                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MARK ALLEN WILLIAMS,                            DOCKET NUMBER
                 Appellant,                          CH-0752-13-0565-I-2

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: November 20, 2014
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Matthew P. Lynch, Louisville, Kentucky, for the appellant.

           David E. Mapp, Esquire, Philadelphia, Pennsylvania, for the agency.


                                           BEFORE

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


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     sustained the appellant’s demotion. 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     the erroneous application of the law to the facts of the case; the 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, and based on the following points and authorities, 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 and AFFIRM
     the initial decision, which is now the Board’s final decision.            5 C.F.R.
     § 1201.113(b).
¶2         The agency proposed to remove the appellant from the EAS-22 position of
     Postmaster based on two specifications of the charge of improper conduct. MSPB
     Docket No. CH-0752-13-0565-I-1 (I-1), Initial Appeal File (IAF), Tab 4 at 23-26.
     The    agency    specified    that   the    appellant’s   statements    during    a
     workplace-environment-complaint investigation in 2012 lacked candor because he
     denied having a sexual relationship with a subordinate employee, despite the fact
     that the relationship had been ongoing from late 2011. Id.        The agency also
     specified that the appellant violated the Employee and Labor Relations Manual
     (ELM) when, in early 2013, after the subordinate female employee ended the
     relationship and spurned the appellant’s advances, he sent her an email telling her
     and her ex-husband to keep their distance and warning that, if they did not, he
     would contact child protective services so that they would have their children
     taken from them. Id. The deciding official mitigated the penalty to a demotion to
     a Part-Time Flexible Clerk. Id. at 16-21.
¶3         After the agency had issued the notice of proposed removal, the appellant
     filed an equal employment opportunity (EEO) complaint alleging that the
     agency’s action constituted retaliation for his earlier filed EEO complaint. I-1,
                                                                                        3

     IAF, Tab 6 at 13-17. Subsequently, the issues in the complaint were expanded to
     include the demotion action.     Id. at 16.   Before the EEO complaint had been
     pending for 120 days, the appellant filed this Board appeal. I-1, IAF, Tab 1. The
     administrative judge dismissed the appeal as premature, without prejudice to
     refiling. I-1, IAF, Tab 10. After his EEO complaint had been pending for more
     than 120 days, the appellant refiled his appeal. MSPB Docket No. CH-0752-13-
     0565-I-2 (I-2), IAF, Tab 1.
¶4         Based on the record evidence, including the testimony at the hearing held
     on November 21, 2013, the administrative judge found that the agency proved its
     charges.    I-2, IAF, Tab 18, Initial Decision (ID).    She found that the agency
     proved that, during the workplace-environment-complaint investigation in the
     spring of 2012, the appellant responded to questions in such a manner to lead
     investigators to believe that he did not have a relationship with the subordinate
     employee.      However, the administrative judge found that his subsequent
     admission that the affair had begun before the spring of 2012 and continued until
     December 2012, showed that the appellant’s responses to the workplace
     environment complaint investigation showed a lack of condor. ID at 7-8. She
     also found that the appellant’s email warning his subordinate employee that he
     would go to child protective services violated the ELM provision that there must
     be no tolerance of harassment, intimidation, threats, or bullying by any employee
     at any level. ID at 3-7.
¶5         Additionally, the administrative judge found that the appellant failed to
     prove his affirmative defense of retaliation. She found that the agency’s
     disciplinary action was in process prior to the appellant’s filing of his retaliation
     complaint, as evidenced by the fact that the notice of proposed removal was
     issued before the appellant filed his complaint. ID at 9. Further, she found that
     the appellant failed to show that the deciding official was aware of the appellant’s
     prior EEO activity. ID at 9.
                                                                                           4

¶6         Finally, she found that the penalty was reasonable. She determined that the
     appellant’s conduct became known to his subordinate employees, opening the
     agency to the perception of favoritism, which in turn created morale problems.
     ID at 10. She also found that the deciding official properly considered that the
     appellant failed to show factors that might demonstrate an ability to be
     rehabilitated, and weighed positively that the appellant had no prior discipline
     and many years of service. ID at 10-11.
¶7         In his petition for review, 2 the appellant asserts that the administrative
     judge violated 5 C.F.R. § 1201.156(a) in that the initial decision was issued after
     the 120-day deadline set by the Board for issuance of an initial decision in a
     mixed-case appeal. I-2, Petition for Review File, Tab 1. Although the record
     reflects that the time between the date that the appellant refiled his appeal and the
     date that the administrative judge issued the initial decision exceeded 120 days,
     because the appellant has shown no prejudice to his substantive rights as a result
     of this error, we will not set aside the initial decision on these grounds. Even
     assuming that the administrative judge’s delay in issuing an initial decision
     constituted a procedural error, such delay is of no legal consequence because the
     appellant failed to show how it adversely affected his substantive rights.
     Karapinka v. Department of Energy, 6 M.S.P.R. 124, 127 (1981).
¶8         Next, the appellant asserts that the administrative judge misidentified the
     agency official who held a predisciplinary meeting in February 2013, during
     which the appellant became aware that the subordinate employee had informed
     agency managers of her sexual relationship with the appellant. It is undisputed
     that the administrative judge identified the wrong official, as the appellant
     asserts. However, even if this error arises to the level of adjudicatory error, the
     appellant has failed to show that he was harmed by it. The administrative judge
     properly recounted the content of the exchange between the appellant and the
     2
       The agency filed an untimely response to the appellant’s petition for review, Petition
     for Review File, Tab 3, and thus we have not considered it.
                                                                                         5

      official at this meeting. Thus, the error did not harm the appellant’s substantive
      rights. An adjudicatory error that is not prejudicial to a party’s substantive rights
      provides no basis for reversal of an initial decision. Panter v. Department of the
      Air Force, 22 M.S.P.R. 281, 282 (1984).
¶9          The appellant also appears to assert that the agency failed to prove the
      specification of lack of candor because, during the workplace investigation, he
      was not asked directly whether he had an affair with one of his female
      subordinates. We disagree. Lack of candor is a “broad[ ] and . . . flexible concept
      whose contours and elements depend on the particular context and conduct
      involved.” Ludlum v. Department of Justice, 278 F.3d 1280, 1284 (Fed. Cir.
      2002). Such a charge does not require proof of intent, but rather “involve[s] a
      failure to disclose something that, in the circumstances, should have been
      disclosed in order to make the given statement accurate and complete.” Id.
¶10         The appellant was not entirely candid with agency investigators when he
      failed to admit to having had a sexual relationship with a coworker during the
      workplace investigation.      By the appellant’s admission subsequent to the
      workplace investigation, at the time of the investigation, he was having an affair
      with the coworker, and it was the perception by some of his subordinates that he
      favored that female employee that prompted the investigation. See I-1, IAF, Tab
      4 at 38-56, 58-60. Although the investigator may not have asked the appellant
      whether he was having an affair with the subordinate employee, whom other
      employees perceived as receiving favoritism, the appellant was aware of the basis
      of the investigation, and the agency terminated the investigation based on the
      appellant’s denial of a relationship with the subordinate employee. Whether the
      appellant denied the relationship in response to direct questions by the
      investigator or volunteered the false information, he failed to disclose something
      that under the circumstances should have been disclosed to make his response to
      the investigation accurate and complete. We thus concur with the administrative
      judge that the appellant’s response to agency investigators was less than complete
                                                                                        6

      because it impermissibly left investigators with the impression that he had not
      had an affair with the subordinate employee, when in fact he had.         See, e.g.,
      Hoofman v. Department of the Army, 118 M.S.P.R. 532, ¶¶ 13–15 (2012) (finding
      that the appellant lacked candor when he failed to explain the circumstances
      surrounding his leave request and he attempted to cover up his wrongdoing),
      aff’d, 526 F. App’x 982 (Fed. Cir. 2013).          We therefore agree with the
      administrative judge’s finding that the agency proved lack of candor.
¶11         The appellant contends, moreover, that the administrative judge erred in
      finding that his relationship with the subordinate employee and the emails that he
      sent to his subordinate employee, after she spurned his advances, asking for sex
      and threatening to inform child protective services that she was an unfit parent
      violated the ELM.      The appellant’s assertion is unavailing.    The appellant’s
      proven lack of candor violated the ELM provision that employees must cooperate
      in any U.S. Postal Service investigation, a provision that the agency cited in the
      notice of proposed removal.       See I-1, IAF, Tab 4 at 25.      Also, his alleged
      favorable treatment of the subordinate employee, which precipitated the
      workplace investigation and his threatening emails, violated the Federal
      Standards of Ethical Conduct referenced in the ELM that provides that employees
      are expected to maintain harmonious working relationships and not to do anything
      that would contribute to an unpleasant working environment. Id. Additionally,
      his emails, which escalated the email exchange between him and his subordinate
      employee to threats against her, violated the ELM provision laying out the policy
      of the U.S. Postal Service that there be no tolerance of violence, threats,
      harassment, intimidation, or bullying by anyone at any level, and that violation of
      this policy might result in discipline. Id.
¶12         Furthermore, the appellant makes a bare assertion that other employees
      have not been disciplined as harshly for similar misconduct. Where, as here, all
      of the agency’s charges are sustained, the agency’s penalty determination is
      entitled to deference and should be reviewed only to determine whether it is
                                                                                      7

within the parameters of reasonableness.        See Payne v. U.S. Postal Service,
72 M.S.P.R. 646, 650 (1996).       Among those factors the Board will review in
determining the reasonableness of the penalty is its consistency with those
imposed upon other employees for the same or similar offenses.              Douglas v.
Veterans Administration, 5 M.S.P.R. 280, 305–06 (1981).               The appellant’s
allegation that the agency treated him disparately compared to another employee,
without claiming prohibited discrimination, is an allegation of disparate penalties.
Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657, ¶ 5 (2010).             The
agency’s burden to prove consistency of penalties is triggered when there is
enough similarity between both the nature of the misconduct and other factors 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,
24 (2012). Here, the appellant failed to identify any employee who committed
similar misconduct and received a lesser penalty. As a result, the administrative
judge properly deferred to the agency’s penalty selection. 3

                 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:


3
  The agency placed the appellant in off-duty status without pay prior to effecting his
demotion. IAF, Tab 4 at 35. The appellant identified this action in his petition for
appeal. IAF, Tab 1. The administrative judge made no findings on this issue. See ID.
The appellant has not made any allegations regarding his placement in off-duty status in
his petition for review. Thus, we find that the appellant has abandoned any claims
regarding the agency’s placing him in off-duty without pay status.
                                                                                    8

                             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
                                                                            9

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.
