                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     CYRIL L. EDWARDS,                               DOCKET NUMBER
                   Appellant,                        NY-0752-15-0030-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: January 5, 2016
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           William E. Burkhart, Jr., Rochester, New York, for the appellant.

           James R. Stellabotte, Philadelphia, Pennsylvania, 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 reduction in grade and pay. Generally, we grant petitions such as
     this one only when: the initial decision contains erroneous findings of material
     fact; the initial decision is based on an erroneous interpretation of statute or
     regulation or the erroneous application of the law to the facts of the case; the

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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. See 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
     the disparate penalties analysis below, we AFFIRM the initial decision.

                                      BACKGROUND
¶2         The appellant was employed as a Supervisor, Maintenance Operations.
     Initial Appeal File (IAF), Tab 7 at 42. It is undisputed that on March 17, 2014,
     when he was scheduled to work an 8-hour tour, he worked less than 2 hours. IAF,
     Tab 36 at 4. A few days later, the appellant told an acting supervisor, who was
     charged with recording time and attendance, to credit him with 8 work hours for
     the day. IAF, Tab 7 at 29. After investigating the appellant’s actions as to his
     tour on March 17, 2014, the agency proposed reducing him in grade and pay to a
     Mail Handler position based on a charge of improper conduct. Id. at 23-26. After
     the appellant responded orally to the proposed action, id. at 28-30, the deciding
     official upheld the reduction in grade and pay, id. at 15-21.
¶3         The appellant challenged the reduction in grade and pay before the Board
     and requested a hearing. IAF, Tab 1. After holding the requested hearing, the
     administrative judge issued an initial decision sustaining the agency’s action.
     IAF, Tab 43, Initial Decision (ID). Specifically, she found that: (1) the agency
     proved the charge of improper conduct; (2) the appellant failed to prove his
     affirmative defenses of harmful procedural error and denial of due process;
     (3) the agency established that the disciplinary action promoted the efficiency of
                                                                                         3

     the service; and (4) the agency established that the reduction was within the
     tolerable limits of reasonableness. ID at 4-15.
¶4         The appellant filed a timely petition for review in which he asserts that the
     administrative judge improperly characterized the penalty as a removal, made
     erroneous discovery rulings, and erred in finding the penalty reasonable. Petition
     for Review (PFR) File, Tab 3. The agency has filed a response in opposition to
     the petition for review, PFR File, Tab 5, and the appellant has filed a reply, PFR
     File, Tab 6. 2

                      DISCUSSION OF ARGUMENTS ON REVIEW
     We discern no basis for disturbing the administrative judge’s finding that the
     agency proved its charge.
¶5         On review, the appellant appears to challenge the administrative judge’s
     finding that the agency proved its charge of improper conduct. PFR File, Tab 3
     at 6-7. In particular, he sets forth sections of the agency’s Employee and Labor
     Relations Manual (ELM) pertaining to employee leave usage.             Id.   He also
     references the testimony of a witness in support of his argument that, pursuant to
     the ELM, he was permitted to get paid for a full 8 hours of work on March 17,
     2014, despite only having worked less than 2 hours, because his supervisor had
     told him to go home. Id. at 7.
¶6         Based on credibility determinations, the administrative judge properly
     determined that the appellant should have completed a PS Form 3971 requesting
     leave when he left work on the night in question.        ID at 6-7.   We decline to
     disturb the administrative judge’s demeanor-based credibility findings on review.
     See Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002)
     (finding that the Board must give deference to an administrative judge’s
     credibility determinations when they are based, explicitly or implicitly, on the

     2
       The appellant does not challenge the administrative judge’s findings that the agency
     proved nexus and that he failed to prove his harmful error claim. PFR File, Tab 3. We
     see no reason to disturb these findings.
                                                                                       4

     observation of the demeanor of witnesses testifying at a hearing; the Board may
     overturn such determinations only when it has “sufficiently sound” reasons for
     doing so).   The administrative judge further found that the appellant was not
     entitled to be paid for 8 hours of work, despite having worked less than 2, under
     any of the “personal absence” exceptions in the agency’s ELM.           ID at 6-7.
     Specifically, the administrative judge found that the agency’s rules clearly state
     that an employee must work a minimum of 4 hours to receive personal leave for
     the remainder of the day absent some type of emergency.            ID at 7.     The
     administrative judge found that the appellant did not work the required 4 hours,
     nor did he set forth evidence of an emergency situation. ID at 8. Based upon our
     review, we conclude that the appellant’s petition for review does not provide a
     basis for disturbing the administrative judge’s well-reasoned findings that the
     agency proved its charge of improper conduct.
     The agency’s chosen penalty is within the tolerable limits of reasonableness.
¶7        Where, as here, the agency’s one charge has been sustained, the Board will
     review an agency-imposed penalty only to determine if the agency considered all
     of the relevant factors 3 and exercised management discretion within tolerable
     limits of reasonableness. Portner v. Department of Justice, 119 M.S.P.R. 365,
     ¶ 10 (2013). 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. For the reasons discussed below, we
     agree with the administrative judge that the reduction in grade and pay is
     reasonable under the circumstances.




     3
       In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
     identified a nonexhaustive list of 12 factors that are relevant in determining the
     appropriateness of the penalty.
                                                                                       5

           The administrative judge properly found that the deciding official correctly
           considered the nature and seriousness of the offense.
¶8        The appellant argues that the administrative judge accorded too much
     weight to the seriousness of the offense and that the deciding official actually
     considered a charge of falsification without notifying the appellant that he was
     doing so. PFR File, Tab 3 at 13-15. We agree with the administrative judge that,
     in evaluating whether a penalty is warranted, the Board examines, first and
     foremost, the nature and seriousness of the misconduct and its relation to the
     employee’s duties, position, and responsibilities, including whether the offense
     was intentional. ID at 13 (citing Neuman v. U.S. Postal Service, 108 M.S.P.R.
     200, ¶ 23 (2008); Martin v. Department of Transportation, 103 M.S.P.R. 153,
     ¶ 13 (2006)). At the hearing, the deciding official testified that he considered the
     appellant’s misconduct serious because:       (1) although the appellant had the
     opportunity to correct the misconduct, he did not; and (2) the appellant was a
     supervisor. IAF, Tab 40, Hearing Compact Disc 2 (HCD2). We find that neither
     the administrative judge nor the deciding official gave unnecessary weight to the
     seriousness   of    the   offense.      See    Rasmussen     v.   Department      of
     Agriculture, 44 M.S.P.R. 185, 191 (1990) (finding that the appellant could have
     lessened the seriousness of his offense by advising the agency and law
     enforcement of his actions, instead of choosing to cover up his actions).
¶9        The appellant urges us to conclude, as the Board did in Raco v. Social
     Security Administration, 117 M.S.P.R. 1, ¶ 22 (2011), that the deciding official
     acted on the unspoken belief that the appellant engaged in falsification and thus
     imposed a harsher penalty.     PFR File, Tab 3 at 13-14.     The deciding official
     testified that, although he considered regulations concerning falsification of time
     records to the extent that they related to whether the appellant improperly
     recorded his leave, he considered the charge as one of improper conduct
     consistent with the proposal notice. HCD2. We find that the deciding official’s
     testimony does not imply that he considered the charge itself to be falsification.
                                                                                            6

      There is no further evidence that the deciding official considered the elements of
      falsification.   Id.; see IAF, Tab 7 at 15-20.       Thus, the appellant’s argument
      does not provide a basis for disturbing the initial decision.
             The deciding official did not err in his consideration of the appellant’s job
             level and type of employment, including his status as a supervisor.
¶10          The appellant next asserts that he was unreasonably penalized for his status
      as a supervisor. PFR File, Tab 3 at 15. The deciding official testified that he
      weighed the appellant’s status as a supervisor heavily because the appellant was
      required to apply rules regarding timekeeping to his subordinates. HCD2. We
      agree with the administrative judge that the deciding official, in assessing which
      penalty to impose, properly considered the appellant’s status as a supervisor. See
      House v. U.S. Postal Service, 80 M.S.P.R. 138, ¶ 12 (1998) (determining that the
      agency was entitled to hold the appellant to a higher standard of conduct because
      of his status as a supervisor).
             We find no reversible error in the deciding official’s consideration of the
             appellant’s work record.
¶11          The appellant also asserts that the deciding official erred by failing to give
      sufficient mitigating weight to his past work performance and by failing to
      consider certain evidence regarding his past work performance. PFR File, Tab 3
      at 16-17. The deciding official testified that he considered that the appellant had
      excellent performance and no issues getting along with others during his 13 years
      of experience with the agency.       HCD2.       Thus, although the deciding official
      may not have reviewed all of the evidence that the appellant asserts he should
      have    reviewed   or   considered   all   the   factors   regarding   the   appellant’s
      performance, it is clear that the deciding official weighed the appellant’s
      performance history as a mitigating factor in the penalty determination.
¶12          Additionally, the appellant asserts that the deciding official and the
      administrative judge erred by failing to consider his military service as part of his
      total length of service, which is one of the Douglas factors.            See Douglas,
      5 M.S.P.R. at 305. PFR File, Tab 3 at 16. When an appellant has both military
                                                                                           7

      and civilian service, the Board has considered the combined period of Federal
      service in its penalty analysis.       See, e.g., Boo v. Department of Homeland
      Security, 122 M.S.P.R. 100, ¶ 21 (2014) (considering, as a mitigating factor, the
      appellant’s 23 years of total Government service, which included only about
      1 year of civilian service with the agency). The deciding official therefore should
      have considered the appellant’s military service. However, because the deciding
      official already considered the appellant’s 13 years of civilian service as a
      mitigating (as opposed to an aggravating) factor, HCD2, we find that his failure
      to consider the appellant’s military service as additional support for mitigation
      would not have affected the ultimate penalty determination.
               The deciding official properly considered the effect of the offense upon the
               appellant’s ability to perform at a satisfactory level and its effect upon his
               confidence in the appellant’s ability to perform assigned duties.
¶13            The appellant asserts that the deciding official’s consideration of the effect
      of the offense upon his ability to perform is flawed because: (1) the deciding
      official does not have specific knowledge of the impact of the appellant’s
      misconduct as it relates to his trustworthiness and performance at the new facility
      and position to which he was scheduled to be assigned shortly after the
      misconduct; (2) the deciding official’s belief that the appellant would violate
      rules for himself and other employees based upon a single instance of misconduct
      is highly speculative; and (3) the deciding official turned the appellant’s years of
      service into an aggravating factor when he stated that a certain amount of trust is
      placed in individuals as they advance and get promoted in their careers. PFR
      File, Tab 3 at 17-18. The deciding official testified that the appellant breached
      the agency’s trust because, as a supervisor, he was required to enforce agency
      rules but had not himself followed the those rules. HCD2. In Douglas, the Board
      determined that, when assessing the penalty, it is appropriate to consider “the
      employee’s job level and type of employment, including supervisory or fiduciary
      role.”     Douglas, 5 M.S.P.R. at 305.      We find that the deciding official here
                                                                                          8

      properly considered the agency’s lack of trust in the appellant as a supervisor and
      we defer to his determination that the agency no longer had confidence in the
      appellant’s ability to serve in a supervisory role. See Neuman, 108 M.S.P.R. 200,
      ¶ 23 (finding that the Board’s role is not to displace the judgment of senior
      agency managers who must have confidence that employees—particularly those
      in supervisory roles—will act appropriately at all times). After considering the
      deciding official’s analysis as a whole, we find no error regarding this factor.
            We modify the rationale for the administrative judge’s finding that the
            appellant did not show that he was subjected to a disparate penalty.
¶14         The appellant argues generally that the administrative judge’s disparate
      penalty analysis is erroneous.       PFR File, Tab 3 at 18-20.        The appellant
      specifically asserts that the administrative judge erred by rejecting proffered
      comparators from the same division in which he worked because they did not
      have the same supervisor or work in the same unit as did the appellant.            Id.
      at 19-20. He asserts that R.S. and A.W. are appropriate comparators because,
      inter alia, they were disciplined for similar violations and were disciplined shortly
      before he was. Id. at 20. He also asserts that the administrative judge erred in
      not developing the record regarding D.G., whom he alleges engaged in similar
      conduct but suffered no discipline. Id. The deciding official testified that he
      did not consider R.S. and A.W. as comparators. HCD2. He testified that, instead,
      he considered one of the appellant’s managers and D.G., and was told by someone
      in Employee and Labor Relations (ELR) that there were no other possible
      comparators. HCD2.
¶15         First, we find that the administrative judge erred to the extent that she found
      that R.S. and A.W. were invalid comparators because they had a different
      supervisor and worked in a different unit.       ID at 14.   To establish disparate
      penalties, an appellant must show that the charges and the circumstances
      surrounding the charged behavior are substantially similar. Lewis v. Department
      of Veterans Affairs, 113 M.S.P.R. 657, ¶ 6 (2010). Whether a comparator was
                                                                                      9

      employed in the same work unit is not dispositive as to whether an employee was
      a valid comparator.    Villada v. U.S. Postal Service, 115 M.S.P.R. 268, ¶ 12
      (2010). Thus, we modify the initial decision to the extent that the administrative
      judge relied on the different work unit and supervisor to exclude the
      two comparators.
¶16        Instead, we find that R.S. is not a valid comparator because the penalty
      imposed upon him was the result of a settlement agreement and that both R.S. and
      A.W. are not valid comparators because of the nature of their misconduct. Where
      another employee receives a lesser penalty, despite apparent similarities in
      circumstances, as the result of a settlement agreement, the agency will not be
      required to explain the difference in treatment.            Davis v. U.S. Postal
      Service, 120 M.S.P.R. 457, ¶ 10 (2013).      Here, R.S. is not a valid comparator
      because he and the agency reached a settlement resolving his proposed discipline.
      IAF, Tab 31 at 53.    Additionally, neither R.S. nor A.W. is a valid comparator
      because of the nature of their misconduct.        Similar to the appellant, both
      employees were charged with violations related to recording time and attendance.
      IAF, Tab 31 at 54-57, 61-64. However, neither R.S. nor A.W. was charged with
      requesting a full 8 hours of work time when they knew they had worked
      substantially fewer hours.     Id. at 54-55, 61-62.      Thus, we find that these
      employees are not valid comparators.          See Reid v. Department of the
      Navy, 118 M.S.P.R. 396, ¶¶ 22-23 (2012) (finding that the appellant provided
      insufficient evidence to establish that he was similarly situated to two other
      employees for purposes of his disparate penalties claim because the employees
      did not engage in conduct similar to the appellant’s).
¶17        Second, we modify the administrative judge’s rationale for finding that
      D.G. was not a valid comparator.      The administrative judge found that D.G.
      was not a valid comparator because the record did not indicate that she violated
      any agency rules or regulations concerning her time and attendance or that she
      sought credit for work hours that she did not work. ID at 14. We instead find
                                                                                            10

      that, regardless of whether such evidence existed, D.G. is not a valid comparator
      because she was never actually charged with misconduct. See Chavez v. Small
      Business Administration, 121 M.S.P.R. 168, ¶ 19 (2014) (explaining that, when
      conducting a disparate penalty analysis, the deciding official is not required to
      consider the universe of conduct that was both charged and could have
      been charged).
¶18         Finally, we disagree with the appellant’s assertion that the deciding official
      improperly considered one of his supervisors, who also was reduced in grade and
      salary for similar misconduct, as the sole comparator. The appellant asserts that
      the supervisor was an improper comparator because her misconduct was
      discovered during the same investigation as his. PFR File, Tab 3 at 23 (citing
      Chavez, 121 M.S.P.R. 168). Contrary to the appellant’s arguments, however, the
      Board held in Chavez that a deciding official should be provided with information
      concerning the penalties imposed upon comparators whose misconduct was
      discovered in the same investigation. Chavez, 121 M.S.P.R. 168, ¶ 11. Thus, we
      find that the deciding official properly considered the penalty he imposed on the
      supervisor for purposes of disparate penalty. 4
            We find no error in the deciding official’s consideration of the clarity with
            which the appellant was on notice of any rules that were violated.
¶19         Next, the appellant asserts, inter alia, that he was not warned about the
      conduct in question because he had never been released from scheduled work due
      to lack of work and that his managers had conflicting interpretations about

      4
        The appellant asserts that the administrative judge refused to allow him to develop the
      record regarding whether the deciding official was retaliating against one of his
      supervisors by imposing discipline on her for similar misconduct. PFR File, Tab 3
      at 23. An administrative judge has wide discretion to control proceedings and the
      Board will only reverse an initial decision on the ground that the administrative judge
      excluded evidence or testimony if that evidence or testimony would have affected the
      outcome of the case. Jezouit v. Office of Personnel Management, 97 M.S.P.R. 48, ¶ 12
      (2004), aff’d, 121 F. App’x 865 (Fed. Cir. 2005). We fail to see a relationship between
      the alleged retaliation against the appellant’s supervisor and the merits of the adverse
      action before the Board.
                                                                                         11

      applicable rules.     PFR File, Tab 3 at 26.     The administrative judge found, in
      sustaining the charge, that absent some type of emergency, the agency rules
      clearly state that an employee must work a minimum of 4 hours to receive
      personal leave for the remainder of the day.         ID at 7.   The deciding official
      testified that, although the appellant may not have been warned about this specific
      situation, the rules regarding timekeeping were very widely known. HCD2. In
      his opinion, the appellant, who was a longtime employee and a supervisor,
      could not have thought that he could work for less than 2 hours and get paid for
      8 hours. HCD2. In Brown v. Department of the Army, 96 M.S.P.R. 232 (2004),
      the Board upheld a penalty determination that considered the appellant’s length of
      service both as a mitigating factor in itself and also as evidence that he should
      have been aware of applicable rules. Id., ¶¶ 13, 16. We similarly find that the
      deciding official here properly considered the appellant’s length of service both
      as a mitigating factor and for purposes of notice.
                The deciding official’s consideration of whether the appellant had the
                potential for rehabilitation is reasonable.
¶20         The appellant further challenges the penalty determination by questioning
      the deciding official’s statement that his potential for rehabilitation was a neutral
      factor.     PFR File, Tab 3 at 28-29.      The administrative judge found that the
      deciding official properly considered that the appellant could no longer be trusted
      to enforce the rules as a supervisor. ID at 13. The deciding official testified that
      the appellant’s potential for rehabilitation was such that he could continue
      employment with the agency, but that he could not continue in a managerial role.
      HCD2.        We agree with the administrative judge that the deciding official’s
      consideration of this factor was reasonable.         See Douglas, 5 M.S.P.R. at 305
      (considering an employee’s potential for rehabilitation is appropriate).
                The administrative judge properly found that the deciding official correctly
                considered possible mitigating circumstances.
¶21         The appellant next asserts that the deciding official, in determining which
      penalty to impose, should have considered three other mitigating circumstances:
                                                                                         12

      (1) he was acting in a higher job level; (2) he was assigned to cover all three
      shifts; and (3) he was preparing to transfer to a different job, in a different career
      field, at a different facility.   PFR File, Tab 3 at 29.   Prior to finding that the
      deciding official properly considered the Douglas factors, the administrative
      judge noted that the deciding official was aware that the appellant was being
      transferred, but testified that he found no reason to consider this a mitigating
      factor because it was a lateral move. ID at 14; HCD2. The deciding official
      did not consider that the appellant was acting in a higher job level as a mitigating
      factor because the appellant would have volunteered to do so. HCD2. He also
      did not consider as a mitigating factor the fact that the appellant worked multiple
      shifts because working in a higher level job often resulted in multiple shifts but
      also would result in a higher salary.      Id.   We find no error in the deciding
      official’s choice not to consider the aforementioned mitigating factors.          See
      Wynne v. Department of Veterans Affairs, 75 M.S.P.R. 127, 136 (1997) (finding
      that stressful events did not constitute mitigating circumstances where the
      appellant did not explain or show how his misconduct was related to the
      stressful events).
            The deciding official’s consideration of the adequacy and effectiveness of
            alternative sanctions was reasonable.
¶22         Finally, the appellant argues that the agency could have imposed a penalty
      of a letter of warning or a suspension, but instead elected not to apply progressive
      discipline or to provide him training.      PFR File, Tab 3 at 30.     The deciding
      official testified that the agency uses progressive discipline only for minor
      offenses. HCD2. He also testified that he considered other lesser penalties such
      as a letter of warning or a suspension but found that these penalties would not
      return the trust he lost in the appellant. Id. Contrary to the appellant’s assertions,
      we find that the deciding official reasonably concluded that alternative lesser
      sanctions would not have been effective. Thus, although the appellant may wish
                                                                                          13

      that the deciding official weighed the Douglas factors differently, this does not
      provide a basis for the Board to disturb the agency’s penalty determination.
      The appellant’s remaining arguments do not provide a basis for disturbing the
      initial decision.
¶23         On review, the appellant asserts that the administrative judge erred because
      she considered the agency action as a removal. PFR File, Tab 3 at 10. While it is
      true that the administrative judge at times mistakenly referred to the penalty as a
      removal, she specifically concluded that the reduction in grade and pay was
      reasonable under the circumstances.           ID at 15.    We thus find that the
      administrative judge ultimately considered the correct penalty.
¶24         Next, the appellant asserts that he was prejudiced by the agency’s refusal to
      provide an unredacted copy of a note of a meeting between the deciding official
      and ELR staff, and the administrative judge’s failure to order the agency to
      provide said discovery.     PFR File, Tab 3 at 21-22.      The administrative judge
      informed the appellant that he could file a motion to compel discovery, IAF,
      Tab 19, but the appellant decided not to do so, IAF, Tab 21.              Instead, the
      appellant asserted that the agency’s failure to provide the unredacted document
      was a due process violation because it included an ex parte communication with
      the deciding official. Id. Because the appellant chose not to file a motion to
      compel, the administrative judge issued an order in which she concluded that
      discovery was completed.       IAF, Tab 23.     An administrative judge has broad
      discretion in ruling on discovery matters, and absent an abuse of discretion the
      Board will not find reversible error in such rulings. Vaughn v. Department of the
      Treasury, 119 M.S.P.R. 605, ¶ 15 (2013). Based upon these facts, we find the
      administrative judge did not abuse her discretion. 5


      5
        The appellant asserts that the administrative judge also erred by excluding certain
      documents. PFR File, Tab 3 at 23. At the hearing, the administrative judge excluded
      the appellant’s exhibits H, I, J, L, M, and N, which she found were not relevant. HCD2.
      We find that the exclusion of these documents does not constitute reversible error
      because the appellant has not established that the administrative judge excluded
                                                                                         14

¶25         To the extent that the appellant still argues that the communication in
      question was an improper ex parte communication with the deciding official,
      there is no indication that the communication was substantial enough to constitute
      a   due   process   violation.     See   Stone   v.   Federal    Deposit   Insurance
      Corporation, 179 F.3d 1368, 1377 (Fed. Cir. 1999) (stating that the ultimate
      inquiry for due process purposes is whether the ex parte communication was “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”).
      The redacted document contains the deciding official’s notes of a June 2014
      meeting with an ELR staff member regarding how he should handle the proposed
      action.   IAF, Tab 22.     The notes do not reflect that any new or material
      information was presented to the deciding official. See Stone, 179 F.3d at 1377
      (holding that only ex parte communications that introduce new and material
      information to the deciding official violate due process). Thus, we find that the
      document does not represent a due process violation.

                      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

      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,


      evidence or testimony that would have affected the outcome of the appeal. See Jezouit,
      97 M.S.P.R. 48, ¶ 12.
                                                                                 15

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. See 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 U.S. 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 U.S. 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:                               ______________________________
                                             William D. Spencer
                                             Clerk of the Board
Washington, D.C.
