                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JERRY W. MURRAY,                                DOCKET NUMBER
                  Appellant,                         DA-0752-13-0407-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: January 22, 2015
       SECURITY,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Andrea Goplerud, Esquire, and Jessica L. Parks, Esquire, Washington,
             D.C., for the appellant.

           William J. Flynn, Del Rio, Texas, for the agency.


                                           BEFORE

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


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed the agency’s removal action. Generally, we grant petitions such as this
     one only when: the initial decision contains erroneous findings of material fact;

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 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, and based on the following points and authorities, 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. We MODIFY
     the initial decision to supplement the administrative judge’s nexus analysis, but
     we agree with the administrative judge’s finding that there is a nexus between the
     sustained misconduct and the efficiency of the service.        Except as expressly
     modified by this Final Order, we AFFIRM the initial decision.

                                      BACKGROUND
¶2         Effective May 17, 2013, the agency removed the appellant from his GS-11
     Paralegal Specialist position in the Asset Forfeiture Office (AFO) of the U.S.
     Customs and Border Protection (CBP) based on the following two charges:
     (1) false report to the Val Verde Sheriff’s Office; and (2) false insurance claim to
     GEICO insurance company.        Initial Appeal File (IAF), Tab 1 at 7-10.        The
     appellant appealed his removal to the Board and requested a hearing. Id. at 1-5.
     He admitted to the first charge but disputed the second charge and argued that the
     penalty of removal was unreasonable given certain mitigating factors, the
     deciding official failed to properly weigh the relevant factors, and the agency
     treated him disparately compared to other employees who engaged in similar
     misconduct. IAF, Tab 14 at 17-34, Tab 16 at 1, Tab 40, Initial Decision (ID) at 6
     n.4. He also raised the affirmative defenses of race discrimination, lack of due
                                                                                      3

     process, and harmful procedural error. IAF, Tab 1 at 3, Tab 14 at 31, 34; see
     IAF, Tab 16, Tab 24; ID at 8-9. The appellant withdrew his request for a hearing
     and the parties presented closing arguments over the telephone. IAF, Tabs 27,
     39.
¶3         The administrative judge issued an initial decision affirming the removal
     action.   ID at 1, 19.   He sustained both charges, found a nexus between the
     sustained misconduct and the efficiency of the service, and determined that the
     penalty was within the bounds of reasonableness.         ID at 2-6, 12-19.     The
     administrative judge additionally found that the appellant failed to prove his
     affirmative defenses. ID at 6-12.
¶4         The appellant has filed a petition for review and primarily challenges the
     administrative judge’s findings regarding nexus and the reasonableness of the
     removal penalty, including his claim of disparate penalties. Petition for Review
     (PFR) File, Tab 4 at 4, 9-27. The agency has responded in opposition. PFR File,
     Tab 5. The appellant has filed a reply to the agency’s response. PFR File, Tab 6.

                     DISCUSSION OF ARGUMENTS ON REVIEW
     The agency proved the charged misconduct and the existence of a nexus between
     the misconduct and the efficiency of the service.
¶5         The appellant does not contest in his petition for review the administrative
     judge’s finding that the agency proved both charges of misconduct. PFR File,
     Tab 4 at 9. However, he argues that the agency failed to prove a nexus between
     the sustained misconduct and the efficiency of the service. Id. at 9-15; PFR File,
     Tab 6 at 5-9. We modify the initial decision to discuss the proper standard for
     evaluating nexus when off-duty misconduct is involved and to supplement the
     administrative judge’s nexus analysis.
¶6         The nexus requirement, for purposes of determining whether an agency has
     shown that its action promotes the efficiency of the service, means there must be
     a clear and direct relationship between the articulated grounds for an adverse
     action and either the employee’s ability to accomplish his duties satisfactorily or
                                                                                         4

     some other legitimate government interest.       Merritt v. Department of Justice,
     6 M.S.P.R. 585, 596 (1981), modified on other grounds by Kruger v. Department
     of Justice, 32 M.S.P.R. 71, 75 n. 2 (1987). An agency may show a nexus between
     off-duty misconduct and the efficiency of the service by three means:           (1) a
     rebuttable presumption in certain egregious circumstances; (2) preponderant
     evidence that the misconduct adversely affects the appellant’s or coworkers’ job
     performance or the agency’s trust and confidence in the appellant’s job
     performance; or (3) preponderant evidence that the misconduct interfered with or
     adversely affected the agency’s mission. See Kruger, 32 M.S.P.R. at 74.
¶7           The agency argues that it established a nexus under the second Kruger
     category because the appellant’s misconduct “undermined the Agency’s trust and
     confidence in the Appellant’s ability to successfully perform his work as a
     paralegal.” PFR File, Tab 5 at 10. In the decision letter, the deciding official
     stated, “I have lost confidence in your integrity and ability to perform the duties
     of your position, or those of any other position, within this Agency.” IAF, Tab 1
     at 8.    He also stated in a declaration made under penalty of perjury that the
     appellant’s “dishonest behavior negatively impacted [his] ability to effectively
     perform his duties on the government’s behalf” and “his lack of mature judgment
     and misconduct undermined my confidence in his ability to carry out the duties
     and responsibilities of his position.” IAF, Tab 37 at 11. The deciding official
     testified during his deposition that the agency “cannot have one of [its]
     employees lying to a member of law enforcement,” IAF, Tab 30 at 71-72, and that
     the appellant violated “the confidence of the public,” id. at 35-36. 2

     2
       Management’s loss of trust and confidence under the second Kruger category must be
     related to the employee’s job performance. See Doe v. Department of Justice, 565 F.3d
     1375, 1377-83 (Fed. Cir. 2009) (finding the Board’s nexus analysis inadequate and
     remanding the case for more specific findings demonstrating the off-duty misconduct of
     the appellant and the impact of that conduct on his ability to perform his job or the
     mission of the agency); Brown v. Department of the Navy, 229 F.3d 1356, 1360-61
     (Fed. Cir. 2000) (finding management’s trust and confidence in the appellant was
     undermined where he initiated an adulterous affair with the wife of a deployed Marine
                                                                                              5

¶8         The appellant disputes the agency’s characterization of the nature of his job
     duties and claims that his duties were “essentially ministerial in nature.” PFR
     File, Tab 6 at 8. The appellant further contends that “he had no actual role in
     determining whether a vehicle was stolen other than giving stolen vehicle reports
     to [his supervisor] and making sure the reports were in the file.”               Id.   The
     appellant also asserted that he did not deal with stolen vehicle reports. IAF, Tab
     34 at 13 (affidavit); see IAF, Tab 18 at 110 (interview with the agency’s fact
     finder).   To support his position, the appellant relies on the testimony of his
     former assistant. PFR File, Tab 4 at 6, 12, 15, Tab 6 at 7; see IAF, Tab 35 at 5-6.
     She testified that she did not recall a time when the appellant obtained a stolen
     vehicle report by contacting a law enforcement agency. IAF, Tab 28 at 13-14.
     However, it is unclear whether the former assistant’s deposition testimony
     addresses her previous duties as a Paralegal Assistant or her current duties as a




     who was a member of a unit that he was directly responsible for supporting, thus
     implicating his managerial responsibilities on the unit); Royster v. Department of
     Justice, 58 M.S.P.R. 495, 500 (1993) (finding that the agency established by
     preponderant evidence that the appellant’s misconduct adversely affected its trust and
     confidence in the appellant’s ability to perform his duties where the sustained
     misconduct involved making a threat of violence to a woman, thus relating to the
     appellant’s duties of maintaining the safety, custody, and control of female inmates).
     Grounding disciplinary actions on such a nebulous standard as loss of trust alone,
     however, is contrary to the theory of the Civil Service Reform Act that disciplinary
     actions may be taken only in the efficiency of the service. Norton v. Macy, 417 F.2d
     1161, 1165-67 (D.C. Cir. 1969) (“[a] reviewing court must at least be able to discern
     some reasonably foreseeable, specific connection between an employee’s potentially
     embarrassing conduct and the efficiency of the service”); see Doe, 565 F.3d at 1380
     (using only “clearly dishonest” as a standard for nexus risked arbitrary results, “as the
     question of removal would turn on the Board’s subjective moral compass”).
     Accordingly, a deciding official’s statement that he has lost confidence in an
     appellant’s ability to perform the duties of his position or of any other position within
     the agency, absent evidence or argument showing how his loss of confidence in the
     appellant is related to the appellant’s job performance, is insufficient to establish nexus
     under the second Kruger category. We need not reach the issue of whether the agency
     in this case established nexus under the second Kruger category because, as discussed
     below, the record reflects that it established nexus under the third Kruger category.
                                                                                         6

      Paralegal Specialist, as claimed by the appellant. Id. at 4-19; see IAF, Tab 35 at
      5-6; PFR File, Tab 4 at 12, Tab 6 at 7.
¶9          In contrast, the appellant’s first-line supervisor has consistently stated that
      determining the validity of stolen vehicle reports was one of the appellant’s
      primary duties and it involved contacting law enforcement agencies and
      collecting stolen vehicle reports. IAF, Tab 10 at 19 (written memorandum), Tab
      18 at 103 (interview with the agency’s fact finder), Tab 29 at 22-23, 26-27, 29, 32
      (deposition testimony), Tab 35 at 5-6 (declaration). The position description for
      a GS-11 Paralegal Specialist position is consistent with the agency’s contention
      that the appellant dealt with stolen vehicle reports. IAF, Tab 11 at 4 (“Develops
      and evaluates all evidence, facts and circumstances relating to the case . . . .”).
      The deciding official also relied on the position description to determine the
      appellant’s duties, IAF, Tab 30 at 17 (deposition testimony), which he believed
      involved stolen vehicle claims, id. at 72, Tab 37 at 10 (declaration).
¶10         The appellant’s allegation that he did not deal with stolen vehicle reports
      conflicts with the position description and the opinions of both the deciding
      official and the appellant’s first-line supervisor. However, we need not make
      credibility determinations because, even assuming the appellant did not deal with
      stolen vehicle reports as part of his primary duties, we find that the nature of the
      work accomplished in the AFO is so related to the appellant’s misconduct that it
      establishes a nexus under the third Kruger category.            See, e.g., Kruger,
      32 M.S.P.R. at 76 (holding that the appellants’ use of marijuana was antithetical
      to the agency’s law enforcement and rehabilitative programs that they were
      responsible for monitoring). The purpose of the AFO is to process seized items,
      such as vehicles, for administrative forfeiture. IAF, Tab 35 at 4. Sometimes, the
      seized vehicles are reported as stolen and the office must investigate the validity
      of the stolen vehicle reports. Id. at 5. Additionally, the office is small and only
      has five employees. Id. The office processed 313 seized vehicles during fiscal
      year 2013, and 309 seized vehicles in fiscal year 2012. IAF, Tab 37 at 5. Thus,
                                                                                                7

      the appellant’s conduct in intentionally filing a false stolen vehicle report with
      the police and the insurance company is antithetical to the office’s mission of
      conducting administrative forfeiture in part by determining the validity of stolen
      vehicle reports. See Kruger, 32 M.S.P.R. at 75-76.
¶11         Therefore, we agree with the administrative judge’s implicit finding that the
      agency established a nexus between the appellant’s misconduct and the efficiency
      of the service. ID at 19.

      The deciding official properly weighed the relevant Douglas factors and the
      penalty of removal was within the tolerable limits of reasonableness.
¶12         In his petition for review, the appellant argues that the deciding official
      misapplied the Douglas factors 3 and the penalty of removal is excessive under the
      circumstances. Where, as here, all of the agency’s charges have been sustained,
      the Board will review an agency-imposed penalty only to determine if the agency
      considered all of the relevant Douglas factors and exercised management
      discretion within tolerable limits of reasonableness. Portner v. Department of
      Justice, 119 M.S.P.R. 365, ¶ 10 (2013).          In determining whether the selected
      penalty is reasonable, the Board gives due deference to the agency’s discretion in
      exercising its managerial function of maintaining employee discipline and
      efficiency.   Id.   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. However, if the deciding
      official failed to appropriately consider the relevant factors, the Board need not
      defer to the agency’s penalty determination. Id.
¶13         The administrative judge determined that the deciding official’s penalty
      determination was entitled to deference. ID at 14, 19. The administrative judge
      found, based on the deciding official’s decision letter, testimony, and declaration,

      3
        In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
      articulated a nonexhaustive list of 12 factors that are relevant in assessing the penalty to
      be imposed for an act of misconduct.
                                                                                        8

      that he considered the relevant Douglas factors. IAF, Tab 1 at 7-10, Tab 30 at
      19-20, 92, Tab 37 at 10-11. Specifically, the deciding official considered that the
      appellant’s duties involved access to stolen vehicle reports and that he had
      contact with law enforcement agencies. IAF, Tab 37 at 10. The deciding official
      further explained that the appellant had no rehabilitation potential. IAF, Tab 1 at
      8, Tab 37 at 11. The deciding official also noted that the penalty was consistent
      with CBP’s Table of Penalties.      IAF, Tab 30 at 64-65, Tab 37 at 11.          He
      considered, as mitigating factors, that the appellant had over 5 years of service
      with good performance ratings and no prior disciplinary history, but concluded
      that these factors were outweighed by the seriousness of the misconduct. IAF,
      Tab 1 at 8, Tab 37 at 11.
¶14         The appellant argues on review that the deciding official failed to consider
      other mitigating factors such as the appellant’s remorse or rehabilitation
      potential. PFR File, Tab 4 at 10, 22-24, Tab 6 at 10-11. The appellant cites Raco
      v. Social Security Administration, 117 M.S.P.R. 1, ¶ 16 (2011), as support for his
      argument that the fact that he alleged that his first-line supervisor told him to
      report his vehicle as stolen does not demonstrate lack of remorse. PFR File, Tab
      4 at 24. The appellant’s case is distinguishable from Raco because the deciding
      official here recognized the appellant’s remorse, whereas the agency in Raco
      argued that the employee was not remorseful. See Raco, 117 M.S.P.R. 1, ¶ 16.
      Specifically, the deciding official stated in the decision letter that the appellant
      “eventually accepted responsibility for [his] actions,” IAF, Tab 1 at 8, and noted
      in his declaration that the appellant “apologized for his actions,” IAF, Tab 37 at
      11. The appellant also argues that his more than 2 years of employment in the
      Logistics Department following his misconduct demonstrates his rehabilitation
      potential. PFR File, Tab 4 at 22, Tab 6 at 11. However, the appellant’s duties in
      the Logistics Department were inconsistent with his duties as a Paralegal
      Specialist, and the deciding official stated that permanent reassignment was not
      feasible.   See IAF, Tab 37 at 11 (“Reassigning [the appellant] to Logistics or
                                                                                        9

      another department is not feasible as the AFO is the only unit in the Sector that
      has a Paralegal Specialist.”). Therefore, the appellant’s continued employment in
      the Logistics Department does not show that he could be rehabilitated to his
      Paralegal Specialist position.
¶15         The appellant further alleges that the deciding official improperly held the
      appellant to a higher standard of conduct because he worked for a law
      enforcement agency. PFR File, Tab 4 at 16-18, Tab 6 at 9-10. In the decision
      letter, the deciding official stated, “Integrity is one of CBP’s Core values and as
      an Agency with law enforcement functions, it is imperative that all employees
      demonstrate high standards of integrity.”      IAF, Tab 1 at 7.       The deciding
      official’s statement is supported by CBP’s Standards of Conduct. IAF, Tab 10 at
      177-87.    The agency imposes this high standard of integrity on all CBP
      employees, not just supervisors and law enforcement officers. Id. at 177-78. The
      appellant further argues that the deciding official improperly considered as an
      aggravating factor the possibility that the appellant’s ability to testify in trials
      would be impaired. PFR File, Tab 4 at 13-14, 18. We agree that the deciding
      official erred by suggesting that the appellant may “be called upon to testify in
      court proceedings” when in fact the appellant would not have an opportunity to
      testify in criminal cases. IAF, Tab 1 at 7. However, the deciding official’s error
      is immaterial to the outcome of the case because the penalty is supported by the
      deciding official’s consideration of the relevant factors and is within the bounds
      of reasonableness.    The appellant also alleges that the deciding official and
      administrative judge improperly compared the appellant to supervisors and law
      enforcement officers. PFR File, Tab 4 at 16-18, Tab 6 at 9-10. However, the
      deciding official and administrative judge compared the appellant to such
      employees to demonstrate their similar misconduct, not to hold the appellant to
      the higher standard of a supervisor or a law enforcement officer. See IAF, Tab 30
      at 61-63; ID at 14-15. Thus, the deciding official properly determined that the
                                                                                           10

      nature of the appellant’s misconduct was serious given the actual duties of his
      position and did not hold him to a higher standard of conduct.
¶16         Finally, the appellant argues that the deciding official applied an automatic
      penalty of removal for falsification and did not consider any alternative penalties.
      PFR File, Tab 4 at 16, 18-21, Tab 6 at 10. We disagree. The deciding official did
      not automatically apply the removal penalty, but instead properly considered the
      relevant Douglas factors. IAF, Tab 1 at 7-8, Tab 30 at 92, Tab 37 at 10-11. The
      deciding official discussed previous cases where he removed employees for
      dishonest conduct to demonstrate the consistency of the penalty for similar
      misconduct. 4    IAF, Tab 30 at 61-63, 92-93.       We also find that the deciding
      official properly considered alternative sanctions. See id. at 92-93. The appellant
      further argues that the agency misapplied the Table of Penalties, PFR File, Tab 4
      at 18-19, 21, however, we find that the agency properly considered the range of
      penalties stated in the Table of Penalties in deciding to remove the appellant, see
      IAF, Tab 30 at 64-65, 92-93. Furthermore, the penalty of removal is within the
      range of appropriate penalties for falsification.          IAF, Tab 10 at 167-68.
      Therefore, the deciding official did not impose a default penalty of removal for
      falsification.
¶17         Under the circumstances of this case, we find that the deciding official
      considered the relevant Douglas factors, and the penalty of removal did not
      exceed the tolerable limits of reasonableness.

      The appellant’s proffered comparators were not similarly situated and his
      disparate penalties claim lacks merit.
¶18         The appellant argues on review that the administrative judge improperly
      concluded that the appellant’s proffered comparators were not similarly situated
      to the appellant.   PFR File, Tab 4 at 24-27, Tab 6 at 11-12.          With regard to
      putative comparators, there must be “enough similarity between both the nature of

      4
        The appellant’s argument regarding his disparate penalties claim is discussed later in
      this Final Order.
                                                                                      11

      the misconduct and the other factors to lead a reasonable person to conclude that
      the agency treated similarly-situated employees differently, but the Board will not
      have hard and fast rules regarding the ‘outcome determinative’ nature of these
      factors.” Boucher v. U.S. Postal Service, 118 M.S.P.R. 640, ¶ 20 (2012) (quoting
      Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657, ¶ 15 (2010)). An
      appellant’s initial showing of disparate penalties triggers an agency’s burden to
      prove a legitimate reason for the difference in treatment between the appellant
      and other employees. Boucher, 118 M.S.P.R. 640, ¶ 24.
¶19        The appellant submitted evidence of three alleged comparators. IAF, Tab
      14 at 58-79. In the first case, a Border Patrol Agent was suspended for 45 days
      for four charges of misuse of his position as a law enforcement officer, misuse of
      his service-issued collapsible baton, failure to provide truthful information, and
      unauthorized outside employment.         Id. at 74-79.      However, the alleged
      comparator is not valid because his proposed removal was reduced as part of a
      settlement agreement. Id. at 78-79; see Portner, 119 M.S.P.R. 365, ¶ 20 n.4 (the
      Board has held that, where another employee receives a lesser penalty, despite
      apparent similarities in circumstances, as a result of a settlement agreement, the
      agency will not be required to explain the difference in treatment).
¶20        In the second case, an Automotive Mechanic was suspended for 15 days for
      failure to be forthright and using personally-owned containers to transport
      gasoline owned by the U.S. Government. IAF, Tab 14 at 58-64. The failure to be
      forthright charge was based on the employee’s conflicting statements made
      during interviews with the agency’s investigators and his written response. Id. at
      61. The deciding official in the Automotive Mechanic case considered several
      mitigating factors, including the employee’s more than 13 years of service, lack
      of prior discipline, and potential for rehabilitation. Id. at 62. In contrast, the
      appellant had less than 6 years of service and the deciding official felt that the
      appellant had no potential for rehabilitation. IAF, Tab 1 at 8. Additionally, the
      appellant’s dishonesty was more serious because he made false claims with an
                                                                                            12

      intent to deceive both a law enforcement agency and an insurance company, id. at
      7-8, 18; ID at 2-6, whereas the employee in this case was not forthright in his
      responses, IAF, Tab 14 at 61-62. Therefore, we find that the employee was not
      similarly situated.
¶21         In the third case, a CBP Officer was suspended for 3 days for one sustained
      charge of misrepresenting information on his time and attendance record. IAF,
      Tab 14 at 66-72. The employee was scheduled for military leave on a particular
      day, but he was later excused from attending training because he felt unwell. Id.
      at 70-71. The charge was based on the employee’s failure to request approved
      leave when the basis for the prior authorization of military leave was cancelled.
      Id. The employee’s single instance of failing to change 1 day of military leave to
      another form of approved leave was much less serious than the appellant’s
      intentional filing of a false police report and insurance claim. See IAF, Tab 1 at
      7, 18; ID at 2-6. Thus, the employee in the CBP Officer case was not similarly
      situated to the appellant.
¶22         For these reasons, we conclude that the administrative judge properly found
      that the appellant’s three proffered comparators were not similarly situated to the
      appellant.   Accordingly, we discern no basis for disturbing the administrative
      judge’s finding that the appellant’s allegation of disparate penalties lacks merit.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
            You have the right to request further review of this final decision.

      Discrimination Claims: Administrative Review
            You may request review of this final decision on your discrimination
      claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
      of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
      submit your request by regular U.S. mail, the address of the EEOC is:
                                                                                   13

                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                 P.O. Box 77960
                            Washington, D.C. 20013

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

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
                                                                          14

prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e5(f) and
29 U.S.C. § 794a.




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