                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     LATONYA S. MICKENS,                             DOCKET NUMBER
                   Appellant,                        CH-0752-14-0094-I-1

                  v.

     DEPARTMENT OF                                   DATE: February 6, 2015
       TRANSPORTATION,
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           LaTonya S. Mickens, Chicago, Illinois, pro se.

           Elizabeth S. Martineau, Esquire, Washington, D.C., 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 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        A nonprecedential order is one that the Board has determined does not add
     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 Parties may cite nonprecedential orders,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

     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).

                                      BACKGROUND
¶2        The appellant worked for the agency as an Administrative Program
     Assistant.     Initial Appeal File (IAF), Tab 4, Subtab 4C, Exhibit F(10)(b). In
     2012, the agency proposed to remove her based upon one charge of “misuse of
     your government travel card for personal expenses or purchases unauthorized or
     not related to official business.”    Id., Exhibit F(7)(a).     The appellant had
     previously been suspended for 14 days for the same offense in 2002. Id., Exhibit
     F(7)(e).     In response to the proposed removal, the appellant admitted to the
     charged misconduct, but alleged, inter alia, that she should not be removed
     because other employees did not pay the balance of their government travel cards
     and because she had family issues.      Id., Exhibit F(9).    The deciding official
     removed the appellant. Id., Exhibit F(10)(a).
¶3        The appellant filed an equal employment opportunity (EEO) complaint
     alleging discrimination based on her race and age.       Id., Exhibit A(1).    She
     appealed her removal to the Board when the agency failed to issue a final agency
     decision within 120 days.     IAF, Tab 1; see 5 C.F.R. § 1201.154(b)(2).       The
                                                                                      3

     agency subsequently issued its final agency decision finding no discrimination.
     IAF, Tab 4, Subtab 4A.      On appeal, the appellant alleged discrimination and
     disparate penalties and argued that the penalty was not within the tolerable
     bounds of reasonableness. IAF, Tab 1. At the hearing, the appellant withdrew
     her discrimination claims. Hearing Transcript (HT) at 5. After holding a hearing,
     the administrative judge upheld the penalty of removal, finding that the appellant
     was not subjected to a disparate penalty. IAF, Tab 39, Initial Decision (ID).
¶4         The appellant has filed a timely petition for review. Petition for Review
     (PFR) File, Tab 1. In her petition, she argues that she was not provided certain
     information concerning alleged comparators, that the administrative judge did not
     fully address some of her alleged comparators, and that the agency should have
     provided her additional information about alleged comparators. Id. at 3-4. The
     appellant also argues that, because she was not provided certain information until
     after the hearing, she was unable to properly cross-examine the proposing
     official.   Id. The appellant asserts that she would have called an additional
     witness had she been provided with the information prior to the hearing. Id. The
     agency responds in opposition to the petition. PFR File, Tab 3. In her reply, the
     appellant continues to assert that she was subjected to a disparate penalty, argues
     that she has new evidence regarding alleged comparators, and appears to
     challenge the agency’s inclusion of her late payment history in the proposed
     removal. PFR File, Tab 4 at 2-4.
¶5         The Clerk of the Board issued a show cause order instructing the agency to
     account for a discrepancy between two different versions of its table of penalties
     that were in the record. PFR File, Tab 5. In response, the agency submitted an
     affidavit from a senior labor and employee relations specialist who stated that he
     accidentally provided an out of date table of penalties to the EEO investigator,
     and that the deciding official only considered the newer version of the table of
     penalties contained in the record. PFR File, Tab 7 at 4-5. The appellant replied,
     arguing that the agency has been unclear about which table it used concerning
                                                                                               4

     this and prior discipline, and that the information she received in response to a
     Freedom of Information Act (FOIA) request after she filed her petition shows that
     other agency employees misused their government travel card multiple times but
     never received any disciplinary action. PFR File, Tab 8 at 2-3.

                      DISCUSSION OF ARGUMENTS ON REVIEW
     The administrative judge properly found that the agency considered the relevant
     Douglas factors and that the penalty of removal was within the tolerable limits of
     reasonableness.
¶6         When taking an adverse action against an employee, an agency must
     establish the following: (1) the charged conduct occurred; (2) a nexus exists
     between the conduct and the efficiency of the service; and (3) the particular
     penalty imposed is reasonable.        Crawford-Graham v. Department of Veterans
     Affairs, 99 M.S.P.R. 389, ¶ 16 (2005). In this case, however, the appellant only
     challenges the agency’s imposed penalty. PFR File, Tab 1 at 3-4. Where, as
     here, all the agency’s charges have been sustained, the Board will review the
     agency-imposed penalty only to determine if the agency considered all of the
     relevant Douglas factors and exercised management discretion within the
     tolerable limits of reasonableness. 2         Woebcke v. Department of Homeland
     Security, 114 M.S.P.R. 100, ¶ 7 (2010).
¶7         Based upon our review, we find that the administrative judge properly
     sustained the penalty.     See ID.     At the hearing, the deciding official testified
     concerning the aggravating and mitigating factors she considered in her decision
     to remove the appellant. HT at 132-44; IAF, Tab 4, Subtab 4C, Exhibit F(10)(a).
     In particular, she considered that the agency’s table of penalties established the
     range of penalties from a letter of reprimand to removal for a first offense and a
     7-day suspension to removal for a second offense of misuse of a travel card. HT

     2
       In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
     articulated a nonexhaustive list of 12 factors that are relevant in assessing the penalty to
     be imposed for an act of misconduct.
                                                                                        5

     at 138; see IAF, Tab 15 at 10.      We also give weight to the senior labor and
     employee relations specialist’s statement that the deciding official considered the
     newer version of the table of penalties contained in the record. PFR File, Tab 7
     at 5. Although the appellant has challenged whether the agency used the proper
     version of the table of penalties regarding prior discipline, this argument is not
     persuasive because she has not cited discipline that was imposed with citations
     that correspond to the outdated table. PFR File, Tab 8 at 1-3; see IAF, Tab 15 at
     10. We therefore find that the deciding official properly considered the updated
     table of penalties.
¶8         The deciding official testified concerning several aggravating factors
     weighing in favor of removal as opposed to suspension, including her concern
     that the appellant’s conduct was a violation of public trust in that she misused
     public funds, that the nature of the appellant’s position involved responsibility for
     a significant amount of money, and that she lost confidence in the appellant’s
     ability to perform her position. HT at 136-38; IAF, Tab 4, Subtab 4C, Exhibit
     F(10a).   The deciding official also considered that the appellant did not fully
     accept responsibility for her misuse of the credit card and that she did not appear
     to show remorse.      HT at 132-33.       She additionally considered that other
     employees knew about the appellant’s misuse based upon her discussions with
     them and that misuse of a government travel card is damaging to the
     government’s reputation with vendors.      HT at 141-42, 144.      We find that the
     deciding official properly considered these aggravating factors.
¶9         We also find that the deciding official properly considered the appellant’s
     prior misconduct from 2002 as an aggravating factor, because there is no agency
     prohibition against considering this misconduct. On review, the appellant has not
     identified any law, rule, regulation, or policy that would preclude consideration
     of the prior suspension. Thus, the appellant has shown no error in consideration
     of this prior offense. McGrath v. Department of the Navy, 4 M.S.P.R. 500, 505
     (1981) (finding that the appellant introduced no evidence, and cited no rule or
                                                                                          6

      regulation, supporting his claim that prior disciplinary actions had “expired”); cf.
      Lewis v. Department of the Air Force, 51 M.S.P.R. 475, 485 (1991) (the Board
      will discount a prior action when a law, rule, or regulation prohibits the
      consideration of such actions after a period of time).        The deciding official
      testified that the prior discipline, which involved the same charged conduct,
      showed that the appellant was put on notice that further action could result in
      discipline.   HT at 137.      We therefore also find that the deciding official
      reasonably considered the appellant’s prior discipline as notice concerning the
      charged misconduct. 3 Jinks v. Department of Veterans Affairs, 106 M.S.P.R. 627,
      ¶ 25 (2007) (prior disciplinary action may also be considered as notice that the
      appellant had been warned about the type of misconduct involved).
¶10         As mitigating factors, the deciding official reasonably considered the
      appellant’s nearly 20 years of service and the fact that she was experiencing
      family issues for which she had been proactive in taking advantage of available
      agency services. HT at 137. However, despite her consideration of alternative
      sanctions, HT at 144, the deciding official concluded that removal was the
      appropriate penalty. IAF, Tab 4, Subtab 4C, Exhibit F(10)(a).
¶11         The appellant appears to argue that the deciding official should not have
      considered her prior late payments on her government travel card in deciding to
      remove her. PFR File, Tab 4 at 3. The proposing official stated in her proposal
      letter that the appellant’s misuse of the credit card was “not an isolated incident”
      because she had been counseled for late payment and had previously been
      suspended for credit card misuse in 2002.         IAF, Tab 4, Subtab 4C, Exhibit
      F(7)(a). The deciding official testified that she did not consider the appellant’s
      prior late payments as a prior offense, but instead considered them to help “frame
      the picture” in considering the Douglas factors. HT at 172-74. The deciding

      3
        According to the agency’s table of penalties, the appellant could be removed for
      misuse of a government travel card for a first offense (with the prior offense serving
      simply as notice) or for a second offense. IAF, Tab 10 at 15.
                                                                                         7

      official stated that, however, if the appellant had not been counseled for late
      payments, she still would have removed the appellant. HT at 174.
¶12          We find that, to the extent that the agency considered the appellant’s prior
      late payments, this consideration was not improper. It is clear from the agency’s
      table of penalties that the letter of counseling for late payments constituted
      discipline.   IAF, Tab 15 at 10.    Because the appellant does not challenge the
      validity of this discipline or that she made the late payments, we must find only
      that    the   discipline   is   verified.       Rosenberg      v.   Department     of
      Transportation, 105 M.S.P.R. 130, ¶ 34 (2007). Therefore, we find that, to the
      extent that this discipline was considered, it was not improper. Lovenduski v.
      Department of the Army, 64 M.S.P.R. 612, 615 (1994) (the agency was entitled to
      consider repeated counselings of the appellant in determining the proper penalty).
      We see no reason to disturb the administrative judge’s finding upholding the
      penalty because the deciding official considered all of the relevant Douglas
      factors and exercised management discretion within the tolerable limits of
      reasonableness. Woebcke, 114 M.S.P.R. 100, ¶ 7.

      The appellant has not established that she was subjected to a disparate penalty.
¶13          To establish that she was subjected to a disparate penalty, the 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. Lewis v. Department of
      Veterans Affairs, 113 M.S.P.R. 657, ¶ 15 (2010). These factors can include proof
      that the proffered comparator was in the same work unit, with the same
      supervisor, and was subjected to the same standards governing discipline. Id.,
      ¶ 6. However, the Board does not have hard and fast rules regarding the outcome
      determinative nature of these factors.      Id., ¶ 15.   If the appellant makes this
      showing, the agency then must prove a legitimate reason for the difference in
                                                                                               8

      treatment by a preponderance of the evidence before the penalty can be upheld. 4
      Id., ¶ 6.
¶14         Within the appellant’s regional office, the agency proposed removal of the
      only other employee, S.P., who was charged with misuse of a travel card. 5 See
      IAF, Tab 10, Subtab 8.       The appellant has therefore not established disparate
      penalties to S.P., given that they received the same penalty.
¶15         The appellant points to two employees within her regional office, F.P. and
      K.B., arguing that they misused their travel cards and were not disciplined. PFR
      File, Tab 1 at 4. As to K.B., we agree with the administrative judge’s finding that
      she is not a proper comparator because her misuse was inadvertent whereas the
      appellant’s misuse was intentional. ID at 6-8. As to F.P., we agree with the
      administrative judge that she is not a proper comparator because it is unclear
      whether she had any improper charges; she was unavailable to explain certain
      charges that appear to have been improper as she is no longer employed with the
      agency.     ID at 8.   The appellant also has identified J.T. as another alleged
      comparator and states that she has evidence of many other employees who have
      misused their government travel cards.          HT at 178; PFR File, Tab 4 at 4.
      Regardless of any discovered misconduct, however, a disparate penalty analysis
      focuses on charged conduct and a deciding official is not required to consider all
      conduct that could have been charged.               See Chavez v. Small Business
      Administration, 121 M.S.P.R. 168, ¶ 19 (2014) (finding that when conducting a
      disparate penalty analysis, the deciding official is not required to consider the

      4
       A preponderance of the evidence is that degree of relevant evidence that a reasonable
      person, considering the record as a whole, wou ld accept as sufficient to find that a
      contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).
      5
        S.P. was not ultimately removed because the agency and S.P. entered into a settlement
      agreement allowing S.P. to voluntarily resign as opposed to being removed. IAF, Tab
      10, Subtab 9. The appellant has not alleged that the agency unlawfully discrim inated in
      its settlement practice, and thus the agency is not required to justify its settlement with
      S.P. in response to the appellant’s disparate penalty claim. See Hulett v. Navy,
      120 M.S.P.R. 54, ¶ 7 (2013).
                                                                                              9

      universe of conduct of other employees under investigation that was both charged
      and could have been charged).           These employees were not charged with
      misconduct, and therefore they are not appropriate comparators. 6
¶16         Below, the appellant specified alleged comparators throughout the agency
      who were delinquent on payments and argues that she was treated more harshly
      than them. IAF, Tab 36; see PFR File, Tab 1, Tab 4. The appellant, though,
      appears to confuse the difference between untimely payment and misuse of the
      travel card. It is clear from the agency’s table of penalties that these are two
      different charges.     IAF, Tab 15 at 10.        Additionally, the senior labor and
      employee relations specialist testified as to the difference between the two
      charges. HT at 187. Accordingly, we find that the appellant was not similarly
      situated to employees charged with untimely payment and these employees are
      therefore   not   proper    comparators.       See    Reid   v.   Department     of   the
      Navy, 118 M.S.P.R. 396, ¶ 22 (2012) (finding that the appellant was not similarly
      situated to an alleged comparator where the comparator had not engaged in
      similar conduct with respect to all three charges).
¶17         Concerning the remaining alleged comparators, we find that the agency has
      proven a legitimate reason for the harsher penalty of removal imposed on the
      appellant, because, unlike the alleged comparators, the appellant had a record of
      prior discipline for the same misconduct. See Lewis, 113 M.S.P.R. 657, ¶¶ 16-17
      (finding that, when the alleged comparator and the appellant are similar situated,
      the agency must demonstrate a legitimate basis for the different treatment in order
      to meet its burden of proof regarding the reasonableness of the penalty).
      Throughout the agency, from January 2002 to March 2013, seven employees were

      6
        Although the appellant argues that the administrative judge erred by not fully
      addressing each of her alleged comparators, we find that this argument is not persuasive
      because an administrative judge’s failure to mention all evidence of record in the initial
      decision does not mean that she did not consider it. See Marques v. Department of
      Health & Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir.
      1985).
                                                                                             10

      disciplined for travel card misuse.        IAF, Tab 23.      Only one employee was
      removed and one employee was terminated during probation.               Id.   The senior
      labor and employee relations specialist testified that, although he searched agency
      records from 2003 to March 2013, the appellant was the only agency employee
      who had a second charge of misuse of a government travel card.                HT at 191.
      Based upon this information, we find that the agency has proven a legitimate
      reason for the difference in treatment. 7 Accordingly, we find that the appellant
      has not established that she was subjected to a disparate penalty and that the
      administrative judge properly sustained the penalty of removal. Alaniz v. U.S.
      Postal Service, 100 M.S.P.R. 105, ¶ 23 (2005) (finding that the appellant failed to
      establish disparate penalties and that the penalty of removal was appropriate
      where there were no comparable employees possessing a similar prior
      disciplinary record who received a lesser penalty for similar misconduct).

      The appellant’s remaining arguments do not provide a basis for reversing the
      initial decision.
¶18         The appellant alleges that she was denied discovery and, in particular, that
      she needs additional information concerning possible comparators. PFR File, Tab
      1 at 3. The Board will not reverse an administrative judge’s rulings on discovery
      matters absent a finding that the administrative judge abused her discretion. Fox
      v. Department of the Army, 120 M.S.P.R. 529, ¶ 42 (2014).              To find that the
      administrative judge abused her discretion regarding a discovery ruling, the ruling
      must have prejudiced the appellant’s substantive rights. Jones v. Department of
      Health & Human Services, 119 M.S.P.R. 355, ¶ 18, aff’d, 544 F. App’x 976 (Fed.
      Cir. 2013). The appellant has not shown how the administrative judge abused her

      7
        To the extent that the administrative judge erred by excluding alleged comparators
      based upon their lack of prior charges as opposed to considering this lack of prior
      discip line with respect to the agency’s legitimate reason for imposing a greater penalty,
      we find that any such error is harmless. See Panter v. Department of the Air Force,
      22 M.S.P.R. 281, 282 (1984) (an adjudicatory error that is not prejudicial to a party’s
      substantive rights provides no basis for reversal of an initial decision).
                                                                                       11

      discretion during the discovery process or how the discovery rulings prejudiced
      her substantive rights, and we therefore do not disturb the discovery rulings.
¶19        The appellant also presents arguments concerning her inability to
      cross-examine the proposing official about K.B., an alleged comparator, because
      an affidavit was submitted after the hearing that contained new information about
      K.B. PFR File, Tab 1 at 3-5. The record reflects that the appellant did, however,
      cross-examine the proposing official concerning K.B. HT at 106-08. Therefore,
      it is unclear how the appellant was prejudiced. Additionally, the appellant chose
      not to interview K.B. or call her as a witness, despite having knowledge of her
      possible travel card misuse.     We therefore see no reason to find that the
      administrative judge abused her discretion because the appellant has not
      identified how the administrative judge’s procedural rulings prejudiced her
      substantive rights. Jones, 119 M.S.P.R. 355, ¶ 18.
¶20        Next, the appellant presents arguments regarding a FOIA request she made
      concerning all of the agency’s credit card data, appearing to argue that this
      evidence should be considered. PFR File, Tab 8 at 2-3. The Board has held that
      the discovery process, and not FOIA, is the proper method for obtaining
      information in Board appeals. Ellis v. U.S. Postal Service, 121 M.S.P.R. 570, ¶ 6
      (2014).     Consequently, information that could have been obtained through the
      discovery process, but was instead obtained through a FOIA request, will not be
      considered new and material evidence. Id. Although the appellant states that this
      evidence is now available, PFR File, Tab 8 at 2-3, she has not submitted it.
      Furthermore, this evidence appears to relate to uncharged misconduct and a
      deciding official is not required to consider misconduct that was not charged. See
      Chavez, 121 M.S.P.R. 168, ¶ 19. Therefore, although we do not consider this
      evidence, even if we had considered it, the evidence would not affect our
      decision.
¶21        The appellant also argues that the administrative judge did not address all of
      the evidence that she submitted. PFR File, Tab 1 at 4. However, we find no error
                                                                                       12

      because the administrative judge’s failure to mention all of the evidence of record
      does not mean that she did not consider it in reaching her decision. See Marques,
      22 M.S.P.R. at 132.
¶22        Finally, we find no reversible error as to the appellant’s challenge to the
      status conference order. See PFR File, Tab 4 at 1. The appellant requested that
      the administrative judge amend the description of her discovery request in the
      order to substitute the word “all” for “any” where the order described the request
      as pertaining to “any employee in any office of the agency.” IAF, Tab 27. We
      find no reversible error because the appellant has failed to show that her
      requested change in language in the order would have affected her substantive
      rights. See Panter, 22 M.S.P.R. at 282.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision by the United
      States Court of Appeals for the Federal Circuit. You must submit your request to
      the court at the following address:
                                United States Court of Appeals
                                    for the Federal Circuit
                                  717 Madison Place, N.W.
                                   Washington, DC 20439

           The court must receive your request for review no later than 60 calendar
      days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
      27, 2012). If you choose to file, be very careful to file on time. The court has
      held that normally it does not have the authority to waive this statutory deadline
      and that filings that do not comply with the deadline must be dismissed. See
      Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
           If you need further information about your right to appeal this decision to
      court, you should refer to the federal law that gives you this right. It is found in
      Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
                                                                               13

Dec. 27, 2012). You may read this law as well as other sections of the United
States   Code,    at   our   website,   http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
     If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.




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