                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     ROBERT E. CANADA,                               DOCKET NUMBER
                   Appellant,                        DC-0752-14-0715-I-1

                  v.

     DEPARTMENT OF THE AIR FORCE,                    DATE: April 2, 2015
                 Agency.



                  THIS ORDER IS NO NPRECEDENTIAL 1

           Allison B. Eddy, Esquire, Virginia Beach, Virginia, for the appellant.

           Eric C. Francum, Joint Base Andrews, Maryland, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1        The agency has filed a petition for review and the appellant has filed a
     cross-petition for review of the initial decision, which sustained the charged
     conduct but mitigated the removal penalty to a 30-day suspension.             For the
     reasons discussed below, we GRANT the petition for review and the
     cross-petition for review, VACATE the initial decision with respect to the

     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     penalty, and REMAND the case to the regional office for further adjudication in
     accordance with this Order.

                                       BACKGROUND
¶2        The appellant filed an appeal of the agency’s action removing him from his
     position as Detective, GS-7.      Initial Appeal File (IAF), Tab 1.       The agency
     conducted an investigation into allegations of misconduct and subsequently
     removed the appellant on five specifications of conduct unbecoming. All five
     specifications   involved   the   appellant’s   alleged   interactions   with   female
     employees of Balfour Beatty Communications working at Balfour Community
     Center (BBCC). IAF, Tab 4 at 106 and 111-219. Specification 1 alleged that,
     between August 2011 and August 2012, the appellant repeatedly commented
     about Ms. T’s 2 “personal appearance which made her uncomfortable and caused
     her to hide or avoid [the appellant] when [he] came to” BBCC. IAF, Tab 4 at
     106. Specification 2 stated that the appellant allegedly made remarks to Ms. B in
     the summer of 2012, directed at her relationship status and her sexual orientation,
     which made her “angry, embarrassed and uncomfortable.” Id. In Specification 3,
     the agency alleged that the appellant grabbed Ms. S’s hand, swinging it, and then
     while looking at a vacant home allegedly stated “‘We could have fun in there,’ or
     words to that effect.” Id. Specifications 4 and 5 involve Ms. K and allegedly
     occurred in the summer of 2012.       The agency alleged in Specification 4 that,
     while walking with Ms. K in the medical clinic, the appellant stated: “Do you
     notice how everyone is looking at us? I bet they are wondering why we were
     walking together and if people thought we were sleeping together or just
     business. We attract attention because I am an older black man and you are a
     younger white woman,” or something similar. Id. Finally, in Specification 5, the
     agency alleged that the appellant asked Ms. K, “whether her boyfriend was black,

     2
       We have used the initials of these employees instead of their full names to respect
     their privacy.
                                                                                         3

     and when she stated he was [the appellant] replied, ‘I know why you are with a
     black man. White woman love black men because they [expletive] good. If your
     boyfriend has issues in that area, I can take care of that,’ or words to that effect.”
     Id.
¶3         After holding a hearing, the administrative judge sustained the first three
     specifications, and thus, she sustained the charge of Conduct Unbecoming of a
     Federal Employee. IAF, Tab 21, Initial Decision (ID) at 3-7. The administrative
     judge did not, however, sustain Specifications 4 and 5.            ID at 7-9.     The
     administrative judge found further that the appellant failed to establish either that
     he was discriminated against based on his race or that his removal was in
     retaliation for engaging in protected activity. ID at 10-13. The administrative
     judge also found no merit to the appellant’s claim that the agency committed
     harmful procedural error because the allegations in the proposal notice lacked the
     necessary specificity, finding that the appellant was able to make lengthy written
     responses and an oral response in which he addressed and denied each
     specification. ID at 13. After finding nexus, the administrative judge mitigated
     the penalty of removal to a 30-day suspension. ID at 15-16.
¶4         The agency has filed a petition for review. Petition for Review (PFR) File,
     Tab 4. The appellant has filed a response to the petition for review and a cross-
     petition for review. PFR File, Tab 6. The agency has filed a response to the
     appellant’s cross-petition for review. PFR File, Tab 9.

                      DISCUSSION OF ARGUMENTS ON REVIEW
     Interim Relief
¶5         The appellant contends that the agency’s petition for review should be
     dismissed because the agency has not properly and timely provided complete
     interim relief. Specifically, the appellant asserts that the agency has made errors
     in the process of providing him with the full pay that he is entitled to under
     interim relief and that the agency has not explained the dates for which he has
                                                                                         4

     received pay. PFR File, Tab 6. The appellant asserts that as of December 30,
     2014, when he filed his cross-petition for review, he has not received full pay
     retroactive to October 28, 2014, and the agency has not provided any estimate as
     to when he will receive the remaining pay. PFR File, Tab 6.
¶6        When an administrative judge has ordered interim relief under 5 U.S.C.
     § 7701(b)(2)(A), an agency must submit a certification with its petition for review
     that it has either provided interim relief or that it has made a determination that
     the appellant’s return to, or presence in, the workplace would be unduly
     disruptive.   5 C.F.R. § 1201.115(b); see DeLaughter v. U.S. Postal Service,
     3 F.3d 1522, 1524-25 (Fed. Cir. 1993); Christopher v. Department of the Army,
     107 M.S.P.R. 580, ¶ 5, aff’d, 299 F. App’x 964 (Fed. Cir. 2008). If the agency
     determines that the appellant's return to the workplace would be unduly
     disruptive, the agency must nevertheless provide pay, compensation, and all other
     benefits during the interim relief period.     5 U.S.C. § 7701(b)(2)(B).      In this
     instance, the agency has provided a statement sworn under penalty of perjury
     from the Commander of the 733 Security Forces, in which he asserted that the
     return of the appellant to his position would be unduly disruptive. PFR File, Tab
     1. In addition, the agency has submitted a Standard Form (SF) 50-B showing that
     the appellant received an “Interim Appointment” to the position of Detective,
     effective October 28, 2014, pending the final decision of the Board. Id.
¶7        The appellant appears to be arguing that the agency did not timely comply
     with the administrative judge’s interim relief order because it did not pay him the
     entire amount of pay he alleges that it owes him by the time it filed its petition for
     review. See PFR File, Tab 6. Generally, an agency must submit evidence of its
     compliance with an administrative judge’s interim relief order no later than the
     deadline for filing its petition for review or cross petition. See Phillips v. U.S.
     Postal Service, 66 M.S.P.R. 143, 144 (1995). The agency, however, did not have
     to show that it actually provided the appellant with the proper amount of pay by
     the deadline date for filing its petition for review but only that it took appropriate
                                                                                              5

     administrative action by this date, such as executing an SF-50 or SF-52, that
     would result in the issuance of his pay, which the agency has done here. Luciano
     v. Department of the Treasury, 74 M.S.P.R. 441, 449 (1997), aff’d, 152 F.3d 948
     (Fed. Cir. 1998) (Table). Further, while the appellant asserts that the agency’s
     pay errors were not promptly corrected, the Board has found that reasonable
     inadvertent delays in issuing pay under an interim relief order do not show
     noncompliance with the interim relief order. Luciano, 74 M.S.P.R. at 450. In
     this case, the appellant has failed to establish that the agency’s errors were
     intentional, or that they were not promptly corrected when brought to the
     agency’s attention.     After considering the parties’ responses, we exercise our
     discretion not to dismiss the agency’s petition for review. See, e.g., Guillebeau v.
     Department of the Navy, 362 F.3d 1329, 1332-34 (Fed. Cir. 2004); Neuman v.
     U.S. Postal Service, 108 M.S.P.R. 200, ¶ 5 (2008); Chavies v. Department of the
     Navy, 104 M.S.P.R. 81, ¶ 4 n.1 (2006); 5 C.F.R. § 1201.115(b)(4).

     Merits of the Charged Misconduct and Affirmative Defenses
¶8         On review, the agency argues that the administrative judge erred in finding
     that it did not prove Specifications 4 and 5, and the agency challenges the
     administrative judge’s credibility findings regarding Ms. K.            Specifically, the
     agency argues that the administrative judge’s credibility determination, that Ms.
     K was not a “sufficiently credible witness to overcome the appellant’s denial,”
     results in both an illogical and implausible factual result. PFR File, Tab 4 at 6,
     14-15.
¶9         However, the administrative judge examined Ms. K’s testimony 3 and
     explained that she found inconsistencies between Ms. K’s testimony and her prior
     statements. The administrative judge also found that Ms. K appeared to “have a
     tendency to embellish” and that she was angry with her former employer. ID at 8.

     3
       The administrative judge’s analysis of Specifications 4 and 5 is a little confusing as it
     appears that the administrative judge repeatedly referred to Ms. K, as “the appellant”
     rather than by her name or “the witness.” ID at 8.
                                                                                           6

      Thus, she concluded that Ms. K was not a credible witness. It is well-established
      that the Board must give deference to an administrative judge’s credibility
      determinations when they are based, explicitly or implicitly, on the observation of
      the demeanor of witnesses testifying at a hearing; the Board may overturn such
      determinations only when it has “sufficiently sound” reasons for doing so. Haebe
      v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). In this instance,
      while the administrative judge’s Hillen 4 type analysis is not as thorough as it
      could have been because she did not explain why she found the appellant’s denial
      more credible than Ms. K’s testimony, the agency’s assertions fail to provide a
      basis for granting review because they constitute mere disagreement with the
      administrative judge’s determinations and fact findings.         Thus, based on the
      record evidence, we see no basis upon which to disturb the administrative judge’s
      credibility determinations in this regard.
¶10        On cross-petition for review, the appellant reasserts that his removal was
      the result of prohibited discrimination and retaliation for his prior equal
      employment opportunity (EEO) activity and the agency failed to prove the
      charged misconduct. PFR File, Tab 6. He has failed to show, however, that the
      administrative judge erred in sustaining three of the five specifications, as well as
      the charge of conduct unbecoming. The applicable law and the record evidence
      support the administrative judge’s finding that the appellant’s interactions with
      three female employees at the BBCC constituted conduct unbecoming. Further,
      as the administrative judge found, the appellant provided no evidence beyond a

      4
       The Board found in Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987),
      that, to resolve credibility issues, an administrative judge must identify the factual
      questions in dispute, summarize the evidence on each disputed question, state which
      version he believes, and explain in detail why he found the chosen version more
      credib le, considering such factors as: (1) the witness’s opportunity and capacity to
      observe the event or act in question; (2) the witness’s character; (3) any prior
      inconsistent statement by the witness; (4) a witness’s bias, or lack of bias; (5) the
      contradiction of the witness’s version of events by other evidence or its consistency
      with other evidence; (6) the inherent improbability of the witness’s version of events;
      and (7) the witness’s demeanor.
                                                                                        7

      mere allegation to support his contention of race discrimination, and he provided
      no evidence beyond the fact that the deciding official was aware of his prior EEO
      complaint to support his contention that the deciding official retaliated against
      him for his prior EEO activity. We have considered the appellant’s arguments on
      review regarding the administrative judge’s weighing of the evidence; however,
      we discern no reason to reweigh the evidence or substitute our assessment of the
      record evidence for that of the administrative judge. See Crosby v. U.S. Postal
      Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the
      administrative judge’s findings when the administrative judge considered the
      evidence as a whole, drew appropriate inferences, and made reasoned
      conclusions); Broughton v. Department of Health & Human Services, 33 M.S.P.R.
      357, 359 (1987) (same); see also Haebe, 288 F.3d at 1302 (the Board may
      overturn credibility determinations that are implicitly or explicitly based on
      demeanor only when it has “sufficiently sound” reasons for doing so).
¶11        In this connection, the appellant also reasserts that the agency failed to meet
      the burden of proving sexual harassment and failed to provide sufficient notice of
      the charge of sexual harassment to meet its due process requirements. However,
      as the administrative judge set forth in her Order and Summary of Prehearing
      Conference dated August 21, 2014, the agency charged the appellant with conduct
      unbecoming, not sexual harassment, and the proposal notice and decision letter
      made no reference to sexual harassment. See IAF, Tab 17. A charge of conduct
      unbecoming has no specific elements of proof and the charge is established by
      proving that the employee committed the acts alleged in the broad label. Canada
      v. Department of Homeland Security, 113 M.S.P.R. 509, ¶ 9 (2010). Here, while
      the deciding official may have believed the appellant’s conduct rose to the level
      of sexual harassment, which would require specific elements of proof, the
      appellant was not charged with sexual harassment. Thus, the administrative judge
      correctly found that the deciding official was required to determine if the
      appellant engaged in the misconduct as charged, conduct unbecoming, which the
                                                                                        8

      deciding official did.   Accordingly, the appellant has shown no error by the
      administrative judge in this regard, and we find no basis upon which to disturb
      the administrative judge’s conclusion that the charge is supported by the evidence
      and that it warrants a disciplinary action by the agency.

      Penalty
¶12        On review, the agency argues that the administrative judge erroneously
      applied Lachance v. Devall, 178 F.3d 1246, 1260 (Fed. Cir. 1999), when she
      mitigated the removal penalty to a 30-day suspension and that, while the
      administrative judge made a general reference to affording the agency deference
      when determining a penalty, her analysis fails to afford that deference and she
      does not explain how the agency’s penalty falls outside the maximum limits of
      reasonableness.   PFR File, Tab 4 at 13.      When the Board sustains all of an
      agency’s charges, the Board may mitigate the agency’s original penalty to the
      maximum reasonable penalty when it finds the agency’s original penalty too
      severe. Lachance, 178 F.3d at 1260. Notwithstanding that authority, the Board
      has long held that, in a case like this, when all of the charges are sustained, even
      when some of the specifications are not, the agency’s penalty determination is
      entitled to deference and should be reviewed only to determine if the agency
      considered all of the relevant factors and exercised its discretion within the
      tolerable limits of reasonableness.       Brough v. Department of Commerce,
      119 M.S.P.R. 118, ¶ 9 (2013); Penland v. Department of the Interior,
      115 M.S.P.R. 474, ¶¶ 7, 12 (2010). In doing so, 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.
¶13        As noted above, the administrative judge mitigated the appellant’s removal,
      finding that the maximum reasonable penalty for the sustained misconduct was a
      30-day suspension. ID at 16. She did so in large part based on the deciding
                                                                                       9

      official’s hearing testimony.   ID at 15. The agency argues, however, that the
      administrative judge mischaracterized the deciding official’s testimony when she
      mitigated the penalty.   Specifically, the administrative judge found that “the
      deciding official testified that he would not have imposed the same penalty if all
      of the specifications were not sustained.” ID at 15. The administrative judge
      stated further that, in most cases she “would not reevaluate the penalty merely
      because some specifications were not sustained if the overall charge was
      sustained. Here, however, the agency deciding official . . . stated that he would
      have not imposed the same penalty if he had not sustained all of the
      specifications.” ID at 15.
¶14        We agree with the agency that the administrative judge apparently
      misconstrued the deciding official’s testimony.     At no time did the deciding
      official state “that he would have not imposed the same penalty if he had not
      sustained all of the specifications.” Rather, on cross-examination, the appellant’s
      attorney asked the deciding official “if there was just one specification in the
      proposed removal, would you have removed Mr. Canada?” Hearing Transcript
      (HT) at 158. The deciding official responded with “[i]f there was just one, no.”
      Id. The appellant’s attorney repeated this line of questioning with each of the
      specifications and the deciding official continued to state that, if there was only
      “one specification” or “an isolated incident” that was not witnessed by a third
      party, he would have believed the appellant.       Further, the deciding official
      repeatedly stated that it was the culmination of four individuals who testified
      against the appellant, that the charged misconduct was not just a one-time
      occurrence but instead he concluded that it was “a pattern of misconduct.” HT at
      152-53, 157, 189.    In addition, the deciding official testified that, even if the
      appellant were not a law enforcement officer held to a higher standard, he still
      would have considered removal because the appellant’s case involved “four
      separate employees.” HT at 204, 227. The deciding official also testified that he
      selected the penalty based on the appellant’s “performance as a police officer or
                                                                                        10

      as his duties of a police officer” and “that it wasn’t an isolated incident on one
      individual.” HT at 228. Thus, we agree with the agency that the administrative
      judge seems to have misconstrued the deciding official’s testimony and then,
      rather than granting deference to the agency’s penalty or explaining why the
      penalty    fell   outside   the   bounds   of   reasonableness,   relied   upon   her
      misunderstanding of the deciding official’s testimony to support mitigating the
      penalty.
¶15        In addition, the appellant challenges the penalty in his cross-petition for
      review. Specifically, he argues that the administrative judge failed to consider
      his comparator evidence and that a removal is inconsistent with the penalty given
      another employee for a similar, but more egregious, offense. PFR File, Tab 6.
      The record reflects that the administrative judge acknowledged that the appellant
      was raising a disparate penalty argument, see IAF, Tab 17 at 3, but yet she
      neglected to address his disparate penalty claim, or to mention any of the
      comparator employees in the initial decision, even though the appellant put on
      evidence for it, i.e., the appellant questioned the deciding official and submitted
      documentary evidence of potential comparators. IAF, Tab 14, at 17-35, Tab 16;
      HT at 196-97, 202-17.
¶16        Further, upon our review of the record, it appears that there is at least one
      individual who may be a comparator, i.e., a police officer who was charged with
      similar type of misconduct.       IAF, Tab 14 at 17-35, Tab 16.     Specifically, the
      appellant submitted evidence showing that an agency police officer, in the course
      of official business, went to the home of a military spouse to check on her
      well-being after a domestic dispute call, and he began an inappropriate
      relationship with her while he was at the home. IAF, Tab 14 at 32-35, Tab 16 at
      38. The proposal notice for the comparator indicates that the police officer was
      previously briefed “not to respond to domestic calls alone due to the volatile
      nature of the situation, but he disregarded those instructions. The comparator’s
      representative argued in his defense that the police officer’s actions “were a
                                                                                      11

      natural reaction by any single man in a similar situation.”       Id. at 40.   The
      comparator employee was charged with Unprofessional Conduct and a 14-day
      suspension was proposed.     The deciding official is that matter sustained the
      charge and upheld the penalty of a 14-day suspension.       Id.   The only reason
      provided by the agency for a difference in penalties between this case and the
      comparator case is the deciding official’s testimony that each commander acts
      under the guise of his or her authority in command and that “[t]hey base their
      decisions on their judgment so they get guidance from lawyers and then they go
      forward on their own basis of what they feel is going to maintain good order and
      discipline in an organization.” HT at 210. The deciding official testified further
      that, because “each commander has [a] different methodology, a different way of
      going forward on administering the justice the way they see fit,” “different
      commanders could give different decisions.” HT at 210, 216.
¶17        Nevertheless, although the initial decision generally set forth the applicable
      law for reviewing disparate treatment claims, see ID at 10, it did not mention the
      evidence concerning the purported comparator employee or explain why any of
      the similarities discussed above did not trigger the agency’s burden to prove by
      preponderant evidence that there was a legitimate reason for the difference in
      treatment. Specifically, as the administrative judge noted, the consistency of an
      agency-imposed penalty with those imposed on other employees for the same or
      similar offenses is one factor the Board will consider in determining whether the
      penalty is reasonable. ID at 15; see Yeager v. General Services Administration,
      39 M.S.P.R. 147, 151 (1988); Douglas v. Veterans Administration, 5 M.S.P.R.
      280, 305 (1981). To establish disparate penalties, the appellant must show that
      the charges and the circumstances surrounding the charged behavior are
      substantially similar to those in the comparator’s case. Archuleta v. Department
      of the Air Force, 16 M.S.P.R. 404, 407 (1983). If an appellant shows that the
      charges and circumstances surrounding the charged behavior of another employee
      are substantially similar, then the agency must prove a legitimate reason for the
                                                                                     12

      difference in treatment by a preponderance of the evidence before the penalty can
      be upheld. Villada v. U.S. Postal Service, 115 M.S.P.R. 268, ¶ 10 (2010); Lewis
      v. Department of Veterans Affairs, 113 M.S.P.R. 657, ¶ 6 (2010).
¶18        To trigger the agency’s burden, the appellant must show that there is enough
      similarity between both the nature of the misconduct and other factors, such as
      whether the appellant and the comparator were in the same work unit, had the
      same supervisor and/or deciding official, and whether the events occurred
      relatively close in time, to lead a reasonable person to conclude that the agency
      treated similarly-situated employees differently. Boucher v. U.S. Postal Service,
      118 M.S.P.R. 640, ¶ 20 & n.4 (2012); Lewis, 113 M.S.P.R. 657, ¶¶ 12, 15.
      However, 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. Once
      the agency’s burden is triggered, the Board will consider whether the agency
      actually treated similarly-situated employees differently, whether the difference
      in treatment was knowing and intentional, whether the agency began levying a
      more severe penalty for an offense without giving notice of a change in policy,
      and whether an imposed penalty was appropriate for the sustained charges. Id.,
      ¶ 15 & n.4 (noting that these factors are consistent with the court’s rationale in
      Williams v. Social Security Administration, 586 F.3d 1365, 1368-69 (Fed. Cir.
      2009)). Again, these considerations are relevant but not outcome determinative.
      Lewis, 113 M.S.P.R. 657, ¶ 15 n.4. Furthermore, an initial decision must identify
      all material issues of fact and law, summarize the evidence, resolve issues of
      credibility, and include conclusions of law and legal reasoning, as well as the
      authorities on which that reasoning rests.     Spithaler v. Office of Personnel
      Management, 1 M.S.P.R. 587, 589 (1980).            As the hearing official, the
      administrative judge is in the best position to resolve these questions. Wilson v.
      Department of Homeland Security, 118 M.S.P.R. 62, ¶¶ 4, 7 (2012).
¶19        Here, because the administrative judge apparently misconstrued the
      deciding official’s testimony to support mitigating the removal penalty to a
                                                                                     13

      30-day suspension, and because she failed to specifically address the appellant’s
      disparate penalty argument in the initial decision, it is necessary to remand this
      appeal for further analysis of the penalty.      In addressing the penalty, the
      administrative judge must reconsider the penalty in light of our analysis of the
      deciding official’s testimony.   The administrative judge also must resolve the
      question of whether the appellant was subjected to a disparate penalty and
      whether the agency met its corresponding burden to show a legitimate reason for
      the difference in treatment. See Villada, 115 M.S.P.R. 268, ¶ 12. On remand, the
      administrative judge also should consider whether the deciding official’s
      testimony that he “was using the incident as an example, but not [the appellant]”
      and that he “showed that the command will not tolerate any type of sexual
      misconduct,” was any indication that the agency began levying a more severe
      penalty for an offense, and, if so, whether the agency provided notice of a change
      in policy. See HT at 194.
¶20        Accordingly, we GRANT both the agency’s petition for review and the
      appellant’s cross-petition for review, VACATE the initial decision with respect to
      the penalty determination, and REMAND the appeal for further adjudication.

                                          ORDER
¶21        For the reasons discussed above, we REMAND this case to the regional
      office for further adjudication in accordance with this Remand Order.




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