                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     TIMOTHY JONES,                                  DOCKET NUMBER
                  Appellant,                         CB-7121-15-0011-V-1

                  v.

     DEPARTMENT OF LABOR,                            DATE: April 16, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Timothy Jones, Saint Louis, Missouri, pro se.

           Dana M. Shannon, Kansas City, Missouri, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The appellant has filed a request for review under 5 U.S.C. § 7121(d) of an
     arbitrator’s decision that denied the grievance concerning his removal. For the
     reasons discussed below, we AFFIRM the arbitrator’s decision. We further FIND
     that the appellant failed to prove his claim of race discrimination.



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                       BACKGROUND
¶2         Effective September 11, 2013, the appellant was removed from his Equal
     Opportunity Specialist position for failure to provide accurate information and
     lack of candor. MSPB Docket No. CB-7121-15-0011-V-1, Request for Review
     (RFR) File, Tab 1 at 34-44. The failure to provide accurate information charge
     was supported by two specifications and the lack of candor charge was supported
     by three specifications. 2 See id. at 39-42.
¶3            The appellant challenged the action through arbitration pursuant to the
     negotiated grievance procedure.        See id. at 45.      Following a hearing, on
     August 25, 2014, the arbitrator issued a decision denying the grievance. Id. at
     46-58.     The arbitrator sustained both specifications of the failure to provide
     accurate information charge and two of three specifications of the lack of candor
     charge.    See id. at 55-58.   Specification 1 of the failure to provide accurate
     information charge alleged that the appellant failed to provide accurate
     information in response to question 12 of Optional Form 306 (OF-306),
     Declaration for Federal Employment, by failing to disclose his resignation after
     being removed from his prior position at the Department of Agriculture in 2008.
     See id. at 8-11.     Specification 2 alleged that the appellant failed to provide
     accurate information in his employment application regarding his employment
     history as a Criminal Investigator with the Department of Homeland Security
     (DHS). See id. at 11-13.
¶4         Specification 1 of the lack of candor charge alleged that, during his
     recruitment interview, the appellant was not forthright about the fact that he only
     performed his job duties as a Criminal Investigator for the DHS for approximately
     2 weeks and failed to disclose that he was on extended administrative leave
     during the majority of the 21 months he indicated that he was employed there on

     2
       Initially, the agency provided four specifications in support of its lack of candor
     charge, however, the deciding official did not sustain specification 3. RFR File, Tab 1
     at 15, 41.
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     his résumé. See id. at 14. Specification 2 alleged that during the same interview,
     the appellant was not forthright about the fact that he went from a GS-12
     Criminal Investigator to a GS-6 Deportation Assistant, not because he was in a
     “holding pattern” regarding his top secret clearance as he stated but because he
     had been removed from his Criminal Investigator position for failure to obtain a
     top secret clearance, and, as a result of a settlement agreement, the agency agreed
     to place him in the Deportation Assistant position. Id. Having determined that
     the agency proved both of its charges, the arbitrator also found that removal was a
     reasonable penalty that promoted the efficiency of the service. Id. at 58.
¶5         On September 26, 2014, the appellant electronically filed an “appeal” with
     the Board’s Central Regional Office challenging the arbitrator’s decision. 3 IAF,
     Tab 1. Recognizing that the “appeal” was properly a request for review of the
     arbitrator’s decision, which should have been filed with the Clerk of the Board,
     see Brent v. Department of Justice, 100 M.S.P.R. 586, ¶ 6 (2005), aff’d,
     213 F. App’x 993 (Fed Cir. 2007), the administrative judge issued a decision on
     December 15, 2014, transferring the request for review to the Clerk of the Board, 4
     IAF, Tab 9, Initial Decision.




     3
       Although the Board did not receive the appellant’s request for review until sometime
     on or after December 15, 2014, his initial filing with the Central Regional Office on
     September 26, 2014, was within the 35-day time period for requesting review of the
     August 25, 2014 arbitration decision. See MSPB Docket No. CH-0752-15-0003-I-1,
     Initial Appeal File (IAF), Tab 1. Thus, we find his request for review was timely filed.
     See Keller v. Department of the Army, 113 M.S.P.R. 557, ¶ 4 (2010).
     4
      The appellant also electronically filed an opposition to the agency’s motion to dismiss
     on October 28, 2014, as well as a “Petition for Review” on December 23, 2014. IAF,
     Tab 7; RFR File, Tab 2. We have considered both pleadings as supplements to the
     appellant’s request for review. We also have considered the agency’s opposition to the
     appellant’s request for review. RFR File, Tab 5.
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                                        ANALYSIS
     The Board has jurisdiction over the appellant’s request for review of the
     arbitrator’s decision.
¶6        The Board has jurisdiction to review an arbitration decision under 5 U.S.C.
     § 7121(d) where the subject matter of the grievance is one over which the Board
     has jurisdiction, the appellant has alleged discrimination as stated in 5 U.S.C.
     § 2302(b)(1) in connection with the underlying action, and a final decision has
     been issued.   Keller, 113 M.S.P.R. 557, ¶ 5.      Under Board regulations that
     became effective November 13, 2012, an appellant can establish Board
     jurisdiction over a request for review of an arbitration decision only if the
     appellant either raised a claim of discrimination under 5 U.S.C. § 2302(b)(1) with
     the arbitrator in connection with the underlying action or raises a claim of
     discrimination in connection with the underlying action under 5 U.S.C.
     § 2302(b)(1) for the first time with the Board if such allegations could not be
     raised in the negotiated grievance procedure. See 5 C.F.R. § 1201.155(c); see
     also Brookens v. Department of Labor, 120 M.S.P.R. 678, ¶ 6 (2014).
¶7        Here, each of these conditions is met. The appellant’s grievance concerns
     his removal under 5 U.S.C. § 7512, a subject matter over which the Board has
     jurisdiction, and the arbitrator issued a final decision.   RFR File, Tab 1 at 8,
     44-58. Further, the appellant alleges for the first time in his request for review
     that his removal was a result of racial discrimination and the record reflects that
     his governing collective bargaining agreement did not allow for claims of
     discrimination to be raised in the course of a grievance proceeding. See id. at 5;
     RFR File, Tab 5 at 10, 38.
     The appellant has not shown that the arbitrator erred in interpreting civil service
     law, rule, or regulation.
¶8        The standard of the Board’s review of an arbitration decision is narrow;
     such decisions are entitled to a greater degree of deference than initial decisions
     of the Board’s administrative judges. Keller, 113 M.S.P.R. 557, ¶ 6. Even if the
     Board disagrees with the arbitrator’s decision, absent legal error, the Board
                                                                                        5

      cannot substitute its conclusions for those of the arbitrator. Id. The Board will
      modify or set aside an arbitrator’s decision only where the arbitrator has erred as
      a matter of law in interpreting a civil service law, rule, or regulation. Id.
¶9          The appellant presents various challenges to the arbitrator’s decision. RFR
      File, Tab 1 at 5, 59-62, Tab 2 at 3-4; IAF, Tab 7 at 4-6. First, the appellant
      contends that the arbitrator erred in sustaining the charge of failure to provide
      accurate information because he failed to consider the appellant’s testimony that
      he inadvertently submitted the wrong OF-306 form. RFR File, Tab 1 at 59, 61,
      Tab 2 at 4.     Contrary to the appellant’s assertion, however, the arbitration
      decision reflects that the arbitrator did consider the appellant’s explanation that
      he mistakenly submitted the wrong OF-306 but found such an explanation was not
      credible. RFR File, Tab 1 at 56.
¶10         The appellant also generally sets forth the background facts regarding his
      employment history and explains why he believes that he did not provide
      inaccurate information.    See id. at 5, 60.     Concerning the failure to provide
      accurate information charge, the appellant asserts the following: he disclosed the
      reasons surrounding his separation from his prior federal positions during two
      interviews with a background investigator and during a prior interview he had
      with the Office of Personnel Management, and he was attempting to abide by the
      terms of his settlement agreement with the DHS.               See id. at 5, 60-61.
      Additionally, regarding the lack of candor charge, the appellant reiterates his
      arguments that during his interview he was not asked specific questions about his
      length of employment with the DHS and that he did not state that he was in a
      holding pattern to receive a top security clearance because he was not; rather, he
      stated that he was awaiting placement in another position that did not require a
      top secret clearance.     See id. at 61-62.     The appellant’s statements do not
      establish, however, a basis for the Board to disturb the arbitrator’s decision. See,
      e.g., Dobruck v. Department of Veterans Affairs, 102 M.S.P.R. 578, ¶ 14 (2006),
      aff’d, 212 F. App’x 997 (Fed. Cir. 2007).
                                                                                         6

¶11         The appellant also generally alleges that the arbitrator improperly gave
      more weight to the agency’s opinions and speculations and “ruled only on
      opinion.” RFR File, Tab 2 at 4. We construe such claims as challenges by the
      appellant to the arbitrator’s credibility determinations, factual findings, and legal
      conclusions. However, the appellant’s mere disagreement with the arbitrator does
      not show legal error. See Cirella v. Department of the Treasury, 108 M.S.P.R.
      474, ¶¶ 15-16, aff’d, 296 F. App’x 63 (Fed. Cir. 2008). The appellant has not
      shown that, in reviewing and analyzing the evidence, the arbitrator erred as a
      matter of law in interpreting a civil service law, rule, or regulation.
¶12         Lastly, the appellant contends that the deciding official improperly
      considered ex parte information in violation of his due process rights. IAF, Tab 7
      at 5. Specifically, he asserts that the deciding official improperly considered a
      memo showing the actual date and facsimile number from which he submitted the
      OF-306 in question, of which he was not aware until it was presented at the
      arbitration hearing. Id. While the appellant alleges that the proposing official
      had a copy of the memo in her possession, he has provided no evidence that the
      deciding official was aware of or considered the memo. See Ward v. U.S. Postal
      Service, 634 F.3d 1274, 1279-80 (Fed. Cir. 2011) (a deciding official violates an
      employee’s right to due process when he relies upon new and material ex parte
      information as a basis for his decision on the merits of a proposed charge or the
      penalty to be imposed). Moreover, such information appears to be cumulative to
      the extent the appellant was already on notice of the OF-306 in question through
      the agency’s proposal notice, which identified the particular OF-306 dated
      March 7, 2012. RFR File, Tab 1 at 9; see Stone v. Federal Deposit Insurance
      Corporation, 179 F.3d 1368, 1376-77 (Fed. Cir. 1999) (identifying the following
      factors to be used to determine if ex parte information is new and material:
      (1) whether the ex parte communication introduces cumulative, as opposed to
      new, information; (2) whether the employee knew of the information and had an
      opportunity to respond; and (3) whether the communication was of the type likely
                                                                                         7

      to result in undue pressure on the deciding official to rule in a particular manner).
      Thus, we find no due process violation.

      The appellant has not shown that his removal was due to discrimination based on
      his race.
¶13        An employee may establish a prima facie case of prohibited discrimination
      by introducing preponderant evidence to show that he is a member of a protected
      group, he was similarly situated to an individual who was not a member of the
      protected group, and he was treated more harshly than the individual who was not
      a member of his protected group. Hidalgo v. Department of Justice, 93 M.S.P.R.
      645, ¶ 9 (2003). Here, the appellant alleges generally that he was discriminated
      against on the basis of his race because he was the only black male working in the
      office and was treated differently than his white male coworkers.         RFR File,
      Tab 1 at 5. However, the appellant has submitted no evidence in support of his
      claim and has not identified any similarly-situated white coworkers who were
      allegedly treated more favorably by the agency.
¶14        For comparison employees to be considered similarly situated to the
      appellant, all relevant aspects of the appellant’s employment situation must be
      “nearly identical” to those of the comparison employee. Hooper v. Department of
      the Interior, 120 M.S.P.R. 658, ¶ 6 (2014); Hidalgo, 93 M.S.P.R. 645, ¶ 10.
      Among other things, comparative employees must have engaged in conduct
      similar to the appellant’s without differentiating or mitigating circumstances that
      would distinguish their misconduct or the appropriate discipline for it.          Id.
      Moreover, the appellant and the comparison employee must have been supervised
      by the same individual. Id. Although the appellant is a member of a protected
      group, he has not sufficiently alleged that he was similarly situated to the
      unidentified white coworkers or that he was treated more harshly than such
      individuals. Thus, the appellant has failed to establish disparate treatment. See,
      e.g., Agbaniyaka v. Department of the Treasury, 115 M.S.P.R. 130, ¶¶ 13-14
                                                                                      8

      (2010), aff’d, 484 F. App’x 545 (Fed. Cir. 2012); Brent, 100 M.S.P.R. 586,
      ¶¶ 12-14.
¶15         Accordingly, we AFFIRM the arbitrator’s decision.

                       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
      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
                                                                                    9

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. § 2000e-5(f) and
29 U.S.C. § 794a.




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