                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     RODNEY HOWERTON,                                DOCKET NUMBER
                 Appellant,                          PH-0752-13-0292-I-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: August 21, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Randolph A. Elliott, Camp Hill, Pennsylvania, for the appellant.

           Karen L. Saxton, New Cumberland, Pennsylvania, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The agency has filed a petition for review of the initial decision, which
     sustained the agency’s sole charge of Conduct Unbecoming a Federal Employee
     but mitigated the penalty to a 90-day suspension.         For the reasons discussed



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     below, we GRANT the agency’s petition for review, AFFIRM the initial decision
     IN PART, VACATE it IN PART, and reinstate the agency’s penalty of removal.
¶2         Following his arrest at work for off-duty misconduct, the agency placed the
     appellant on administrative leave and then indefinitely suspended him. Initial
     Appeal File (IAF), Tab 6 at 22-32, 43.          The appellant did not appeal his
     suspension.    He pleaded guilty in state court to a single felony count of
     possession with intent to deliver cocaine and was sentenced to 2 years of
     probation.    Id. at 43.   The agency issued a notice of proposed removal and,
     following the appellant’s oral and written replies, removed him on a single charge
     of Conduct Unbecoming a Federal Employee.            Id. at 51-56.   The appellant
     appealed to the Board. IAF, Tab 1. Following a hearing, the administrative judge
     found that the agency established the charged off-duty misconduct and a nexus
     between the misconduct and the efficiency of the service. IAF, Tab 17, Initial
     Decision (ID) at 5. Although the administrative judge rejected the appellant’s
     affirmative defense of race discrimination regarding the agency’s choice of
     penalty, he mitigated the appellant’s removal to a 90-day suspension because the
     agency was unable to explain why it had failed to discipline the comparator
     employees identified by the appellant, whose misconduct, although not identical
     to the appellant’s, was (in the administrative judge’s estimation) of similar or
     greater culpability, and, more importantly, for which those employees, unlike the
     appellant, received significant jail time. ID at 6-11.
¶3         In its petition for review, the agency argues that the administrative judge
     erred in his interpretation and application of Board law regarding disparate
     penalties, improperly concluded that the agency’s search for comparators was
     inadequate, and failed to give proper deference to the agency’s choice of penalty.
     Petition for Review (PFR) File, Tab 1. Because the Board must base its analysis
     of disparate penalties on a fully-developed record, see Davis v. U.S. Postal
     Service, 120 M.S.P.R. 457, ¶ 8 (2013) (citing Williams v. Social Security
     Administration, 586 F.3d 1365 (Fed. Cir. 2009)), the Board issued an Order to
                                                                                            3

     Clarify the Record requesting additional information from the parties, PFR File,
     Tab 4. Specifically, the Board requested supplemental information concerning:
     (1) the duties and supervisory chains of the four comparator employees identified
     by the appellant; (2) whether any of these comparator employees had prior
     criminal convictions and, if so, what effect, if any, that information might have
     on the penalty analysis; (3) whether the difference in treatment was knowing and
     intentional, or whether the agency began levying a more severe penalty for a
     charged offense without giving notice of a change in policy; (4) the actual court
     documents concerning the comparators’ convictions; and (5) why the deciding
     official came to the conclusion that the appellant lacked rehabilitative potential
     and what, if any, impact the appellant’s prior conviction for engaging in similar
     conduct had on the deciding official’s conclusion. Id. We have considered both
     parties’ responses to the Board’s order. PFR File, Tabs 7-17. 2
¶4         Where, as here, all of the agency’s charges have been sustained, the Board
     will review an agency-imposed penalty only to determine if the agency
     considered all of the relevant factors and exercised management discretion within
     tolerable limits of reasonableness.         Woebcke v. Department of Homeland
     Security, 114 M.S.P.R. 100, ¶ 7 (2010); Douglas v. Veterans Administration, 5
     M.S.P.R. 280, 306 (1981).         In determining whether the selected penalty is
     reasonable, the Board gives due deference to the agency’s discretion in exercising
     its managerial function of maintaining employee discipline and efficiency.
     Woebcke, 114 M.S.P.R. 100, ¶ 7. The Board recognizes that its function is not to

     2
       We agree with the administrative judge’s disposition of the appellant’s affirmative
     defense of race discrimination. In order to prevail on such a claim, the comparator
     employees’ circumstances must be “nearly identical” to that of the appellant, i.e., that
     they reported to the same supervisor, were subject to the same standards of discipline,
     and engaged in conduct similar to the appellant’s without differentiating or mitigating
     circumstances. See, e.g., McCurn v. Department of Defense, 119 M.S.P.R. 226, ¶ 17
     (2013). The administrative judge correctly found, and the record on review confirms,
     that none of the comparator employees reported to the same supervisor or engaged in
     conduct that was conduct similar to the appellant’s without differentiating or mitigating
     circumstances.
                                                                                            4

     displace management’s responsibility, or to decide what penalty it would impose,
     but to assure that management judgment has been properly exercised and that the
     penalty selected by the agency does not exceed the maximum limits of
     reasonableness. Id. Thus, the Board will modify a penalty only when it finds that
     the agency failed to weigh the relevant factors or that the penalty the agency
     imposed clearly exceeded the bounds of reasonableness. However, if the deciding
     official failed to appropriately consider the relevant factors, the Board need not
     defer to the agency’s penalty determination. Id.
¶5         The Board has articulated factors to be considered in determining the
     propriety of a penalty, such as the nature and seriousness of the offense, the
     employee’s past disciplinary record, the supervisor’s confidence in the
     employee’s ability to perform his assigned duties, the consistency of the penalty
     with the agency’s table of penalties, and the consistency of the penalty with those
     imposed on other employees for the same or similar offenses.                   Lewis v.
     Department of Veterans Affairs, 113 M.S.P.R. 657, ¶ 5 (2010); Douglas,
     5 M.S.P.R. at 305–06. Not all of the factors will be pertinent in every instance,
     and so the relevant factors must be balanced in each case to arrive at the
     appropriate penalty.     Douglas, 5 M.S.P.R. at 306. The seriousness of the
     appellant’s offense is always one of the most important factors in assessing the
     reasonableness of an agency’s penalty determination. Schoemer v. Department of
     the Army, 81 M.S.P.R. 363, ¶ 12 (1999).
¶6         We    agree    with    the    administrative    judge    that   the    appellant’s
     misconduct--possession of cocaine with intent to distribute—was very serious.
     ID at 11; see Brook v. Corrado, 999 F.2d 523, 527-28 (Fed. Cir 1993). 3 We also
     find that the deciding official’s conclusion that the appellant lacked rehabilitative

     3
       In its response to the Board’s order, the deciding official stated that he did not
     consider the appellant’s pre-appointment conviction for a similar offense as part of his
     penalty analysis. PFR File, Tab 7 at 9 (affidavit of the deciding official). Accordingly,
     the appellant’s prior conviction is not pertinent to the penalty determination in this
     case.
                                                                                        5

     potential resulted from the proper exercise of his management judgment.
     Woebcke, 114 M.S.P.R. 100, ¶ 7.       Specifically, in its response to the Board’s
     order, the deciding official explained that, in his view, the appellant demonstrated
     a complete lack of candor in the disciplinary process. PFR File, Tab 7 at 7. We
     agree. For example, in response to the agency’s proposed indefinite suspension,
     the appellant denied that he engaged in the misconduct and stated that “[i]f I was
     guilty I would resign and accept any punishment.” IAF, Tab 11 at 10. Although
     the appellant later pleaded guilty to the offense, id. at 8, rather than accepting
     responsibility, he instead claimed in his oral response to the notice of proposed
     removal that he had been falsely accused by another drug dealer, PFR File, Tab 7
     at 9 (affidavit of the deciding official).   Under the circumstances, we find no
     basis for questioning the deciding official’s opinion that the appellant’s prospects
     for rehabilitation were low.
¶7         As stated above, however, the appellant has also raised a claim of disparate
     penalties. In Boucher v. U.S. Postal Service, 118 M.S.P.R. 640 (2012), the Board
     clarified the criteria necessary for showing disparate penalties. Specifically, the
     Board held that an appellant must show that there is enough similarity between
     both the nature of the misconduct and the other factors to lead a reasonable
     person to conclude that the agency treated similarly-situated employees
     differently, but the Board will not have hard and fast rules regarding the
     “outcome determinative” nature of these factors. Id., ¶ 20. The agency’s burden
     to prove a legitimate reason for the difference in treatment between employees is
     triggered by the appellant’s initial showing that there is enough similarity
     between both the nature of the conduct and the other factors to lead a reasonable
     person to conclude that the agency treated similarly-situated employees
     differently. Id., ¶ 24. 4


     4
       The agency complains that the administrative judge improperly concluded that its
     search for comparators was inadequate, characterizing its complaint in the context of
     discovery. PFR File, Tab 1 at 15-16. However, the comment at issue instead has to do
                                                                                          6

¶8         In its response to the Board’s order, the agency reasserts its position below
     that it imposed the same discipline in this case that it had imposed with respect to
     a nearly identical comparator employee. PFR File, Tab 7 at 4, 9 (affidavit of the
     deciding official); IAF, Tab 11 at 22-28. Specifically, the agency states that, in
     2010, it also removed an employee based on a charge of conduct unbecoming
     after the employee pleaded guilty to charges of Possession with Intent to Deliver.
     PFR File, Tab 7 at 9. The agency further states that, although the comparator
     employee had no prior discipline and 6 years of service, the deciding official
     considered the criminal misconduct to be very serious and determined that the
     employee had no potential for rehabilitation. Id. We note that this comparator
     employee’s criminal misconduct resulted in his long-term imprisonment. IAF,
     Tab 11 at 22.
¶9         The agency also contends in its response that there is not enough similarity
     between the appellant and the four comparators he identified to lead a reasonable
     person to conclude that the agency treated similarly-situated employees
     differently. PFR File, Tab 7 at 4, 9-12. We disagree. PFR File, Tab 7 at 39-42.
     The appellant and comparator S.Y. both worked at the same installation, Naval
     Supply Center in Mechanicsburg, PA, where the appellant served as a GS-9
     Distribution Facilities Specialist and S.Y. served as a GS-7 Lead Supply
     Technician. Id. at 39-40. However, the appellant and S.Y. did not have the same
     first or second-level supervisors. Id. at 12. Comparators V.O., F.O., and D.O.
     worked at a separate installation—the Defense Distribution Center, in New
     Cumberland PA—as a WG-5 Distribution Process Worker, a GS-12 Supply
     Management      Specialist,   and   a   GS-12    Distribution   Facilities   Manager,




     with the agency’s responsibility to defend its choice of penalty and the administrative
     judge’s assessment of the agency’s evidence. See ID at 8; see also Lewis, 113 M.S.P.R.
     657, ¶ 6. Nevertheless, we find nothing inappropriate in the administrative judge’s
     remarks.
                                                                                           7

      respectively, and none shared common first or second-level supervisors with the
      appellant. Id. at 11, 41-42. 5
¶10         Although one comparator, S.Y., was convicted of possession of a small
      amount of marijuana for personal use, see PFR File, Tab 11 at 5, none of the
      proffered comparators were convicted of possession with intent to deliver
      cocaine.    Each of the comparators had a history of criminal misconduct.
      Comparator S.Y. previously pleaded guilty to (1) misdemeanor driving under the
      influence (DUI) and was ordered confined for a sentence of 72 hours to 6 months,
      (2) misdemeanor possession and use of drug paraphernalia and confined for 1 to
      12 months, (3) misdemeanor simple assault and received probation, (4) one count
      of first degree misdemeanor DUI and was ordered confined for a maximum of
      90-days. IAF, Tab 12, Exhibit 3; PFR File, Tabs 9-13. Comparator D.O. pleaded
      guilty twice in 2005 to first degree misdemeanor DUI and appears to have been
      sentenced to imprisonment (60 months maximum). IAF, Tab 12, Exhibits 2-5. In
      2007, V.O. pleaded guilty to one count of first degree misdemeanor DUI (highest
      blood alcohol level) and was sentenced to 45 days to 60 months of
      incarceration. IAF, Tab 12, Exhibit 4; PFR File, Tab 14-15. In 2009, F.O. was
      found guilty of Insurance Fraud and Theft, both third degree felonies, and
      sentenced to 23 months of probation.            In 2011, F.O. pleaded guilty to
      (1) misdemeanor DUI (high rate of blood alcohol) and was ordered confined for
      between 30 days and 6 months and (2) a second degree misdemeanor count of
      recklessly endangering another person and sentenced to probation. IAF, Tab 12,
      Exhibit 5; PFR File, Tab 16.       It is undisputed that none of these individuals
      received any punishment from the agency for their criminal conduct. 6

      5
        As the administrative judge correctly noted, an agency’s action is fairly subject to
      question if the comparator receiving more lenient treatment is a supervisor. ID at 11;
      see Reid v. Department of the Navy, 118 M.S.P.R. 396, ¶ 19 (2012).
      6
       The appellant also submits for the first time on review information concerning another
      comparator, BS. PFR File, Tab 17. Because comparator BS’s alleged misconduct
      occurred in 2013 after the appellant’s misconduct, the deciding official could not have
                                                                                           8

¶11         In light of the foregoing, we believe that the appellant identified individuals
      who were similarly situated to him in terms of their criminal records but whom
      the agency treated differently. As such, the burden shifts to the agency to proffer
      a legitimate reason for removing the appellant, who received no jail time for his
      off-duty misconduct, while imposing no discipline at all on the comparators,
      some of whom received jail time for off-duty misconduct that was equally, if not
      more serious, than his misconduct. ID at 10-11. We find that the agency has met
      this burden here. In his affidavit, the deciding official explained that none of the
      comparator employees identified by the appellant were arrested at work and that
      he was unaware of their off-duty misconduct until he was presented with
      information concerning these employees from the appellant. Id. In this regard,
      we note that the information provided by the appellant concerning these
      comparators was derived from his search of public court records; there is no
      indication that any of this information could have been discovered by reviewing
      the agency’s personnel records; and there is no evidence that the comparator
      employees’ supervisors were aware of the comparator employees’ off-duty
      misconduct. Id. By contrast, the deciding official stated that he was directly
      aware of the appellant’s off-duty misconduct because he was arrested on the
      agency’s Mechanicsburg, PA installation during duty hours and in the presence of
      his coworkers and because his arrest, which involved multiple law enforcement
      officers, created a “spectacle” on the installation that resulted in an official report
      concerning the incident and an order barring the appellant from the facility. PFR
      File, Tab 7 at 9-10.
¶12         The deciding official also stated in his declaration that it appeared from his
      review of the appellant’s materials that the four comparators had lesser-graded
      offenses than the appellant; that every conviction except one was either a



      considered this information in making his penalty determination. Accordingly, we have
      not considered the appellant’s submission concerning comparator BS on review.
                                                                                       9

      misdemeanor or a summary offense; and that the jail time served by the
      comparators appeared to be because the four comparators each had DUIs. PFR
      File, Tab 7 at 10. The deciding official further stated that the agency has never
      considered a DUI to be as serious of a criminal offense as drug dealing. Id. at 11.
      Thus, whereas the agency has granted work releases to employees who pleaded
      guilty to DUIs that resulted in incarceration and would potentially grant a work
      release to an employee involving drug use if the employee enrolled in its alcohol
      and drug prevention program, the deciding official stated that the agency has
      never approved a work release request for an employee with a drug distribution
      conviction and he would not do so. PFR File, Tab 7 at 10, 16-31, 33-35.
¶13        Considering the record as a whole, we find that the deciding official
      conscientiously considered the consistency of the penalty as required by Douglas.
      The agency has established that it imposed the same discipline in this case that it
      had imposed with respect to a nearly identical comparator employee. Moreover,
      there is no evidence in the record indicating that the difference in treatment
      between the appellant and the comparators he identified was knowing or
      intentional or because the agency began levying a more severe penalty for a
      charged offense without giving notice of a change in policy. Rather, it appears
      that the lack of discipline in those employees’ cases was either because the
      agency was unaware of the nature of their misconduct, or, to the extent that it was
      aware, it had reason to believe that the jail time served by these employees was
      for lesser offenses such as a DUI.
¶14        Based on the foregoing, we conclude that, in making its penalty
      determination, the agency considered all of the relevant factors and exercised
      management      discretion   within    tolerable    limits   of    reasonableness.
      Woebcke, 114 M.S.P.R. 100, ¶ 7. Moreover, our reviewing court has long made
      clear that removal for the type of misconduct at issue here is well within the
      bounds of reasonableness. See, e.g., Brook, 999 F.2d at 527-28 (reversing the
      arbitrator’s reinstatement of an employee removed after being convicted of
                                                                                      10

      possessing cocaine with intent to distribute, holding that the nexus between the
      misconduct and the efficiency of service is presumed where the employee is
      involved with drug trafficking, even if limited to off-duty hours, and that removal
      is not so harsh and unconscionably disproportionate to the offense that it amounts
      to an abuse of discretion).
¶15         Accordingly, we VACATE that portion of the initial decision mitigating the
      agency’s penalty and SUSTAIN the appellant’s removal.         This constitutes the
      Board’s final decision in this matter. 5 C.F.R. § 1201.113.

                      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 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
                                                                                   11

      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
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. § 2000e5(f)
and 29 U.S.C. § 794a.




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