                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     KENNETH SWAIN,                                  DOCKET NUMBER
                 Appellant,                          AT-0752-15-0314-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: September 17, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Herman E. Millender, Talladega, Alabama, for the appellant.

           Polly Russell, Esquire, Anniston, Alabama, 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
     sustained his 45-day suspension for conduct unbecoming. 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 erroneous application of the law to

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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, 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 appellant holds the position of Painter. Initial Appeal File (IAF), Tab 4
     at 11. In September 2014, the agency proposed suspending him for 45 days based
     upon one charge of conduct unbecoming. Id. at 34-36. The appellant responded
     to the charge, id. at 22-23, 31-33, and the deciding official affirmed the 45-day
     suspension, id. at 13-21.
¶3         The appellant appealed his suspension to the Board and asserted the
     affirmative defense of race discrimination based on disparate treatment. See IAF,
     Tab 1, Tab 20 at 2. The administrative judge identified the agency’s conduct
     unbecoming charge as consisting of three separate specifications: (1) touching
     coworker S.S. in an inappropriate manner; (2) making inappropriate statements
     and gestures to S.S.; and (3) asking S.S. to go out after she advised him that she
     was not interested. IAF, Tab 23, Initial Decision (ID) at 2-3; see IAF, Tab 4 at
     34. After holding the requested hearing, the administrative judge found that the
     agency proved only the first of those three specifications, but that proof of the
     first specification was sufficient to sustain the charge as a whole. ID at 6. The
     administrative judge affirmed the appellant’s 45-day suspension. ID at 10.
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¶4         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. 2 The agency has filed a response, and the appellant has filed an
     untimely reply. 3 PFR File, Tabs 3-4.
¶5         In his petition, the appellant first disputes the administrative judge’s
     credibility findings. PFR File, Tab 1 at 1-2. As noted in the initial decision, to
     resolve credibility issues, an administrative judge must identify the factual
     questions in dispute, summarize the evidence on each disputed question, state
     which version he believes, and explain in detail why he found the chosen version
     more credible, considering relevant factors. ID at 3; Hillen v. Department of the
     Army, 35 M.S.P.R. 453, 458 (1987) (providing a nonexhaustive list of credibility
     factors).   In doing so for the two specifications that he did not sustain, the
     administrative judge found that the testimony from the appellant and S.S. was
     diametrically opposed, and no Hillen factors favored one version of events over
     the other. ID at 6. Concerning the one remaining specification, the inappropriate
     touching of S.S., the administrative judge again found that many credibility
     2
        With his petition, the appellant attached a newspaper article dated after the
     administrative judge’s initial decision. PFR File, Tab 1 at 5. Under 5 C.F.R.
     § 1201.115, the Board generally will not consider evidence submitted for the first time
     with the petition for review absent a showing that it was unavailable before the record
     was closed despite the party’s due diligence. Avansino v. U.S. Postal Service,
     3 M.S.P.R. 211, 214 (1980). To constitute new evidence, the information contained in
     the documents, not just the documents themselves, must have been unavailable despite
     due diligence when the record closed. 5 C.F.R. § 1201.115(d). Because the appellant
     has not shown that the information contained in the article he presented on review was
     previously unavailable despite his due diligence, we will not consider it.
     3
       The agency’s certificate of service indicates that a paper copy of its response would be
     mailed to the appellant by the end of business on July 13, 2015. See PFR File, Tab 3
     at 13. Pursuant to the Board’s regulations, any reply to a response must be filed within
     10 days of the date of service of the response. 5 C.F.R. § 1201.114(e); see 5 C.F.R.
     § 1201.4(i)-(j), (l); PFR File, Tab 2 at 1. Additionally, 5 C.F.R. § 1201.23 provides that
     “[u]nless a different deadline is specified by the Board or its designee, 5 days are added
     to a party’s deadline for responding to a document served on the party by mail.”
     Accordingly, assuming that the agency served the appellant with its response via U.S.
     mail on July 13, 2015, the appellant’s reply was required to be filed on or before July
     28, 2015. Therefore, the appellant’s reply, which is postmarked on August 7, 2015, is
     untimely, and we will not consider it. See PFR File, Tab 4 at 4.
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     factors favored neither the appellant’s version of the events, nor S.S.’s version.
     ID at 3-5. However, he ultimately credited S.S.’s account and found that the
     agency proved the specification, based upon the fact that a third party witness to
     those events contradicted the appellant’s version and supported S.S.’s version.
     ID at 4-5; see IAF, Tab 5 at 14, 23.
¶6         The appellant argues that S.S. was not a credible witness because she
     frequently flirted with the appellant and others. PFR File, Tab 1 at 1-2. He also
     asserts that S.S. was not credible because she provided false statements pertaining
     to her completion of new hire training courses. Id.; see IAF, Tab 4 at 31; see also
     IAF, Tab 4 at 14. These arguments are not persuasive.
¶7         The administrative judge specifically addressed the allegation that S.S. had
     previously acted in a flirtatious manner, finding that this did not render her
     testimony less credible, ID at 4, and we agree. In addition, we are not persuaded
     by the allegation that S.S. lacks credibility due to a statement she made pertaining
     to her completion of training. The statement is unrelated to the disputed issue—
     whether the appellant touched S.S. in an inappropriate manner and whether S.S.
     testified credibly as to that touching.    Moreover, S.S.’s testimony about the
     appellant’s inappropriate touching is bolstered by the statement of a third party
     witness. See IAF, Tab 5 at 14, 23. Therefore, we find that the appellant has
     failed to present any basis for disturbing the administrative judge’s well-reasoned
     credibility findings and conclusion that the agency met its burden of proving that
     the appellant engaged in conduct unbecoming by touching S.S. in an
     inappropriate manner. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06
     (1997) (finding that the Board will give due deference to the administrative
     judge’s credibility findings).
¶8         The appellant next appears to allege that the agency improperly charged
     him with conduct unbecoming, rather than sexual harassment, and that the agency
     would not have been able to prove a sexual harassment charge. PFR File, Tab 1
     at 2. However, the appellant has failed to identify any law, rule, or regulation
                                                                                        5

      requiring the agency to identify his actions as something other than conduct
      unbecoming.    See generally George v. Department of the Army, 104 M.S.P.R.
      596, ¶ 7 (2007) (finding that the Board reviews an agency’s decision in an
      adverse action solely on the grounds invoked by the agency and may not
      substitute what it considers to be a more adequate or proper basis; an agency must
      prove the elements of its chosen charge), aff’d, 263 F. App’x 889 (Fed.
      Cir. 2008). Therefore, we find that his allegation is unavailing.
¶9         The appellant also appears to reassert his affirmative defense of racial
      discrimination based on disparate treatment by arguing that the agency subjected
      him, an African American, to discipline for his actions, but did not impose any
      discipline on S.S., a Caucasian, for her purported false statements about her
      completion of training. PFR File, Tab 1 at 3. However, for a disparate treatment
      claim such as this, other employees must be similarly situated, i.e., all relevant
      aspects of the appellant’s employment situation must be nearly identical to those
      of the comparator employee. Gregory v. Department of the Army, 114 M.S.P.R.
      607, ¶ 44 (2010). Comparators must have reported to the same supervisor, been
      subjected to the same standards governing discipline, and engaged in conduct
      similar to the appellant’s without differentiating or mitigating circumstances. Id.
¶10        Even if we were to accept the appellant’s allegation that S.S. provided false
      statements without consequence, that conduct is not similar to the appellant’s
      inappropriate touching. Moreover, as the administrative judge correctly noted,
      the deciding official presented uncontradicted testimony that, while she imposed
      a 45-day suspension on the appellant, she previously had imposed more severe
      discipline on a Caucasian employee for similar misconduct. ID at 9; IAF, Tab 22,
      Hearing Compact Disc (testimony of P.S.).         Accordingly, we find that the
      administrative judge properly denied the appellant’s affirmative defense as
      unproven. ID at 9-10.
¶11        The appellant lastly argues that the administrative judge exercised an abuse
      of discretion by permitting the agency to submit its prehearing pleading after
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      April 27, 2015, the deadline for doing so. PFR File, Tab 1 at 2-3. However, the
      assertion underlying this argument is incorrect.    Both parties were ordered to
      submit their prehearing submissions for receipt in the administrative judge’s
      office on or before April 27, 2015. IAF, Tab 6 at 2-3. The agency complied. See
      IAF, Tabs 16-18. Accordingly, the appellant’s argument fails; it is based on an
      erroneous assertion.
¶12        Although the aforementioned arguments are the only ones presented on
      review, we have reviewed the remaining issues addressed in the initial decision,
      including nexus and the reasonableness of the penalty.       We find no basis for
      disturbing the administrative judge’s well-reasoned conclusions. See Broughton
      v. Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987)
      (finding no reason to disturb the administrative judge’s findings when she
      considered the evidence as a whole, drew appropriate inferences, and made
      reasoned conclusions).

                      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:
                                                                                    7

                           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
representation by a court-appointed lawyer and to waiver of any requirement of
                                                                        8

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.
