                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     HERLINDA RAMOS,                                 DOCKET NUMBER
                 Appellant,                          AT-0752-13-0637-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: November 21, 2014
       SECURITY,
                 Agency.




             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Thomas Tierney, Norwalk, California, for the appellant.

           Kaleb M. Kasperson, Miami, Florida, for the agency.


                                           BEFORE

                           Susan Tsui Grundmann, Chairman
                           Anne M. Wagner, Vice Chairman
                              Mark A. Robbins, Member
               Vice Chairman Wagner issuing a separate, dissenting opinion.

                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed the agency action removing her for lack of candor. Generally, we grant
     petitions such as this one only when:       the initial decision contains erroneous

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     findings of material fact; the initial decision is based on an erroneous
     interpretation of statute or regulation or the erroneous application of the law to
     the facts of the case; the judge’s rulings during either the course of the appeal or
     the initial decision were not consistent with required procedures or involved an
     abuse of discretion, and the resulting error affected the outcome of the case; or
     new and material evidence or legal argument is available that, despite the
     petitioner’s due diligence, was not available when the record closed. See Title 5
     of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
     After fully considering the filings in this appeal, and based on the following
     points and authorities, we conclude that the petitioner has not established any
     basis under section 1201.115 for granting the petition for review. Therefore, we
     DENY the petition for review and AFFIRM the initial decision, which is now the
     Board’s final decision. 5 C.F.R. § 1201.113(b).

                                        BACKGROUND
¶2         Effective May 13, 2013, the agency removed the appellant from her position
     as a GS-12 Deportation Officer with U.S. Immigration and Customs Enforcement
     (ICE) for two specifications of lack of candor occurring on:             (1) January 26,
     2012, when the appellant provided inaccurate information to a highway patrol
     trooper during a traffic stop and detention 2; and (2) February 29, 2012, when the
     appellant provided false information regarding the traffic incident to an Office of




     2
       Specifically, the agency charged that the appellant told the patrol trooper that she was
     an ICE law enforcement officer actively involved in an official “fugitive operation” and
     that she was on her way from an ICE office in Lake City, Florida, where the agency had
     a “space” in a bank, to Gainesville to do a “drive by” to see if the fugitive was there, in
     addition to other inaccurate details regarding her role in the alleged fugitive operation.
     Initial Appeal File (IAF), Tab 5 at 3-4. The proposal notice states that the appellant
     was not on official duty nor assigned to a fugitive team on that date and that ICE does
     not have an office in Lake City. Id. at 4.
                                                                                           3

     the Inspector General (OIG) investigator. 3 Initial Appeal File (IAF), Tab 4 at
     27-31 (decision letter), Tab 5 at 3-8 (proposal notice).
¶3         On June 12, 2013, the appellant filed an appeal of her removal to the Board,
     arguing that the disciplinary action was untimely and excessive in nature. IAF,
     Tab 1. She specifically declined her option for a hearing. Id. at 2. In a June 18,
     2013 acknowledgment order, the administrative judge advised the appellant that
     she had 10 calendar days to file a written request for a hearing and, if she did not
     request a hearing in that time, she would waive her right to one. 4 IAF, Tab 2 at 1.
     On July 9, 2013—8 days past the deadline—the appellant’s newly retained
     attorney moved for a hearing “upon advice of counsel” and for a 30-day
     suspension of the case. IAF, Tabs 8, 9. The administrative judge denied the
     appellant’s untimely request for a hearing but granted the 30-day suspension.
     IAF, Tab 12.     The appellant requested reconsideration of the hearing denial,
     which the administrative judge again denied. IAF, Tab 14, Tab 18 at 1.
¶4         On September 13, 2013, the administrative judge issued a summary of the
     telephonic status conference and order regarding the issues on appeal. IAF, Tab
     19.   The order provided that the appellant did not dispute the lack of candor
     charge or the specifications and that the charged misconduct, by its nature, bore a
     nexus to the efficiency of the service. Id. at 4. As such, the only remaining issue
     to be adjudicated was the reasonableness of the penalty.              Id.   Later, the



     3
       The agency alleged that, during her interview with the OIG investigator, the appellant
     denied telling the highway patrol trooper that she was on duty, on a fugitive operation
     team, or coming from an ICE office in Lake City. IAF, Tab 5 at 4. However, according
     to the proposal notice, the police officer’s dashboard camera recorded the appellant
     saying that she was doing “fugitive operations”; that she was coming from Lake City,
     Florida, where the agency had an office in a bank; that she was with “Immigration” on
     her way to do a drive-by to see if the fugitive was there; and that there were marked
     units waiting for her in Gainesville. Id.
     4
       Pursuant to the Board’s regulations regarding computation of time, 5 C.F.R.
     § 1201.23, the request for a hearing was due no later than Monday, July 1, 2013.
                                                                                       4

     administrative judge issued a second order clarifying the law and elements of
     proof related to the appellant’s disparate penalty claim. IAF, Tab 26.
¶5           In the appellant’s close of record brief, she confirmed that she did not
     dispute the two specifications of lack of candor but argued that the penalty of
     removal was “beyond the tolerable limits of reasonableness” given her medical
     conditions and long history of employment with the agency without prior
     discipline. IAF, Tab 23 at 5. She stated that “numerous” other agency employees
     have been charged with “lack of candor,” in addition to other sustained charges,
     but not removed.       Id. at 5-8.   In support, she submitted notices of proposed
     discipline and/or decision letters based on lack of candor charges for other ICE
     employees. Id. at 10-124; IAF, Tab 25. She also renewed her objection to the
     denial of her untimely request for a hearing. IAF, Tab 23 at 4.
¶6           The agency responded that the deciding official appropriately weighed all
     of the Douglas 5 factors in a conscientious manner and that the penalty of removal
     was appropriate given the “extremely serious” misconduct, especially in light of
     the appellant’s position as a law enforcement officer.         IAF, Tab 30 at 14-23.
     Further, the agency argued that the appellant had failed to show that any of her
     proposed comparators had engaged in substantially similar misconduct or that any
     of them were proper comparators under the applicable analysis. Id. at 25-33. The
     agency noted that it had provided a “plethora” of other cases where law
     enforcement officers were removed by the agency for the offense of lack of
     candor within the last 3 years, including one case with the same deciding official
     as in the appellant’s case. Id. at 34.
¶7           The appellant replied that the agency’s Douglas factor analysis was
     improper and requested that the administrative judge undertake an independent
     Douglas factor analysis. IAF, Tab 33 at 4-5.



     5
         See Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981).
                                                                                       5

¶8         On January 14, 2014, the administrative judge affirmed the agency’s
      removal action, finding that the appellant had failed to carry her burden to
      identify proper comparators and that the penalty of removal, while harsh, did not
      exceed the tolerable limits of reasonableness. IAF, Tab 35, Initial Decision (ID).

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶9         The appellant timely petitioned for review of the initial decision on the
      grounds that the administrative judge abused his discretion by denying her
      untimely request for a hearing and erred by improperly limiting the pool of
      comparators. Petition for Review (PFR) File, Tab 1 at 4-11. The agency opposed
      the petition for review, arguing that the administrative judge did not abuse his
      discretion or commit legal error as the appellant claims, but, even if he did, any
      such error was harmless. PFR File, Tab 3 at 8-26. The appellant replied that the
      denial of her right to a hearing was not harmless. PFR File, Tab 4 at 4-6.

      The administrative judge did not abuse his discretion when he denied the
      appellant’s untimely request for a hearing.
¶10        Failure to timely request a hearing will result in a waiver of that right when
      the appellant has not shown good cause for her failure. Spradlin v. Office of
      Personnel Management, 84 M.S.P.R. 279, ¶ 11 (1999). Here, the appellant did
      not request a hearing when she filed the appeal or timely request one pursuant to
      the June 18, 2013 acknowledgment order, which specifically informed her that
      she had 10 days to submit a written request for a hearing or she would waive her
      right to one. IAF, Tab 2 at 1-2. Nevertheless, the appellant did not request a
      hearing until 8 days past the deadline on July 9, 2013. IAF, Tab 9.
¶11        To determine whether an appellant has shown good cause to waive the
      deadline for requesting a hearing, the Board will consider the same factors
      typically considered in connection with the waiver of the deadline for filing an
      appeal. Beaudette v. Department of Navy, 5 M.S.P.R. 394, 397 (1981). These
      factors include: the length of the delay; whether the employee was notified of the
                                                                                         6

      time limit or was otherwise aware of it; the existence of circumstances beyond the
      control of the employee that affected her ability to comply with the time limit; the
      degree to which negligence by the employee is shown to be present or absent;
      circumstances that show that any neglect involved is excusable; a showing of
      unavoidable casualty or misfortune; and the extent and nature of prejudice to the
      agency that would result from waiver of the time limit. Id. at 397-98; Alonzo v.
      Department of the Air Force, 4 M.S.P.R. 180, 184 (1980). The Board also should
      consider whether the time remaining, as of the date the request for a hearing was
      filed, reasonably permits the convening of a hearing and the rendering of a
      decision within 120 days from the date on which the appeal was filed. Beaudette,
      5 M.S.P.R. at 398; Webb v. U.S. Postal Service, 3 M.S.P.R. 389, 393 (1980).
¶12         The appellant argued below that good cause existed to excuse the untimely
      filed request for a hearing based on her prior pro se status, lack of understanding
      of the importance of a hearing, the failure of the administrative judge to explain
      the importance of the right to testify and cross-examine adverse witnesses, the
      risk of “significant” prejudice to her case if she was denied a hearing, absence of
      prejudice to the agency, and the fact that there were 147 days left until the initial
      decision deadline as, at the time, case processing had been suspended for 30 days
      to allow the parties to conduct discovery. IAF, Tab 14 at 5-6. Further, she noted
      that she had requested a hearing within 1 business day of retaining counsel. Id. at
      5.   The administrative judge denied her request on the grounds that the
      appellant’s prior pro se status and lack of understanding of the importance of
      requesting an evidentiary hearing did not constitute good cause for her untimely
      request. IAF, Tab 18 at 1.
¶13         On review, we discern no reason to disturb the administrative judge’s denial
      of appellant’s untimely hearing request. The appellant does not allege that she
      was unaware of her hearing right or that she was otherwise unable to understand
      and respond to the Board’s acknowledgment order. See Robinson v. Department
      of Army, 50 M.S.P.R. 412, 417 (1991). The fact that she was pro se at the time of
                                                                                         7

      the filing deadline does not constitute good cause; the Board has long held that a
      party’s lack of legal counsel or inability to obtain legal counsel does not establish
      good cause for an untimely filing. McCoy v. U.S. Postal Service, 112 M.S.P.R.
      256, ¶ 8 (2009), aff’d, 360 F. App’x 132 (Fed. Cir. 2010).            Similarly, an
      appellant’s inexperience with legal matters and unfamiliarity with Board
      procedures do not warrant waiver of the Board’s deadlines.            See Brady v.
      Department of Labor, 57 M.S.P.R. 341, 344 (1993), aff’d, 26 F.3d 138 (Fed. Cir.
      1994) (Table).   Although the 8-day delay was not particularly significant, we
      have consistently denied a waiver of a filing deadline if good cause for the delay
      is not shown, even where the delay is minimal and the appellant is pro se. See,
      e.g., Moorman v. Department of the Army, 68 M.S.P.R. 60, 64 (1995) (declining
      to excuse a 3-day delay in filing an appeal where the appellant failed to establish
      good cause for the delay), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table). Further,
      prejudice to another party is only one factor to be considered in determining the
      existence of good cause and, in any event, will not be considered until the
      appellant establishes good cause for the untimely filing.            See Miller v.
      Department of Army, 43 M.S.P.R. 228, 232 (1990). Likewise, the number of days
      remaining until the initial decision deadline is also only one factor to be
      considered and, moreover, does not establish good cause for an untimely filing.
      See Beaudette, 5 M.S.P.R. at 398; see also Alonzo, 4 M.S.P.R. at 184.
¶14         As such, the administrative judge did not abuse his discretion in denying the
      appellant’s untimely request for a hearing.

      The administrative judge did not commit reversible error in his disparate penalty
      analysis.
¶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 factors and exercised management discretion within
      tolerable limits of reasonableness. Davis v. U.S. Postal Service, 120 M.S.P.R.
      457, ¶ 6 (2013); Douglas, 5 M.S.P.R. at 306. In determining whether the selected
                                                                                       8

      penalty is reasonable, the Board gives due deference to the agency’s discretion in
      exercising its managerial function of maintaining employee discipline and
      efficiency.   Davis, 120 M.S.P.R. 457, ¶ 6; Douglas, 5 M.S.P.R. at 306.        The
      Board recognizes that its function is not to displace management’s responsibility
      or to decide what penalty it would impose, but to assure that management
      judgment has been properly exercised and that the penalty selected by the agency
      does not exceed the maximum limits of reasonableness.        Davis, 120 M.S.P.R.
      457, ¶ 6; Douglas, 5 M.S.P.R. at 306. Thus, 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.
      Davis, 120 M.S.P.R. 457, ¶ 6; Douglas, 5 M.S.P.R. at 306.         However, if the
      deciding official failed to appropriately consider the relevant factors, the Board
      need not defer to the agency’s penalty determination. Davis, 120 M.S.P.R. 457,
      ¶ 6.
¶16          To determine the propriety of a penalty, the Board will consider factors
      such as the nature and seriousness of the offense, the employee’s past disciplinary
      record, the supervisor’s confidence in the employee’s ability to perform her
      assigned duties, and the consistency of the penalty with the agency’s table of
      penalties and with those imposed on other employees for the same or similar
      offenses. Davis, 120 M.S.P.R. 457, ¶ 7; Lewis v. Department of Veterans Affairs,
      113 M.S.P.R. 657, ¶ 5 (2010); Douglas, 5 M.S.P.R. at 305-06. Not all of the
      factors will be pertinent in every case, and so the relevant factors must be
      balanced in each case to arrive at the appropriate penalty. Davis, 120 M.S.P.R.
      457, ¶ 7; Douglas, 5 M.S.P.R. at 306.      The seriousness of the misconduct is
      always one of the most important factors in assessing the reasonableness of an
      agency’s penalty determination. Davis, 120 M.S.P.R. 457, ¶ 7.
¶17          As noted above, the appellant’s principal argument is that the removal
      imposed on her was disparate compared to the penalties imposed on other ICE
      employees who were charged with lack of candor, but not removed. To establish
                                                                                          9

      disparate penalties, 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. Boucher v. U.S. Postal Service, 118 M.S.P.R. 640, ¶ 20
      (2012); Lewis, 113 M.S.P.R. 657, ¶ 15. The Board does not have hard and fast
      rules regarding the “outcome determinative” nature of these factors.           Lewis,
      113 M.S.P.R. 657, ¶¶ 12, 15. If an appellant makes this showing, the burden
      shifts to the agency to prove a legitimate reason for the difference in treatment by
      a preponderance of the evidence. Villada v. U.S. Postal Service, 115 M.S.P.R.
      268, ¶ 10 (2010); Lewis, 113 M.S.P.R. 657, ¶ 6.
¶18         The administrative judge determined that the appellant failed to trigger the
      agency’s burden to prove a legitimate reason for any alleged difference in
      treatment because she failed to make an initial showing that a similarly-situated
      employee was treated more favorably. ID at 5. Specifically, he found that none
      of the proposed comparator cases involved the same work unit, supervisors,
      degree of blatancy, or the same type of misconduct, which he characterized as
      making false or misleading statements to an outside law enforcement agency. ID
      at 4-5.
¶19         On review, the appellant argues that the administrative judge improperly
      limited the pool of comparators and characterized her misconduct in an “unduly
      narrow” manner.     PFR File, Tab 1 at 7-8.      We disagree.    The administrative
      judge’s characterization of the first charged misconduct—making false or
      misleading statements to an outside law enforcement agency—appears to be an
      accurate and reasonable statement of the appellant’s misconduct. 6         Moreover,

      6
        The administrative judge did not explicitly discuss the appellant’s second sustained
      charge of lack of candor in the disparate penalty analysis. Such omission, however,
      does not affect the outcome of the analysis.
                                                                                        10

      contrary to the appellant’s argument, the administrative judge did not violate the
      Board’s decision in Villada, by treating a comparator’s geographic location as a
      dispositive factor; he explicitly considered several factors, including the nature of
      the misconduct and the degree of blatancy, as well as “geographic” factors such
      as the proposed comparators’ work unit and chain of command. ID at 4-5.
¶20         In support of her disparate penalty claim, the appellant argues that other
      employees in similar positions were charged with lack of candor, in addition to
      other charges, but were not removed. PFR File, Tab 1 at 7-11. It is well-settled,
      however, that the similarity of comparative employees in a disparate treatment
      case is governed by the nature of their conduct and related circumstances, not by
      the label the agency ascribes to the misconduct.        Chavez v. Small Business
      Administration, 121 M.S.P.R. 168, ¶ 19 (2014) (considering the specific nature of
      the misconduct when analyzing a disparate penalty claim); see also Spahn v.
      Department of Justice, 93 M.S.P.R. 195, ¶ 14 (2003) (concerning disparate
      penalty analysis under Title VII discrimination law).       Here, the extent of the
      appellant’s similarly-situated analysis consists of pointing out that the proposed
      comparators were agency law enforcement officers charged with lack of candor,
      as well as one or more other charges. PFR File, Tab 1 at 7-11. The appellant has
      neither alleged, nor conducted a factual analysis to show, that her misconduct is
      substantially similar to the misconduct underlying the lack of candor charges
      levied against her proposed comparators. Accordingly, she has not established
      that the proposed comparators engaged in substantially similar misconduct. See
      id. Moreover, upon independent review of the underlying misconduct engaged in
      by the proposed comparators apparently identified by the appellant, we find that
      none engaged in misconduct substantially similar to hers.
                                                                                           11

¶21         Although lacking in specificity, the appellant refers to 11 proposed
      comparator employees in her petition for review. 7 PFR File, Tab 1 at 9-10. Five
      of the proposed comparators obtained penalties less than removal as the result of
      settlement agreements with the agency, IAF, Tab 23 at 10-20, 21-41, 42-56,
      79-92, Tab 25 at 4-13, and thus are not valid comparator employees. See Davis,
      120 M.S.P.R. 457, ¶ 10 (where another employee receives a lesser penalty,
      despite apparent similarities in circumstances, as the result of a settlement
      agreement, the agency will not be required to explain the difference in treatment);
      Portner v. Department of Justice, 119 M.S.P.R. 365 ¶ 20 n.4 (2013) (same). Five
      other purported comparators engaged in a lack of candor to an agency supervisor,
      investigator, or the agency’s Office of Professional Responsibility (OPR) during
      an inquiry into other misconduct.      IAF, Tab 23 at 57-66, 118-26 8, Tab 25 at
      14-21, 23-28, 30-37.     Unlike the appellant, however, none of those employees
      lacked candor by attempting to mislead a state law enforcement officer about
      off-duty misconduct to avoid the consequences of unlawful activity. See id. For
      example, in a case from Newark, New Jersey, a deportation officer was suspended
      for 30 days based on the charge of misuse of a government vehicle for driving
      with his girlfriend and her niece, in the vehicle without authorization and two
      specifications of lack of candor based on his subsequent denial of the underlying

      7
        The appellant does not specifically identify each proposed comparator or cite directly
      to the corresponding record evidence in her petition for review. See PFR File, Tab 1 at
      9-10. We have reviewed the record and believe that we have correlated each proposed
      comparator mentioned by the appellant with his or her corresponding notice of proposed
      discipline and, if provided, decision letter. See IAF, Tab 23 at 10-20, 21-41, 42-56,
      57-62, 79-92, 106-15, 118-26, Tab 25 at 4-13, 14-22, 23-29, 30-37.
      8
        The appellant, citing to pages “ASP 175-183,” states that this proposed comparator
      was a supervisory law enforcement officer (LEO) charged with lack of candor and
      “numerous” other charges, but was only subject to a proposed 30-day suspension. PFR
      File, Tab 1 at 10. In fact, the proposal notice at “ASP 175-183” proposes a demotion,
      not a 30-day suspension. IAF, Tab 23 at 118-26. The appellant did not provide the
      agency’s decision letter on this proposed discipline, thus we cannot determine what
      charges, if any, were sustained by the deciding official and what penalty, if any, was
      imposed. See id.
                                                                                             12

      misconduct to his supervisor and OPR. IAF, Tab 23 at 57-66. In another case
      from San Antonio, Texas, an Immigration Enforcement Agent (IEA) was
      suspended for 20 days (with 10 days held in abeyance) based on the charge of
      inattention to duty when he failed to respond to a call for assistance and three
      specifications of lack of candor when he repeatedly provided inaccurate
      information during an agency inquiry into the incident. 9 IAF, Tab 25 at 14-21.
¶22         The final proposed comparator identified by the appellant on review is
      another IEA from Texas who was suspended for 3 days based on the charges of
      conduct unbecoming and lack of candor. IAF, Tab 23 at 106-115. The factual
      background of the charges was that, while on duty and at a Texas State
      correctional facility, the IEA sought to meet with an inmate—who happened to be
      his cousin—and then denied knowing the inmate in two memoranda on the
      incident and when questioned by the agency investigator. Id. at 106-07. The
      deciding official upheld the single specification of conduct unbecoming and one
      specification of lack of candor.      Id. at 113.    As in the appellant’s case, this
      purported comparator’s misconduct involved misleading statements to an outside
      law enforcement organization and subsequent lack of candor regarding those
      statements to an internal investigator. However, the primary misconduct in the
      IEA’s case does not involve the charge of lack of candor and, unlike the
      appellant, the IEA did not attempt to leverage his official position and
      misrepresent his duty status to avoid legal liability for his actions. 10


      9
        The decision notice in this matter was issued on July 29, 2009, nearly 4 years before
      the action against the appellant. The Board has held that the passage of a significant
      amount of time lessons the relevancy of comparator evidence.              See Chavez,
      121 M.S.P.R. 168, ¶ 23 (2014) (finding that a 2-year gap is “significant” and
      “undermines any disparate penalty showing the appellant could otherwise make”).
      10
         Even if the appellant was similarly situated to the IEA, we find that the difference in
      treatment is supported by legitimate reasons. For example, the IEA took responsibility
      for his actions, expressed remorse, and apologized for his misconduct. IAF, Tab 23 at
      113. On the other hand, the appellant did not accept responsibility for her actions;
      instead, she argued that the traffic stop was unlawful/unwarranted and that the
                                                                                           13

¶23         In light of the above, we agree with the administrative judge that the
      appellant failed to show sufficient similarity between her case and those of her
      purported comparators so as to lead a reasonable person to conclude that the
      agency treated similarly-situated employees differently.            Accordingly, the
      appellant did not demonstrate that the penalty imposed upon her was inconsistent
      with penalties imposed upon other employees for the same or similar offenses.
¶24         Moreover, we agree with the administrative judge that the deciding official
      appropriately considered the Douglas factors, including the nature and
      seriousness of the offense in light of the appellant’s position as a law enforcement
      officer, the supervisor’s loss of confidence in the appellant’s ability to do her
      assigned   duties,   and   the   fact   that   her   misconduct    would    leave   her
      Giglio-impaired 11. See ID at 5-6. The appellant’s argument that her misconduct
      has “nothing if little to do with her ability to do her job,” PFR File, Tab 1 at 8-9,
      is unpersuasive. As explained by the deciding official, the appellant’s attempt to
      leverage her official position to avoid possible legal liability implicates the core
      components of her position as a law enforcement officer and undermines the
      public’s trust. See IAF, Tab 4 at 27-28, Tab 30 at 39. Accordingly, we find no
      reason to disturb the administrative judge’s holding that the agency-imposed
      penalty does not exceed the tolerable limits of reasonableness.




      “enormous amount of stress” she was undergoing at the time must have caused her to
      make the “erroneous statements” to the patrol trooper. IAF, Tab 4 at 44-46.
      11
         Under Giglio v. United States, 405 U.S. 150 (1972), investigative agencies must turn
      over to prosecutors, as early as possible in a case, potential impeachment evidence with
      respect to the agents involved in the case. A “Giglio-impaired” agent is one against
      whom there is potential impeachment evidence that would render the agent’s testimony
      of marginal value in a case, which means, of course, that a case that depends primarily
      on the testimony of a Giglio-impaired witness is at risk. See Hathaway v. Department
      of Justice, 384 F.3d 1342, 1349 (Fed. Cir. 2004).
                                                                                 14

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
     You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address: United States Court of Appeals for the Federal
Circuit 717 Madison Place, N.W. Washington, DC 20439.
     The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
     If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States   Code,    at   our   website,   http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
     If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
                                                                           15

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.
                    DISSENTING OPINION OF ANNE M. WAGNER

                                             in

                   Herlinda Ramos v. Department of Homeland Security

                           MSPB Docket No. AT-0752-13-0637-I-1

¶1         I respectfully dissent. First, because I believe that the administrative judge
     failed to consider the relevant factors in deciding whether good cause existed for
     waiving the deadline for requesting a hearing in this case, I would grant the
     appellant’s petition for review and remand this case for further adjudication,
     including a hearing and for reconsideration of the merits of the appeal in light of
     any additional evidence adduced.
¶2         The Board’s policy is to apply its rules in a manner that expedites the
     processing of each case, but with due regard for the rights of all the parties.
     5 C.F.R. § 1201.11.    It is also the Board’s policy that initial decisions in all
     appeals under 5 U.S.C. § 7701 will be issued within 120 days of the filing of the
     appeal. Glover v. Office of Personnel Management, 9 M.S.P.R. 177, 179 (1981);
     Gipson v. Veterans Administration, 1 M.S.P.R. 435, 436 (1980).         In deciding
     whether good cause exists for waiving the deadline for requesting a hearing, the
     Board has therefore instructed that the administrative judge should consider
     whether there is time remaining, after the request is filed, to reasonably permit
     the arrangement of a hearing and the issuance of the initial decision before the
     120-day time limit expires. Glover, 9 M.S.P.R. at 179; see Webb v. U.S. Postal
     Service, 3 M.S.P.R. 389, 393 (1980).
¶3         In this case, the appellant, proceeding pro se, filed her appeal but did not
     submit a request for a hearing within the deadline established by the
     administrative judge. Initial Appeal File (IAF), Tab 1. However, she thereafter
     acquired counsel, who immediately moved for a hearing and a 30-day suspension
     of the case processing to allow for discovery. Id., Tabs 8-9. The request for a
     hearing was made only 13 days after the request deadline set forth in the
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     administrative judge’s order. Id., Tab 8. The administrative judge denied the
     hearing request, but granted the suspension. Id., Tab 12. At the time of the
     appellant’s request for a hearing, there were 91 days left until the deadline for the
     issuance of the initial decision. Thus, there was plainly time remaining, after the
     appellant filed the request, to reasonably permit the arrangement of a hearing and
     the issuance of the initial decision before the 120-day time limit expired.
¶4         Another factor to be considered in deciding whether good cause exists for
     waiving the deadline for requesting a hearing is the degree to which the agency
     would be prejudiced as a result of a waiver of the time limit for filing a hearing
     request. Glover, 8 M.S.P.R. at 179 (citing Alonzo v. Department of the Air Force,
     4 M.S.P.R. 180, 184-85 (1980)). Here, the agency failed to show that granting
     the hearing would prejudice it in any manner.
¶5         The agency nonetheless contends on review that the denial was harmless
     because, given the appellant’s concessions as to the merits of the specifications,
     the only issue before the Board was the reasonableness of the penalty and that the
     only relevant witness would have been the deciding official, who the appellant
     could have, but did not, depose. These contentions are irrelevant to the question
     of whether good cause exists for waiving the deadline for requesting a hearing.
     Moreover, as discussed below, I believe that this case should be remanded for
     further development of the record on the reasonableness of the penalty, including
     providing the appellant an opportunity to cross-examine the deciding official as
     to similarly-situated employees who were treated more leniently and also to
     testify on her own behalf.      In light of the above, even under a deferential
     standard, I believe that the administrative judge should have waived the deadline
     for filing and granted the request for a hearing and that this appeal should be
     remanded for a hearing on the merits. See Glover, 8 M.S.P.R. at 179.
¶6         Second, for the reasons set forth in my separate opinion in McNab v.
     Department of the Army, 121 M.S.P.R. 661 (2014), I also dissent from the
     majority’s analysis of the disparate penalties issue and its determination that the
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     penalty of removal was within the tolerable limits of reasonableness. I would,
     instead, remand this appeal for further adjudication to allow the Board to
     determine those issues on the basis of a fully-developed record, as is required by
     Williams v. Social Security Administration, 586 F.3d 1365, 1368 (Fed. Cir. 2009).
¶7         One of the grounds upon which the appellant challenged the penalty of
     removal as unreasonable was that the agency had imposed a more severe penalty
     on her than it had imposed upon other employees for the same or similar offenses.
     The majority finds that the administrative judge’s characterization of the
     charge—making false or misleading statements to an outside law enforcement
     agency—is an accurate and reasonable statement of the appellant’s misconduct.
     Majority Op., ¶ 18. It also acknowledges that the appellant identified, among
     others, a comparator whose misconduct involved misleading statements to an
     outside law enforcement organization and subsequent lack of candor regarding
     those statements to an internal investigator. Id., ¶ 21. It nonetheless inexplicably
     concludes that the appellant failed to show sufficient similarity between her case
     and those of her purported comparators as to lead a reasonable person to conclude
     that the agency treated similarly-situated employees differently.
¶8         Thus, rather than remanding for further development of the record, the
     majority instead affirms the administrative judge’s determination that the
     appellant has not met her burden of demonstrating that the penalty imposed upon
     her was inconsistent with penalties imposed on other employees for the same or
     similar offenses, and that she therefore failed to trigger the agency’s burden to
     prove a legitimate reason for any alleged difference in treatment. Id., ¶¶ 16-17,
     22.   The majority’s analysis and conclusions cannot be reconciled with U.S.
     Court of Appeals for the Federal Circuit or Board precedent, which places the
     evidentiary burden on this issue upon the agency, not the appellant, and which
     requires that such determinations be based on evidence contained in a
     fully-developed record, rather than on mere speculation.
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¶9          A disparate penalties argument is not an affirmative defense.        5 U.S.C.
      § 7701(c)(1); Chavez v. Small Business Administration, 121 M.S.P.R. 168, ¶ 9
      (2014); Douglas v. Veterans Administration, 5 M.S.P.R. 280, 307-08 (1981) (the
      agency bears the burden of proving the appropriateness of the penalty). Although
      the appellant must raise the disparate penalties issue, the agency bears the
      evidentiary burden on the matter.       Miille v. Department of the Air Force,
      28 M.S.P.R. 248, 251 (1985); Bivens v. Tennessee Valley Authority, 8 M.S.P.R.
      458, 463 (1981); Woody v. General Services Administration, 6 M.S.P.R. 486, 488
      (1981). To “trigger” the agency’s evidentiary burden on disparate penalties, 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.
      Boucher v. U.S. Postal Service, 118 M.S.P.R. 640, ¶ 20 & n.4 (2012); Lewis v.
      Department of Veterans Affairs, 113 M.S.P.R. 657, ¶¶ 12, 15 (2010). I believe
      that the appellant’s evidence clearly triggered the agency’s burden in this case.
¶10         The majority’s conclusion that the appellant failed to demonstrate that the
      penalty imposed upon her was inconsistent with penalties imposed on other
      employees for the same or similar offenses turns longstanding Board precedent on
      its head, transforming an appellant’s obligation to raise the disparate penalties
      issue into an evidentiary burden of proof on the matter.         This is especially
      inappropriate when the issue is the consistency of the penalty because it is the
      agency, not the appellant, that possesses information concerning comparator
      employees.
¶11         In the absence of any agency reason for the difference in treatment, the
      majority offers its own.    Majority Op., ¶¶ 20-21.    Speculation as to why the
      agency might have imposed different penalties, however, is no substitute for
      record evidence. Cf. Williams, 586 F.3d at 1369 (“We decide cases on the record
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      before us, not on the basis of facts stated by counsel. The record before the
      Board, which is the only record we have, does not establish government counsel’s
      factual description of what occurred, and we cannot base our decision on those
      statements.”).
¶12           As in McNab, I neither express nor intimate any views as to what would be
      an appropriate resolution of this case, but only my view that the appropriate
      disposition of this case is to remand it to the administrative judge for further
      proceedings.     See McNab, 121 M.S.P.R. 661, ¶ 9 (Vice Chairman Wagner
      dissenting). On remand, the administrative judge should: (1) develop, as fully as
      possible, the facts relating to whether the agency conscientiously considered the
      consistency of the penalty here with those imposed upon other employees for the
      same or similar offenses; (2) make findings and conclusions on that issue; and (3)
      based on that augmented record and those findings and conclusions, redetermine
      whether the agency met its burden to establish the appropriateness of the penalty
      in this case. Id. Under similar circumstances, the Board in Voss v. U.S. Postal
      Service, 119 M.S.P.R. 324 (2013), recently remanded an appeal for the
      administrative judge to reconsider the reasonableness of the penalty in light of the
      appellant’s claim of disparate penalties, with instructions to allow the parties to
      submit supplemental evidence and argument, including a hearing, if requested, so
      that the administrative judge could analyze the appellant’s claim based on a fully-
      developed record. I believe that the Board should take the same approach in this
      case.
¶13           Accordingly, I respectfully dissent from the majority’s decision to not
      remand this appeal for further adjudication, including a hearing and for
      reconsideration of the merits of the appeal in light of any additional evidence
      adduced, and for further development of the record on disparate penalties and
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reconsideration of whether the agency-imposed penalty is entitled to deference as
an exercise of management discretion within tolerable limits of reasonableness.



______________________________
Anne M. Wagner
Vice Chairman
