                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DEREK R. WILLIAMS,                              DOCKET NUMBER
                   Appellant,                        PH-0752-14-0438-I-2

                  v.

     DEPARTMENT OF THE AIR FORCE,                    DATE: November 29, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Shaun Southworth, Esquire, Atlanta, Georgia, for the appellant.

           Jeremiah Crowley, Esquire, Joint Base Andrews, Maryland,
              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 his removal. Generally, we grant petitions such as this one only when:
     the initial decision contains erroneous findings of material fact; the initial
     decision is based on an erroneous interpretation of statute or regulation or the


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     erroneous application of the law to the facts of the case; the administrative
     judge’s rulings during either the course of the appeal or the initial decision
     were not consistent with required procedures or involved an abuse of discretion,
     and the resulting error affected the outcome of the case; or new and material
     evidence or legal argument is available that, despite the petitioner ’s due
     diligence, was not available when the record closed.      Title 5 of the Code of
     Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).          After fully
     considering the filings in this appeal, we conclude that the petitioner has not
     established any basis under section 1201.115 for granting the petition for review.
     Therefore, we DENY the petition for review. Except as expressly MODIFIED by
     this Final Order to supplement the administrative judge’s disparate treatment
     analysis, we AFFIRM the initial decision.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2        Effective October 21, 2012, the agency converted the appellant from his
     position as a GS-9 Computer Assistant to a GS-11 Information Technology (IT)
     Specialist (Systems Administration) at the agency’s Expeditionary Center,
     Mission Support Operations.       Williams v. Department of the Air Force,
     MSPB Docket No. PH-0752-14-0438-I-1, Initial Appeal File (IAF), Tab 4 at 66,
     68-69, 74, Tab 14 at 25. On October 11, 2013, the agency proposed to remove
     him on the basis of one charge of “failure to complete training” with a single
     underlying specification, which explained that he had failed to obtain a Level III
     Information Assurance Technician (IAT) Certification within 6 months of his
     appointment, as required by Department of Defense (DOD) Directive 8570.01-M
     for incumbents in his position.    IAF, Tab 4 at 43.    In a November 15, 2013
     decision letter, the deciding official determined that the reasons stated in the
     proposal notice were supported by the evidence and imposed the removal
     effective November 16, 2013. Id. at 21-23.
                                                                                      3

¶3        The appellant timely appealed his removal to the Board and requested a
     hearing. IAF, Tab 1. The appellant argued that the agency charged him with
     “failure to complete training”—not “failure to obtain a certification”—and that it
     could not prove the “failure to complete training” charge because it did not
     provide him any training and could not show that any specific training was
     required as a condition of his employment. IAF, Tab 16 at 13-14. The appellant
     also raised affirmative defenses of harmful procedural error and a due process
     violation in connection with the allegedly defective charge, as well as a race
     discrimination claim.   Id. at 15; IAF, Tab 17 at 2-6.     Prior to the scheduled
     hearing, the appellant notified the administrative judge that he would be
     unavailable for the hearing as a result of an emergency medical procedure , and, at
     the appellant’s request, the administrative judge subsequently dismissed the
     appeal without prejudice to refiling. IAF, Tabs 18-19.
¶4        On December 1, 2014, the Board’s regional office automatically refiled the
     appeal.     Williams    v.   Department    of   the   Air Force,   MSPB    Docket
     No. PH-0752-14-0438-I-2, Appeal File (I-2 AF), Tab 1.          After holding the
     requested hearing, the administrative judge affirmed the removal, finding that the
     agency proved the charge, established nexus, and showed that the penalty was
     reasonable. I-2 AF, Tab 13, Initial Decision (ID) at 3-9, 15-18. She also denied
     the appellant’s affirmative defenses. ID at 9-15.
¶5        The appellant has filed a petition for review of the initial decision, the
     agency has responded in opposition, and the appellant has replied to the agency’s
     response. Petition for Review (PFR) File, Tabs 1, 3-4.

     The administrative judge correctly found that the agency proved the charge.
¶6        As noted above, the agency proposed to remove the appellant based on one
     charge of “failure to complete training,” supported by a single specification,
     which described his failure to complete his Level III IAT Certification within
     6 months of his appointment.      IAF, Tab 4 at 43.      The specification further
     indicated that Information Assurance (IA) certification was a condition of his
                                                                                     4

     employment and that DOD Directive 8570.01-M required him to achieve a
     Level III IAT Certification within 6 months of appointment.            Id.    The
     administrative judge sustained the charge, finding that the agency established by
     preponderant evidence that: (1) the appellant’s position required him to achieve
     Level III IAT Certification within 6 months of entering into his position; and
     (2) he failed to do so. ID at 9.
¶7         The appellant argues on review that the administrative judge abused her
     discretion by construing the agency’s “actual charge of ‘failure to complete
     training’ as the completely separate and distinct charge of ‘f ailure to obtain
     certification.’” PFR File, Tab 1 at 16-20. He further argues, as he did below,
     that the agency did not prove the charge of “failure to complete training” because
     “there was no training provided” and “no specific training was required as a
     condition of employment.” Id. at 18; PFR File, Tab 4 at 5-6.
¶8         An employee must receive advanced written notice stating the specific
     reasons for the proposed adverse action.        5 U.S.C. § 7513(b)(1); Smith v.
     Department of the Interior, 112 M.S.P.R. 173, ¶ 5 (2009). To satisfy this notice
     requirement, an agency is required to state the specific reasons for a proposed
     adverse action in sufficient detail to allow the employee to make an informed
     reply. Smith, 112 M.S.P.R. 173, ¶ 5. Because the appellant must have full notice
     of the charges against him, the Board cannot consider or sustain charges or
     specifications that are not included in the proposal notice.   Id.   However, the
     Board will not technically construe the wording or specifications of a charge. Id.
     In resolving the issue of how a charge should be construed, the Board examines
     the structure and language of the proposal notice and the decision notice, as well
     as the accompanying specifications and circumstances. George v. Department of
     the Army, 104 M.S.P.R. 596, ¶ 7 (2007), aff’d, 263 F. App’x. 889 (Fed. Cir.
     2008); see Otero v. U.S. Postal Service, 73 M.S.P.R. 198, 202-04 (1997).
           Here, although the name of the charge “failure to complete training”
           is imprecise, the specification precisely describes the charged
                                                                                     5

           conduct. In relevant part, the specification quoted the appellant’s
           Standard Core Personnel Document, which provided:                 “IA
           Certification is a condition of employment . . . the incumbent of this
           position must achieve Level III [IAT] certification within six months
           of assignment of these duties[.] Failure to receive the proper IA
           certification may result in removal from this position.” IAF, Tab 4
           at 43. The specification further stated that, “[a]s of this date, you
           have failed to satisfactorily complete Level III [IAT] Certification.”
           Id. In addition, the proposal notice set forth a timeline of relevant
           events leading up to the proposed action. Id. at 43-44. Notably, the
           proposing official wrote, On 13 Sep 2013, I afforded you a final
           opportunity to complete your Level III Assurance Certification. I
           reminded you the [L]evel III certification is a condition of
           employment . . . I directed you to achieve your [L]evel III
           Information Assurance Certification, and turn in your Level III
           Certification to me by close of business 4 October 2013 . . . On
           Monday, 7 October 2013, I met with you and gave you a
           memorandum for record documenting that you have failed to attain
           your Level III [IAT] certification by the stated 4 October 2013
           deadline. Id. at 44.
     The proposing official further noted that, pursuant to DOD Directive
     8570.01-M,
           [N]ew hires . . . must obtain the appropriate certification within
           6 months of being assigned IA functions. As a result of your failures
           to complete Level III [IAT] certification, your [ ] System
           Administrator privileges were revoked on 31 July 2013.
           Consequently, you are no longer able to perform the critic al duties of
           your position[.] Id.
¶9        Despite the clarity of the specification and accompanying circumstances,
     the appellant urges the Board to technically construe the charge by its label and
     require the agency to prove the elements of a “failure to complete training”
     charge. PFR File, Tab 1 at 18. However, the appellant’s “exclusive focus on the
     heading of the Notice of Proposed Removal is misplaced, as charged offenses are
     to be gleaned from the Notice of Proposed Removal as a whole, particularly the
     specification(s) supporting the heading.” Allen v. U.S. Postal Service, 466 F.3d
     1065, 1070 (Fed. Cir. 2006) (finding that, although the name of the charge in the
     proposal notice was “misuse of Postal Service funds,” the specification
                                                                                        6

      underlying the charge afforded the appellant sufficient notice of the elements of
      the distinct charge of failure to timely pay his Government-issued credit card).
      Therefore, we reject the appellant’s contention that the charge must be technically
      construed by its label without reference to the rest of the proposal notice.
¶10           Construing the charge in light of the accompanying specification and the
      surrounding circumstances, including those explicitly discussed in the proposal
      notice, it is clear that the proposed removal was based on the appellant’s failure
      to attain his Level III IAT Certification within 6 months of his appointment,
      which was a DOD requirement and a condition of his employment. Thus, we
      agree with the administrative judge’s implicit interpretation of the charge and
      find that the proposal notice charged the appellant with failure to fulfill a
      condition of employment; namely, a Level III IAT Certification within 6 months
      of his appointment. ID at 3-9.
¶11           To sustain a charge of failure to fulfill a condition of employment, the
      agency must show that:         (1) the requirement at issue is a condition of
      employment; and (2) the appellant failed to meet that condition.         Gallegos v.
      Department of the Air Force, 121 M.S.P.R. 349, ¶ 6 (2014). As noted above, the
      administrative judge found that the agency established by preponderant evidence
      that:     (1) the appellant’s position required him to achieve Level III IAT
      Certification within 6 months of entering into his position; and (2) he failed to do
      so. ID at 9. Because the appellant has not challenged these findings on review,
      and because we discern no error in the administrative judge ’s well-reasoned
      findings regarding these matters, we will not disturb them. See Crosby v. U.S.
      Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no basis to disturb the
      administrative judge’s findings when she considered the evidence as a whole,
      drew appropriate inferences, and made           reasoned conclusions      on issues
      of credibility).
                                                                                              7

      The administrative judge correctly denied the appellant’s harmful procedural
      error and due process affirmative defenses.
¶12         As noted above, the administrative judge found that the appellant failed to
      prove his harmful procedural error or due process affirmative defenses because
      the agency’s proposal letter sufficiently placed him on notice of the charge
      against him and afforded him a reasonable opportunity to respond. 2 ID at 11. On
      review, the appellant challenges this finding, arguing that the agency’s mislabeled
      charge deprived him of his right to reply to the charge and caused the agency to
      reach a different conclusion than it would have reached absent the error. PFR
      File, Tab 1 at 14-15, 17, Tab 4 at 4-5.       He also argues that the administrative
      judge failed to discuss his evidence and did not sufficiently explain the rationale
      underlying her determination that the proposal letter afforded him notice and a
      meaningful opportunity to respond. PFR File, Tab 1 at 15-16.
¶13         The Board has held that due process requires that a Federal employee facing
      removal be provided “notice of the charges against him, an explanation of the
      employer’s evidence, and an opportunity to present his side of the story.”
      Alford v. Department of Defense, 118 M.S.P.R. 556, ¶ 6 (2012) (quoting
      Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985)). Here, as
      discussed above, the appellant received written notice that clearly explained the
      reason for his proposed removal.         IAF, Tab 4 at 43-45.       He further had an
      opportunity to make both a written and an oral response to the deciding official ,
      which he did, and the deciding official considered those responses in deciding to
      impose the removal. Id. at 21, 30, 34-35, 37, 39-41. Because the appellant was



      2
        In the initial decision, the administrative judge identified the appellant’s claim, that
      the agency incorrectly charged him with failure to complete training instead of failure
      to obtain Level III IAT Certification, as a harmful procedural error claim but considered
      the claim under the framework of a due process claim. ID at 9-11. Although the
      administrative judge appears to have conflated the two affirmative defenses, we discuss
      them separately here and agree with her finding that the appellant failed to establish an
      affirmative defense in connection with the agency’s allegedly defective charge.
                                                                                          8

      adequately notified of the charges against him and afforded an opportunity to
      respond, we find that he has failed to establish any due process violation.
¶14         A harmful procedural error occurs when the appellant proves that the
      agency committed a procedural error, whether regulatory or sta tutory, that likely
      had a harmful effect on the outcome of the case before the agency.            Tom v.
      Department of the Interior, 97 M.S.P.R. 395, ¶ 43 (2004). Here, the appellant
      argues that the agency committed a harmful procedural error because, “since the
      agency charged [him] with failure to complete training it’s [sic] conclusion
      should have been that the charge could not be sustained because it failed to meet
      all the elements of the charge.” PFR File, Tab 4 at 5.
¶15         The appellant’s contention that the agency could not prove the charge of
      “failure to complete training” does not implicate a harmful procedural error;
      rather, this argument goes to the merits of the removal action.        As discussed
      above, we find that the agency proved the charge, as construed in light of the
      specification and accompanying circumstances, by preponderant evidence. We
      discern no basis to conclude that the label of the charge constitut ed a harmful
      procedural error. To the contrary, we find that the appellant has not been harmed
      in the least because the agency labeled the charge as “failure to complete
      training” rather than a more precise label, such as “failure to obtain certification”
      or “failure to fulfill a condition of employment.”       Otero, 73 M.S.P.R. at 203
      (finding that the appellant was “not harmed in the least” b ecause the agency used
      a “broad label”).

      We modify the administrative judge’s disparate treatment analysis but still find
      that the administrative judge correctly denied the appellant’s affirmative defense
      of race discrimination.
¶16         The appellant also contests the administrative judge’s finding that he failed
      to prove his affirmative defense of race discrimination. ID at 11-15; PFR File,
      Tab 1 at 20-29, Tab 4 at 6-8. In particular, he argues, as he did below, that the
      agency provided formal training to Caucasian employees at the Expeditionary
                                                                                       9

      Center, but denied him the formal training needed to pass the Level III IAT
      Certification test, which led to his removal. IAF, Tab 16 at 8, 12, 15; PFR File,
      Tab 1 at 20-29, Tab 4 at 6-8.   In the initial decision, the administrative judge
      considered the appellant’s disparate treatment claim and found that he failed to
      “demonstrate that he was treated more harshly than an individual who was not a
      member of his protected group.”        ID at 13.       Although we agree with the
      administrative judge’s ultimate conclusion that the appellant failed to prove this
      affirmative defense, we modify the initial decision to supplement the
      administrative judge’s disparate treatment analysis.
¶17         When an appellant asserts an affirmative defense of discrimination or
      retaliation under 42 U.S.C. § 2000e-16, the Board first will inquire whether the
      appellant has shown by preponderant evidence that the prohibited consideration
      was a motivating factor in the contested personnel action. Gardner v. Department
      of Veterans Affairs, 123 M.S.P.R. 647, ¶¶ 28, 30 (2016); Savage v. Department of
      the Army, 122 M.S.P.R. 612, ¶ 51 (2015).        Such a showing is sufficient to
      establish that the agency violated 42 U.S.C. § 2000e-16, thereby committing a
      prohibited personnel practice under 5 U.S.C. § 2302(b)(1). Naval Station Norfolk
      Hearing 2 v. Department of the Navy, 123 M.S.P.R. 144, ¶ 28 (2016); see Savage,
      122 M.S.P.R. 612, ¶ 51. If the appellant meets his burden, the Board then will
      inquire whether the agency has shown by preponderant evidence that the ac tion
      was not based on the prohibited personnel practice, i.e., that it still would have
      taken the contested action in the absence of the discrim inatory or retaliatory
      motive.   Naval Station Norfolk Hearing 2, 123 M.S.P.R. 144, ¶ 28; Savage,
      122 M.S.P.R. 612, ¶ 51.     If the Board finds that the agency has made that
      showing, its violation of 42 U.S.C. § 2000e-16 will not require reversal of the
      action.   Naval Station Norfolk Hearing 2, 123 M.S.P.R. 144, ¶ 28; Savage,
      122 M.S.P.R. 612, ¶ 51.
¶18         An appellant may meet his initial burden of showing that race was a
      motivating factor in the adverse action through evidence of disparate treatment of
                                                                                       10

      similarly situated comparators. See Savage, 122 M.S.P.R. 612, ¶ 51. For another
      employee to be deemed similarly situated for purposes of an affirmative defense
      of discrimination based on disparate treatment, all relevant aspects of the
      appellant’s employment situation must be “nearly identical” to that of the
      comparator employee. Hooper v. Department of the Interior, 120 M.S.P.R. 658,
      ¶ 6 (2014); Ly v. Department of the Treasury, 118 M.S.P.R. 481, ¶ 10 (2012).
      Thus, to be similarly situated, a comparator must have reported to the same
      supervisor, been subjected to the same standards governing discipline, and
      engaged in conduct similar to the appellant’s withou t differentiating or mitigating
      circumstances. Hooper, 120 M.S.P.R. 658, ¶ 6; Ly, 118 M.S.P.R. 481, ¶ 10.
¶19        Here, the appellant argues that R.T., M.C., and F.F. are similarly situated
      comparators who were treated more favorably by the agency because the agency
      sent them to formal training, but did not send him to formal training, which
      resulted in his failure to pass the Level III IAT Certification test and led to his
      removal. PFR File, Tab 1 at 20-25, Tab 4 at 6-7. The appellant asserts that R.T.,
      a Caucasian Help Desk Technician who worked in the sa me unit and had the same
      first- and second-level supervisors as the appellant, is the “key comparator.” PFR
      File, Tab 1 at 20-25, Tab 4 at 6-7. According to the appellant, the agency sent
      R.T. to formal training to obtain her IAT Certification and later sent her for
      additional training that was not necessary for her position. PFR File, Tab 1 at 23.
      The appellant also argues that two other Caucasian employees, Infrastructure
      Mechanics M.C. and F.F., received training but that the agency denied training
      for two African-American employees, E.S. and K.W., and one Filipino-American
      employee, R.B. Id. at 24; IAF, Tab 16 at 18-19.
¶20        We find that M.C. and F.F. are not similarly situated to the appellant,
      however, because they were Infrastructure Mechanics, while the appellant was an
      IT Specialist, and they were not required to obtain an IAT Certification as a
      condition of their employment. IAF, Tab 16 at 18-19; I-2 AF, Tab 6, Hearing
      Compact Disc (HCD) (testimonies of J.E. and S.B.). In addition, the appellant’s
                                                                                       11

      first- and second-level supervisors, J.E. and S.B., explained that M.C. and F.F.
      were sent to receive training on new telephone equipment that was being installed
      because their job duties required them to install and configure the new equipment .
      HCD (testimonies of J.E. and S.B.).
¶21            R.T., on the other hand, is similarly situated to the appellant because she
      had the same first- and second-level supervisors as the appellant and her position
      required her to obtain an IAT Certification as a condition of employment. IAF,
      Tab 16 at 18; HCD (testimony of J.E.). Even though the agency provided formal
      training to R.T. but did not provide such training to the appellant, the Board must
      still consider whether all of the evidence, taken together as a whole, is sufficient
      to satisfy the appellant’s initial burden of showing, by preponderant evidence,
      that his race was a motivating factor in his removal. See Gardner, 123 M.S.P.R.
      647, ¶¶ 28-30; Savage, 122 M.S.P.R. 613, ¶ 51. For the reasons discussed below,
      however, we find that preponderant evidence does not establish that race was a
      motivating factor in the agency’s decisions regarding training or in its decision to
      remove the appellant for failure to obtain the required certification.
¶22            Although R.T., a similarly situated employee outside the appellant’s
      protected class, was provided formal training, J.E. and S.B. explained that R.T.
      properly requested the training by submitting a written request in the correct
      format describing the requested training and its impact on the mission.        HCD
      (testimonies of J.E. and S.B.).     The appellant avers that he requested training
      multiple times prior to his response to the proposed removal . PFR File, Tab 1
      at 21-23. However, both his first- and second-level supervisors testified that he
      did not request formal training to prepare for the Level III IAT Certification test
      before he responded to the proposed removal.         HCD (testimonies of J.E. and
      S.B.).     The administrative judge credited the supervisors’ testimonies, finding
      that the appellant did not request formal training in writing until after he
      responded to the proposed removal, despite being included on a series of emails
      regarding requesting and purchasing training vouchers. ID at 12; IAF, Tab 16
                                                                                        12

      at 198-99. The appellant also argues that he was not required to request formal
      training in writing, but that he did so in a November 2012 budget plan that he
      submitted to his second-level supervisor in January 2013. PFR File, Tab 1 at 8,
      21, 26. However, the record does not contain a November 2012 budget plan in
      which the appellant requested Level III IAT training. See, e.g., IAF, Tabs 4, 14,
      16; I-2 AF, Tabs 8-9. Thus, we find no basis to disturb the administrative judge’s
      determination that the appellant failed to properly request training until after the
      agency proposed his removal in October 2013—nearly 6 months after the date by
      which he was required to have obtained the Level III IAT Certification. ID at 12;
      IAF, Tab 4 at 43.
¶23         In addition, J.E. and S.B. testified that no one in their unit had been sent to
      formal training to prepare for the Level III IAT Certification test.           HCD
      (testimonies of J.E. and S.B.). J.E. explained that employees were allowed time
      while on duty to study for their certification tests and that there were a variety of
      computer-based training programs available for the employees to use.            HCD
      (testimony of J.E.). K.W., the only other employee in the appellant’s network
      operations team whose position required him to obtain the Level III IAT
      Certification, obtained the certification without attending formal training.
      HCD (testimonies of J.E., S.B., and K.W.). Thus, there is no indication that the
      agency treated the appellant any differently than any other employee whose
      position required Level III IAT Certification.
¶24         The appellant further argues that the agency violated D OD Directive
      8750.01-M by failing to provide him training. PFR File, Tab 1 at 6, 19-29, Tab 4
      at 6-7.   The provision of DOD Directive 8750.01-M cited by the appellant
      provides that “[e]ach category, specialty, and skill level has specific training and
      certification requirements . . . These training and certification requirements must
      be provided by the Department of Defense at no cost to the government
      employees.” PFR File, Tab 1 at 6; IAF, Tab 4 at 83, DOD Directive 8750.01-M,
      C2.3.1. We are not persuaded by the appellant’s contention that this provision
                                                                                       13

      required the agency to provide him formal training to prepare for the IAT
      Level III Certification test. A more plausible reading of this provision is that,
      when specific training for a position is required, the agency must provide that
      training. When, as here, certification is required, but not any particular training,
      DOD Directive 8750.01-M does not impose an obligation on the agency to
      provide formal training to prepare for the certification. IAF, Tab 4 at 83-85. In
      any event, even if the agency had denied a properly submitted request for training
      by the appellant, such matter was within the agency’s managerial discretion and
      would not, on its own, raise an inference of discrimination.
¶25        In light of the foregoing, we agree with the administrative judge that the
      appellant has failed to establish that discrimination was a motivating factor in the
      agency’s decision to remove him for failing to obtain Level III IAT Certification.
      ID at 12-15.

      The administrative judge correctly determined that removal is within th e tolerable
      limits of reasonableness.
¶26        When, as here, all of the agency’s charges are sustained, the Board will
      review the agency-imposed penalty only to determine if the agency considered all
      the relevant factors and exercised management discretion within the tolerable
      limits of reasonableness. Penland v. Department of the Interior, 115 M.S.P.R.
      474, ¶ 7 (2010); Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06
      (1981) (articulating a nonexhaustive list of 12 factors that are relevant in
      assessing the penalty to be imposed for an act of misconduct). In making this
      determination, the Board must give due weight to the agency’s primary discretion
      in maintaining employee discipline and efficiency, recognizing that the Board’s
      function is not to displace management’s responsibility, but to ensure that
      managerial judgment has been properly exercised. Penland, 115 M.S.P.R. 474,
      ¶ 7. The Board will modify or mitigate an agency-imposed penalty only when it
      finds that the agency failed to weigh the relevant factors or that the penalty
      clearly exceeds the bounds of reasonableness. Id. The Board has held that, in an
                                                                                        14

      adverse action resulting from an employee’s failure to maintain a condition of
      employment, the most relevant Douglas factors are: (1) the nature of the offense;
      (2) its effect on an appellant’s performance of the job; and (3) the availability and
      effect of alternative sanctions. Id., ¶ 8.
¶27         In this case, the administrative judge found that the deciding official
      considered the relevant evidence, appropriately weighed the Douglas factors, and
      exercised his managerial discretion within the tolerable limits of reasonableness.
      ID at 16-18; IAF, Tab 4 at 25-31.        Specifically, she noted that the deciding
      official considered the offense to be serious, found that it precluded the appellant
      from performing the essential functions of his position, and that, although the
      agency considered reassigning him to a vacant position that did not require
      Level III IAT Certification, the agency was unable to find a vacant position for
      which he qualified. ID at 16-17; IAF, Tab 4 at 25-31. The administrative judge
      also explained that the deciding official found that the appellant had little
      potential for rehabilitation because he had been unable to obtain the requisite
      certification despite being given time to study while on duty and more than
      6 months to prepare to take the certification examination. ID at 17; IAF, Tab 4
      at 29. The administrative judge further noted that the deciding official considered
      mitigating factors, such as the appellant’s 1 year of service with the agency and
      lack of prior discipline, but concluded that these factors did not outweigh the
      seriousness of the offense. ID at 17; IAF, Tab 4 at 26, 30.
¶28         On review, the appellant argues that the penalty of removal is outside the
      bounds of reasonableness because he only learned of the Level III IAT
      Certification requirement in January 2013 and argues again that he requested
      formal training, but the agency failed to provide it. PFR File, Tab 1 at 29-31. He
      further argues that the deciding official should have given “proper weight” to
      other mitigating factors, such as his heavy work load, his illness, his mother’s
      illness, and his 2-hour commute. Id. at 31.
                                                                                     15

¶29         As discussed above, we disagree with the appellant’s contention that the
      agency was required to provide him formal training to obtain the Level III IAT
      Certification.   Furthermore, even if the appellant did not learn that he was
      required to obtain Level III IAT Certification until January 2013, although he was
      appointed in October 2012, he was still afforded nearly 10 months to obtain the
      certification.   IAF, Tab 4 at 43-45, 48, 51.    The appellant’s other arguments
      constitute mere disagreement with the weight the deciding official afforded to
      each Douglas factor, which does not provide any basis for review.       PFR File,
      Tab 1 at 29-31, Tab 4 at 8-9; see Kirkland v. Department of Homeland Security,
      119 M.S.P.R. 74, ¶ 25 (2013) (explaining that the issue in determining if the
      Board should exercise its mitigation authority is whether the agency considered
      the relevant Douglas factors and reasonably exercised management discretion in
      making its penalty determination). Accordingly, we find no basis to disturb the
      administrative judge’s determination that the deciding official considered the
      relevant Douglas factors and exercised managerial discretion within the tolerable
      limits of reasonableness.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
             The initial decision, as supplemented by this Final Order, constitutes the
      Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
      request further review of this final decision.

      Discrimination Claims: Administrative Review
             You may request review of this final decision on your discrimination
      claims by the Equal Employment Opportunity Commission (EEOC). See title 5
      of the U.S. Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit your
      request by regular U.S. mail, the address of the EEOC is:
                                                                                16

                           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,
religion, sex, national origin, or a disabling condition, you may be entitled to
                                                                           17

representation by a court-appointed lawyer and to waiver of any requirement of
prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.




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