                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ALVIN C. REYES,                                 DOCKET NUMBER
                   Appellant,                        SF-0752-15-0065-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: September 15, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Anthony P.X. Bothwell, Esquire, San Francisco, California, for
             the appellant.

           Sarah Dawn Dobbs and Steven J. Shim, Schofield Barracks, Hawaii, for the
             agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed his removal. Generally, we grant petitions such as this one only when:
     the initial decision contains erroneous findings of material fact; the initial
     decision is based on an erroneous interpretation of statute or regulation or the

     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                      2

     erroneous application of the law to the facts of the case; the administrative
     judge’s rulings during either the course of the appeal or the initial decision
     were not consistent with required procedures or involved an abuse of discretion,
     and the resulting error affected the outcome of the case; or new and material
     evidence or legal argument is available that, despite the petitioner’s due
     diligence, was not available when the record closed. See Title 5 of the Code of
     Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).           After fully
     considering the filings in this appeal, 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        Prior to his removal, the appellant was employed as a Motor Vehicle
     Operator at the agency’s Tripler Army Medical Center. Initial Appeal File (IAF),
     Tab 7 at 11. Effective October 4, 2014, the agency removed him on a charge of
     Fighting/Creating a Disturbance, based on a May 13, 2014 incident in which he
     engaged in a physical altercation with a coworker, C.A. IAF, Tab 6 at 11, 42-44,
     Tab 7 at 42-44.
¶3        The appellant filed a timely appeal.     IAF, Tab 1.   He raised affirmative
     defenses of harmful procedural error and whistleblowing reprisal and further
     alleged that he had been subjected to a hostile work environment. IAF, Tab 12.
     In his prehearing submission, the appellant also listed discrimination as an issue,
     but he did not elaborate or specify a protected group. IAF, Tab 14.
¶4        Following a hearing on January 14, 2015, the administrative judge issued an
     initial decision sustaining the removal action. IAF, Tab 28, Initial Decision (ID).
     She split the agency’s charge into separate charges of Fighting and Creating a
     Disturbance and found that the agency proved both charges. ID at 4-13. She
                                                                                          3

     further determined that the appellant failed to establish his harmful procedural
     error claim.    ID at 14-16.     Although she found that the appellant made a
     prima facie case of whistleblowing reprisal, she also found that the agency
     established by clear and convincing evidence that it would have removed the
     appellant in the absence of his whistleblowing activity. ID at 16-20. She noted
     that the appellant had previously filed an equal employment opportunity claim
     alleging that he was discriminated against based on his Filipino origin, but she
     found that he had failed to show that he was subjected to a hostile work
     environment or otherwise discriminated against on that basis.            ID at 22-23.
     Finally, the administrative judge found that the agency’s penalty determination
     was entitled to deference. ID at 23-26.
¶5         On petition for review, the appellant accuses the administrative judge of
     bias and makes numerous objections to her procedural rulings and findings of
     fact. Petition for Review (PFR) File, Tab 3. 2 He states that he has obtained new
     information since the close of the record, but he does not submit new evidence
     with his petition. Id. at 13-14. He again alleges harmful procedural error and
     whistleblowing reprisal, id. at 10-12, but if he intended to raise a discrimination
     claim below, he is no longer pursuing it. The agency has filed a response. PFR
     File, Tab 6.

                                          ANALYSIS
     The administrative judge did not abuse her discretion in her rulings on witnesses
     and evidence.
¶6         An administrative judge has broad discretion to regulate the course of the
     hearing and to exclude evidence and witnesses which have not been shown to be
     relevant or material to the issues of the case.      Thomas v. U.S. Postal Service,


     2
       The February 20, 2015 initial decision erroneously indicated a finality date of
     March 20, 2015. IAF, Tab 28 at 27. The finality date was in fact March 27, 2015, i.e.,
     35 days after the issuance of the initial decision. See 5 C.F.R. § 1201.114(e). The
     appellant’s amended petition for review, filed on March 26, 2015, was therefore timely.
                                                                                       4

     116 M.S.P.R. 453, ¶ 4 (2011). A petitioning party seeking to reverse an initial
     decision on the basis of abuse of discretion must show that the abuse could have
     affected the outcome. See id.
¶7        The appellant contends that the administrative judge abused her discretion
     on multiple occasions during the examination of witness J.L., who was the only
     other individual in the room during the altercation between the appellant and C.A.
     The first incident occurred during direct examination, shortly after J.L. had
     testified that the appellant grabbed C.A. by the jacket. The agency representative
     asked J.L. to show on his own collar where C.A. was grabbed and to indicate
     whether the appellant used one or two hands. J.L. answered verbally that the
     appellant used two hands and apparently provided a visual demonstration. The
     administrative judge then stated, “Let the record reflect that the witness is using
     his right hand going up high on his right collar, and he’s using his left hand to
     grab the center of his shirt just below his neck, and the two hands are rather close
     together.”   At this point, the appellant’s attorney objected that the agency
     representative had asked a compound question. The administrative judge asked
     the appellant’s attorney to identify the compound question, but he was unable to
     do so. The administrative judge denied the objection. Hearing Compact Disc
     (HCD) at ~15:45-17:15.
¶8        The appellant contends that the administrative judge abused her discretion
     by denying the objection to the alleged compound question and by stating facts
     about which she had no personal knowledge. PFR File, Tab 3 at 9. However,
     considering that the appellant’s attorney was unable to identify the alleged
     compound question, it was hardly an abuse of discretion for the administrative
     judge to deny his objection.    Moreover, the administrative judge did not state
                                                                                            5

      facts that were outside her personal knowledge. Rather, she provided a verbal
      description of the visual demonstration made by J.L. 3
¶9          According to the appellant, the second alleged abuse of discretion occurred
      during recross, when the appellant’s attorney was attempting to elicit testimony
      as to whether J.L., who was initially seated at a 90-degree angle from the
      appellant and C.A., had turned to look at C.A. and the appellant when the
      physical contact began. J.L. responded that he “was working at my report until
      [he] noticed more activity happening with [C.A.’s] jacket coming off and [he]
      turned and looked.” The appellant’s attorney stated, “So some activity occurred
      before you turned and looked, because you were focused on your report.” The
      agency representative objected that the question had been asked and answered,
      and the administrative judge stated, “It’s sustained, he’s referring to the activity
      of [C.A.] taking [his] jacket off.”        After a pause of several seconds, the
      appellant’s attorney stated, “I would have preferred [for] the witness to speak
      himself, but I have no further questions, your honor.” HCD at ~30:45-31:45.
¶10         The appellant asserts that the administrative judge improperly prevented his
      attorney from eliciting “untainted” testimony as to whether J.L. actually saw the
      first physical contact between the appellant and C.A. PFR, Tab 3 at 9. He states
      that the administrative judge interrupted J.L. and contends that “[t]he judge’s
      interruption, stating a fact of which she had no personal knowledge, asserting
      what she wanted the answer to be, was dumbfounding; it silenced the witness.”
      Id. However, the audio transcript reveals that the administrative judge did not
      interrupt J.L. and did not state facts of which she had no personal knowledge.

      3
        The appellant also contends that his attorney objected to a leading question, and the
      administrative judge failed to rule on the objection. PFR File, Tab 3 at 4. However, the
      audio transcript does not reflect that the appellant’s attorney made such an objection
      during the exchange. Moreover, even if the administrative judge had permitted a
      leading question, the appellant has not provided any basis for believing that the
      substance of the answers would have been any different had they been elicited through
      nonleading questions. See Sletten v. Department of the Air Force, 2 M.S.P.R. 35,
      40 (1980).
                                                                                       6

      Rather, she correctly observed that J.L. had already testified that he turned to
      look after noticing the activity of C.A. removing his jacket.
¶11         The appellant also contends that the administrative judge improperly
      prevented either the appellant or proposed witness K.G., who completed the
      police report of the altercation, from providing rebuttal testimony concerning the
      May 13, 2014 incident.       PFR File, Tab 3 at 12-13.          However, K.G. was
      unavailable to testify, and the appellant’s attorney did not request that the
      appellant be permitted to give rebuttal testimony concerning the altercation.
      Rather, he requested that the appellant be called for rebuttal testimony concerning
      the events surrounding his prior discipline. HCD at ~3:56-3:57. The appellant
      also objects that the administrative judge cut him off when his attorney asked him
      whether he knew why the agency waited until February 2014 to propose
      discipline.   PFR File, Tab 3 at 11-12; see HCD (testimony of appellant).      We
      discern no error on the part of the administrative judge, who correctly observed
      that further testimony by the appellant on that issue would have been speculation.
¶12         In addition, the appellant contends that the administrative judge permitted
      the agency to withhold evidence from his attorney. In particular, he objects that
      his attorney was not timely served with a hard copy of the appellant’s April 14,
      2014 written counseling, which the agency had submitted electronically on
      December 16, 2014. PFR File, Tab 3 at 14-15; IAF, Tab 16, Exhibit (Ex.) 1. The
      record reflects that, on January 12, 2015, the appellant’s attorney filed a motion
      asking the administrative judge to exclude the counseling memorandum, which he
      had just received that day, or else continue the hearing date. IAF, Tab 22. The
      administrative judge denied the motion, noting that she had read the entire
      counseling memorandum to the appellant during the prehearing conference call.
      IAF, Tab 23.     Moreover, there is no dispute that the appellant, who was a
      registered e-filer, was himself timely served with the agency’s December 16,
      2014 submission. IAF, Tab 16. The appellant also claims that his attorney never
      received a copy of a document referenced in a December 2, 2014 conference
                                                                                          7

      summary. PFR File, Tab 3 at 14; IAF, Tab 12 at 2. The document in question,
      which the agency had initially provided in redacted form, was a clinical report of
      the appellant’s May 13, 2014 visit to the examination room following the
      altercation.     IAF, Tab 19.     The record reflects that the agency submitted an
      unredacted copy of the report through the Board’s e-Appeal Online System on
      January 6, 2015, id., and there is no dispute that service was immediately
      provided to the appellant, id.
¶13         The appellant also asserts that the administrative judge improperly refused
      to admit into the record documentary evidence of a December 2014 medical
      examination that would confirm the extent of his long-term injuries. Id. at 19.
      However, the administrative judge did admit that documentation into the record
      and even cited to it in the initial decision. See HCD at 1:50; IAF, Tab 25, Ex. K;
      ID at 13 n.7.
      The appellant has not shown that the administrative judge was biased.
¶14         The appellant further asserts that the administrative judge favored the
      agency in her rulings and failed to abide by the canons of judicial conduct. PFR
      File, Tab 3 at 14-15.       In making a claim of bias or prejudice against an
      administrative judge, a party must overcome the presumption of honesty and
      integrity that accompanies administrative adjudicators. Oliver v. Department of
      Transportation, 1 M.S.P.R. 382, 386 (1980). We find that the appellant has failed
      to meet that burden.
¶15         The      appellant   contends   that,   during   prehearing   conferences,   the
      administrative judge “arbitrarily denied requests by the appellant’s attorney, who
      was new to the case, to be allowed reasonable time to review the case file and
      prepare for a hearing.”         PFR File, Tab 3 at 13.    As a result, the appellant
      contends, his attorney did not have sufficient time to subpoena additional
      witnesses.      Id.   However, the summary of the December 1, 2014 prehearing
      conference does not indicate that the appellant made any request for additional
      time. IAF, Tab 12. The parties were advised that any objections to the accuracy
                                                                                          8

      of the summary must be filed within 7 days of the date of the summary, id., and
      no objections were filed. There is also no indication that the appellant’s attorney
      made a request for additional time in the December 18, 2014 prehearing
      conference, and, again, neither party filed a timely objection to the administrative
      judge’s summary. IAF, Tab 17. 4
¶16        The appellant also objects that the administrative judge refused to let him
      wear sunglasses during the hearing, even though he explained to the
      administrative judge that he is sensitive to light, and allowed only a very slight
      dimming of the lights.     PFR File, Tab 3 at 15.     He further contends that the
      administrative judge spoke sarcastically to his attorney off the record, id. at 18,
      and “grinned and vigorously nodded her head” during his closing argument,
      “indicating her negative reaction,” id. at 20.      We find no support for these
      allegations other than the unsworn statements of the appellant’s representative,
      which do not constitute evidence.      See Hendricks v. Department of the Navy,
      69 M.S.P.R. 163, 168 (1995).      Moreover, even if the administrative judge did
      engage in the alleged conduct, we do not find such actions evidence “a
      deep-seated favoritism or antagonism that would make fair judgment impossible.”
      Bieber v. Department of the Army, 287 F.3d 1358, 1362-63 (Fed. Cir. 2002)
      (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).

      The appellant has not shown that the administrative judge erred in sustaining
      the charges.
¶17        The charge of Fighting, as described in the agency’s table of penalties under
      definition (d) of Fighting/Creating a Disturbance, consists of “Hitting, pushing or
      other acts against another causing injury.” While provocation may serve as a
      mitigating factor in a penalty analysis, see Douglas v. Veterans Administration,


      4
        On petition for review, the appellant belatedly objects to the accuracy of the
      administrative judge’s December 19, 2014 summary of the December 18, 2014
      conference. PFR File, Tab 3 at 20. However, the administrative judge clearly indicated
      that objections to the summary must be filed within 7 days or be deemed waived.
                                                                                            9

      5 M.S.P.R. 280, 305 (1981), for purposes of determining whether the agency
      proved the charge, it is immaterial whether C.A. or the appellant instigated the
      altercation. The pertinent question at this stage is whether the appellant engaged
      in hitting, pushing, or other acts that caused C.A. injury. 5
¶18         The administrative judge considered but did not credit the appellant’s
      contention that he did not hit C.A. and that his only physical involvement was
      defensive in the form of a slow, gradual push. HCD (testimony of appellant).
      She instead gave credence to the version of events put forward by J.L., who
      testified that he saw the appellant partially block the exit as C.A. was trying to
      leave the room, then strike C.A, grab his jacket in a “choking manner,” and hook
      his legs behind his in a “grappling move.” HCD (testimony of J.L.); IAF, Tab 7
      at 20-21; see IAF, Tab 7 at 29 (sworn statement of C.A. describing same
      grappling move).      J.L. further stated that, during the verbal exchange that
      preceded the altercation, both men appeared prepared to fight. IAF, Tab 7 at 20.
¶19         On review, the appellant contests the administrative judge’s credibility
      determination.    Because the administrative judge did not rely on demeanor
      evidence, even implicitly, the Board is free to reweigh the evidence and substitute
      its own judgment on credibility issues. Haebe v. Department of Justice, 288 F.3d
      1288, 1302 (Fed. Cir. 2002). However, we discern no error in the administrative
      judge’s credibility determination.
¶20         The appellant asserts that, in finding that J.L. had no motive to be
      untruthful, the administrative judge “ignored” J.L.’s testimony that the appellant
      had once attacked his character.          PFR File, Tab 3 at 5.         However, the
      administrative judge did acknowledge J.L.’s testimony that the appellant had
      stated in a meeting that he had a “shady character.”            ID at 14 n.8; see HCD


      5
        The police report of the incident (described as a “mutual affray”) documented injuries
      to both the appellant and C.A. IAF, Tab 7 at 38. In particular, the appellant had
      scratches on both arms and contusions to his forehead and cheekbones, while C.A. had
      scratches on his neck. Id.
                                                                                        10

      (testimony of J.L.). The administrative judge nonetheless found that J.L., who
      was not friends with C.A. either, had no bias against the appellant.             The
      appellant’s mere disagreement with that credibility determination does not
      warrant further review.      Weaver v. Department of the Navy, 2 M.S.P.R. 129,
      133-34 (1980). Moreover, as the administrative judge noted, the appellant did not
      in the proceedings below specifically accuse J.L. of any motive to fabricate his
      testimony or statement. ID at 13 n.8; see Banks v. Department of the Air Force,
      4 M.S.P.R. 268, 271 (1980) (the Board will not consider an argument raised for
      the first time in a petition for review absent a showing that it is based on new and
      material evidence not previously available despite the party’s due diligence).
¶21           The administrative judge also noted that the appellant gave inconsistent
      accounts of the incident. In particular, she noted that, in his May 16, 2014 sworn
      statement, made 3 days after the incident, the appellant stated that he was not
      struck and instead received the bump on his head when he was pushed against the
      wall.    IAF, Tab 7 at 56.   In addition, when examined at the emergency room
      immediately following the incident, the appellant reported that he had been
      pushed against a wall and did not indicate that he had been struck. IAF, Tab 25,
      Ex. B. However, the appellant later changed his statement to claim that C.A.
      elbowed his head and that he believed this because he had heard it from an
      unidentified officer who had in turn heard it from another unidentified individual.
      IAF, Tab 7 at 50-51; HCD (testimony of appellant).          The appellant further
      testified at the hearing that he did not remember what he stated at the hospital
      because he was dazed from losing consciousness.         HCD (testimony of J.L.).
      However, the clinical report from the emergency room visit repeatedly states that
      the appellant did not suffer any loss of consciousness. IAF, Tab 25, Ex. 7.
¶22           On review, the appellant asserts that he has since learned the name of the
      officer who told him he knew that C.A. had struck him with his elbow. PFR File,
      Tab 3 at 13. However, the appellant does not provide a statement by that officer,
      but instead suggests that he be called as a witness in a potential future hearing.
                                                                                        11

      Consequently, the appellant has not provided any actual new evidence that might
      warrant further review. The appellant also argues that his revised statement of
      May 19, 2014 is consistent with his testimony that he lost consciousness during
      the incident. Id. at 17-18. Be that as it may, the appellant’s claim to have lost
      consciousness is contradicted by the medical record. IAF, Tab 25, Ex. B.
¶23        In sum, we discern no error in the administrative judge’s decision not to
      credit the appellant’s contention that his only physical involvement was defensive
      in the form of a slow, gradual push. Moreover, even if we were to find that C.A.
      struck the appellant with his elbow and the appellant lost consciousness as a
      result, this would not contradict a finding that the appellant participated in the
      fight and caused injury to C.A. Accordingly, we agree with the administrative
      judge that the agency appropriately sustained the charge of Fighting.
¶24        As for the charge of Creating a Disturbance, it is undisputed that a meeting
      between two agency employees was interrupted by the noise caused by the
      fighting between the appellant and C.A. and that they had to leave their meeting
      to break up the fight.    The appellant thus was at least partially at fault for
      “[c]reating a disturbance resulting in an adverse effect on morale, production, or
      maintenance of proper discipline.” IAF, Tab 6 at 61.

      The administrative judge correctly found that the appellant did not establish his
      affirmative defenses of harmful procedural error and whistleblowing reprisal.
¶25        The appellant reiterates his claim that the agency committed harmful
      procedural error by violating Article 21, § 2, of the collective bargaining
      agreement.   PFR File, Tab 3 at 12. 6    To prove harmful procedural error, the
      appellant must show that the agency committed an error in the application of its
      procedures that is likely to have caused it to reach a conclusion different from the


      6
        In his rebuttal to the proposed removal, the appellant also alleged that the agency
      violated Article 5, § 2, and Article 21, §§ 3 and 4. IAF, Tab 6 at 25-27. He does not
      contest the administrative judge’s finding that the agency did not commit harmful
      procedural error regarding these provisions. ID at 14-15, 16.
                                                                                        12

      one it would have reached in the absence or cure of the error.            Stephen v.
      Department of the Air Force, 47 M.S.P.R. 672, 681, 685 (1991); 5 C.F.R.
      § 1201.56(c)(3). On review, the appellant argues for the first time that the agency
      violated the provision when it took the disciplinary action that was later cited as
      an aggravating factor in the removal on appeal.       PFR File, Tab 3 at 12.     We
      decline to consider this argument because the appellant did not make it below,
      and he has not shown that it is based on new and material evidence not previously
      available despite his due diligence. See Banks, 4 M.S.P.R. at 271.
¶26         The appellant also asserts that the administrative judge improperly rejected
      his claim that he made protected disclosures. PFR File, Tab 3 at 12. He cites to a
      portion of the initial decision in which the administrative judge addressed the
      appellant’s sworn statements of May 16 and 19, 2014, and noted that the
      appellant had not specified which statements he believed to be protected.         ID
      at 19. However, the administrative judge proceeded to find that the appellant did
      make protected disclosures in both statements, specifically, allegations of battery
      at the hands of C.A. Id. Moreover, it is undisputed that the deciding official had
      knowledge of these disclosures, which took place less than 4 months before the
      removal action.     Under the “knowledge/timing” test set forth at 5 U.S.C.
      § 1221(e)(1), this is sufficient to establish that the appellant’s disclosures were a
      contributing factor in his removal. Rubendall v. Department of Health & Human
      Services, 101 M.S.P.R. 599, ¶ 13 (2006) (finding that an interval of less than
      6 months between the disclosure and the personnel action satisfied the
      knowledge/timing test), superseded on other grounds by statute, Whistleblower
      Protection Enhancement Act of 2012, Pub. L. No. 112-199, 126 Stat. 1465, as
      stated in Carney v. Department of Veterans Affairs, 121 M.S.P.R. 446, ¶ 6 (2014).
      Hence, as the administrative judge found, the dispositive question is whether the
      agency met its burden of proving by clear and convincing evidence that it would
      have taken the same action in the absence of the appellant’s whistleblowing. See
      5 U.S.C. § 1221(e)(2).
                                                                                         13

¶27         In determining whether an agency has shown by clear and convincing
      evidence that it would have taken the same personnel action in the absence of
      whistleblowing, the Board will consider the following factors: the strength of the
      agency’s evidence in support of its action; the existence and strength of any
      motive to retaliate on the part of the agency officials who were involved in the
      decision; and any evidence that the agency takes similar actions against
      employees who are not whistleblowers but who are otherwise similarly situated.
      Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999).
      Our reviewing court has further clarified that “[e]vidence only clearly and
      convincingly supports a conclusion when it does so in the aggregate considering
      all the pertinent evidence in the record, and despite the evidence that fairly
      detracts from that conclusion.”     Whitmore v. Department of Labor, 680 F.3d
      1353, 1368 (Fed. Cir. 2012).
¶28         In finding that the agency met its burden, the administrative judge
      considered the strength of the evidence for and against the agency’s action, as
      discussed more extensively elsewhere in her decision. In addition, she considered
      the deciding official’s testimony that he had no motive to retaliate against the
      appellant and that he had requested that the appellant put his complaints in
      writing so that he could investigate them. ID at 20; HCD (testimony of deciding
      official).   The administrative judge also noted that C.A., who was not a
      whistleblower, also was removed.         ID at 20.   We discern no error in the
      administrative judge’s ultimate finding that the appellant failed to establish his
      claim of whistleblowing reprisal.

      The administrative judge       did not    err   in   deferring   to     the   agency’s
      penalty determination.
¶29         Where, as here, 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.      Douglas, 5 M.S.P.R. at 306.            In making that
                                                                                      14

      determination, the Board must give due weight to the agency’s primary discretion
      in maintaining employee discipline and efficiency, recognizing that the Board’s
      function is not to displace management’s responsibility but to ensure that
      management discretion has been properly exercised. Id. The Board will modify
      or mitigate an agency-imposed penalty only where it finds the agency failed to
      weigh the relevant factors or the agency’s judgment clearly exceeded the bounds
      of reasonableness. Omites v. U.S. Postal Service, 87 M.S.P.R. 223, ¶ 9 (2000).
      Where mitigation is appropriate, the Board will correct the agency’s penalty only
      to the extent necessary to bring it to the maximum reasonable penalty. Lentine v.
      Department of the Treasury, 94 M.S.P.R. 676, ¶ 6 (2003).
¶30         In evaluating the penalty, the Board will consider, first and foremost, the
      nature and seriousness of the misconduct and its relation to the employee’s duties,
      position and responsibilities, including whether the offenses were intentional or
      frequently repeated.   Rackers v. Department of Justice, 79 M.S.P.R. 262, 282
      (1998), aff’d, 194 F.3d 1336 (Fed. Cir. 1999) (Table). It is well established that
      fighting in the workplace is a serious offense. See Grandison v. Department of
      the Navy, 7 M.S.P.R. 301, 303-04 (1981). Here, the deciding official found that
      fighting at work damages morale and creates a hostile work environment. IAF,
      Tab 6 at 48; HCD (testimony of deciding official).
¶31         As for whether the conduct was intentional, the appellant contends that C.A.
      was the aggressor.      J.L.’s testimony indicates that both individuals made
      challenging remarks, and, as the appellant correctly observes, C.A. admitted to
      confronting the appellant more than once during the episode. However, J.L. also
      testified that both men appeared prepared to fight, and the appellant blocked
      C.A.’s path as he was trying to leave the room. Hence, while C.A. played a role
      in provoking the confrontation, the record supports the deciding official’s view
      that the appellant “made a conscious decision to fight.” IAF, Tab 6 at 58. For
      the same reasons, the administrative judge correctly found that provocation
      was not a significant mitigating factor.
                                                                                       15

¶32        Regarding other pertinent Douglas factors, the penalty of removal is
      consistent with the agency’s table of penalties, which provides that a first offense
      of hitting, pushing, or other acts against another causing injury is subject to a
      penalty of reprimand to removal.         IAF, Tab 6 at 61.      Moreover, as the
      administrative judge noted, the penalty was consistently applied by the agency, as
      shown by the removal of C.A. The appellant began employment with the agency
      on April 25, 2011, IAF, Tab 8 at 22, and so his service was not particularly
      lengthy. The deciding official further found that the appellant’s misconduct had
      greatly diminished management’s confidence in the appellant’s ability to perform
      his assigned duties. IAF, Tab 6 at 58.
¶33        The deciding official also considered the appellant’s prior discipline,
      namely, an April 14, 2014 written counseling, reduced from a proposed 5-day
      suspension, on charges of inappropriate behavior and inappropriate use of
      government equipment.       IAF, Tabs 16, 26; Mitchell v. U.S. Postal Service,
      32 M.S.P.R. 362, 365 (1987) (finding that a prior written counseling may serve as
      an aggravating factor).   The first charge described in the notice of proposed
      suspension, issued on February 12, 2014, concerned the appellant’s conduct
      toward a trolley customer on July 22, 2013.      The second charge involved the
      appellant’s misuse in 2013 of closed-circuit television camera controllers to
      determine if a coworker, D.K., was leaving early, and a September 2013 incident
      in which the appellant used the police radio to broadcast his argument with D.K.
      IAF, Tab 26.
¶34        On review, the appellant seeks to litigate the merits of his prior discipline.
      PFR, Tab 3 at 3, 9-11. However, the Board’s review of a prior disciplinary action
      is limited to determining whether that action is clearly erroneous, if the employee
      was informed of the action in writing, the action is a matter of record, and the
      employee was permitted to dispute the charges before a higher level of authority
      than the one that imposed the discipline. Bolling v. Department of the Air Force,
      9 M.S.P.R. 335, 339-40 (1981). It is undisputed that the appellant was informed
                                                                                        16

      of the proposed suspension in writing and had an opportunity to respond to the
      proposed action personally and in writing. IAF, Tab 26. Moreover, the record
      does not establish that the resulting written counseling was clearly erroneous.
¶35         On review, the appellant contends that the administrative judge failed to
      consider the extent of his injuries as a mitigating factor. PFR File, Tab 3 at 6-7.
      He asserts that, since the May 13, 2014 incident, he has suffered from debilitating
      headaches and a return of the post-traumatic stress disorder symptoms from which
      he had previously recovered. Id. He further states that medical examinations
      conducted since December 2014 would confirm his long-term injury, although he
      does not submit any additional medical documentation with his petition.           Id.
      at 14. We find that the appellant’s injuries do not serve to mitigate his misconduct
      in willingly participating in the fight in the first instance.
¶36         We also have considered the appellant’s claim that he was subjected to a
      hostile work environment as a result of his complaints concerning coworkers
      leaving work early and that this environment precipitated the altercation with
      C.A. Harassment and unusual job tensions may serve as mitigating factors in
      some cases. See Douglas, 5 M.S.P.R. at 305. However, in light of our finding
      that the appellant willfully engaged in the fight with C.A., we find that, even if
      the appellant suffered from a hostile work environment prior to the altercation,
      the penalty of removal remains within the bounds of reasonableness.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
            You have the right to request further review of this final decision. There
      are several options for further review set forth in the paragraphs below. You may
      choose only one of these options, and once you elect to pursue one of the avenues
      of review set forth below, you may be precluded from pursuing any other avenue
      of review.
                                                                                   17

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 review of this final decision on your discrimination
claims by EEOC, 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,
                                                                                  18

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.          42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.

Other Claims: Judicial Review
         If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices described in 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request review of this final decision by the United States Court of Appeals
for the Federal Circuit or any court of appeals of competent jurisdiction. The
court of appeals must receive your petition for review within 60 days after the
date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If
you choose to file, be very careful to file on time.
         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.
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 about the United States Court of Appeals for the Federal
Circuit 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.
Additional information about other courts of appeals can be found at their
respective         websites,     which       can       be     accessed       through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
         If you are interested in securing pro bono representation for your appeal to
the Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
                                                                                 19

for Merit Systems Protection Board appellants before the Federal Circuit. 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.
