                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JEAN FRANCIS,                                   DOCKET NUMBER
                         Appellant,                  DC-0752-14-0763-I-1

                  v.

     DEPARTMENT OF LABOR,                            DATE: March 24, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Kellee B. Kruse, Esquire, and R. Scott Oswald, Esquire, Washington, D.C.,
             for the appellant.

           Beth Heleman, Esquire, and David Edeli, Esquire, Washington, D.C., for
             the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     sustained her 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. See title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, we conclude that the petitioner has not established any basis under section
     1201.115 for granting the petition for review. Therefore, we DENY the petition
     for review.   5 C.F.R. § 1201.113(b).      Except as expressly MODIFIED by this
     Final Order to incorporate the standards set out in Savage v. Department of the
     Army, 122 M.S.P.R. 612 (2015), for affirmative defenses of equal employment
     opportunity (EEO) reprisal and discrimination, we AFFIRM the initial decision.
¶2         The agency removed the appellant from the GS-15 position of Lead Budget
     Analyst based on two charges: (1) excessive use of Government equipment for
     personal, unofficial purposes; 2 and (2) improper use of official work hours for
     personal, unofficial purposes. Initial Appeal File (IAF), Tab 4 at 16, Tab 5 at
     113. The agency specified that, from March through December 2013, on multiple
     occasions during 15 pay periods, the appellant created, worked on, or otherwise
     accessed files on the American Public University System (APUS) website using
     her Government-owned computer during Government work time with the purpose
     of preparing to teach and then teaching several online APUS courses for pay. Id.
¶3         The appellant appealed the agency’s action, denying the misconduct and
     alleging that it constituted discrimination on the bases of race, religion, and
     national origin, and retaliation for filing an EEO complaint. IAF, Tabs 1, 16.
     Based on the record, including the testimony at the hearing, the administrative

     2
       The notice states that there are 18 specifications. Initial Appeal File (IAF), Tab 5 at
     113. However, there are actually 15 specifications. The proposing official explained
     that this error resulted from a lack of editing. See Hearing Transcript at 218.
                                                                                       3

     judge found that the agency proved the charged misconduct by preponderant
     evidence. IAF, Tab 36, Initial Decision (ID).
¶4        The administrative judge found that the agency submitted a report of
     website tracking of the appellant’s computer use, compiled by the agency’s
     information technology department, proving that, between March and July 2013,
     over 90 hours of her time was spent on APUS websites. ID at 5. He also found
     that the agency proved that on the appellant’s computer was an offer of
     employment as an Adjunct Faculty member with APUS dated April 17, 2013, and
     that the vast majority of documents saved on the appellant’s computer through
     December 2013 were nonwork related, but rather were classwork assignments,
     grading of assignments, students’ names, and similar information, showing that
     the appellant engaged in a for-profit business of teaching classes and correcting
     student assignments. ID at 5-6. Thus, the administrative judge found that the
     agency proved charge 1.
¶5        The administrative judge also found that the agency proved that the
     appellant’s time on the APUS website and creating the documents related to
     teaching courses for APUS was not limited to lunch time or nonwork hours, but
     included anytime from morning, mid-morning to mid-afternoon when the
     appellant should have been working on official business. ID at 6. Thus, he found
     that the agency proved charge 2. The administrative judge further found that the
     appellant’s testimony that she accessed the APUS website to advance her official
     duties was not credible. ID at 9.
¶6        The administrative judge also found that the appellant failed to prove her
     affirmative defenses. ID at 13-20. He found that the appellant failed to identify
     any similarly situated employees who were not in her protected class who were
     treated better than she was. ID at 13. He found that she failed to identify any
     other employee regardless of his or her protected class who had been allowed to
     use Government equipment for outside employment or commercial activities, or
     to engage in for-profit activity during their official duty time without discipline.
                                                                                           4

     ID at 14-15. The administrative judge found, moreover, that the appellant failed
     to show that the agency’s action was taken in retaliation for protected EEO
     activity. ID at 15-20. He found that the appellant’s supervisor had been involved
     in settling the appellant’s earlier-filed EEO complaint in the fall of 2012. ID at
     19.   However, the administrative judge found that the appellant’s supervisor
     testified credibly that he did not initiate the assessment of the appellant’s use of
     her computer, and the computer-use investigation was done by employees who
     did not know the appellant or know of her EEO complaint. ID at 19-20. Thus,
     the administrative judge found that the appellant failed to show that the
     investigation   into   her   computer   use   was    based   on   any impermissible
     considerations or motives. Id.
¶7         Finally, the administrative judge found that the penalty of removal was
     within the bounds of reasonableness for the sustained misconduct. ID at 20-22.
     He found that the agency properly considered the Douglas factors, including that
     the appellant had no prior discipline and 24 years of service. However, he found
     that these factors were outweighed by the following:           that the appellant had
     received the annual training on ethics and computer security that included
     specific notice that there is no for-profit use of Government computers; her
     misconduct was repeated over a number of months and was not an inadvertent
     mistake; and the appellant demonstrated an inability or unwillingness to
     recognize that she had done anything wrong. ID at 21-22.
¶8         In her petition for review, the appellant asserts that the administrative judge
     made a number of errors that disallowed her to prove her affirmative defenses.
     However, as explained below, we find that the administrative judge properly
     determined that the appellant failed to prove her affirmative defenses of
     discrimination and retaliation for engaging in EEO activity. 3


     3
       The administrative judge referenced the burden-shifting analysis of McDonnell
     Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973), in analyzing the appellant’s
     discrimination claim. ID at 16. After this initial decision was issued, the Board issued
                                                                                              5

¶9          The appellant asserts that the administrative judge abused his discretion by
      disallowing discovery regarding her affirmative defenses.          When the appellant
      initially filed her appeal, she was represented by counsel. IAF, Tab 1. In that
      appeal, she alleged the affirmative defense of retaliation for filing an EEO
      complaint.   After appeal proceedings had been ongoing for 6 months, counsel
      withdrew, and the appellant designated new counsel. IAF, Tabs 13-14.                 New
      counsel moved for leave to file an amended appeal with additional affirmative
      defenses, and for leave to begin discovery. IAF, Tab 16. The administrative
      judge granted the appellant’s motion to add additional affirmative defenses;
      however, he denied her motion to begin discovery because the time to initiate
      discovery had long passed. IAF, Tab 19.
¶10         Under 5 C.F.R. § 1201.41(b)(4), an administrative judge has broad
      discretion in ruling on discovery matters and, absent a showing of abuse of
      discretion, the Board will not find reversible error in such rulings.          See, e.g.,

      Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 46 (2015), in which it
      determined that that framework has no application to our proceedings. Rather, the
      Board in Savage reaffirmed that it will adhere to the test set forth in Mt. Healthy City
      School District Board of Education v. Doyle, 429 U.S. 274, 287 (1977), in cases
      involving discrimination or retaliation allegations under 42 U.S.C. § 2000e–16.
      Savage, 122 M.S.P.R. 612, ¶ 50. Specifically, where an appellant asserts such an
      affirmative defense, 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. In making her initial showing, an appellant may rely on
      direct evidence or any of the three types of circumstantial evidence described in Troupe
      v. May Department Stores Company, 20 F.3d 734, 736–37 (7th Cir. 1994) (holding that
      evidence of suspicious timing, ambiguous oral or written statements, behavior toward or
      comments directed at other employees in the protected group, and other bits and pieces
      from which an inference of discriminatory intent might be drawn, comparator evidence,
      and evidence that the agency’s stated reason for its action is a pretext for
      discrimination). If the appellant meets that burden, the Board then will inquire whether
      the agency has shown by preponderant evidence that the action was not based on the
      prohibited personnel practice, i.e, that it still would have taken the contested action in
      the absence of the discriminatory motive, and, 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. Savage, 122 M.S.P.R. 612, ¶ 51. Application of Savage to the facts of this
      case similarly results in a finding that the appellant failed to establish her claims of
      discrimination.
                                                                                           6

      Tinsley v. Office of Personnel Management, 34 M.S.P.R. 70, 73-74 (1987). The
      appellant was represented by counsel at the point in proceedings when discovery
      should have been initiated.        In the acknowledgment order, the administrative
      judge informed the appellant that discovery must be initiated within 30 days of
      the date that she filed her appeal, IAF, Tab 2, but no timely discovery was
      initiated. The appellant’s first request to initiate discovery was made by new
      counsel more than 6 months after she filed her appeal, and thus, was untimely.
      IAF, Tabs 1, 16. A delay caused by an appellant’s obtaining new legal counsel is
      not good cause for an untimely filing of discovery. See Murray v. Department of
      the Army, 48 M.S.P.R. 338, 340, aff’d, 951 F.2d 1267 (Fed. Cir. 1991) (Table).
¶11         Moreover, we find the fact that the appellant amended her appeal to include
      additional affirmative defenses does not provide good cause for filing the
      untimely request to initiate discovery. The appellant was aware of the additional
      affirmative defenses raised by her new counsel prior to filing her appeal. In her
      written response to the notice of proposed removal, the appellant contended that
      the   agency’s    action     was   based   on   “documented   historical   and   recent
      discrimination against her on the basis of religion, race, national origin, sex, and
      retaliation.”    IAF, Tab 4 at 34.     The appellant could have raised all of these
      affirmative defenses in her original appeal, and could have timely initiated
      discovery regarding them. She did not show that the information that she sought
      through her delayed discovery request could not have been timely discovered.
      See Murray, 48 M.S.P.R. at 340. The appellant, therefore, failed to show that the
      administrative judge’s ruling regarding discovery constituted an abuse of
      discretion.
¶12         The appellant also contends that the administrative judge abused his
      discretion when he summarily denied her witness request for her previous
      supervisor during a detail to the Department of Justice (DOJ) from 2012 to 2013.
      IAF, Tab 24 at 14.         The appellant indicated that her supervisor would testify
      about her performance and accomplishments while at DOJ, and the reasons why
                                                                                        7

      the appellant requested the detail. Id. The administrative judge did not approve
      this request, finding that this testimony was not relevant to the approved issues of
      whether the appellant engaged in the charged misconduct and whether the
      agency’s action was the result of discrimination or retaliation for protected EEO
      activity. IAF, Tab 33.
¶13        An administrative judge has wide discretion under 5 C.F.R. § 1201.41(b)(8)
      and (10) to exclude witnesses where it has not been shown that their testimony
      would be relevant, material, and nonrepetitious.          Franco v. U.S. Postal
      Service, 27 M.S.P.R. 322, 325 (1985). Based on our review of the record, we
      discern no abuse of discretion in the administrative judge’s exclusion of the
      requested witness. The requested witness supervised the appellant on a detail that
      occurred prior to the occurrence of the charged misconduct, and the proffered
      substance of his testimony concerned her performance on detail, which was not an
      issue before the Board, or concerned issues such as the reason for the detail that
      were within the appellant’s knowledge and to which she could have testified. The
      appellant failed to show that this individual could provide relevant or material
      testimony about the agency’s charges and specifications, or her affirmative
      defenses.
¶14        The appellant further contends that the administrative judge erroneously
      disallowed her attempts to introduce evidence of comparator employees who the
      appellant alleges engaged in similar misconduct but were not removed.            To
      prevail on her discrimination claims based on evidence that comparators were
      treated less harshly, “all relevant aspects of the appellant’s employment situation
      must be ‘nearly identical’ to that of the comparator employee.” Ly v. Department
      of the Treasury, 118 M.S.P.R. 481, ¶ 10 (2012). To be considered “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 without differentiating or mitigating circumstances.”
                                                                                      8

      Id.      The appellant bears the burden of proving discrimination. 5 U.S.C.
      § 7701(c)(2)(B).
¶15         As previously stated, an administrative judge has wide discretion to control
      the proceedings, including the authority to exclude testimony she believes would
      be irrelevant, immaterial, or unduly repetitious, including when an appellant is
      attempting to introduce evidence of comparators through the testimony of hearing
      witnesses. See Guerrero v. Department of Veterans Affairs, 105 M.S.P.R. 617,
      ¶ 20 (2007); Miller v. Department of Defense, 85 M.S.P.R. 310, ¶ 8 (2000). The
      Board has said that, to “obtain reversal of an initial decision on the ground that
      the administrative judge abused his discretion in excluding evidence, the
      petitioning party must show on review that relevant evidence, which could have
      affected the outcome, was disallowed.”         Jezouit v. Office of Personnel
      Management, 97 M.S.P.R. 48, ¶ 12 (2004), aff’d, 121 F. App’x 865 (Fed. Cir.
      2005).
¶16         The appellant asserts that the administrative judge disallowed her to
      cross-examine the official who conducted the assessment of her computer use
      about comparators.    The appellant’s counsel attempted to cross-examine this
      witness about whether his office had been asked to conduct inquiries into similar
      misuse of computer equipment.         Hearing Transcript (HT) at 83.          The
      administrative judge ruled that it was not helpful to know about investigations
      that were conducted. HT at 87. Consistent with Ly, 118 M.S.P.R. 481, ¶ 10, he
      stated that he needed to know about whether the officials who took action against
      the appellant knew about investigations of misuse similar to the appellant’s, what
      they did, and whether there is a distinction between those other circumstances and
      that of the appellant. HT at 83. Thus, he stated that he would wait to determine
      whether further cross-examination of the official who conducted the assessment
      was necessary until after he heard the testimony of the proposing and deciding
      officials, and he asked the agency representative to keep the witness available to
      return and rebut testimony, if needed. HT at 88. The administrative judge found
                                                                                       9

      that it was unnecessary to recall this witness after the proposing and deciding
      officials   had   testified.   The   appellant   has   not   shown   that   further
      cross-examination of the witness who conducted the assessment, or further
      testimony by her would have led to evidence of any other employee with the same
      supervisor who engaged in similar misconduct. We find that the administrative
      judge did not abuse his discretion in limiting the appellant’s cross-examination of
      the witness who conducted the assessment of the appellant’s computer use as to
      his knowledge about comparators.
¶17         Next, the appellant argues that the administrative judge erred in not
      allowing her to testify about her observation of the proposing official’s alleged
      misuse of his Government computer to follow the college basketball tournament
      known as “March Madness.” The administrative judge disallowed the appellant’s
      testimony stating that she had had the opportunity to cross-examine the proposing
      official on this point and failed to do so. HT at 373. He also stated that her
      observations did not show a comparator.      HT at 374.      We agree.   There are
      significant differentiating circumstances between the appellant’s misconduct and
      the alleged conduct of her supervisor. See Ly, 118 M.S.P.R. 481 ¶ 10. There is
      no suggestion that the appellant’s supervisor’s following the basketball
      tournament was a for-profit business conducted over many months as was the
      appellant’s misconduct. Thus, the appellant failed to show that the administrative
      judge disallowed her from giving any relevant testimony, and she has not shown
      that the administrative judge abused his discretion to limiting her testimony about
      alleged comparator employees.
¶18         The appellant also asserts that the administrative judge abused his
      discretion in disallowing her from examining witnesses to show that her
      supervisor initiated the computer assessment in retaliation for her EEO activity.
      It appears that the appellant was trying to establish that the assessment was
      initiated because of her alleged poor performance and that her performance was
      not poor, thus allowing the inference that the assessment was initiated in
                                                                                         10

      retaliation for her protected activity. PFR File, Tab 3 at 17. Contrary to the
      appellant’s assertion, the administrative judge allowed the appellant to
      cross-examine her supervisor extensively about her performance and why she was
      rated minimally satisfactory. HT at 185-222.
¶19            The appellant received a minimally satisfactory performance appraisal in
      2013. Her supervisor explained that the work that the appellant had done on a
      training program that he had assigned her was helpful, but that it was not what he
      had requested. HT at 189, 193. He told the appellant in June 2013 that she had
      not provided him with the training program that he had requested and because she
      had not provided what he requested by the end of the appraisal year, he rated her
      minimally satisfactory.         HT at 194, 196.        The supervisor noted that,
      notwithstanding that the appellant failed to provide the training program that he
      requested, she continued to appear to be busy at her computer. HT at 215. He
      also observed that she was disengaged from what the office was doing, and so in
      October 2013, he explored the possibility of having her transferred to a different
      activity where she might “refresh her outlook and her view.” HT at 134-36. The
      official with whom he discussed the possibility of a transfer suggested that the
      agency determine what caused the appellant to be busy at the computer. HT at
      136. 4
¶20            Based on the record, the administrative judge properly found that the
      appellant’s supervisor notified the appellant as early as June 2013 that the
      training program she developed was inadequate because it did not reflect what she
      had      been   assigned   to    complete.     Thus,    his   observations   of   the
      less-than-satisfactory performance predated the initiation of the computer

      4
        Coincidentally, the result of the computer assessment was given to the appellant’s
      supervisor in December 2013, HT at 216, and he completed the appellant’s minimally
      satisfactory appraisal in December 2013, IAF, Tab 4 at 127. However, as noted, the
      appellant had been made aware that she was not performing up to expectations long
      before the appraisal, and the computer assessment had been initiated months before her
      supervisor was made aware of its results.
                                                                                      11

      assessment, and the appellant failed to show that her alleged poor performance
      was a ruse to initiate the assessment. Further, the administrative judge credited
      the appellant’s supervisor that he did not initiate the idea of the computer
      assessment.    Another agency official did.        See Haebe v. Department of
      Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) (holding 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) . The appellant has failed to show
      by preponderant evidence that a prohibited consideration was a motivating factor
      in the contested personnel action. See Savage, 122 M.S.P.R. 612, ¶ 46.
¶21        As noted, the appellant’s petition for review alleges that the administrative
      judge erred in adjudicating her affirmative defenses of discrimination and
      retaliation for protected activity. However, to the extent that she is arguing that
      the administrative judge erred in determining that the agency proved the charged
      misconduct, we discern no reason to disturb the administrative judge’s
      well-reasoned findings that the agency proved the charged misconduct. We find
      that the administrative judge considered the evidence as a whole, drew
      appropriate inferences, and made reasoned conclusions.          See Broughton v.
      Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987); see also
      Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997).           Based on the
      foregoing, we sustain the appellant’s removal.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            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
                                                                                   12

of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                 P.O. Box 77960
                            Washington, D.C. 20013

      If you submit your request via commercial delivery or by a method
requiring a signature, it must be addressed to:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                131 M Street, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
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
                                                                           13

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