                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SEAN P. O’HARA,                                 DOCKET NUMBER
                   Appellant,                        SF-0752-13-4800-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: October 10, 2014
       SECURITY,
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Thomas E. Tierney, Esquire, Norwalk, California, for the appellant.

           Jennifer R. Hong, Esquire, Los Angeles, California, 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
     found that the agency proved the charges of unauthorized use of a government
     computer and lack of candor, concluded that there was a nexus between the
     sustained misconduct and the efficiency of the service, and affirmed the removal

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     penalty. 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 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
     clarify and supplement the administrative judge’s disparate penalties analysis, but
     we agree with the administrative judge that the appellant’s disparate penalties
     claim lacks merit. Except as expressly modified by this Final Order, we AFFIRM
     the initial decision.

                                       BACKGROUND
¶2         Effective August 23, 2013, the agency removed the appellant from his
     GS-13 Supervisory Detention and Deportation Officer position based on the
     following two charges:      (1) unauthorized use of a government computer; and
     (2) lack of candor.     Initial Appeal File (IAF), Tab 1 at 15-21.     The appellant
     appealed his removal to the Board and requested a hearing.           Id. at 1-6.   He
     admitted to the unauthorized use of a government computer charge but disputed
     the lack of candor charge. IAF, Tab 19 at 4-5. He also argued that the penalty of
     removal was unreasonable given certain mitigating factors and that the agency
     treated him disparately compared to employees who engaged in similar
     misconduct. Id. at 5-7.
                                                                                     3

¶3        After holding the requested hearing, the administrative judge issued an
     initial decision affirming the removal action. IAF, Tab 24, Initial Decision (ID)
     at 1, 17. The administrative judge 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 4-17.   The
     administrative judge additionally found that the appellant’s disparate penalties
     claim was without merit. ID at 11-16.
¶4        The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1 at 4-11.       On review, the appellant primarily challenges the
     administrative judge’s findings regarding the lack of candor charge and the
     reasonableness of the removal penalty, including his claim of disparate penalties.
     Id. The agency has responded in opposition. PFR File, Tab 3.

                     DISCUSSION OF ARGUMENTS ON REVIEW
     The administrative judge properly sustained the two charges of misconduct and
     found the existence of a nexus between the misconduct and the efficiency of the
     service.
¶5        The appellant admitted to the unauthorized use of a government computer
     charge to the agency’s fact finder, the deciding official, and the administrative
     judge, and does not contest on review the administrative judge’s finding that the
     agency proved this charge.     IAF, Tab 9, Subtab 4e at 5-6, Subtab 4g at 447,
     Tab 19 at 4; PFR File, Tab 1 at 52; see ID at 4; see also PFR File, Tab 1 at 4-11.
     The appellant does contest, however, the administrative judge’s finding that the
     agency proved its lack of candor charge. PFR File, Tab 1 at 4-5; see ID at 4-8.
     Our reviewing court has held that an agency may prove a lack of candor charge
     by showing that the appellant failed “to disclose something that, in the
     circumstances, should have been disclosed in order to make the given statement
     accurate and complete.” Ludlum v. Department of Justice, 278 F.3d 1280, 1284
     (Fed. Cir. 2002). Although lack of candor “necessarily involves an element of
     deception,” it does not require proof of intent to deceive. Id. at 1284-85.
                                                                                       4

¶6        The appellant’s lack of candor charge was based on statements he made
     under oath during an interview with the agency’s fact finder investigating
     allegations of misconduct against him.     IAF, Tab 1 at 7-8.     In the notice of
     proposed removal, the agency’s first specification of the lack of candor charge
     states that the appellant was “less than truthful when [he] denied having
     intentionally/deliberately viewed pornographic images on [his] government
     computer.”   Id. at 7.   The second specification of the lack of candor charge
     indicated that the appellant was “less than truthful when [he] stated that [he] did
     not think it was a violation for [him] to access the sexually explicit images which
     were found on [his] computers because those images were not blocked.” Id. at 8.
     On review, the appellant reiterates his contention that he was “extremely nervous
     and under stress” at the interview, which resulted in his “initially” giving answers
     that “look less than accurate.” PFR File, Tab 1 at 4. He also argues that he
     “lacked any intent” to deceive the fact finder.     Id.   The administrative judge
     considered these arguments below and the appellant’s testimony at the hearing,
     but she did not find his explanations to be credible. ID at 6-7; see PFR File,
     Tab 1 at 51-52. The appellant has not provided “sufficiently sound” reasons on
     review to overturn the administrative judge’s credibility determination because he
     merely restates that he felt nervous and stressed during the interview. See Haebe
     v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (t he Board must
     give deference to an administrative judge’s credibility determinations when they
     are based, explicitly or implicitly, on the 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). Additionally, lack of
     candor does not require proof of an intent to deceive.           Ludlum, 278 F.3d
     at 1284-85. Thus, we find that the administrative judge properly found that the
     agency proved both charges of unauthorized use of a government computer and
     lack of candor.
                                                                                        5

¶7        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
     some other legitimate government interest. Scheffler v. Department of the Army,
     117 M.S.P.R. 499, ¶ 9 (2012), aff’d, 522 F. App’x 913 (Fed. Cir. 2013). The
     Board has found that there is a sufficient nexus between an employee’s
     misconduct and the efficiency of the service where the sustained misconduct:
     (1) concerned an employee’s lack of candor during an administrative inquiry,
     Ludlum v. Department of Justice, 87 M.S.P.R. 56, ¶ 28 (2000), aff’d, 278 F.3d
     1280 (Fed. Cir. 2002); or (2) involved misuse of government property, Els v.
     Department of the Army, 82 M.S.P.R. 27, ¶ 11 (1999); see Baldwin v. Department
     of Veterans Affairs, 109 M.S.P.R. 392, ¶¶ 2, 14 (2008). Therefore, we find that
     the administrative judge properly held that the agency established a nexus
     between the appellant’s misconduct and the efficiency of the service.
     The administrative judge appropriately held that the agency properly considered
     the relevant Douglas factors and that the penalty of removal was within the
     tolerable limits of reasonableness.
¶8        In his petition for review, the appellant argues that the deciding official
     misapplied the Douglas factors, 2 the penalty of removal is excessive under the
     circumstances, and the maximum reasonable penalty should be a one-grade
     demotion to a nonsupervisory Deportation Officer position.         PFR File, Tab 1
     at 5-6, 9-11, Tab 4 at 7. Where, as here, all of the agency’s charges have been
     sustained, the Board will review the 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. See Woebcke v.
     Department of Homeland Security, 114 M.S.P.R. 100, ¶ 7 (2010).                   The

     2
       In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
     articulated a nonexhaustive list of twelve factors that are relevant in assessing the
     penalty to be imposed for an act of misconduct.
                                                                                            6

      administrative judge found that the deciding official properly considered the
      relevant Douglas factors and that the penalty of removal did not exceed the
      bounds of reasonableness. ID at 9-11, 16-17. She noted that the deciding official
      considered several mitigating factors, including the appellant’s 24 years of
      service, but appropriately found that they did not outweigh the seriousness of the
      offense and the nature of the appellant’s position as a supervisor and a law
      enforcement officer. ID at 10-11; see IAF, Tab 1 at 16-17.
¶9          The record shows that the deciding official explained his Douglas factors
      analysis on the Douglas Factors Review Form, IAF Tab 9, Subtab 4b, and in the
      decision letter, IAF, Tab 1 at 15-21.         He also testified in detail about his
      decision-making process at the hearing, PFR File, Tab 1 at 22-45. In the decision
      letter, the deciding official stated that he lost confidence in the appellant’s ability
      to perform his duties, citing Giglio concerns, 3 and doubted his rehabilitative
      potential.   IAF, Tab 1 at 17-18.     He also considered the appellant’s previous
      7-day suspension for the unauthorized use of a government-issued travel card as
      an aggravating factor. Id. at 17. The deciding official considered alternative
      sanctions but found they would be ineffective in deterring future misconduct of
      other employees. Id. at 17-18. The deciding official also found that the removal
      penalty was consistent with the agency’s Table of Offenses and Penalties. 4 IAF,
      Tab 9, Subtab 4b at 3; see IAF, Tab 1 at 15, Tab 9, Subtab 4d.
¶10         The appellant contends that the deciding official improperly weighed the
      Douglas factors because he considered the appellant’s prior 7-day suspension as

      3
        The deciding official was concerned that, if the appellant were called to testify as a
      witness in a criminal trial, his discipline for lack of candor would be subject to
      disclosure under Giglio v. United States, 405 U.S. 150, 153-54 (1972) (nondisclosure of
      material evidence affecting a witness’s credibility justifies a new criminal trial).
      4
        The lack of candor charge falls under paragraph F(1) and allows a penalty ranging
      from a 14-day suspension to removal for a second offense. IAF, Tab 9, Subtab 4l at 12.
      The unauthorized use of a government computer charge falls under paragraph K(5) and
      allows a penalty ranging from a 15-day suspension to removal for a second offense. Id.
      at 25.
                                                                                            7

      an aggravating factor despite the appellant’s 24 years of service, and he “failed to
      consider other possible comparator employees on an Agency-wide basis.” PFR
      File, Tab 1 at 5-6, 9-11. The employee’s past disciplinary record is one of the
      relevant Douglas factors that an agency should consider in determining the
      appropriateness of a penalty.       Douglas, 5 M.S.P.R. at 305.       The agency gave
      notice in the proposal letter that it intended to rely on the appellant’s prior 7-day
      suspension as an aggravating factor, IAF, Tab 1 at 10; see Douglas, 5 M.S.P.R.
      at 304, and he did not seek review of the prior suspension and has not argued that
      it was erroneously imposed, see Bolling v. Department of the Air Force,
      9 M.S.P.R. 335, 340 (1981) (the Board’s review of prior discipline is limited to
      determining whether the employee was informed of the prior action in writing,
      the action was a matter of record, and the employee was permitted to dispute the
      charges before a higher level of authority than the one that imposed the
      discipline). Additionally, the decision letter for the prior suspension advised the
      appellant that “any future misconduct may result in more severe disciplinary
      action,” including removal.     IAF, Tab 9, Subtab 4h at 1.          We agree with the
      administrative judge’s assessment that this somewhat recent discipline for a
      serious offense was an aggravating factor and not a neutral or mitigating factor,
      as argued by the appellant. ID at 9-10; see PFR File, Tab 1 at 6, 11.
¶11         The agency’s statement on the Douglas Factors Review Form that “a good
      faith effort has been made to search the Agency’s database for cases and there
      does not appear to be any substantially similar cases,” IAF, Tab 9, Subtab 4b at 3,
      and   the   deciding   official’s   testimony   on   not   finding    similarly-situated
      comparators, PFR File, Tab 1 at 30-31, 42, contradicts the appellant’s assertion
      that the deciding official failed to search for and consider similarly-situated
      comparators, id. at 5-6, 9-11.       Although the deciding official may not have
      personally performed a search for comparators, he properly relied on the
      employee and labor relations specialist’s search that did not result in finding any
      similarly-situated comparators. Id. at 31, 42; see IAF, Tab 9, Subtab 4b at 3. As
                                                                                       8

      explained later in this final order, we agree that there were no substantially
      similar cases.
¶12         Under the circumstances of this case, we find that the administrative judge
      properly considered whether the deciding official evaluated the relevant Douglas
      factors and she correctly determined that the penalty of removal did not exceed
      the tolerable limits of reasonableness.
      The administrative judge properly found that the appellant’s proffered
      comparators were not similarly situated and that his disparate penalties claim
      lacks merit.
¶13         The appellant further argues on review that the administrative judge erred in
      her interpretation and application of the Board’s law regarding disparate penalties
      and improperly concluded that the appellant’s proffered comparators were not
      similarly situated to the appellant. PFR File, Tab 1 at 5-9, 11, Tab 4 at 4-7; see
      ID at 11-16. 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, but the Board will not have any 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. Id., ¶ 24.
¶14         The appellant contends that the administrative judge violated Lewis and
      subsequent Board law by improperly limiting the comparator employees to
      supervisory employees rather than focusing on the underlying conduct. PFR File,
      Tab 1 at 6-7. We disagree and believe that the appellant’s supervisor status was a
      distinguishable factor the administrative judge appropriately considered as part of
      her disparate penalties analysis.         Although we ultimately agree with the
                                                                                            9

      administrative judge’s conclusion that the appellant’s proffered comparators were
      not similarly situated to the appellant, ID at 12-16, we are modifying and
      supplementing the administrative judge’s analysis to focus on the underlying
      circumstances surrounding the misconduct of the nonsupervisory comparators,
      see ID at 12-13.
¶15         The appellant submitted evidence of 36 alleged comparators.                  IAF,
      Tabs 17-21. However, eleven of the alleged comparators are not valid because
      their penalties were reduced as part of a settlement agreement, most commonly a
      last chance settlement agreement (LCSA). IAF, Tab 17 at 15-28 (LCSA), Tab 18
      at 4-13 (LCSA), 14-22 (abeyance agreement), 48-58 (LCSA), Tab 19 at                9-15
      (LCSA, same case as Tab 21 at 46-56), 16-36 (LCSA), 37-51 (LCSA), 63-76
      (LCSA), 86-96 (settlement agreement), Tab 21 at 23-32 (LCSA), 44-45 (LCSA),
      46-56 (LCSA, same case as Tab 19 at 9-15); see Portner v. Department of Justice,
      119 M.S.P.R. 365, ¶ 20 n.4 (2013) (holding 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).    Additionally, the evidence for six cases of alleged
      comparators is missing information on what charges were sustained and what
      penalty was imposed, so the comparators are likewise invalid. 5          IAF, Tab 18


      5
        The administrative judge eliminated a potential comparator because the appellant
      failed to submit the decision letter in that case. ID at 16; see IAF, Tab 18 at 70-78.
      Although the appellant contends on review that the agency “failed to turn [the decision
      letter] over to the Appellant during the discovery process,” PFR File, Tab 1 at 8, he
      does not present evidence that he filed a motion to compel discovery, 5 C.F.R.
      § 1201.73(c)(1). He also alleges that the lack of a decision letter should be irrelevant
      for comparator analysis purposes because the proposed penalty was less than a removal.
      PFR File, Tab 1 at 8-9, Tab 4 at 6-7. Even so, in comparing the circumstances
      surrounding the employee’s misconduct to the appellant’s circumstances, we do not
      believe they were similarly situated. The appellant’s misconduct of using a government
      computer to view sexually explicit images was of a different nature from the
      employee’s misconduct of using a government cell phone to make personal calls. See
      IAF, Tab 18 at 72-74. Additionally, the deciding official in the employee’s case did not
      state that he was considering any prior discipline in making his decision, see id.
                                                                                           10

      at 38-47, 59-78, Tab 21 at 11-22. Finally, twelve comparators are invalid because
      the sustained misconduct in those cases was only similar as to one of the
      appellant’s charges, instead of both.      IAF, Tab 17 at 4-14, Tab 18 at 23-37,
      Tab 20 at 4-41, Tab 21 at 4-10, 41-43; see Reid v. Department of the Navy,
      118 M.S.P.R. 396, ¶¶ 22-23 (2012) (proffered comparators were not similarly
      situated for purposes of establishing a disparate penalties claim where the
      administrative judge sustained three charges against the appellant and the
      appellant alleged only that the comparators’ misconduct was similar with respect
      to one charge).
¶16         A reasoned comparison of the totality of the circumstances surrounding the
      misconduct engaged in by the remaining seven alleged comparators, as contrasted
      to the totality of the circumstances surrounding the appellant’s misconduct, does
      not show that the misconduct engaged in by the comparator employees was as
      serious as, or more serious than, the misconduct engaged in by the appellant. See
      Portner, 119 M.S.P.R. 365, ¶ 21. In the first case, a Deportation Officer was
      suspended for 45 days for the two charges of unauthorized queries of individuals
      on an official government computer database and unauthorized disclosure of
      treasury enforcement communications.         IAF, Tab 17 at 29-41.       Although the
      misconduct in this case was similar to the appellant’s unauthorized use of a
      government computer charge, the agency did not sustain a lack of candor charge
      against the alleged comparator. Id. at 38-39. In contrast, the agency sustained
      two specifications of lack of candor against the appellant. IAF, Tab 1 at 15-16.
      The deciding official in the appellant’s removal action testified that he considered
      lack of candor to be the more serious charge and he would not have removed the
      appellant for unauthorized use of a government computer alone. PFR File, Tab 1
      at 26-27. The appellant also had a prior suspension, while this employee had no



      at 70-78, whereas the deciding official in the appellant’s case explicitly relied on the
      appellant’s prior 7-day suspension, IAF, Tab 1 at 10, 17.
                                                                                      11

      prior disciplinary record. IAF, Tab 1 at 10, 17, Tab 17 at 39. Accordingly, we
      find that the employee was not similarly situated.
¶17         In the second case, an Immigration Enforcement Agent (IEA) was
      suspended for 3 days for the two charges of conduct unbecoming and lack of
      candor. IAF, Tab 17 at 42-53. The specification for the conduct unbecoming
      charge was that the employee improperly called for his cousin, who was housed
      in a criminal justice center, to meet with him. Id. at 42. In contrast, here, the
      agency sustained 17 sustained specifications of unauthorized use of a government
      computer against the appellant. IAF, Tab 1 at 8-10, 16. Although the IEA’s
      conduct unbecoming charge arose from a single incident, the appellant’s
      misconduct occurred over the course of 4 months, during which he repeatedly
      accessed and viewed over 500 sexually explicit or sexually oriented images,
      websites, and links. Id. at 8-10, 15-16. Additionally, the employee in this case
      had only one sustained specification of lack of candor, IAF, Tab 17 at 49, while
      the appellant had two, IAF, Tab 1 at 15-16. Finally, the employee did not have a
      disciplinary record. IAF, Tab 17 at 50. Thus, the employee in this case was not
      similarly situated to the appellant.
¶18         In the third case, a Deportation Officer was suspended for 30 days for the
      two charges of misuse of a government-owned vehicle and lack of candor. IAF,
      Tab 19 at 52-62. The misuse of a government-owned vehicle charge was based
      on one specification of using the government-owned vehicle for unauthorized
      purposes, specifically for transporting his girlfriend and her niece. Id. at 52. In
      contrast, the appellant’s unauthorized use of a government computer charge was
      based on 17 specifications. IAF, Tab 1 at 8-10, 16. The alleged comparator’s
      lack of candor charge was based on two specifications. IAF, Tab 19 at 52-53.
      Although this employee’s lack of candor charge may be similar to the appellant’s
      lack of candor charge, the appellant’s repeated and excessive misuse of his
      government computer was more serious than this employee’s single instance of
      unauthorized use of a government-owned vehicle.       The employee also had no
                                                                                      12

      prior discipline. Id. at 59. Therefore, this employee was not similarly situated to
      the appellant.
¶19         In the fourth case, an Assistant Field Officer Director was demoted for the
      four charges of operating a government-owned vehicle after consuming alcohol,
      damage to government property, poor judgment, and failure to report, each
      containing one specification. IAF, Tab 19 at 77-85. The deciding official in this
      case did not sustain the lack of candor charge.      Id. at 83.   Additionally, the
      misconduct in this case arose from a single incident, whereas the appellant’s
      unauthorized use of a government computer occurred frequently and over several
      months. IAF, Tab 1 at 8-10. Also, the deciding official here did not rely on any
      prior discipline against the employee. IAF, Tab 19 at 83. For these reasons, the
      alleged comparator was not similarly situated to the appellant.
¶20         In the fifth case, an IEA received a letter of reprimand for the two charges
      of unauthorized use of a government computer and failure to report misconduct.
      IAF, Tab 20 at 42-45. The first charge was based on two instances where the
      employee accessed his personal email and opened an attachment that contained a
      sexually explicit image. Id. at 42. The second charge was based on his failure to
      inform his supervisor that he viewed sexually explicit images on a government
      computer. Id. He also admitted that he knew it was against agency policy to
      access sexually explicit images on a government computer and that he had the
      responsibility to notify his supervisor if he viewed such images. Id. In contrast,
      the agency sustained 17 specifications of unauthorized use of a government
      computer against the appellant, the appellant denied knowing that his misconduct
      was against the agency’s policy, and the appellant had a prior 7-day suspension.
      IAF, Tab 1 at 8-10, 16-17.     Thus, this alleged comparator was not similarly
      situated to the appellant.
¶21         In the sixth case, an IEA received a letter of reprimand for the two charges
      of unauthorized use of a government computer and failure to report misconduct.
      IAF, Tab 20 at 46-49. The first charge was based on one instance where the
                                                                                       13

      employee opened an attachment to an email that contained sexually explicit
      images. Id. at 46. The employee also admitted to performing internet searches
      for sexually explicit images on a government computer. Id. The second charge
      was based on the employee’s failure to inform his supervisor of viewing such
      images on his government computer when he knew that his misconduct was
      against agency policy and that he had the responsibility to notify his supervisor.
      Id. The appellant, in contrast, engaged in repeated and excessive unauthorized
      use of his government computer and denied knowing that his misconduct was
      against agency policy.       IAF, Tab 1 at 8-10, 16-17.   The appellant also had a
      previous suspension, id. at 10, 17, whereas this employee had no prior
      disciplinary actions, IAF, Tab 20 at 46. Therefore, the IEA was not similarly
      situated to the appellant.
¶22         In the seventh case, an IEA was suspended for 2 days for the two charges of
      inappropriate use of his position during nongovernment email communications
      and misuse of a government computer. IAF, Tab 21 at 33-40. The first charge
      was based on the employee’s use of his government position on an online chat
      website. Id. at 33. The second charge was based on two specifications of the
      employee using the government computer during working hours to conduct
      communications on the chat website.         Id.   The agency did not charge the
      employee with lack of candor. Id. at 33-34. In contrast, the agency sustained
      17 specifications of unauthorized use of a government computer and two
      specifications of lack of candor against the appellant. IAF, Tab 1 at 15-16. Also,
      the employee here, unlike the appellant, had no prior disciplinary action. IAF,
      Tab 1 at 10, 17, Tab 21 at 38. Thus, the IEA here was not similarly situated to
      the appellant.
¶23         For all these reasons, we conclude that the administrative judge properly
      found that the appellant’s 36 proffered comparators were not similarly situated to
      the appellant and the appellant failed to prove his disparate penalties claim.
                                                                                         14

      The administrative judge properly considered the appellant’s argument regarding
      Portner v. Department of Justice.
¶24           Finally, the appellant argues that the administrative judge failed to consider
      the part of his closing argument at the hearing that discussed Portner v.
      Department of Justice, 119 M.S.P.R. 365, ¶¶ 1, 22, in which the Board mitigated
      the employee’s removal to a 45-day suspension. See PFR File, Tab 1 at 10-11,
      75.     In Portner, the Board found that the deciding official failed to properly
      weigh the relevant Douglas factors. 119 M.S.P.R. 365, ¶¶ 11, 15. Consequently,
      upon its own analysis of the Douglas factors, the Board determined that a 45-day
      suspension was the maximum reasonable penalty under the circumstances. Id.,
      ¶ 22.     Here, the administrative judge accurately concluded that the deciding
      official properly weighed the Douglas factors.        ID at 9.   Because the agency
      considered all of the relevant Douglas factors, unlike in Portner, the Board must
      defer to the agency’s penalty determination if it is within the bounds of
      reasonableness.     See Woebcke, 114 M.S.P.R. 100, ¶ 7.          Accordingly, as the
      administrative judge properly found, the penalty of removal was within the
      tolerable limits of reasonableness under the circumstances, ID at 9-17, and
      Portner does not compel a different result.

                        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 the United States Court of Appeals for the Federal Circuit to review this
      final decision.    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
                                                                                 15

     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. 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 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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.
