                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     TANGELA HOLDEN,                                 DOCKET NUMBER
                 Appellant,                          AT-0752-15-0286-I-1

                  v.

     DEPARTMENT OF THE TREASURY,                     DATE: March 4, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL *

           Elizabeth Morse, Esquire, and Bobby Devadoss, Esquire, Dallas, Texas, for
             the appellant.

           Charlie W. Priest, Esquire, and John F. Dymond, Esquire, Atlanta, Georgia,
             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 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

     *
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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, 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         Effective January 9, 2015, the agency’s Internal Revenue Service removed
     the appellant from her GS-7 Correspondence Examination Technician position
     based on eight specifications of improperly accessing taxpayer data on the
     Integrated Data Retrieval System without an official reason to do so.        Initial
     Appeal File (IAF), Tab 4, Subtab 4A at 3, Subtabs 4B, 4E. In an initial decision
     issued on the written record because the appellant withdrew her request for a
     hearing, IAF, Tab 1 at 2, Tab 16, the administrative judge affirmed the removal
     action.   The appellant admitted accessing the files but contended she was
     authorized to do so because she did so at the taxpayers’ request and with their
     consent. IAF, Tab 19 at 15. The administrative judge found, however, that the
     agency’s unauthorized access (UNAX) policy prohibits access resulting from
     informal requests not handed down through official channels.         IAF, Tab 24,
     Initial Decision (ID) at 3. The administrative judge also found that the penalty of
     removal was reasonable; he considered the appellant’s disparate penalty argument
     but found that the agency established a legitimate reason for imposing a lesser
     penalty in all of the comparison cases. ID at 3-7.
¶3         The appellant asserts on review that the penalty of removal is unreasonable
     because it is inconsistent with lesser penalties imposed on other employees who
                                                                                       3

     committed similar misconduct, and because removal is inconsistent with the
     agency’s table of penalties. Petition for Review (PFR) File, Tab 1. To establish
     disparate penalties, the appellant must show that there is enough similarity
     between both the nature of the misconduct and other factors, such as whether the
     appellant and the comparator were in the same work unit, had the same supervisor
     or deciding official, and whether the events occurred relatively close in time, 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
     (2012); Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657, ¶ 15 (2010).
     However, the Board will not have hard and fast rules regarding the outcome
     determinative nature of these factors.    Lewis, 113 M.S.P.R. 657, ¶ 15.      If an
     appellant makes this showing, the agency then must prove a legitimate reason for
     the difference in treatment. Boucher, 118 M.S.P.R. 640, ¶ 20.
¶4        The appellant identified six comparators in the same position she held who
     received proposed removals for UNAX violations. None were removed. Instead,
     2 received letters of caution, 1 received a 14-day suspension, 1 received a 15-day
     suspension, and 2 received 30-day suspensions. Although the appellant’s analysis
     of the similarities between these six cases and her case is thorough, it is
     ultimately unpersuasive for the reasons discussed below.
¶5        In case #2014-11532, the employee accessed his son’s records one time on
     his own initiative without a business reason for doing so and without the
     taxpayer’s consent. IAF, Tab 14 at 15-16. He received a letter of caution. Id.
     The appellant accessed the records of close family and friends, but at their request
     and with their consent.
¶6        In case #2013-11175, the employee accessed the records of her daughter’s
     former mother-in-law one time without a business reason. IAF, Tab 14 at 17-18.
     The employee claimed she did not remember the incident and speculated that it
     might have been a simple keystroke error.      Id. at 17.   She received a 15-day
     suspension. Id. In contrast, the appellant was honest and forthright about her
                                                                                       4

      misconduct. However, case #2013-11175 contained mitigating factors that the
      appellant’s case did not. The employee there had a long-term medical condition
      and she suffered the death of her husband 3 weeks before the misconduct. Id.
¶7          In case #2011-17089, the employee accessed the records of a taxpayer in a
      case that was not assigned to him. IAF, Tab 14 at 19-21. It appears that the case
      previously had been assigned to him but was taken away and reassigned to
      someone else because of management’s dissatisfaction with the employee’s
      handling of the case.    Id. at 19.   The employee later accessed the taxpayer’s
      records because he was curious about what happened to the case after it was
      reassigned. Id. at 18. The employee self-reported his misconduct and had no
      prior discipline. Id. He received a letter of caution. Id. at 19-21. The appellant
      had never been assigned to the cases she accessed without authorization, but she
      had the consent of the taxpayers whose records she accessed.
¶8          In case #2008-12912, the employee accessed her son’s record at his request
      to make sure his address of record was correct.        IAF, Tab 14 at 22-23.   She
      received a 14-day suspension.      Id. at 22-23.    The appellant also acted at the
      taxpayers’ request and with their consent.
¶9          In case #2009-4048, the employee accessed her boyfriend’s record (he was
      also a dependent on her return). IAF, Tab 14 at 24-25. She received a 30-day
      suspension. Id. However, there were mitigating factors that the deciding official
      in that case believed warranted a reduced penalty, such as the employee’s
      20 years of unblemished service, her outstanding performance, the taxpayer’s
      “buy-in,” and the fact that it was a single incident. Id. at 24.
¶10         Lastly, in case #2009-17908, the employee four times accessed the records
      of her son’s father, with whom she had a long-standing dispute over unpaid child
      support. IAF, Tab 14 at 26-27. This employee, who was suspended for 30 days,
      was not forthcoming during the investigation and the agency was about to
      propose discipline for her behavior during a conflict with a coworker. Id. The
      appellant’s case did not involve those aggravating factors.
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¶11         The obvious distinction between the appellant’s misconduct and that of the
      six comparators is that she engaged in eight separate UNAX violations. Five of
      the comparators had only one violation, and the sixth had four violations. Given
      the clarity with which the appellant was put on notice of the agency’s strict
      UNAX policy, see ID at 3, the appellant’s misconduct appears to be more serious
      than that of the comparators. We agree with the administrative judge that the
      agency established by preponderant evidence that it had a legitimate reason for
      treating the appellant differently. ID at 6-7.
¶12         The appellant also argues that removal is inconsistent with the agency’s
      table of penalties. PFR File, Tab 1 at 10-11. According to the appellant, the
      table of penalties provides for a 30-day suspension for a first offense of UNAX
      when a covered taxpayer requests assistance through other than official channels.
      PFR File, Tab 1 at 11; see IAF, Tab 4, Subtab 4H at 25-26 (section C). Both the
      notice of proposed removal and the removal decision letter are silent on which
      particular section of the table of penalties applies, but it is clear from the sworn
      declarations of both the proposing and deciding officials that the agency takes the
      position that the appellant’s offense fits not under section C, but under section D.
      IAF, Tab 20 at 20, 29. Sections C and D both involve UNAX when a covered
      taxpayer requests assistance through other than official channels, but section D
      pertains to those offenses when the type of assistance provided was outside the
      scope of the employee’s duties. IAF, Tab 4, Subtab 4H at 26. The penalty for a
      first offense of this nature is removal. Id. Both the deciding official and the
      proposing official stated under oath and without rebuttal that the assistance here
      was outside the scope of the appellant’s duties. IAF, Tab 20 at 20, 29. The
      appellant worked with a certain type of audits; her job required her to interact
      with taxpayers via telephone, but only those taxpayers who contacted the IRS
      with questions or concerns about an audit that was already in process and after
      the IRS had already corresponded with the taxpayer. The appellant did not work
      on the agency’s general tax help line, but here she provided assistance typical of
                                                                                        6

      what occurs on the general line, namely, checking on the status of tax refunds.
      Because the appellant provided assistance that was outside the scope of her
      position, her misconduct falls under section D, for which the penalty for a first
      offense is removal. Thus, there is no inconsistency with the agency’s table of
      penalties.
¶13         We have reviewed the administrative judge’s remaining findings and find,
      as he did, that the deciding official considered the Douglas factors most relevant
      to this case and reasonably exercised her management discretion in arriving at the
      penalty of removal under the circumstances of this case. The appellant’s removal
      is affirmed.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the
      U.S. 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.
      Dec. 27, 2012). You may read this law as well as other sections of the United
                                                                                         7

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 an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website
at   http://www.mspb.gov/probono            for     information   regarding   pro     bono
representation 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.
