved a nexus between the charges and the efficiency of
     the service, ID at 5-6, and that the penalty of removal was reasonable, ID at 6–9.
¶6        The appellant has filed a petition for review of the initial decision. Petition
     for Review (PFR) File, Tab 3. The agency has responded in opposition to the
     petition for review, and the appellant has filed a reply. PFR File, Tabs 9–10.

                     DISCUSSION OF ARGUMENTS ON REVIEW
     The administrative     judge   correctly   found   that   the   agency     proved   the
     AWOL charge.
¶7        To prove a charge of AWOL, an agency must show by preponderant
     evidence that the employee was absent and that his absence was not authorized or
     that his request for leave was properly denied.             Wesley v. U.S. Postal
     Service, 94 M.S.P.R. 277, ¶ 14 (2003). On review, as he did below, the appellant
     argues that his absence was authorized, because Lieutenant L.G. allegedly
     informed him that he would be placed on annual leave for the duration of his
     incarceration when he called Lieutenant L.G. from jail. PFR File, Tab 3 at 10–
     12, Tab 10 at 5–6; IAF, Tab 13 at 5; HT at 10 (testimony of the appellant). Based
     on this assertion, the appellant contends that he was on approved annual leave and
                                                                                         5

     that the agency later improperly “changed” his status to AWOL. 3 PFR File, Tab 3
     at 10‑12, Tab 10 at 5‑6.
¶8         The   administrative    judge   did   not   make   any    explicit   credibility
     determinations regarding the appellant’s testimony that Lieutenant L.G. told him
     that he would be placed on annual leave for the duration of his incarceration and
     Lieutenant L.G.’s conflicting testimony that he told the appellant that he would
     grant him emergency annual leave for only January 14, 2014.          ID at 3‑5; HT
     at 10–11 (testimony of the appellant), 96‑98 (testimony of Lieutenant L.G.).
     Under the circumstances of this case, we find that it was unnecessary for the
     administrative judge to do so because, regardless of what Lieutenant L.G. may
     have told the appellant, the record reflects that he lacked the authority to grant or
     deny the appellant annual leave for the duration of his incarceration.            HT
     at 98-100 (testimony of Lieutenant L.G.), 152 (testimony of Captain D.A.).
¶9         Lieutenant L.G. and Captain D.A. both testified that, due to the nature of
     the work that Correctional Officers perform and the need to ensure sufficient
     coverage to manage the inmate population at FDC Miami, Correctional Officers
     are not allowed to take annual leave any time that they want to. HT at 98‑99
     (testimony of Lieutenant L.G.), 147‑48 (testimony of Captain D.A.). Instead, the
     Correctional Officers must submit their annual leave requests at the beginning of
     each calendar year, and the agency works with their union to schedule annual
     leave based on seniority, with no more than 10 Correctional Officers per week on
     scheduled annual leave.      HT at 98‑99 (testimony of Lieutenant L.G.), 147‑48
     (testimony of Captain D.A.). Once an annual leave schedule has been established
     for the year, Lieutenant L.G.’s authority is limited to granting emergency annual


     3
       In the agency’s response to the petition for review, the agency characterizes the
     appellant’s argument as a new argument raised in the first instance on review.
     PFR File, Tab 9 at 19‑20. We disagree, because the appellant raised this argument
     during the hearing below. HT at 10 (testimony of the appellant).
                                                                                             6

      leave for a single shift, to address unexpected circumstances, such as a
      Correctional Officer’s car breaking down on the way to work.             HT at 99‑100
      (testimony of Lieutenant L.G.), 187 (testimony of Captain D.A.).                   Only
      Captain D.A. has the authority to approve other requests for unscheduled annual
      leave, and it is undisputed that, although Lieutenant L.G. made Captain D.A.
      aware of the appellant’s incarceration, Captain D.A. did not approve unscheduled
      annual leave for the appellant. 4 HT at 100 (testimony of Lieutenant L.G.), 152,
      166‑68 (testimony of Captain D.A.).          For these reasons, we agree with the
      administrative judge that, although Lieutenant L.G. may have granted the
      appellant annual leave on January 14, 2014, the agency proved that the
      appellant’s absence on the remaining days at issue in the charge was
      unauthorized. 5 ID at 5 n.2; Senior v. U.S. Postal Service, 85 M.S.P.R. 283, 289
      (2000) (finding that the Board may sustain an AWOL charge even when the
      agency fails    to   prove   that   the   employee    was    AWOL      for   the   entire
      period charged).
¶10         Next, the appellant argues that his request for annual leave was improperly
      denied because Captain D.A. routinely denied annual leave requests for
      employees who were incarcerated, which the appellant contends was inconsistent
      with the agency’s leave policy. PFR File, Tab 3 at 10‑11, 18, Tab 10 at 6. As an
      initial matter, the appellant has failed to identify any agency leave policy that

      4
        The appellant did not offer evidence below contradicting the testimony of
      Captain D.A. and Lieutenant L.G. regarding the annual leave approval system at the
      agency facility.
      5
        On review, the appellant also contends that he called FDC Miami and spoke to
      Lieutenant L.G. on several other occasions while he was incarcerated and that
      Lieutenant L.G. failed to tell him that he was AWOL, rather than on annual leave. PFR
      File, Tab 3 at 10. At hearing, Lieutenant L.G. testified that he did not receive any
      additional calls from the appellant while he was incarcerated. HT at 101 (testimony of
      Lieutenant L.G.). We need not resolve this issue because we find that it is irrelevant to
      whether the appellant was AWOL, where, as here, Captain D.A. was the only person
      authorized to approve the appellant’s request for unscheduled annual leave and
      undisputedly did not do so. HT at 152, 168 (testimony of Captain D.A.).
                                                                                        7

      required Captain D.A. to allow him to use unscheduled annual leave during his
      incarceration. PFR File, Tab 3 at 10‑11, 18, Tab 10 at 6; Tines v. Department of
      the Air Force, 56 M.S.P.R. 90, 92 (1992) (finding that a petition for review must
      contain sufficient specificity to enable the Board to ascertain whether there is a
      serious evidentiary challenge justifying a complete review of the record).
      Moreover, to the extent that the appellant is attempting to raise an affirmative
      defense of harmful procedural error in the first instance on review, we decline to
      consider this claim because he has failed to demonstrate that it is based on new
      and material evidence that previously was unavailable to him despite due
      diligence. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980)
      (finding that the Board generally 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); 5 C.F.R. § 1201.24(b)
      (requiring an appellant to show good cause for raising claims or defenses for the
      first time after the conference defining the issues in the case).
¶11         Regardless of whether it generally is appropriate for Captain D.A. to
      routinely deny annual leave requests for employees who are incarcerated, we
      agree with the administrative judge that he properly denied the appellant’s request
      for unscheduled annual leave under the circumstances at issue here.        ID at 5.
      Although annual leave is an entitlement, it is subject to the agency’s right to fix
      the time at which it is taken.         See 5 U.S.C. §§ 6302(d), 6303; Dobert v.
      Department of the Navy, 74 M.S.P.R. 148, 150 (1997); Benally v. Department of
      the Interior, 71 M.S.P.R. 537, 541 (1996). In Benally, when evaluating whether
      an agency properly denied an appellant’s request for annual leave to cover a
      period of incarceration, the Board held that it would consider the impact that the
      appellant’s absence would have on the agency and the expected duration of his
      absence. 71 M.S.P.R. at 541–42.
                                                                                             8

¶12         Here, we agree with the administrative judge that the agency established
      that the appellant was needed on duty at the time of his unscheduled absence
      resulting from his incarceration.       ID at 5.     Captain D.A. testified that the
      appellant’s unscheduled absence for approximately 20 days caused a hardship for
      the agency in terms of staffing and that, to ensure adequate Correctional Officer
      coverage at FDC Miami, the agency was required to mandate that the appellant’s
      coworkers cover his shifts and pay them overtime. 6 HT at 210-11 (testimony of
      Captain D.A.).    Captain D.A. and Lieutenant L.G. testified that the appellant’s
      unscheduled absence also adversely impacted his coworkers, who were forced to
      rearrange their personal lives and, on some occasions, work for 16 straight hours
      to cover his shifts.      HT at 103‑04 (testimony of Lieutenant L.G.), 210‑11
      (testimony of Captain D.A.). We further agree with the administrative judge that
      the agency properly denied the appellant’s request for unscheduled annual leave
      because when the appellant called Lieutenant L.G. from jail to notify the agency
      of his whereabouts, no one, including the appellant, knew how long he would be
      incarcerated. ID at 5; HT at 27 (testimony of the appellant), 104 (testimony of
      Lieutenant L.G.), 192‑93 (testimony of Captain D.A.); cf., Benally, 71 M.S.P.R.
      at 539, 542 (finding that an agency improperly denied an appellant’s request for
      annual leave where he was absent from work for 7 days to serve a jail sentence,
      had requested annual leave in advance of his absence, and the agency had initially
      approved the request and then rescinded the approval upon learning the reason for
      the request).



      6
        On review, the appellant appears to contend that the agency failed to prove that it was
      required to pay overtime to other Correctional Officers as the result of his unscheduled
      absence from work. PFR File, Tab 3 at 21‑22. However, Captain D.A.’s testimony to
      this effect was unrebutted by the appellant. See, e.g., Clark v. Equal Employment
      Opportunity Commission, 42 M.S.P.R. 467, 476 (1989) (finding that an agency
      official’s unrebutted testimony established by preponderant evidence that an appellant’s
      misconduct adversely affected an agency’s mission).
                                                                                            9

¶13           Finally, as he did below, the appellant contends that the agency impeded his
      ability to request annual leave by refusing to accept his collect phone calls from
      jail.   PFR File, Tab 3 at 8‑9, 12, Tab 10 at 5, 7; HT at 11 (testimony of the
      appellant).     At hearing, Lieutenant L.G. and Captain D.A. denied that the
      appellant attempted to call them from jail on any occasion other than the single
      collect call to Lieutenant L.G. on January 14, 2014.         HT at 101 (testimony of
      Lieutenant L.G.), 181 (testimony of Captain D.A.).           Even assuming that the
      appellant had attempted to make additional calls, however, he has identified no
      agency rule, regulation, or applicable collective bargaining agreement provision
      requiring the agency to expend Government funds to accept multiple collect calls
      from incarcerated employees. PFR File, Tab 3 at 8‑9, 12, Tab 10 at 5; HT at 11.
      More importantly, even if the appellant had called the agency again during his
      incarceration    to   attempt   to   request   annual   leave,   as   discussed   above,
      Captain D.A., the only agency official authorized to approve such a request, had
      properly determined that the appellant’s leave request would be denied.              HT
      at 164‑68, 186 (testimony of Captain D.A.). In sum, for these reasons and the
      reasons discussed above, the administrative judge correctly found that the agency
      proved the AWOL charge. ID at 3‑5.
      The administrative judge properly found that the agency proved the charges of
      giving an inmate something of value, off‑duty misconduct, and failure to
      follow policy.
¶14           On review, the appellant does not dispute the administrative judge’s
      findings that the agency proved the charges of giving an inmate something of
      value and failure to follow policy, and we discern no basis to disturb these
      findings. PFR File, Tabs 3, 10; ID at 2‑3. However, he contends that the Board
      should address “[w]hether the Administrative Judge erred in sustaining the
      charges of off‑duty misconduct.” PFR File, Tab 3 at 5. The appellant has failed
      to present any arguments regarding why the administrative judge allegedly erred
      in sustaining the sole charge of off‑duty misconduct, which pertained to his DUI
                                                                                          10

      conviction, and which he admitted in his response to the notice of proposed
      removal, IAF, Tab 33 at 9, and did not dispute that the agency proved below, PFR
      File, Tabs 3, 10. In the absence of any such arguments, we discern no basis to
      disturb the administrative judge’s finding that the agency proved the charge of off
      ‑duty     misconduct.     ID   at 2‑3;   Davison     v.   Department     of   Veterans
      Affairs, 115 M.S.P.R. 640, ¶ 9 (2011) (finding that mere disagreement with an
      administrative judge’s explained findings is not a basis to grant a petition for
      review); see Cole v. Department of the Air Force, 120 M.S.P.R. 640, ¶ 9 (2014)
      (finding that an appellant’s admissions may suffice as proof of a charge without
      additional proof from the agency).
      The agency proved a nexus between the appellant’s misconduct and the efficiency
      of the service.
¶15           On review, the appellant contends that the administrative judge erred in
      finding that the agency proved a nexus between his misconduct and the efficiency
      of the service. 7 PFR File, Tab 3 at 12‑14, 21‑23. Although the administrative
      judge’s analysis regarding the nexus between the charges and the efficiency of the
      service was cursory, and we modify the initial decision to supplement that
      analysis, we agree with the administrative judge’s ultimate conclusion that the
      agency proved a nexus between the charges and the efficiency of the service. ID
      at 6.
¶16           To prove nexus, the agency must show a clear and direct relationship
      between the articulated grounds for the adverse action and either the appellant’s
      ability to accomplish his duties satisfactorily or some other legitimate
      Government interest.     Ellis v. Department of Defense, 114 M.S.P.R. 407, ¶ 8
      (2010). An agency may establish nexus by showing that the employee’s conduct:


      7
        Several of the arguments that the appellant characterizes as challenges to the
      administrative judge’s findings regarding the nexus between the charges and the
      efficiency of the service are actually challenges to the reasonableness of the penalty,
      and, accordingly, we have addressed them as such. PFR File, Tab 3 at 21‑23.
                                                                                     11

      (1) affected his or his coworkers’ job performance, (2) affected management trust
      and confidence in the employee’s job performance, or (3) interfered with or
      adversely affected the agency’s mission. Canada v. Department of Homeland
      Security, 113 M.S.P.R. 509, ¶ 11 (2010).
¶17        Regarding the AWOL charge, the nexus between the charged offense and
      the efficiency of the service is automatic when the charged offense is AWOL.
      Bryant v. National Science Foundation, 105 F.3d 1414, 1417 (Fed. Cir. 1997).
      Regarding the charges of giving an inmate something of value and failure to
      follow policy, we find that the agency established a nexus between these charges
      and the efficiency of the service because the appellant’s misconduct occurred at
      work, his actions were contrary to the agency’s Standards of Employee Conduct,
      and his actions created an increased risk that inmates would engage in disruptive
      behavior.   HT at 215‑17 (testimony of Warden W.T.); IAF, Tab 11 at 13‑14;
      Miles v. Department of the Navy, 102 M.S.P.R. 316, ¶ 11 (2006) (finding that it is
      well settled that there is sufficient nexus between an employee’s conduct and the
      efficiency of the service where the conduct occurred at work); Blevins v.
      Department of the Army, 26 M.S.P.R. 101, 104 (1985) (finding that a failure to
      follow instructions or abide by requirements affects an agency’s ability to carry
      out its mission), aff’d, 790 F.2d 95 (Fed. Cir. 1986) (Table).
¶18        Regarding the charge of off‑duty misconduct, nexus may be proved by
      showing that an employee engaged in off-duty misconduct that is inconsistent
      with the agency’s mission and undermines confidence in the employee. Brown v.
      Department of the Navy, 229 F.3d 1356, 1361 (Fed. Cir. 2000); Kruger v.
      Department of Justice, 32 M.S.P.R. 71, 75–76 (1987) (finding that, when an
      employee engages in conduct antithetical to the agency’s mission, the agency
      is not required to demonstrate a specific impact on the employee’s job
      performance or service efficiency to establish nexus).           Here, the agency
      established that a criminal charge of DUI was inconsistent with the appellant’s
                                                                                      12

      role as a law enforcement officer, could adversely affect public trust and
      confidence in the agency, and undermined the agency’s confidence in his ability
      to uphold the standards expected of a Correctional Officer. HT at 219 (testimony
      of   Warden W.T.);     IAF,   Tab 11    at 14,   25;   Todd   v.   Department    of
      Justice, 71 M.S.P.R. 326, 330 (1996) (finding that it is an extremely serious
      offense when a Correctional Officer violates Federal or state laws against
      drunken driving because it compromises the integrity of personnel in the Federal
      prison system).
¶19         In sum, for the reasons discussed above, we agree with the administrative
      judge’s conclusion that the agency proved a nexus between each of the charges
      and the efficiency of the service. ID at 6.
      The administrative     judge correctly found that the         penalty of   removal
      was reasonable.
¶20         On review, the appellant argues that the penalty of removal was too harsh
      for his misconduct. PFR File, Tab 3 at 14‑23, Tab 10 at 6‑7. Where, as here, all
      of the agency’s charges are sustained, the Board will review the agency-imposed
      penalty only to determine if the agency considered all the relevant factors and
      exercised management discretion within the tolerable limits of reasonableness.
      Ellis, 114 M.S.P.R. 407, ¶ 11. In making this determination, the Board must give
      due weight to the agency’s primary discretion in maintaining employee discipline
      and efficiency, recognizing that the Board’s function is not to displace
      management’s responsibility, but to ensure that managerial judgment has been
      properly exercised. Id. The Board will modify or mitigate an agency‑imposed
      penalty only where it finds the agency failed to weigh the relevant factors or that
      the penalty clearly exceeds the bounds of reasonableness. Id.
¶21         The administrative judge found that the deciding official considered the
      appropriate factors under Douglas v. Veterans Administration, 5 M.S.P.R. 280,
      305–06 (1981), and that the penalty of removal was reasonable. ID at 6‑9. She
      found that the deciding official considered several mitigating factors, including
                                                                                    13

      the appellant’s lengthy Federal service, lack of prior discipline, and acceptable
      performance, but reasonably concluded that they did not outweigh the seriousness
      of the misconduct at issue here. ID at 8‑9; IAF, Tab 11 at 14.
¶22        On review, the appellant reiterates his arguments, raised below, that the
      penalty of removal is unreasonable and should be mitigated because: (1) he had
      16 years of Federal service; (2) the bag of commissary items that he gave B.V.
      contained food, rather than contraband; (3) he allowed B.V. to look through the
      inmate mail bag because she was expecting a piece of legal mail, which he
      assumed was time‑sensitive; (4) he ate the tray of food intended for inmates
      because he had forgotten his lunch and was hungry, and the tray was allegedly
      leftover; and (5) the domestic violence charge that caused him to be incarcerated
      was eventually dropped. PFR File, Tab 3 at 14‑17, 20‑23; IAF, Tab 13 at 4; HT
      at 38‑40, 45‑48, 61 (testimony of the appellant).      The administrative judge
      considered these same arguments and concluded that the penalty of removal was
      reasonable.   ID at 7‑9.   We discern no basis to disturb this determination.
      Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason
      to disturb an administrative judge’s findings where she considered the evidence
      as a whole, drew appropriate inferences, and made reasoned conclusions).
¶23        The most important factor in assessing whether the agency’s chosen penalty
      falls within the tolerable bounds of reasonableness is the nature and seriousness
      of the misconduct and its relation to the employee’s duties, position, and
      responsibilities. Edwards v. U.S. Postal Service, 116 M.S.P.R. 173, ¶ 14 (2010).
      The Board has held that AWOL is a serious offense that warrants a severe
      penalty.   Bowman v. Small Business Administration, 122 M.S.P.R. 217, ¶ 12
      (2015). In addition, the Board has found removal to be a reasonable penalty for
      comparable or shorter periods of AWOL than the approximate 20‑day period at
      issue here.   Hawkins v. Department of the Navy, 49 M.S.P.R. 501, 503, 507
      (1991) (finding that the penalty of removal was reasonable for 16 days of AWOL
                                                                                           14

      for an appellant with no prior discipline and 6 years of service who was absent
      from duty due to incarceration); Young v. U.S. Postal Service, 14 M.S.P.R. 549,
      551 (1983) (finding that the penalty of removal was reasonable where an
      appellant with 17 years of service and satisfactory performance was AWOL for
      40.75 hours over a period of approximately a month, and his absence affected the
      agency’s accomplishment of its mission).
¶24         We have considered the appellant’s argument that his circumstances are
      distinguishable because the domestic violence charge that caused him to be
      incarcerated was eventually dropped, and find it unpersuasive. PFR File, Tab 3
      at 20, 22. It is unclear from the record why the domestic violence charge was
      dropped, and, in any event, the agency charged the appellant with AWOL, not
      with committing the domestic violence that resulted in his incarceration. IAF,
      Tab 11 at 14, 23‑24.
¶25         Moreover, in addition to the AWOL charge, there are three other serious
      charges at issue here. 8   The Board has held that it is a serious offense for a
      Correctional Officer to violate state or Federal laws regarding DUI.             Todd,
      71 M.S.P.R. at 330. Regarding the charges of failure to follow policy and giving
      an inmate something of value, Warden W.T. explained that the appellant’s actions
      created a potential safety risk and caused him to lose confidence in the
      appellant’s ability to work with inmates and uphold the standards expected of a
      Correctional Officer, especially where, as here, two of the incidents at issue


      8
        On review, the appellant appears to contend that the agency was required to prove that
      removal was a reasonable penalty for each of the four separate charges at issue. PFR
      File, Tab 3 at 14‑17. However, in evaluating the reasonableness of the penalty, the
      Board considers all of the sustained charges, rather than each individual sustained
      charge. See, e.g., Little v. Department of Transportation, 112 M.S.P.R. 224, ¶ 32
      (2009) (considering the “multiplicity of charges” at issue in determining that a penalty
      of removal was reasonable); Valenzuela v. Department of the Army, 107 M.S.P.R. 549,
      ¶ 15 (2007) (finding that, when the Board sustains fewer than all of the agency’s
      charges, it will consider carefully whether the sustained charges merit the penalty
      imposed by the agency).
                                                                                         15

      involved the appellant showing favoritism to the same inmate, B.V. 9 HT at 212,
      214‑17 (testimony of Warden W.T.); IAF, Tab 11 at 13‑14. Finally, as a law
      enforcement officer, HT at 49‑50 (testimony of the appellant), 219 (testimony of
      Warden W.T.), the appellant was held to a higher standard of conduct with
      respect to the seriousness of his offenses than other employees.           Negron v.
      Department of Justice, 95 M.S.P.R. 561, 573 (2004) (finding that law
      enforcement officers are held to a higher standard of conduct than other
      employees); Todd, 71 M.S.P.R. at 330 (same). For these reasons, we agree with
      the administrative judge that, although there were mitigating factors, in light of
      the seriousness of the appellant’s misconduct, the penalty of removal was within
      the bounds of reasonableness. ID at 8‑9.
¶26        On review, the appellant also contests the administrative judge’s finding
      that he failed to prove his disparate penalties claim. PFR File, Tab 3 at 15‑19,
      Tab 10 at 7. 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.    Boucher v. U.S. Postal Service, 118 M.S.P.R.
      640, ¶ 20 (2012) (citing Lewis v. Department of Veterans Affairs, 113 M.S.P.R.
      657, ¶ 15 (2010)). If the appellant meets this initial burden, the agency must

      9
        The appellant also argues on review that the penalty of removal was unreasonable
      because Warden W.T. testified that he considered the appellant to be compromised once
      he gave inmate B.V. an item of value, and felt that removal was the only option. PFR
      File, Tab 10 at 6‑7; HT at 227‑28 (testimony of Warden W.T.).               Based on
      Warden W.T.’s testimony, the appellant contends that Warden W.T. improperly failed
      to consider progressive discipline. PFR File, Tab 10 at 6‑7. As an initial matter, the
      appellant has failed to identify any agency policy or applicable collective bargaining
      agreement provision requiring the agency to apply progressive discipline. Id.
      Furthermore, removal would have been within the range of the agency’s Table of
      Penalties for a first offense of giving an inmate something of value, even if this had
      been the appellant’s only misconduct at issue, which it was not. IAF, Tab 12 at 34.
      Therefore, the appellant’s argument fails to demonstrate error in the administrative
      judge’s finding that the penalty of removal was reasonable.
                                                                                     16

      prove a legitimate reason for the difference in treatment by a preponderance of
      the evidence before the penalty can be upheld. Boucher, 118 M.S.P.R. 640, ¶ 20.
      Here, the administrative judge found that the appellant failed to meet his initial
      burden of showing that his proffered comparators were similarly situated. ID
      at 8. We agree.
¶27        As a proffered comparator, the appellant identified a Human Resources
      Manager, who, through unspecified actions or inactions, allowed inmates to
      obtain personal information about certain agency staff.     HT at 257, 259, 268
      (testimony of the appellant).   He identified several Correctional Officers who
      were purportedly charged with AWOL due to incarceration and were not
      removed, but provided no information regarding the duration of their AWOL and
      did not know whether they had been removed and then reinstated pursuant to
      settlement agreements.      HT at 269‑70, 274‑75, 278‑79 (testimony of the
      appellant); Dick v. U.S. Postal Service, 52 M.S.P.R. 322, 325 (finding that an
      agency is not required to explain lesser penalties imposed against other
      employees whose charges were resolved by settlements), aff’d, 975 F.2d 869
      (Fed. Cir. 1992) (Table).    He identified two Correctional Officers who were
      allegedly charged with off‑duty DUIs and not removed, HT at 272‑73, and
      finally, a number of Correctional Officers who were purportedly removed by the
      agency for unspecified misconduct and then allowed to return to work, HT
      at 257-59, 275 (testimony of the appellant). The appellant admitted, however,
      that he was unaware of any comparators who had been charged with all of the
      misconduct at issue here (AWOL, giving an inmate something of value, off‑duty
      misconduct, and failure to follow policy) and were not removed by the agency.
      HT at 279 (testimony of the appellant). Under these circumstances, we discern no
      error in the administrative judge’s finding that the appellant failed to prove his
                                                                                           17

      disparate penalties claim. 10 Reid v. Department of the Navy, 118 M.S.P.R. 396,
      ¶¶ 22-23 (2012) (finding that an appellant failed to establish a disparate penalties
      claim where the alleged comparators engaged in conduct similar to only one of
      the three charges for which the appellant was removed).
¶28         In conclusion, for the reasons discussed above, we find no reason to disturb
      the administrative judge’s findings in the initial decision.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
            The initial decision, as supplemented by this Final Order, constitutes the
      Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
      request review of this final decision by the U.S. Court of Appeals for the Federal
      Circuit. You must submit your request to the court at the following address:
                                 United States Court of Appeals
                                     for the Federal Circuit
                                   717 Madison Place, N.W.
                                    Washington, DC 20439



      10
         For the first time on review, the appellant contends that the Board’s nonprecedential
      decision in Caban v. Department of Justice, MSPB Docket No. AT‑0752‑13‑0002‑I‑1,
      Final Order (May 27, 2014), demonstrates that he was subject to a disparate penalty.
      PFR File, Tab 3 at 15, 18‑19, Tab 10 at 7. The appellant has not demonstrated that this
      argument is based on new and material evidence that was not previously available
      despite his due diligence, and, therefore, we will not consider it. Banks, 4 M.S.P.R.
      at 271. Even if we were to consider the appellant’s new argument, however, it
      would not establish that he was subject to a disparate penalty. As an initial matter,
      although the appellant repeatedly asserts that the appellant in Caban was suspended for
      15 days based on numerous charges, PFR File, Tab 3 at 15, Tab 10 at 7, in fact, the
      agency removed the appellant based on those charges.             Caban, MSPB Docket
      No. AT-0752‑13‑0002‑I‑1, Final Order at 2. Only three of the charges (introduction
      of contraband, the appearance of an inappropriate relationship/favoritism toward an
      inmate, and inattention to duty) were sustained during that appellant’s Board appeal,
      and the Board mitigated the penalty to a 90‑day suspension. Caban, MSPB Docket
      No. AT‑0752‑13‑0002‑I‑1, Final Order at 2‑5, 7‑8. Moreover, the appellant in Caban
      was not charged with AWOL or off‑duty misconduct, as the appellant was here.
      Caban, MSPB Docket No. AT‑0752‑13‑0002‑I‑1, Final Order.
                                                                                    18

The court must receive your request for review no later than 60 calendar days
after the date of this order.       See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
      If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012).      You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional         information     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, 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 Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.




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