                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     TROY E. BOWERS,                                 DOCKET NUMBERS
                  Appellant,                         CH-0752-15-0084-I-1
                                                     CH-0752-14-0499-I-2
                  v.


     UNITED STATES POSTAL SERVICE,                   DATE: August 3, 2016
                   Agency.



         THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Glenn L. Smith, Esquire, Grand Rapids, Michigan, for the appellant.

           Deborah L. Lisy, Esquire, and Shannon L. Wilson, Chicago, Illinois,
             for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     erroneous application of the law to the facts of the case; the administrative
     judge’s rulings during either the course of the appeal or the initial decision were
     not consistent with required procedures or involved an abuse of discretion, and
     the resulting error affected the outcome of the case; or new and material evidence
     or legal argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, we conclude that the petitioner has not established any basis under section
     1201.115 for granting the petition for review. Therefore, we DENY the petition
     for review. Except as expressly MODIFIED by this Final Order to find that the
     appeal of the appellant’s first removal action is moot, we AFFIRM the initial
     decision.
                                      BACKGROUND
¶2        This is a consolidated appeal arising from two removal actions taken against
     the appellant subsequent to a November 8, 2013 Office of Inspector General
     (OIG) investigative report finding that the appellant, then Acting Branch
     Manager, had used his agency computer and internet access to “monitor, promote,
     and maintain his personally owned private eBay business” and to access his
     personal Gmail account. MSPB Docket No. CH-0752-15-0084-I-1, Initial Appeal
     File (0084 IAF), Tab 9 at 65‑71; 0084 IAF, Tab 37, Initial Decision (ID) at 1-2 &
     n.1. On February 24, 2014, the agency proposed to remove the appellant on the
     basis of one charge of misuse of Government office equipment supported by two
     specifications, which alleged that he used his Government office equipment to:
     (1) promote or maintain his private eBay business; and (2) check his personal
     email account. 0084 IAF, Tab 7 at 96‑100.
¶3        In a March 26, 2014 decision letter, deciding official B.M. imposed the
     removal effective April 5, 2014.      Id. at 92-94.   The appellant appealed the
     removal decision to the Board, alleging discrimination, retaliation, and harmful
                                                                                       3

     procedural error. MSPB Docket No. CH‑0752-14-0499-I-1, Initial Appeal File
     (0499-I-1 IAF), Tab 1. By notice dated July 10, 2014, the agency informed the
     appellant that it was rescinding the removal decision and that it would issue a
     new decision based on the February 24, 2014 notice of proposed removal, which
     remained in effect. 0084 IAF, Tab 7 at 67. On July 30, 2014, the administrative
     judge dismissed the appeal without prejudice to automatic refiling.       0499‑I‑1
     IAF, Tab 12. By September 30, 2014, the agency had not issued a new decision,
     and the regional office refiled the appeal sua sponte.         MSPB Docket No.
     CH‑0752-14-0499-I-2, Initial Appeal File (0499-I-2 IAF), Tabs 1-3.           In the
     refiled appeal, the appellant argued that the agency had failed to restore him to
     the status quo ante after rescinding the first removal decision and that he was
     entitled to interest on the back pay, premium detail pay, and compensatory,
     consequential, and liquidated damages. 2 0049‑I‑2 IAF, Tab 12 at 4‑9.
¶4        After the appellant’s representative provided an oral response to the
     proposed removal, deciding official S.S. issued a second decision sustaining the
     charge and removing the appellant effective October 17, 2014. 0084 IAF, Tab 7
     at 34‑37.   The appellant timely appealed this second removal decision to the
     Board.   0084 IAF, Tab 1. The administrative judge consolidated the removal
     appeals for hearing and adjudication. ID at 2 n.1. After holding the requested
     hearing, the administrative judge issued an initial decision affirming the removal
     and finding that the appellant failed to prove his due process violation and
     discrimination affirmative defenses.    ID at 3‑26.   The initial decision did not
     address the appellant’s claim for damages arising from the rescinded removal
     action. The appellant petitioned for review of the initial decision, the agency
     responded in opposition to the petition for review, and the appellant replied to the
     agency’s opposition. Petition for Review (PFR) File, Tabs 1, 5-6.

     2
       The record reflects that the agency paid the appellant back pay for April 7, 2014,
     through May 16, 2014. 0084 IAF, Tab 20 at 43-46.
                                                                                      4

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶5        On review, the appellant argues that the administrative judge erred in
     finding that the agency proved its charge; that the penalty of removal was
     reasonable; and that he failed to prove his affirmative defenses of disability
     discrimination and discrimination based on his uniformed service.       PFR File,
     Tab 1 at 6-16, Tab 6 at 4-8. He further asserts that the administrative judge erred
     in failing to make a ruling on the damages issues raised in his appeal of the first
     removal action. PFR File, Tab 1 at 16‑17, Tab 6 at 9.
     The administrative judge correctly sustained the agency’s charge.
¶6        As noted above, the agency charged the appellant with two specifications of
     misuse of Government office equipment—specifically, (1) misuse of Government
     office equipment to promote or maintain a private eBay business, and (2) misuse
     of Government office equipment to check personal email accounts. 0084 IAF,
     Tab 7 at 34-35, 96-67. To prove a misuse of Government property charge, the
     agency must show that the appellant used the Government property as charged
     and that such use was improper or unauthorized, regardless of whether the misuse
     was intentional.   Rogers v. Department of Justice, 60 M.S.P.R. 377, 388-89
     (1994).   The agency bears the burden of proving the charge by preponderant
     evidence. 5 C.F.R. § 1201.56(b)(1)(ii).
¶7        In the notice of proposed removal, the agency explained that the first
     specification was based on findings in the OIG investigative report that the
     appellant had accessed his personal eBay business website from his agency
     computer system on September 21, 2013, at 10:16 a.m., 10:18 a.m., and
     10:20 a.m., and that, from January 2, 2013, through April 30, 2013, and
     September 20, 2013, through October 22, 2013, he had used his Postal Service
     employee access to the internal delivery tracking system to track shipments of
     items he had sold on eBay. 0084 IAF, Tab 7 at 96. The administrative judge
     construed the factual narrative of the first specification as setting forth two
     specific subspecifications; the first regarding the appellant’s use of the agency
                                                                                       5

     computer system to access and monitor his eBay account, and the second
     regarding his use of the internal delivery tracking system to track his eBay
     shipments. ID at 3.
¶8        The administrative judge sustained the first subspecification of specification
     (1), finding that the appellant did not deny that he accessed his eBay business
     website from his agency computer during the three instances cited by the agency
     on September 21, 2013, and, moreover, that he had admitted that he did so for
     approximately 1 to 1.25 hours per day every day. ID at 3-4. The administrative
     judge further found that the appellant’s use of an agency computer to “promote or
     maintain a personal or private business” was a violation of various provisions of
     the agency’s rules and regulations. ID at 4. On review, the appellant argues that
     he believed his use of the agency computer system to monitor his eBay account,
     which he alleges he did only during lunches and breaks, was allowed under the
     agency’s limited usage policy and that, if he had been notified that his conduct
     was not allowed, he would have used his personal cell phone to monitor his eBay
     account instead. PFR File, Tab 1 at 6.
¶9        As noted above, to prove this charge, the agency must show that the
     appellant used the Government property as charged and that such use was
     improper or unauthorized; the appellant’s knowledge that his conduct was wrong
     is irrelevant to proving the charge. 3 Rogers, 60 M.S.P.R. at 388‑89. Here, the
     record evidence clearly shows that the appellant used the Government computer
     systems as charged, accessing his eBay account at 10:16 a.m., 10:18 a.m., and
     10:20 a.m., 0084 IAF, Tab 8 at 7-12, and he has not submitted any evidence to
     show that he was on an unpaid break or lunch at those times. Moreover, the
     agency submitted evidence showing that the appellant accessed his eBay account
     continuously from 10:15 a.m. through 3:01 p.m. on September 21, 2013, which

     3
       While not relevant to proving a charge of misuse of Government property, an
     appellant’s alleged lack of notice that his conduct was wrong may “be considered in
     assessing the reasonableness of the penalty imposed.” Rogers, 60 M.S.P.R. at 388‑89.
                                                                                           6

      belies his contention that his use of the agency computer system for his personal
      business use was limited to his unpaid breaks and lunches. 0084 IAF, Tab 8 at
      6-202, Tab 9 at 4-49. In any event, it is undisputed that the use of Government
      computer systems to maintain a personal business is prohibited by the agency’s
      rules and regulations, even if it occurs during an unpaid break or lunch.
      5 C. F. R. § 7001.102(a)(2) (stating that “[n]o Postal Service employee shall . . .
      [e]ngage in any sales activity, including the solicitation of business or the receipt
      of orders for oneself or any other person, while on duty or in uniform, or at any
      postal facility”); 0084 IAF, Tab 9 at 220‑24 (Handbook AS‑805 sections 5-2 and
      5-4 prohibiting use of agency resources to promote or maintain a private
      business).   Accordingly, we agree with the administrative judge’s decision to
      sustain this subspecification and find no basis to disturb it on review.
¶10         The administrative judge also determined that the agency proved the second
      subspecification, which charged that the appellant used his Postal Service
      employee access to the internal delivery tracking system to track his eBay
      shipments.    0084 IAF, Tab 7 at 96.      In sustaining this subspecification, the
      administrative   judge   considered    the   appellant’s   statements      during   the
      November 19, 2013 investigative interview and his hearing testimony. ID at 4-6.
      In the investigative interview, the appellant answered in the affirmative when
      asked whether he had accessed the internal tracking system to track his eBay
      shipments sent via first class mail but stated that he did so “on a minimal basis”
      and that he “did not know it was an issue.” 0084 IAF, Tab 7 at 116. At the
      hearing, however, he denied using the internal tracking system to track his eBay
      shipments, stating that he had no need to utilize the internal tracking system
      because, after January 2013, eBay users could track shipments on the eBay
      website. Hearing Transcript (HT) at 276 (June 24, 2015). On cross examination,
      the appellant appeared to claim that he had not tracked his own eBay packages on
      the internal tracking system but that his response in the investigative interview
      pertained to his use of the internal tracking system to assist customers.           HT
                                                                                       7

      at 24-28 (July 15, 2015). He later testified that he had stated that he used the
      internal tracking system during the investigative interview because the
      interviewer “was asserting he had all kinds of information that I had been doing
      it.”   Id. at 143.   The administrative judge found that the appellant’s hearing
      testimony was “hardly a robust refutation of the conduct in question” and
      concluded that the appellant had utilized the agency’s internal system to track his
      eBay shipments as charged. ID at 5. Moreover, the administrative judge noted
      that, even accepting the appellant’s contention that he was tracking his packages
      via the eBay website, rather than through the internal tracking system, it was
      undisputed that he did so using his agency computer, which violated the agency’s
      rules and regulations, as discussed in the first subspecification. ID at 5-6.
¶11          On review, the appellant argues that the agency has not met its burden of
      proof because there is not a single screenshot showing him tracking his eBay
      shipments through the internal tracking system and again asserts that he had no
      reason to utilize the internal tracking system because all available tracking
      information was accessible online for free after January 2013. PFR File, Tab 1 at
      7-9, Tab 6 at 4-5.     Although the appellant is correct that the agency has the
      burden of proof to establish that the charged conduct occurred, 5 C.F.R.
      § 1201.56(b)(1)(ii), it is not necessary that the agency furnish a screenshot to
      prove the charge. As the administrative judge explained, the record reflects that
      the appellant admitted to using the internal tracking system to track his eBay
      packages during an investigative interview. ID at 5; 0084 IAF, Tab 7 at 116.
      Although the appellant essentially recanted the admission and denied the charged
      conduct during the hearing, the administrative judge found the appellant’s
      testimony on the subject to be “evasive” and “untenable” and declined to credit
      his statements. ID at 5.    The 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
                                                                                          8

      for doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir.
      2002).   The appellant has failed to identify such reasons on review, and we
      discern no basis to disturb the administrative judge’s credibility findings.
      Likewise, we find no basis to disturb the administrative judge’s determination
      that the agency proved the second subspecification of specification (1).
¶12         The administrative judge also sustained the second specification, which
      alleged that the appellant used the agency computer system to access his personal
      Gmail account from January 2, 2013, through April 30, 2013.            ID at 7.   On
      review, the appellant does not deny that he engaged in such conduct or that it
      violates agency rules and regulations. 4 PFR File, Tabs 1, 6. Rather, he argues, as
      he did below, that he thought his use of the agency computers to check his
      personal email account was allowed under the limited usage policy. PFR File,
      Tab 1 at 6. As explained above, however, an agency is not required to prove
      intent to sustain a charge of misuse of Government property.                  Rogers,
      60 M.S.P.R. at 389. Accordingly, we find no basis to disturb the administrative
      judge’s findings on the second specification.
¶13         In light of the foregoing, we agree with the administrative judge that the
      agency proved the charge and all of the underlying specifications. 5




      4
       Handbook AS‑805 section 5-3 prohibits the use of agency resources to check personal
      email accounts. 0084 IAF, Tab 9 at 222.
      5
        Although the administrative judge did not make an explicit finding regarding nexus,
      the omission has not prejudiced the parties’ substantive rights. ID; Karapinka v.
      Department of Energy, 6 M.S.P.R. 124, 127 (1981). Where, as here, the sustained
      misconduct involves misuse of Government property, the Board has found that there is a
      sufficient nexus between the employee’s misconduct and the efficiency of the service.
      Els v. Department of the Army, 82 M.S.P.R. 27, ¶ 11 (1999).
                                                                                              9

      The administrative judge correctly found that the appellant failed to establish his
      affirmative defense of discrimination based on disability and uniformed service. 6
¶14         In the initial decision, the administrative judge found without merit the
      appellant’s disparate treatment discrimination claim, finding that his conclusory
      allegations of discrimination fell well short of establishing that the agency treated
      him more harshly than other similarly situated employees for similar conduct
      because of his disability or military status. ID at 7-9. On review, the appellant
      asserts that the agency treated him more harshly than one similarly situated
      comparator, K.P., who engaged in similar misconduct but was not removed, and
      argues that the only “reasonable explanation is disparate treatment based on
      discrimination.” PFR File, Tab 1 at 12, 14. Even if K.P. is similarly situated to
      the appellant for purposes of a disparate treatment analysis, the appellant has
      failed, as he did below, to provide any evidence tending to show that any
      difference in their treatment was based on disability or military status. PFR File,
      Tabs 1, 6; ID at 8-9. Thus, we discern no basis to disturb the administrative
      judge’s finding that the appellant failed to establish his affirmative defense of
      discrimination.
      The administrative judge correctly held that the deciding official considered the
      relevant factors and that the penalty of removal was within the tolerable limits of
      reasonableness.
¶15         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 7 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

      6
       The administrative judge also determined that the appellant failed to establish any due
      process violation. ID at 8-15. The appellant has not challenged this finding on review,
      PFR File, Tabs 1, 6, and we discern no basis to disturb it.
      7
       In Douglas, the Board articulated a nonexhaustive list of 12 factors that are relevant in
      assessing the penalty to be imposed for an act of misconduct. Douglas v. Veterans
      Administration, 5 M.S.P.R. 280, 305-06 (1981).
                                                                                      10

      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. The most important factor in
      assessing whether the agency’s chosen penalty falls within the tolerable bounds
      of reasonableness is the nature and seriousness of the misconduct and its relation
      to the employee’s duties, position, and responsibilities, including whether the
      offense was intentional or was repeated frequently. Singletary v. Department of
      the Air Force, 94 M.S.P.R. 553, ¶ 12 (2003), aff’d, 104 F. App’x 155 (Fed. Cir.
      2004). Other relevant factors may include the employee’s past discipline, his past
      work record, the effect of the offenses on his ability to perform his duties, the
      consistency of the penalty with those imposed upon other employees for the same
      or similar offenses, the employee’s potential of rehabilitation, and any mitigating
      circumstances. Douglas, 5 M.S.P.R. at 305-06.
¶16         The 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 15-16. He noted that the deciding
      official considered several mitigating factors, including the appellant’s 12 years
      of service with the agency, 16 years of total Government service, and lack of
      prior discipline, but found that they did not outweigh the nature and seriousness
      of the appellant’s conduct, his supervisory status, and his demonstrated refusal to
      correct his behavior despite having received repeated warnings to do so.        Id.
      Although the appellant denied receiving warnings from management officials
      regarding his use of the agency computer systems for his eBay business, the
      administrative judge found that the record evidence convincingly established that
      the appellant had been repeatedly warned to stop engaging in such behavior. ID
      at 20. In so finding, the administrative judge credited the hearing testimony of
      three management officials who testified to having such conversations with the
                                                                                      11

      appellant, explaining that their testimonies were closely corroborated by prior
      written statements provided to OIG and that the appellant’s contentions to the
      contrary were implausible and unworthy of belief. ID at 17-20.
¶17        On review, the appellant reiterates his arguments that the penalty of
      removal is excessive because he did not know that his use of the agency computer
      systems was improper and no one informed him that his activities exceeded the
      agency’s limited usage policy. PFR File, Tab 1 at 6, 10-16. In support of his
      contention, the appellant appears to argue that the administrative judge erred in
      crediting the testimony of two of the management officials.          Id. at 11-12.
      Specifically, the appellant asserts that management officials M.D. and K.C. knew
      about and permitted his computer usage for his personal business for years
      without issuing him any written discipline, presumably because they did not know
      it violated any agency policy. Id. He further asserts that their written statements
      to OIG were short and “vague,” which apparently suggests that M.D. and K.C.
      lied about warning the appellant against using the agency computers for his eBay
      activities. Id. As noted above, however, the 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, and may overturn such determinations only when it has “sufficiently
      sound” reasons for doing so.       Haebe, 288 F.3d at 1301.       The appellant’s
      assertions here are speculative and constitute mere disagreement with the
      administrative judge’s credibility findings and, as such, provide no basis for
      disturbing the initial decision.   Broughton v. Department of Health & Human
      Services, 33 M.S.P.R. 357, 359 (1987) (finding no reason to disturb the
      administrative judge’s findings where she considered the evidence as a whole,
      drew appropriate inferences, and made reasoned conclusions).
¶18        The appellant also appears to argue that the deciding official failed to
      properly weigh the appellant’s lack of prior discipline. PFR File, Tab 1 at 6. The
      appellant’s mere disagreement with the weight the deciding official accorded to
                                                                                     12

      his lack of prior discipline, however, does not provide a basis for review.
      Kirkland v. Department of Homeland Security, 119 M.S.P.R. 74, ¶¶ 24-25 (2013).
      Moreover, we agree with the administrative judge that the deciding official
      properly considered the mitigating factors, such as the appellant’s lack of prior
      discipline and tenure with the agency, but reasonably concluded that the other
      factors, such as the nature and seriousness of the offense, frequency and duration
      of the appellant’s misconduct, and supervisory nature of his position outweighed
      the mitigating factors. 0084 IAF, Tab 7 at 36; ID at 15-16.
¶19        The appellant further argues that the administrative judge erred in his
      disparate penalty analysis.   PFR File, Tab 1 at 12-16.       As noted above, the
      consistency of the penalty with those imposed upon other employees for the same
      or similar offenses is one of the factors to be considered in determining the
      reasonableness of an agency-imposed penalty.       Voss v. U.S. Postal Service,
      119 M.S.P.R. 324, ¶ 6 (2013); Douglas, 5 M.S.P.R. at 305. To establish disparate
      penalties, the appellant must show that the charges and circumstances
      surrounding the charged behavior are substantially similar. Voss, 119 M.S.P.R.
      324, ¶ 6.   If an appellant makes such a showing, the agency must prove a
      legitimate reason for the difference in treatment by a preponderance of the
      evidence before the penalty can be upheld. Id. To trigger the agency’s burden,
      the appellant must show that there is enough similarity between both the nature of
      the misconduct and other factors, such as whether the appellant and the
      comparator were in the same work unit, had the same supervisor and/or deciding
      official, and whether the events occurred relatively close in time, to lead a
      reasonable person to conclude that the agency treated similarly situated
      employees differently. Id. However, the Board will not have hard and fast rules
      regarding the outcome determinative nature of these factors. Id.
¶20        In the initial decision, the administrative judge found that the charges and
      circumstances surrounding the charged behavior of four purported comparators
      were not substantially similar to the appellant’s charges and circumstances and
                                                                                      13

      concluded that the appellant failed to establish that he was similarly situated to
      those employees for disparate penalty purposes. ID at 21-25. On review, the
      appellant challenges the administrative judge’s findings regarding two of these
      employees, K.P. and J.S. PFR File, Tab 1 at 12-16.
¶21        The record reflects that the agency proposed to remove K.P., a Postmaster
      who was concurrently employed part time as a varsity softball coach at a local
      school, for:   (1) engaging in gainful employment while in a sick leave status
      without first obtaining prior approval; (2) misuse of postal equipment; and
      (3) unacceptable conduct pertaining to incorrect record entries in an agency
      database. 0084 IAF, Tab 20 at 82-89. In relevant part, the proposal notice in that
      case explained that, between February 1, 2013, and September 26, 2013, K.P. sent
      and received a number of emails related to his paid coaching position from his
      agency email account and, on three dates in May 2013, coached games when he
      was in a sick leave status without obtaining prior approval, as required under the
      agency policy.    Id. at 82‑83.   On February 18, 2015, deciding official C.H.
      sustained the charges but reduced the penalty to a letter of warning in lieu of a
      14-day suspension and laterally reassigned K.P. to the position of Customer
      Services Manager. Id. at 76‑81.
¶22        The administrative judge determined that, although aspects of K.P.’s
      misconduct were similar to the appellant’s, K.P. did not run a private business
      from the agency computer systems. ID at 23. On review, the appellant appears to
      argue that K.P.’s misuse of postal equipment charge is substantially similar to his
      misuse of Government equipment charge because K.P. used the agency computers
      to email students and their parents, i.e., his customers. PFR File, Tab 1 at 13.
      The appellant further asserts that he is in the same supervisory chain as K.P.
      because C.H., the deciding official in K.P.’s case, is the same District Manager
      who supervises M.S., the deciding official in the appellant’s case, and that the
                                                                                      14

      proposing official in K.P.’s case, B.M., also proposed the appellant’s first
      removal. Id. at 14.
¶23        We agree with the administrative judge, however, that K.P.’s misconduct is
      not substantially similar to the appellant’s misconduct. ID at 23. The record
      reflects that the appellant spent at least 1 to 1.25 hours each day on the agency
      computers monitoring his auctions, revising his listings, and answering customer
      emails. 0084 IAF, Tab 8, Tab 9 at 61, 81-194, HT at 274-75 (June 24, 2015). On
      the other hand, K.P.’s misuse of the agency computers was limited to sending
      emails to parents and students regarding such details as when they were leaving
      for an event and whether an event was canceled or needed to be rescheduled.
      0084 IAF, Tab 20 at 83; HT at 56 (June 23, 2015). In addition, the appellant’s
      use of his personal email account from his agency computer was strictly
      prohibited by agency policies, whereas K.P.’s use of the agency email, while
      improper, was not specifically prohibited by any policy.      HT at 58 (June 23,
      2015). The charges also are distinguishable because there is no indication that
      management officials ever specifically warned K.P. to discontinue his personal
      use of the agency computer systems, whereas the appellant was warned multiple
      times but failed to correct his behavior. Id. at 59-62. Although the appellant has
      some of the same supervisory chain as K.P., such fact alone is insufficient to
      establish that he is similarly situated to K.P. for the purposes of a disparate
      penalty analysis. Voss, 119 M.S.P.R. 324, ¶ 6.
¶24        The record also reflects that, on August 30, 2013, J.S., a Part-Time Flexible
      Clerk, was issued a 7‑day suspension for “improper conduct” involving the sale
      of “home-based products over the counter at the [Post Office].”         0084 IAF,
      Tab 20 at 112-13.     The administrative judge found that J.S. was not similarly
      situated to the appellant because, unlike the appellant, J.S. was not a supervisor,
      and she took ownership of, and showed remorse for, her conduct. ID at 24. On
      review, the appellant argues that J.S.’s misconduct was similar to his misconduct
      and, in fact, more severe because she was “using the entire facility to run her
                                                                                         15

      business, selling product[s] to postal customers . . . storing the product in a filing
      cabinet at the Post Office.” PFR File, Tab 1 at 15. He further claims that he has
      “taken ownership and has never denied his usage, only that he did not know it
      was a violation of any policy.”       Id.   As the administrative judge correctly
      explained, however, J.S. was not a supervisor.        ID at 24.    Because a higher
      standard of conduct is required of a supervisor, Cantu v. Department of the
      Treasury, 88 M.S.P.R. 253, ¶ 8 (2001), we agree with the administrative judge
      that the appellant and J.S. are not similarly situated for disparate penalty
      purposes. ID at 24.
¶25         The appellant’s other contentions on review likewise provide no basis to
      disturb the administrative judge’s finding that there is not enough similarity
      between both the nature of the conduct and other factors to lead a reasonable
      person to conclude that the agency treated similarly situated employees
      differently.   Recognizing that the Board must accord proper deference to the
      agency’s primary discretion in managing its workforce, we see no reason to
      disturb the administrative judge’s finding that removal is a reasonable penalty in
      this case. Douglas, 5 M.S.P.R. at 306.
      We modify the initial decision to find that the appeal of the first removal action is
      moot.
¶26         As the appellant correctly argues on review, the initial decision failed to
      address his claims for damages raised in the appeal of the first removal action.
      ID; PFR File, Tab 1 at 16‑17, Tab 6 at 9.        We need not remand the appeal,
      however, because the record is sufficiently developed to allow us to resolve the
      outstanding issues pertaining to the first removal action, which the agency
      subsequently rescinded, in the first instance. On the basis of the following, we
      find that the appeal of the first removal action is moot, and we modify the initial
      decision accordingly.
¶27         The Board may dismiss an appeal as moot if the appealable action is
      cancelled or rescinded by the agency. Hess v. U.S. Postal Service, 123 M.S.P.R.
                                                                                        16

      183, ¶ 5 (2016). For an appeal to be deemed moot, the agency’s rescission must
      be complete, and the employee must be returned to the status quo ante.            Id.
      Status quo ante relief generally requires that the agency return the appellant to the
      position he previously occupied, or one substantially equivalent in scope and
      status, remove all references to the rescinded action, and restore to the appellant
      any lost back pay or benefits. Id.
¶28         Here, the appellant does not dispute that the agency cancelled the first
      removal action, returned him to a pay status pending a second decision on the
      notice of proposed removal, and restored to him lost back pay and benefits.
      0499-I-2 IAF, Tab 12 at 4‑9; 0084 IAF, Tab 7 at 67, Tab 20 at 43‑46. He argues,
      however, that the appeal of the rescinded removal is not moot because he is
      entitled to interest on the back pay, an additional 5% in premium detail pay, and
      compensatory, consequential, and liquidated damages.        0499‑I‑2 IAF, Tab 12
      at 4‑9.
¶29         Where, as here, the agency voluntarily rescinds a removal action, the
      appellant is not entitled to an award of interest on back pay.          Williams v.
      Department of the Army, 97 M.S.P.R. 246, ¶¶ 10-14 (2004), overruled on other
      grounds, Durr v. Department of Veterans Affairs, 99 M.S.P.R. 283 (2005). The
      appellant also is not entitled to a 5% premium detail pay because the record
      reflects that his higher-level detail assignment was terminated 5 months prior to
      the effective date of the first removal action and thus was unaffected by the
      subsequently rescinded action.       0084 IAF, Tab 25 at 45.       In addition, the
      appellant is not entitled to compensatory damages based on a finding of
      discrimination because, as discussed above, the administrative judge found, and
      we agree, that the appellant failed to prove his discrimination claims. 5 C.F.R.
      § 1201.201(d) (stating that the Board may award compensatory damages to a
      prevailing party who is found to have been subjected to intentional employment
      discrimination under Title VII). Finally, the appellant is not entitled to
                                                                                17

consequential or liquidated damages, which are available only in specific
situations not present here. 5 C.F.R. §§ 1201.201, 1201.202. Accordingly, we
find that the agency returned the appellant to the status quo ante after rescinding
the first removal decision, and the appeal of that action is now moot.

                 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 U.S. 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.
                                                                                18

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




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