                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JERALD D. WILLIAMS,                             DOCKET NUMBER
                   Appellant,                        DE-0752-14-0446-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: September 21, 2015
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Clyde A. Christian, Esquire, Omaha, Nebraska, for the appellant.

           Paul L. Pullum, Esquire, Omaha, Nebraska, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     sustained his removal for misconduct. 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     or the erroneous application of the law to the facts of the case; the administrative
     judge’s rulings during either the course of the appeal or the initial decision were
     not consistent with required procedures or involved an abuse of discretion, and
     the resulting error affected the outcome of the case; or new and material evidence
     or legal argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. 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. However, we
     MODIFY the administrative judge’s penalty analysis to address the appellant’s
     argument that he was provoked into committing the misconduct at issue. Infra
     ¶¶ 8-9. Except as expressly modified by this Final Order, we AFFIRM the initial
     decision.
¶2        The appellant was a WG-05 Motor Vehicle Operator for the agency,
     detailed to a position in Volunteer Services. Initial Appeal File (IAF), Tab 4 at 8,
     67, Tab 10 at 4. Effective September 28, 2012, the agency removed the appellant
     based on one charge of disruptive behavior (two specifications) and one charge of
     failure to follow supervisory instructions (one specification). IAF, Tab 4 at 67,
     71-72, 82-83. In charge 1, specification 1, the agency alleged that the appellant
     confronted an agency Associate Director in a loud, profane, and aggressive
     manner and had to be escorted from the facility by agency police. Id. at 82. In
     charge 1, specification 2, the agency alleged that, the next day, the appellant
     telephoned an agency equal employment opportunity (EEO) investigator
     regarding the incident and suggested that he might kill someone at work. Id. In
     charge 2, the agency alleged that the appellant failed to report to a meeting with
     his supervisor as instructed to discuss his recent misconduct. Id. at 82, 92.
¶3        The appellant filed a mixed-case EEO complaint concerning his removal.
     Id. at 53-61.   When the agency returned a finding of no discrimination, the
                                                                                              3

     appellant filed the instant Board appeal. IAF, Tab 1 at 1-2, Tab 4 at 29-40. After
     a hearing, the administrative judge issued an initial decision affirming the
     removal. IAF, Tab 17, Initial Decision (ID) at 1-2, 23. The administrative judge
     sustained all charges and specifications. ID at 4-12. He found that the appellant
     failed to prove his affirmative defenses of due process violation, disability
     discrimination, race discrimination, and retaliation for EEO activity, ID at 13-20,
     that the agency established a nexus between the misconduct and the efficiency of
     the service, ID at 20-21, and that there was no basis to mitigate the removal
     penalty, ID at 21-23.
¶4         The appellant has filed a petition for review, disputing charge 1,
     specification 1, and arguing that his misconduct was instigated by the Assistant
     Chief of Volunteer Services. 2 Petition for Review (PFR) File, Tab 3. The agency
     has filed a response.
¶5         On petition for review, the appellant does not challenge the administrative
     judge’s findings on charge 1, specification 2 or on charge 2. For the reasons
     explained in the initial decision, we agree with the administrative judge that the
     agency proved these by preponderant evidence. ID at 9-12. This is sufficient to
     sustain both charges.     See Stein v. U.S. Postal Service, 57 M.S.P.R. 434, 438
     (1993) (proof of only one specification supporting a charge is sufficient to sustain
     the charge). Nor does the appellant challenge the administrative judge’s findings
     on his affirmative defenses. For the reasons explained in the initial decision, we



     2
       The appellant filed both his petition for review with the Board and a request for
     review with the Equal Employment Opportunity Commission (EEOC) on May 27, 2015.
     PFR File, Tab 1 at 3, Tab 6 at 2-4. The EEOC subsequently requested the case file
     from the Board. PFR File, Tab 6 at 1. Because the initial decision had not become
     final on the date that the appellant filed with the EEOC, the initial decision was not ripe
     for EEOC review. See 5 U.S.C. § 7701(a)(1), (b)(1). We therefore find that the
     appellant elected to petition the Board, rather than the EEOC, for review of the initial
     decision. If the appellant wishes to seek EEOC review of this Final Order, his further
     review rights are set forth below.
                                                                                       4

     agree with the administrative judge that the appellant did not prove his
     affirmative defenses. ID at 13-20.
¶6        The appellant does, however, challenge the administrative judge’s findings
     on charge 1, specification 1. PFR File, Tab 3 at 2. The administrative judge
     sustained this specification, finding that the appellant was confrontational with
     the Associate Director, stood inappropriately close to her, spoke to her in a raised
     voice, and called her a derogatory term ID at 9. The administrative judge further
     found that the appellant’s conduct disrupted work in the office for hours or even
     days and that there was no legitimate purpose for it. Id. The appellant argues on
     review that he did not insult the Associate Director, but instead asked her why he
     “can be called [two derogatory terms]” by the Assistant Chief without anything
     being done about it. PFR File, Tab 3 at 2. He alleges that the purpose of the
     confrontation was to find out what the agency was going to do about the hostile
     work environment. Id.
¶7        We have considered the appellant’s argument, but we find that it provides
     no basis to disturb the administrative judge’s findings. The administrative judge
     considered the appellant’s version of events, but he credited the testimony and
     written statements of two witnesses who stated that they heard the appellant call
     the Associate Director a derogatory term. ID at 7, 9. We find that the appellant’s
     argument on review constitutes mere disagreement with the administrative
     judge’s findings and credibility determinations. See Weaver v. Department of the
     Navy, 2 M.S.P.R. 129, 133-34 (1980).        The appellant’s version of events is
     improbable because the Assistant Chief’s note, a copy of which is in the file,
     contains one derogatory term but not the other referenced by the appellant. IAF,
     Tab 4 at 135-37. Therefore, we find it unlikely that the appellant would complain
     about being called both as he asserts. Moreover, even if the appellant did not
     direct that word toward the Associate Director, his conduct as a whole—standing
     very close to the Associate Director and speaking to her in a loud and
     confrontational manner—would still have been inappropriate. ID at 9. Although
                                                                                        5

     the appellant appears to argue that there was a legitimate purpose to his conduct,
     i.e., to get the agency to do something about what he perceived to be a hostile
     work environment, PFR File, Tab 3 at 2, we agree with the administrative judge
     that the manner in which the appellant went about this cannot be excused, ID at 9.
     For the reasons explained in the initial decision, we agree with the administrative
     judge that the agency proved charge 1, specification 1.
¶8        The appellant also appears to challenge the penalty determination, arguing
     that the Board should consider the events leading up to his confrontation with the
     Associate Director. He argues that the confrontation arose because he was upset
     by the Assistant Chief’s demeaning comments to him, as well as a note by her
     that he found, which read as follows:
           Having [the appellant] in this office is going to be a waste of my
           time . . . . The [deleted] doesn’t do a thing and refuses to try to learn
           anything. So in a nutshell I’m going to be doing [double] the work
           checking everything he does.
     PFR File, Tab 3 at 2-3; IAF, Tab 4 at 135-37. We agree with the appellant that
     this note was provoking and was therefore a mitigating factor that must figure
     into the Board’s penalty analysis.      See Douglas v. Veterans Administration,
     5 M.S.P.R. 280, 305 (1981) (in assessing the appropriateness of a penalty, the
     Board will consider, among other things, whether there are mitigating
     circumstances present, such as provocation by others involved in the matter).
     Although the appellant raised the note in his response to the proposed removal,
     the deciding official did not consider it as a mitigating factor. IAF, Tab 4 at 71,
     74, 76.   Similarly, the administrative judge referenced the note, but failed to
     consider it as a mitigating factor. ID at 8-9, 21-23.
¶9        Nevertheless, even considering this mitigating factor, we find that the
     removal penalty was still within the tolerable limits of reasonableness.          See
     Neuman v. U.S. Postal Service, 108 M.S.P.R. 200, ¶ 21 (2008) (observing that the
     Board may mitigate a penalty where the deciding official failed to demonstrate
     that he considered any specific, relevant mitigating factors; however, it may
                                                                                          6

      impose the same penalty imposed by the agency based on a justification of that
      penalty as the maximum reasonable penalty after balancing the mitigating
      factors).   In particular, we find that the Assistant Chief’s provocation was no
      excuse for the appellant calling the EEO investigator the following day, after he
      had time to cool off, and tell her that he might kill some of his coworkers.
      Importantly, we agree with the deciding official and the administrative judge that
      the appellant’s offenses were very serious, particularly the misconduct underlying
      charge 1. ID at 9, 22-23; see Vaughn v. U.S. Postal Service, 109 M.S.P.R. 469,
      ¶ 15 (2008) (in evaluating whether a penalty is reasonable, the Board places
      primary importance upon the nature and seriousness of the offense and its relation
      to the appellant’s duties, position, and responsibilities), aff’d, 315 F. App’x 305
      (Fed. Cir. 2009).   Although the Assistant Chief’s inappropriate remarks might
      provide an explanation for the appellant’s behavior, they do little to excuse it.
¶10         The appellant also points out that, although he has been removed, the
      Assistant Chief has not faced similar consequences for her inappropriate remarks.
      PFR File, Tab 3 at 2-3.       However, the Board lacks the authority to order
      discipline against her in the context of this appeal.       To the extent that the
      appellant is arguing that the agency subjected him to a disparate penalty, we find
      that the Assistant Chief is not similarly situated to the appellant because her
      misconduct was not similar to his. See Lewis v. Department of Veterans Affairs,
      113 M.S.P.R. 657, ¶ 6 (2010) (to establish disparate penalties, the appellant must,
      among other things, show that the comparison employee engaged in substantially
      similar misconduct). For these reasons, and the reasons explained in the initial
      decision, we agree with the administrative judge that the removal penalty should
      be sustained. ID at 21-23.
                                                                                7

                 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 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:
                           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
                                                                                    8

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
prepayment of fees, costs, or other security.      See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.




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