                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     TIMOTHY C. KNIGHT,                              DOCKET NUMBER
                   Appellant,                        SF-0752-15-0309-I-1

                  v.

     DEPARTMENT OF AGRICULTURE,                      DATE: April 27, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Bobby R. Devadoss and Stephanie Bernstein, Esquire, Dallas, Texas, for
             the appellant.

           Kerri E. Bandics, Esquire, San Francisco, California, 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
     affirmed the appellant’s 30-day suspension. 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     regulation 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, 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 initial
     decision as stated in ¶¶ 21-27 below as to the administrative judge’s analysis of
     the appellant’s whistleblower defense. Except as expressly MODIFIED by this
     Final Order, we AFFIRM the initial decision.
¶2        At all relevant times, the appellant was a GS-12 District Ranger for the
     agency. Initial Appeal File (IAF), Tab 9 at 31, Tab 11 at 4. This is a supervisory
     and managerial position whose duties involve working with a team to administer
     an area of National Forest land. IAF, Tab 11 at 28-33. On November 6, 2012,
     the agency proposed the appellant’s removal based on one charge of “off-duty
     misconduct” (five specifications) and one charge of “inappropriate use of
     government resources” (four specifications).      The charges stemmed from six
     inappropriate emails and one inappropriate text message that the appellant sent to
     a coworker with whom he had had a sexual relationship, as well as one
     inappropriate email that the appellant accidentally sent to another coworker. IAF,
     Tab 10 at 67-69. After the appellant responded, the deciding official issued a
     decision sustaining the charges, but mitigating the penalty to a 30-day suspension.
     IAF, Tab 9 at 32-43.
¶3        The appellant filed a formal equal employment opportunity (EEO)
     complaint, alleging among other things that his suspension was in reprisal for
     prior EEO activity. IAF, Tab 1 at 11-12. When the agency returned a finding of
                                                                                       3

     no discrimination, the appellant filed a Board appeal. IAF, Tab 1. He waived his
     right to a hearing. IAF, Tab 27. After the close of the record, the administrative
     judge issued an initial decision affirming the suspension. IAF, Tab 33, Initial
     Decision (ID) at 1, 21.     She sustained both charges and all but one of the
     specifications and found that the agency established a nexus between the
     appellant’s misconduct and the efficiency of the service.        ID at 4-11.    The
     administrative judge also considered the appellant’s affirmative defenses of due
     process violation, reprisal for EEO activity, and whistleblower retaliation, but she
     found that the appellant failed to prove them.        ID at 11-18.     Finally, the
     administrative judge found that the deciding official considered the pertinent
     penalty factors and that the 30-day suspension did not exceed the tolerable limits
     of reasonableness. ID at 18-21.
¶4        The appellant has filed a petition for review, disputing many of the
     administrative judge’s factual findings, particularly regarding her penalty
     analysis. Petition for Review (PFR) File, Tab 1 at 1-21. He also argues that he is
     aware of new and material evidence about similarly situated employees that the
     agency withheld during discovery. Id. at 22-23. The agency has filed a response.
     PFR File, Tab 3.
     The appellant’s discovery dispute is not properly before the Board.
¶5        On review, the appellant alleges that the agency withheld evidence that
     would have undermined the credibility of one of its witness’s written statements.
     PFR File, Tab 1 at 6. He also alleges that the agency was aware of three similarly
     situated employees whom the agency treated less harshly, but it failed to provide
     information about these employees as requested during discovery. Id. at 11, 15,
     22-23.
¶6        We find that appellant is essentially raising a discovery dispute for the first
     time on petition for review. The appellant’s failure to file a motion to compel
     below precludes him from attempting to do so now.         See Szejner v. Office of
     Personnel Management, 99 M.S.P.R. 275, ¶ 5 (2005), aff’d, 167 F. App’x 217
                                                                                          4

     (Fed. Cir. 2006). Furthermore, although the appellant alleges that the comparator
     evidence is “new and material,” he indicates that he was aware of this evidence
     before the record closed. PFR File, Tab 1 at 15, 22-23. Because the appellant
     was aware that this evidence existed and did not file a motion to compel, we find
     that it does not fit the definition of “new.”      See 5 C.F.R. § 1201.115(d) (“To
     constitute new evidence, the information . . . must have been unavailable despite
     due diligence when the record closed.”).
     The agency proved Charge 1.
¶7         The facts underlying the charges are largely undisputed and are set forth
     more fully in the initial decision. ID at 2-8. Briefly, and by way of background,
     the appellant and his coworker, C.B., a Budget Officer not normally in his chain
     of command, began a consensual sexual relationship in December 2012. 2 IAF,
     Tab 10 at 91, 107, 112, 121. They took a hiatus during March 2013, and then
     resumed their relationship in April. Id. at 91, 107-08, 114-18. On June 24, 2013,
     C.B. ended the relationship permanently. Id. at 91, 108, 119. On June 27 and 29,
     2013, C.B. informed multiple agency officials that the appellant was engaging in
     stalking and harassing behavior, including sending her inappropriate emails and
     text messages, that she feared for her safety, and that for these reasons, she was
     stepping down from her temporary role as Forest Supervisor.             Id. at 91-92,
     105-06, 123-24.
¶8         On July 9, 2013, the agency launched an investigation into C.B.’s
     allegations. Id. at 89. During the investigation, the agency uncovered the text
     message and six of the emails at issue. Id. at 77-86, 96-97. The seventh email
     was sent after the investigation was concluded. Id. at 68-69, 87-88. As explained
     above, the administrative judge found that all of these communications except for


     2
       During the period in question, the appellant and C.B. rotated on a monthly basis with
     other employees as acting Forest Supervisor. IAF, Tab 30 at 27. Whichever employee
     was acting at any given time served as immediate supervisor of the others in the
     rotation. Id.
                                                                                            5

      one constituted actionable misconduct, and she therefore sustained both charges.
      ID at 4-11; see Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed.
      Cir. 1990) (holding that, where more than one event or factual specification
      supports a single charge, proof of one or more, but not all, of the supporting
      specifications is sufficient to sustain the charge).
¶9          On review, the appellant appears to argue that the agency failed to prove
      Charge 1 because none of the communications at issue in that charge constituted
      actionable misconduct. PFR File, Tab 1 at 1-3. Because proof of Charge 1 and
      the issue of nexus are intertwined, we will address the appellant’s arguments
      below. For the reasons discussed below and explained in the initial decision, we
      agree with the administrative judge that Charge 1, Specifications 1 through 4
      constitute actionable misconduct and that the agency therefore proved its charge
      of “off-duty misconduct.” Infra ¶¶ 14-19; ID at 4-6.
      The agency proved Charge 2.
¶10         The administrative judge sustained Charge 2, “inappropriate use of
      government resources,” finding that the four emails at issue originated from the
      appellant’s Government account and violated two agency regulations concerning
      use of Government telecommunications resources. ID at 6-8. On review, the
      appellant argues that the administrative judge identified only two emails that he
      sent from his Government account, rather than four, as the administrative judge
      stated in her initial decision. PFR File, Tab 1 at 5. We disagree. The notice of
      proposed removal identified four inappropriate emails that originated from the
      appellant’s Government account, IAF, Tab 10 at 68-69, 82-88, and the
      administrative judge discussed all four of them in her initial decision, ID at 7-8.
¶11         The appellant also disputes the administrative judge’s finding that these
      emails violated the agency’s use policy. PFR File, Tab 1 at 4-5. He argues that
      one of the agency regulations at issue only prohibits the use of “office
      equipment” for activities that would violate anti-discrimination statutes and that
      he did not use “office equipment” to send the emails at issue or use any
                                                                                         6

      discriminatory language.    Id. at 4; IAF, Tab 11 at 74.     We disagree with the
      appellant’s interpretation of this regulation.       First, we find that “office
      equipment” under the regulation explicitly includes email. IAF, Tab 11 at 73.
      Second, although the appellant is correct that the examples listed of “illegal,
      inappropriate, or offensive activities” consist primarily of discriminatory speech,
      the list is explicitly nonexhaustive. Id. at 74. We therefore find that, on its face,
      the regulation also prohibits offensive speech that is not discriminatory.       The
      appellant further argues that there is no evidence that anyone was actually
      offended by these emails.     PFR File, Tab 1 at 5.      The administrative judge,
      however, already addressed this contention, finding that the appellant himself
      admitted that the employee whom he called an “idiot” in one email was offended,
      and in any event, the regulation prohibits emails that are “inappropriate or
      offensive.” ID at 7-8. We agree with the administrative judge. Furthermore, we
      find that an email does not actually have to offend anyone to be considered
      inherently offensive.
¶12         The appellant argues that the second agency regulation at issue only applies
      to employees “acting in an official capacity,” and he was not acting in an official
      capacity when sending any of the emails listed under Charge 2. PFR File, Tab 1
      at 4-5; IAF, Tab 11 at 44. We agree with the appellant’s interpretation of this
      regulation, and we also agree that it is debatable whether he was acting in an
      “official capacity” when he sent some of the emails at issue. However, we find it
      indisputable that the appellant was acting in an official capacity when he sent the
      email discussed in Charge 2, Specification 3 pertaining to the processing of his
      time sheet. IAF, Tab 10 at 68, 85-86. In any event, because all of the emails
      were inappropriate and were prohibited by the other agency regulation as
      discussed above, we agree with the administrative judge that the agency proved
      its charge of “inappropriate use of government resources.” ID at 10.
¶13         Finally, the appellant argues that the administrative judge found that the
      emails underlying Charge 2, Specifications 2 and 3 interfered with Government
                                                                                      7

      business but that the agency did not charge him with interfering with Government
      business. PFR File, Tab 1 at 5-6. He further argues that he did not actually
      interfere with Government business, and he downplays the offensiveness of his
      emails.    Id. at 6.   We agree with the appellant that he was not charged with
      interfering with Government business.       However, regardless of whether the
      appellant’s emails interfered with Government business, we find that the
      administrative judge properly sustained Charge 2 for the reasons discussed above.
      The agency proved that the charged misconduct bore a nexus to the efficiency of
      the service.
¶14         An agency may take an adverse action under 5 U.S.C. chapter 75 “only for
      such cause as will promote the efficiency of the service.” 5 U.S.C. § 7513(a). In
      this case, the emails and text message at issue in Charge 1 were sent from the
      appellant’s personal accounts while he was off-duty, whereas the emails at issue
      in Charge 2 were sent from his Government account. 3 IAF, Tab 10 at 67-69. The
      administrative judge conducted separate nexus analyses for the two charges. ID
      at 9-11.
¶15         Regarding Charge 1, the administrative judge correctly noted that an agency
      may establish nexus between off-duty misconduct and the efficiency of the
      service by:    (1) a rebuttable presumption in certain egregious circumstances;
      (2) preponderant evidence that the misconduct adversely affects the appellant’s or
      coworkers’ job performance or the agency’s trust and confidence in the
      appellant’s job performance; or (3) preponderant evidence that the misconduct
      interfered with or adversely affected the agency’s mission. ID at 9; Kruger v.
      Department of Justice, 32 M.S.P.R. 71, 74 (1987). She found that the agency
      established nexus under the second method, i.e., by showing that the appellant’s



      3
        It is not clear whether the appellant was in duty status when he sent the emails
      underlying Charge 2, but we find that this information would be immaterial to the
      analysis.
                                                                                           8

      misconduct adversely affected C.B.’s job performance as well as the agency’s
      trust and confidence in him to perform his duties. ID at 9-10.
¶16         On review, the appellant argues that the agency failed to prove nexus
      because his off-duty conduct was not criminal in nature and that a presumption of
      nexus only arises in cases of egregious criminal conduct. 4 PFR File, Tab 1 at 3-4.
      To the extent that the appellant is arguing that noncriminal off-duty misconduct
      never bears a nexus to the efficiency of the service, we disagree. The Board has
      found on multiple occasions that agencies established nexus between noncriminal,
      off-duty misconduct and the efficiency of the service. See Doe v. Department of
      Justice, 113 M.S.P.R. 128, ¶¶ 20-21, 34 (2010). Moreover, as explained above,
      the administrative judge in this case did not rely upon a presumption of nexus.
      Rather, she found that the emails and message that the appellant sent from his
      personal accounts adversely affected C.B.’s job performance, as well as
      management’s trust and confidence in the appellant’s ability to perform his job.
      ID at 10-11.
¶17         Regarding C.B.’s job performance, the appellant argues that the emails did
      not “greatly upset” her as the administrative judge found, that they did not affect
      her job performance, and that she did not actually stand down as acting Forest
      Supervisor. PFR File, Tab 1 at 1-3, 6. He further argues that C.B.’s statements
      in support of these allegations postdated the agency’s suspension decision. PFR
      File, Tab 1 at 6; IAF, Tab 30 at 26-30. As an initial matter, we find it immaterial
      that C.B.’s statement postdates the agency’s suspension decision.                It is
      well settled that the Board’s review is not limited to the administrative record
      before the agency; rather, the Board is mandated by statute to consider de novo

      4
        The appellant cites multiple circuit court decisions in support of his argument. PFR
      File, Tab 1 at 3. However, the only circuit court with controlling authority over the
      Board is the U.S. Court of Appeals for the Federal Circuit. Fairall v. Veterans
      Administration, 33 M.S.P.R. 33, 39, aff’d, 844 F.2d 775 (Fed. Cir. 1987). To the extent
      that these decisions from other circuits are contrary to our established precedent, we
      find them unpersuasive.
                                                                                            9

      all the relevant evidence presented by both parties.                Zeiss v. Veterans
      Administration, 8 M.S.P.R. 15, 17-18 (1981).            As for whether the appellant’s
      conduct “greatly” upset C.B., we find the administrative judge’s choice of this
      adjective to be of little importance.            We find that the nature of the
      communications underlying Charge 1 are such that a reasonable person could be
      upset by them, IAF, Tab 10 at 77-80, and the record shows that C.B. was, in fact,
      upset by them enough for her to alter her work arrangements by teleworking for a
      time, enlisting other employees to attend meetings and conduct budget-related
      business with the appellant in her stead, and modifying the ways in which she
      communicated with the appellant, IAF, Tab 30 at 30.              As for whether C.B.
      actually stepped down as acting Forest Supervisor, the administrative judge did
      not so find, and we find that this is also immaterial to the nexus issue. It is
      undisputed that C.B. informed her supervisor that she wished to step down, thus
      demonstrating another way in which the appellant’s off-duty misconduct affected
      the workplace. Id.
¶18        Regarding the agency’s loss of trust and confidence in the appellant, the
      administrative judge found that the deciding official had a valid basis for concern
      about the appellant’s ability to “control his emotions and communicate in a
      professional manner if one of his employees or a member of the public crosses
      him.” ID at 10; IAF, Tab 30 at 24. The appellant argues that the administrative
      judge erred in finding that his “supervisors” lost trust and confidence in him
      because he has only one supervisor, and it is not the deciding official. PFR File,
      Tab 1 at 7; ID at 10.      Even so, we find that this is immaterial because the
      deciding   official’s   declaration   is   sufficient   to   demonstrate   that   agency
      management lost confidence in the appellant, which is all that is required for a
      showing of nexus. See Kruge, 32 M.S.P.R. at 74; see also Batara v. Department
      of the Navy, 123 M.S.P.R. 278, ¶ 7 (2016) (determining that a supervisor’s
      opinions are insufficient to overcome the agency’s judgment concerning the
      seriousness of the misconduct and the appropriateness of the agency-imposed
                                                                                      10

      penalty). The appellant also argues that his final performance evaluation for the
      period encompassing March through September 2013 belies the agency’s
      supposed concerns about his ability to perform.        PFR File, Tab 1 at 7-8.
      However, even if the agency’s concerns about the appellant’s ability to perform
      in the future have not borne out, we find that this does not undermine the
      legitimacy of those concerns. Finally, the appellant argues that the administrative
      judge erred in finding that he was not subject to on-site supervision. PFR File,
      Tab 1 at 7; ID at 10. Although this may be true, we find that it does little to
      detract from the administrative judge’s nexus analysis overall. For the reasons
      explained in the initial decision, we agree with the administrative judge that the
      agency established a nexus between the off-duty misconduct underlying Charge 1
      and the efficiency of the service. ID at 9-10.
¶19        As to Charge 2, the administrative judge found the issue of nexus to be
      self-evident, and so do we. ID at 10.
      The appellant did not prove his affirmative defense of retaliation for equal
      employment opportunity activity.
¶20        The administrative judge found that the appellant failed to prove this
      affirmative defense because there was no evidence that either the proposing or
      deciding official was aware of his prior EEO activity. ID at 12. On review, the
      appellant argues that the proposing and deciding officials must have known about
      his EEO activity because of agency policy and their “statutory duty to know all of
      the complaints that were affiliated with their actions.” PFR File, Tab 1 at 8. The
      appellant, however, has not identified the statutes or provided any evidence of
      these purported agency policies. We find an inadequate basis to infer that these
      officials actually knew of the appellant’s prior EEO activity contrary to their
      declarations. IAF, Tab 30 at 22-23. We therefore agree with the administrative
      judge that the appellant did not prove his affirmative defense of retalation for
      EEO activity. ID at 11-12; see Newberry v. U.S. Postal Service, 49 M.S.P.R. 348,
      354 (1991).
                                                                                      11

      The agency proved by clear and convincing evidence that it would have
      suspended the appellant notwithstanding his protected disclosure.
¶21        The administrative judge found that the appellant made a protected
      disclosure in March 2013, when the appellant had “heated discussions” with the
      Forest Fire Management Officer and Deputy Forest Fire Management Officer
      (DFFMO) about firefighting tactics. ID at 13-15; IAF, Tab 9 at 50, Tab 29 at 27.
      Specifically, the appellant told these individuals that the “maximum suppression”
      tactic that the agency was considering was “extremely hazardous” to the safety of
      firefighters. IAF, Tab 9 at 50, Tab 29 at 27. The administrative judge found that
      this disclosure went beyond mere policy disagreement and concerned a matter
      that the appellant reasonably believed constituted a substantial and specific
      danger to public health and safety. ID at 14-15. The administrative judge also
      found that the deciding official became aware of the appellant’s disclosure during
      his November 25, 2014 oral reply to the notice of proposed removal. ID at 16;
      IAF, Tab 10 at 4. Thus, the appellant established through the knowledge/timing
      test that his disclosure was a contributing factor in the suspension. ID at 16; see
      5 U.S.C. § 1221(e)(1). Nevertheless, considering the factors set forth in Carr v.
      Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999), the
      administrative judge found that the agency proved by clear and convincing
      evidence that it would have suspended the appellant notwithstanding his
      disclosure. ID at 17-18.
¶22        In determining whether an agency has shown by clear and convincing
      evidence that it would have taken the same personnel action in the absence of
      whistleblowing, the Board will consider the following factors: the strength of the
      agency’s evidence in support of its action; the existence and strength of any
      motive to retaliate on the part of the agency officials who were involved in the
      decision; and any evidence that the agency takes similar actions against
      employees who are not whistleblowers but who are otherwise similarly situated.
      Carr, 185 F.3d at 1323. On review, the appellant argues that the administrative
                                                                                      12

      judge erred in finding that the agency’s evidence in support of the suspension was
      strong. Specifically, he argues that the administrative judge erred in finding that
      his “supervisors” lost trust in his ability to perform. PFR File, Tab 1 at 10; ID
      at 17. We acknowledge that the proposing and deciding officials may not have
      been in the appellant’s direct supervisory chain and that there is otherwise no
      evidence that anyone in his supervisory chain personally lost trust and confidence
      in him. However, as explained above, we find that the record is sufficient to
      establish that the proposing and deciding officials had legitimate misgivings
      about the appellant’s ability to perform his duties appropriately in the future.
      Supra ¶ 18. Therefore, we find that the appellant’s argument detracts very little
      from the administrative judge’s findings on this issue.
¶23        Regarding the second Carr factor, the strength of retaliatory motive, the
      appellant argues that the administrative judge failed to consider that the deciding
      official was not the only one who was aware of his disclosure. The proposing
      official knew about it as well, as did the DFFMO, who also played a role in the
      agency’s action. PFR File, Tab 1 at 8-9; IAF, Tab 26 at 221. We agree with the
      appellant that these individuals were aware of his disclosure and that they were
      both involved in his suspension—the proposing official in proposing the
      appellant’s removal, and the DFFMO in initially referring C.B.’s complaints
      about the appellant to the agency’s law enforcement and Office of Civil Rights.
      IAF, Tab 10 at 124-25.       We find that the roles and motivations of these
      individuals are relevant to the clear and convincing evidence issue and that they
      must be considered in a proper evaluation of the evidence.       See McCarthy v.
      International Boundary & Water Commission, 116 M.S.P.R. 594, ¶ 31 (2011)
      (explaining that, in evaluating the clear and convincing evidence issue, the Board
      will consider any motive to retaliate on the part of the agency official who
      ordered the action, as well as any motive to retaliate on the part of other agency
      officials who influenced the decision), aff’d, 497 F. App’x 4 (Fed. Cir. 2012); see
      also Whitmore v. Department of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012)
                                                                                        13

      (holding that the Board must evaluate all the pertinent evidence in determining
      whether an element of a claim or defense has been adequately proven).
¶24         Next, we find that the DFFMO had a very strong motive to retaliate against
      the appellant. He was one of the individuals with whom the appellant engaged in
      the “heated discussions” at issue, he apparently disagreed with the appellant’s
      position, and the appellant’s disclosure directly implicated the DFFMO’s duties
      and responsibilities. Furthermore, as the appellant argues on review, on June 10,
      2014, shortly after the disclosure, a firefighter using maximum suppression
      tactics died while fighting a forest fire under the DFFMO’s authority. 5 PFR File,
      Tab 1 at 9; IAF, Tab 6 at 125, Tab 24 at 6. As for the proposing official, we find
      that he had little, if any, motive to retaliate. Although the record shows that the
      proposing official was aware that the appellant made recommendations of some
      type regarding firefighting, which the agency ultimately rejected, there is no
      indication that he knew or was in any way concerned about the particulars of the
      appellant’s disclosure.   IAF, Tab 26 at 221, Tab 30 at 22.          Moreover, the
      proposing official’s position during the relevant time period was Deputy Regional
      Forester for Operations, and there is no indication that the proposing official or
      his duties and responsibilities were directly implicated in the disclosure or the
      subsequent death of the firefighter. IAF, Tab 30 at 21.
¶25         The appellant also disputes the administrative judge’s finding that the
      deciding official had little motive to retaliate. PFR File, Tab 1 at 10; ID at 17. In
      particular, the appellant argues that the deciding official was formerly the Deputy
      Regional Forester for Fire and Aviation and “actually formulated and guided” the
      maximum suppression policy. PFR File, Tab 1 at 10. The appellant, however,

      5
       The appellant also alleges that five more firefighters have died while using maximum
      suppression tactics during the pendency of this appeal. PFR File, Tab 1 at 9-10.
      Although this fact might strengthen the administrative judge’s finding that the
      appellant’s disclosure was protected, we find that it has no bearing on whether the
      agency proved by clear and convincing evidence that it would have suspended the
      appellant when it made its decision.
                                                                                          14

      has not cited any specific evidence in support of his allegation apart from his
      EEO complaint and “the volumes of evidence provided in the record.” Id. We
      have reviewed the appellant’s EEO complaint, but we find nothing that would
      support his allegations about the deciding official’s connection to the disclosure.
      IAF, Tab 26 at 217-19. The appellant is responsible for specifying with
      reasonable clarity in his petition for review the location of the evidence that he is
      relying on, but he has not explained where in the “volumes of evidence” any
      support for his allegations might be located. We therefore find that his arguments
      provide no basis to disturb the administrative judge’s finding that the deciding
      official had little retaliatory motive.   See Weaver v. Department of the Navy,
      2 M.S.P.R. 129, 133 (1980) (determining that, before the Board will undertake a
      complete review of the record, the petitioning party must explain why the
      challenged factual determination is incorrect, and identify the specific evidence in
      the record which demonstrates the error), review denied, 669 F.2d 613 (9th Cir.
      1982) (per curiam).
¶26         Regarding the third Carr factor, the administrative judge found that neither
      party presented evidence of similarly situated nonwhistleblowers and that this
      factor was therefore irrelevant. ID at 17-18. The appellant does not directly
      challenge this finding on review, and we see no basis to disturb it.
¶27         Weighing    the   two   relevant    factors   together,   we   agree   with   the
      administrative judge’s ultimate conclusion that the agency proved by clear and
      convincing evidence that it would have suspended the appellant even absent his
      disclosure. ID at 18. Although the DFFMO had a very strong motive to retaliate,
      we find that his influence over the agency’s action was remote; he merely
      referred C.B.’s complaints to the appropriate officials. IAF, Tab 10 at 124-25.
      The investigation was actually conducted by another agency official at the
      appellant’s supervisor’s behest. Id. at 89-103. Although the DFFMO provided a
      declaration for the investigation that contained a rather unflattering depiction of
      the appellant’s behavior, that declaration did not provide a basis for any of the
                                                                                        15

      charges against the appellant, and there is no indication that it substantially
      influenced the course of the agency’s action. Id. at 123-26. Furthermore, even if
      the DFFMO did nothing about C.B.’s complaint (which would be contrary to
      agency policy, as the DFFMO describes it), we find that the investigation still
      would have occurred and the appellant would have been disciplined because C.B.
      also complained to the appellant’s supervisor, who ultimately initiated the
      investigation. Id. at 90, 224-25. In sum, we find that, although the DFFMO’s
      motive to retaliate was very strong, he had little if any influence over the
      suspension.   Considering the DFFMO’s strong retaliatory motive and slight
      influence over the suspension, the proposing and deciding officials’ slight
      motives and strong influence, and the strong evidence in support of the
      suspension decision, we agree with the administrative judge that the agency
      proved by clear and convincing evidence that it would have suspended the
      appellant notwithstanding his March 2013 disclosure.
      The agency established that the deciding official considered all of the pertinent
      penalty factors and that the 30-day suspension was within the tolerable limits of
      reasonableness.
¶28         The administrative judge found that the deciding official considered all of
      the pertinent penalty factors and that his penalty selection was therefore entitled
      to deference. ID at 18-19. She further found that, in light of all these factors, the
      30-day suspension was within the tolerable limits of reasonableness. ID at 19-21.
      On review, the appellant addresses each of the penalty factors set forth in
      Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), and argues
      that the 30-day suspension was inappropriate. PFR File, Tab 1 at 11-21.
¶29         Regarding the first Douglas factor, the nature and seriousness of the
      offense, and its relation to the appellant’s duties, position, and responsibilities,
      the appellant appears to dispute the deciding official’s finding that he and C.B.
      interact frequently at work.   PFR File, Tab 1 at 11-12; IAF, Tab 9 at 35-36.
      However, the record, including C.B.’s declaration and the appellant’s own
                                                                                      16

      inappropriate email to C.B. regarding his timesheet, suggests that they do interact
      frequently at work. IAF, Tab 10 at 85-86, Tab 30 at 29-30.
¶30        Regarding the second factor, the appellant’s job level and type of
      employment, he argues that the deciding official failed to explain how this factor
      relates to the penalty analysis.   PFR File, Tab 1 at 12.      We disagree.    The
      deciding official found that the appellant is a supervisor and manager, and the
      agency expected him to be a leader and an example to the other employees. IAF,
      Tab 9 at 37-38. The deciding official’s assessment of this factor is consistent
      with well-established Board precedent. See, e.g., Hill v. Department of the Army,
      120 M.S.P.R. 340, ¶ 15 (2013) (noting that supervisors are held to a higher
      standard of conduct).
¶31         Regarding the third factor, the appellant’s past disciplinary record, he
      argues that the administrative judge “ignore[d] whether or not this Factor had any
      bearing on [the deciding official’s] decision.” PFR File, Tab 1 at 12. However,
      an administrative judge’s failure to mention all of the evidence of record does not
      mean that she did not consider it in reaching her decision.           Marques v.
      Department of Health & Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d,
      776 F.2d 1062 (Fed. Cir. 1985) (Table).     In any event, we have reviewed the
      record, and we find that the deciding official properly noted the appellant’s lack
      of prior discipline. IAF, Tab 9 at 38.
¶32        Regarding the fourth Douglas factor, the appellant’s past work record, the
      appellant argues that the agency failed to consider his 11 years of prior
      employment with the Federal Bureau of Investigation (FBI). PFR File, Tab 1 at
      12-13; IAF, Tab 9 at 38. We disagree. On the last page of his Douglas factors
      worksheet, the deciding official emphasized the appellant’s “clean disciplinary
      record for 22 years,” a period encompassing his service with the FBI. IAF, Tab 9
      at 43. The appellant also argues that the deciding official did not adequately
      consider his ability to get along with his coworkers.     PFR File, Tab 1 at 13.
      Again, we disagree. The record shows that the deciding official considered the
                                                                                         17

      letters of support that the appellant’s coworkers sent. IAF, Tab 9 at 38, Tab 10 at
      27-32, 36-42, 46-48, 51-57, 66.
¶33         Regarding the fifth factor, the effect upon the appellant’s ability to perform
      at a satisfactory level, and upon his supervisor’s confidence in his ability to
      perform, the appellant again argues that the proposing and deciding officials were
      not his supervisors, and therefore their trust and confidence in him are irrelevant.
      PFR File, Tab 1 at 13; IAF, Tab 9 at 38-39. For the reasons explained above, we
      disagree. Supra ¶ 18.
¶34         Regarding the sixth factor, the consistency of the penalty with those
      imposed upon other employees for the same or similar offense, the appellant
      argues that the administrative judge erred in placing the burden on him to show
      that he was treated disparately.    PFR File, Tab 1 at 14.       This, however, is
      consistent with Board precedent, which requires that the appellant make an initial
      showing of disparate penalty before the burden shifts to the agency to justify the
      apparent disparity. Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657,
      ¶ 16 (2010). The appellant also argues that another employee, who occupies a
      similar position under the same supervisor, got into an argument with a coworker
      while on duty, in front of others, and called the coworker a “mother f***er” twice
      and used the word “f**k” several more times. PFR File, Tab 1 at 14. Yet this
      employee’s penalty was only to “read the inclusiveness policy.” Id. Assuming
      without deciding that the appellant’s allegations are true, we find that this
      employee’s actions, though improper, are not comparable to the appellant’s; they
      occurred in one discrete incident, whereas the appellant was charged with
      multiple inappropriate communications over the course of several months, thus
      displaying a pattern of repeated misconduct. 6 See Blow v. Department of the
      Navy, 11 M.S.P.R. 102, 105 (1982) (reasoning that a single, spontaneous incident
      of   pushing   a   coworker was    not   comparable    to   multiple   instances   of
      6
        If the record contains any evidence of this comparison employee, we were unable to
      locate it. The petition for review contains no pertinent record citation.
                                                                                         18

      insubordination and threatening to inflict bodily harm). The appellant also cites
      an incident in which another District Ranger under the same supervisor, during
      roughly the same time period, “was charged with sexual harassment of employees
      by distributing condoms to male subordinates on Agency property during work
      hours,” but received only a 3-day suspension. 7 PFR File, Tab 1 at 15; IAF, Tab
      22 at 23-27.    Again, we find that this conduct, although improper, was not
      comparable to the appellant’s because there was only a single occurrence. IAF,
      Tab 22 at 23.
¶35        Regarding factor seven, consistency with the agency’s table of penalties, the
      appellant acknowledges that a 30-day suspension falls within the recommended
      range for a first offense of off-duty misconduct and inappropriate use of
      Government resources. PFR File, Tab 1 at 15; IAF, Tab 9 at 40, Tab 26 at 70-71.
      He argues, however, that the agency inappropriately considered that he was
      engaging in an adulterous affair. PFR File, Tab 1 at 15-16. We agree with the
      appellant that it would be inappropriate for the agency to discipline him for
      “misconduct that is private in nature and that does not implicate job performance
      in any direct and obvious way.” Doe v. Department of Justice, 565 F.3d 1375,
      1380 (Fed. Cir. 2009). However, notwithstanding the agency’s reference to the
      appellant’s “adulterous affair,” IAF, Tab 9 at 40, we find that the agency’s action
      was not based on the affair per se, but rather on the appellant’s associated
      misconduct with a work colleague, which had a demonstrable connection to the
      workplace.
¶36        Regarding the eighth Douglas factor, the notoriety of the offense or its
      impact upon the reputation of the agency, the deciding official found that it was
      known among the appellant’s coworkers and some individuals in the local

      7
        Contrary to the appellant’s description, the record shows that this conduct occurred
      during an off-duty going-away celebration, at which the employee in question supplied
      two piñatas filled with candy and condoms. IAF, Tab 22 at 23. This appears to us to
      have been a joke in poor taste, in contrast to the misconduct at issue here, the vast
      majority of which was intended to cause distress.
                                                                                        19

      community from whom the appellant solicited letters of support in response to the
      proposed removal. IAF, Tab 9 at 40-41. Notwithstanding, it does not appear to
      us that this incident was publicized, widely known, or otherwise had a significant
      effect on the agency’s reputation. Although the deciding official’s assessment of
      this factor was ambiguous, we agree with the appellant that it was not an
      aggravating factor. PFR File, Tab 1 at 16.
¶37         Regarding the ninth factor, the clarity with which the appellant was on
      notice of any rules that he violated, the deciding official found that, as a District
      Ranger, the appellant should have been aware that his conduct was unacceptable.
      IAF, Tab 9 at 41. He also found that the appellant’s conduct ran counter to the
      annual Prevention of Sexual Harassment training that he received, as well as
      certain agency policies and regulations, and his duties as a District Ranger. Id.
      On review, the appellant argues that he had not received the training and that the
      agency was using this factor to “shoehorn” a sexual harassment allegation into his
      case. PFR File, Tab 1 at 16-17. We read the deciding official’s analysis not as
      accusing the appellant of additional uncharged misconduct but rather as listing
      the various reasons that the appellant should have known that the charged
      misconduct was unacceptable. IAF, Tab 9 at 41. In any event, we find that the
      appellant should have required no special training or instruction to realize that his
      conduct was inappropriate.
¶38         Regarding factor ten, the appellant’s potential for rehabilitation, the
      deciding official acknowledged that the appellant expressed remorse for his
      actions, accepted responsibility, and cooperated with the agency throughout the
      investigation and discipline process. Id. at 42. This was tempered somewhat by
      the appellant’s continued insistence that his communications were private and did
      not implicate his trustworthiness or reliability.      Id.   The deciding official
      concluded that, although he had lost trust in the appellant’s judgment and ability
      to act professionally, he nevertheless believed, based on the appellant’s
      statements and work history, that he had potential for rehabilitation.      Id.   On
                                                                                      20

      review, the appellant argues that the proposing and deciding officials failed to
      consider his apology to C.B. and C.B.’s acceptance thereof. PFR File, Tab 1
      at 17-18. We find, however, that, although the deciding official did not discuss
      this matter specifically, he adequately considered the appellant’s statements of
      remorse as a whole and properly considered the appellant’s rehabilitative
      potential to be a mitigating factor. IAF, Tab 9 at 42.
¶39        Regarding factor eleven, mitigating circumstances surrounding the offense,
      the appellant argues that the deciding official failed to consider adequately the
      intense personal difficulties that he was undergoing at the time, including his
      living separately from his wife due to the agency’s broken promise to find a job
      for her nearby, his wife’s being dragged into the acrimonious breakup of the
      affair, the death of the firefighter, and multiple false accusations by agency
      management. PFR File, Tab 1 at 18-20. We find, however, that, apart from the
      “false accusations,” the deciding official considered all of these matters. IAF,
      Tab 9 at 42-43.     We therefore disagree with the appellant that the agency
      minimized the difficult personal circumstances that contributed to his misconduct.
      PFR File, Tab 1 at 20.
¶40        Regarding the twelfth and last Douglas factor, the adequacy and
      effectiveness of alternative sanctions, the appellant asserts that the proposing
      official did not thoroughly analyze what alternative sanctions might have been
      appropriate.    PFR File, Tab 1 at 20; IAF, Tab 10 at 76.                However,
      notwithstanding any lack of analysis by the proposing official, we find that the
      deciding official adequately considered this factor, and it is the adequacy of the
      deciding official’s consideration that is important. IAF, Tab 9 at 43; see Davis v.
      U.S. Postal Service, 120 M.S.P.R. 457, ¶ 6 (2013) (“[I]f the deciding official
      failed to appropriately consider the relevant factors, the Board need not defer to
      the agency’s penalty determination.”) (emphasis added). The appellant also
      argues that the agency imposed other penalties against him in addition to the
      suspension,    including   an   involuntary    detail,   permanent   reassignment,
                                                                                          21

      nonselection for promotion, and blackballing from other District Ranger
      positions. PFR File, Tab 1 at 20-21. However, we have not considered these
      matters, because, even if the agency took these actions against the appellant, they
      are not appealable to the Board. 8 See Maddox v. Merit Systems Protection Board,
      759 F.2d 9, 10 (Fed. Cir. 1985) (finding that a reassignment without loss of grade
      or pay is not an appealable action); Pridgen v. Office of Management and Budget,
      117 M.S.P.R. 665, ¶ 6 (2012) (noting that a nonselection generally is not
      appealable to the Board); Snow v. Department of the Air Force, 39 M.S.P.R. 582,
      584 (1989) (indicating that a temporary detail that does not involve a loss in pay
      or grade is not appealable to the Board).
¶41         For the reasons explained in the initial decision, we agree with the
      administrative judge that the deciding official appropriately considered the
      relevant penalty factors and that his selection of a 30-day suspension was within
      the tolerable limits of reasonableness. ID at 18-21. For the reasons explained
      above, the appellant has not provided an adequate basis to disturb the
      administrative judge’s findings.

                      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. There are several options for further
      review set forth in the paragraphs below. You may choose only one of these
      options, and once you elect to pursue one of the avenues of review set forth
      below, you may be precluded from pursuing any other avenue of review.

      8
        The appellant asserts that he was selected for a final interview for more than 30
      District Ranger positions across the country but that he was not hired due to his
      protected disclosure. PFR File, Tab 1 at 21. Although this matter is not directly
      appealable to the Board, it may form the basis for an individual right of action appeal
      under 5 U.S.C. § 1221, provided that the appellant first exhausts his administrative
      remedies with the Office of Special Counsel under 5 U.S.C. § 1214(a).
                                                                                22

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 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,
                                                                                 23

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.

Other Claims: Judicial Review
      If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices described in 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the U.S. Court of Appeals for the
Federal Circuit or by any court of appeals of competent jurisdiction. The court of
appeals must receive your petition for review within 60 days after the date of this
order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you choose
to file, be very careful to file on time.
      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 about the U.S. Court of Appeals for the Federal Circuit 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. Additional information
about other courts of appeals can be found at their respective websites, which can
be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
      If you are interested in securing pro bono representation for an appeal to the
U.S. Court of Appeals for the Federal Circuit, you may visit our website at
                                                                                 24

http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.




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