                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2014 MSPB 79

                            Docket No. CH-0752-13-4643-I-1

                                      Sean McNab,
                                        Appellant,
                                             v.
                               Department of the Army,
                                         Agency.
                                      October 7, 2014

           Bobby R. Devadoss, Esquire, Dallas, Texas, for the appellant.

           James L. Roth, Esquire, Chicago, Illinois, for the agency.

                                         BEFORE

                          Susan Tsui Grundmann, Chairman
                          Anne M. Wagner, Vice Chairman
                             Mark A. Robbins, Member
          Vice Chairman Wagner issues a separate opinion concurring in part and
                                  dissenting in part.


                                 OPINION AND ORDER

¶1        The appellant has filed a petition for review of the initial decision that
     affirmed his removal. We DENY the petition for review. Except as modified by
     this Opinion and Order to find that the appellant (1) meets the definition of an
     individual with a disability under the Americans with Disabilities Act
     Amendments Act (ADAAA), and (2) did not prove that he was subject to a
     disparate penalty, we AFFIRM the initial decision.
                                                                                          2

                                       BACKGROUND
¶2        The agency removed the appellant from the position of Contract Specialist,
     GS-11, for the charges of (1) absence without leave (AWOL), and (2) failure to
     follow leave restriction letter procedures, effective September 5, 2013. 1 Initial
     Appeal File (IAF), Tab 5 at 15-22 of 24 (first submission).            At issue were
     24 instances of AWOL, totaling 192 hours, and 51 instances of failure to follow
     leave restriction letter procedures, all falling between July 31, 2012, and July 2,
     2013. Id. at 16, 19-20 of 24.
¶3        Prior to removing the appellant, the agency was aware that he suffered from
     medical conditions. In October 2012, the agency received medical documentation
     that referenced the appellant’s generalized anxiety disorder, major depressive
     disorder, and alcohol dependence. 2 IAF, Tab 17 at 5, Tab 18 at 13, Tab 19 at 15
     of 62.   Both the proposal and removal notices also referenced the appellant’s
     medical conditions as a mitigating factor.       Specifically, they reflect that the
     appellant entered a rehabilitation treatment facility on October 13, 2012, for
     generalized anxiety disorder, major depressive disorder, and alcohol dependence;
     and that he reentered a rehabilitation facility for an undisclosed “severe medical
     condition” in April 2013. IAF, Tab 5 at 17, 21 of 24 (first submission).
¶4        The appellant filed an appeal, challenging his removal as factually
     “incomplete, inaccurate and false”; not taken to promote the efficiency of the
     service; and motivated by disability discrimination. IAF, Tab 1 at 6, Tab 18 at 1.


     1
       At the time of his removal, the appellant was under leave restrictions pursuant to
     letters dated March 23, 2012, and March 27, 2013. IAF, Tab 5 at 19 of 24 (first
     submission), 8-10 of 24 (second submission), 16-18 of 26.
     2
       The appellant again submitted medical documentation in August 2013, in connection
     with a request for Family and Medical Leave Act protection for leave taken in
     July 2013 for bipolar disorder, anxiety, and depression. IAF, Tab 17 at 5, Tab 19 at 13
     of 62, 4-5 of 32. However, the dates for which he sought protection occurred after the
     period of time relied on by the agency in removing him. IAF, Tab 5 at 19-20 of 24
     (first submission), Tab 19 at 13 of 62.
                                                                                             3

     He further alleged that he was not provided with the materials underlying the
     removal.   IAF, Tab 1 at 6, Tab 18 at 1. The appellant originally requested a
     hearing but later withdrew that request. IAF, Tab 1 at 2, Tab 6. Therefore, his
     appeal was decided on the written record.          IAF, Tab 10 at 1, Tab 20, Initial
     Decision (ID) at 1. The administrative judge sustained both charges, found the
     appellant’s affirmative defenses unproven, and affirmed the appellant’s removal. 3
     ID at 5, 8, 22.
¶5         The appellant has filed a petition for review, challenging the administrative
     judge’s findings that he was not disabled under the ADAAA and that the agency
     did not subject him to a disparate penalty, commit harmful procedural error, or
     violate his due process rights.      Petition for Review (PFR) File, Tab 1.          The
     agency has responded to the petition for review. PFR File, Tab 3.




     3
       The administrative judge found that 24 of 51 instances listed under the charge of
     failure to follow leave restriction letter procedures were also listed under the AWOL
     charge and therefore properly merged these specifications into the AWOL charge. ID
     at 7 (citing Westmoreland v. Department of Veterans Affairs, 83 M.S.P.R. 625, ¶ 6
     (1999) (a charge of failure to follow leave requesting procedures must be merged into
     an AWOL charge where it is based on the same misconduct and involves the same
     elements of proof), aff’d, 19 F. App’x 868 (Fed. Cir. 2001), overruled on other grounds
     as recognized in Pickett v. Department of Agriculture, 116 M.S.P.R. 439, ¶ 11 (2011)).
     Nonetheless, the administrative judge found the remaining 27 instances were sufficient
     to sustain the charge of failure to follow leave restriction letter procedures. ID at 7-8.
     On review, the appellant does not challenge the administrative judge’s finding that the
     agency proved the charges and the nexus of the charges to the efficiency of the service.
     See ID at 5, 8, 19. We see no reason to disturb these well-reasoned findings. See
     Adams v. Department of Labor, 112 M.S.P.R. 288, ¶¶ 2, 9 (2009) (nexus established for
     the charges of failure to follow leave requesting procedures, resulting in AWOL, and
     failure to complete a work assignment where the appellant’s supervisor was forced to
     find a replacement for the appellant, the appellant’s conduct was a detriment to
     effective workplace operations, and his supervisor lost all confidence in him and his
     reliability); see also Valenzuela v. Department of the Army, 107 M.S.P.R. 549, ¶ 9 n.*,
     ¶¶ 14, 20 (2007) (there was a clear nexus between the removal for prolonged AWOL
     and the efficiency of the service).
                                                                                        4

                                            ANALYSIS
     The appellant is disabled under the ADAAA but nonetheless did not prove his
     claim of disability discrimination.
¶6        On petition for review, the appellant argues that the administrative judge
     erred in denying his affirmative defense of disability discrimination on the basis
     that he was not substantially limited in a major life activity. PFR File, Tab 1 at 8.
     While we agree with the appellant that he has met his burden to show that he is
     disabled, we nonetheless find that he has failed to prove that the agency violated
     the ADAAA. 4      Under the ADAAA, it is illegal for a covered entity to
     discriminate against a qualified individual on the basis of disability. 42 U.S.C.
     § 12112(a).
¶7        An appellant who raises a claim of disability discrimination must first
     establish that he is a disabled person entitled to the protection of the disability
     discrimination   laws.     Doe    v.    Pension   Benefit   Guaranty   Corporation,
     117 M.S.P.R. 579, ¶ 38 (2012). A disability is defined, in pertinent part, as “a
     physical or mental impairment that substantially limits one or more major life
     activities.” 42 U.S.C. § 12102(1)(A). The ADAAA liberalized the definition of
     disability. Doe, 117 M.S.P.R. 579, ¶ 38. One aspect of the liberalized definition
     was to expand major life activities to “the operation of a major bodily function,”
     including brain function. ADAAA, Pub. L. No. 110-325, § 4(a), 122 Stat. 3553,
     3555 (2008) (codified at 42 U.S.C. § 12102(2)(B)).          Under the ADAAA, the
     Equal Employment Opportunity Commission (EEOC) is charged with issuing
     regulations regarding employee rights and is specifically authorized to implement
     the definition of disability under the statute. 42 U.S.C. §§ 12116, 12205a. The

     4
        As a federal employee, the appellant’s claim of discrimination on the basis of
     disability arises under the Rehabilitation Act of 1973. However, the regulatory
     standards for the ADAAA have been incorporated by reference into the Rehabilitation
     Act, and the Board applies them to determine whether there has been a Rehabilitation
     Act violation. Sanders v. Social Security Administration, 114 M.S.P.R. 487, ¶ 16
     (2010) (citing 29 U.S.C. § 791(g); 29 C.F.R. § 1614.203(b)).
                                                                                        5

     EEOC’s regulations implementing the ADAAA list conditions that “it should
     easily be concluded . . . substantially limit the major life activities indicated.”
     29 C.F.R. § 1630.2(j)(3)(iii).    Among those items listed is “major depressive
     disorder,” which is identified as “substantially limit[ing] brain function.” Id.
¶8        When the agency issued the proposed removal letter, the appellant had been
     diagnosed with, along with alcohol dependence and anxiety, major depressive
     disorder. IAF, Tab 5 at 17, 21 of 24 (first submission), Tab 17 at 5, Tab 19 at 15,
     52 of 62. Further, the proposing official was aware of these diagnoses. IAF,
     Tab 18 at 18. Although the proposing official was “not necessarily [aware of] the
     severity of the conditions,” knowledge of the severity of the appellant’s major
     depressive disorder is not necessary for a determination that it is a disability
     under the ADAAA. Id. Thus, we find that the appellant met the definition of an
     individual with a disability. 5    We modify the initial decision to reflect this
     finding.
¶9         Although the administrative judge found the appellant not to be disabled,
     she also found that (1) the agency did not breach its obligation to provide the
     appellant with reasonable accommodation, and (2) the appellant provided no
     evidence that his disability was a motivating factor in his removal. ID at 12-16.
     The appellant has not challenged these well-reasoned findings on review, and we
     adopt them.    Therefore, the appellant failed to prove his claims that he was
     denied reasonable accommodation and that he was subject to disparate treatment
     in connection with his major depressive disorder or any other stated conditions.




     5
       Because we find below that the appellant did not otherwise prove his disability
     discrimination claim, we do not reach the issue of whether he was a “qualified
     individual with a disability.” See 42 U.S.C. § 12112(a).
                                                                                            6

      The appellant did not prove that he was subject to a disparate penalty.
¶10         On petition for review, the appellant alleges that the administrative judge
      applied the wrong standard to his claim of disparate penalties. 6 PFR File, Tab 1
      at 6-8; see IAF, Tab 18 at 6-7 (raising the disparate penalties claim). However,
      the initial decision is devoid of any discussion of disparate penalties.            We
      therefore modify the initial decision to address the appellant’s contention,
      nonetheless finding the appellant has not met his burden concerning his disparate
      penalties claim. 7
¶11         Where, as here, all of the agency’s charges are sustained, the agency’s
      penalty determination is entitled to deference and should be reviewed only to
      determine whether it is within the parameters of reasonableness. See Payne v.
      U.S. Postal Service, 72 M.S.P.R. 646, 650 (1996).           Among those factors the
      Board will review in determining the reasonableness of the penalty is its
      consistency with those imposed upon other employees for the same or similar
      offenses. Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981).
      The appellant’s allegation that the agency treated him disparately to another
      employee, without claiming prohibited discrimination, is an allegation of
      disparate penalties to be proven by the appellant.          Lewis v. Department of
      Veterans Affairs, 113 M.S.P.R. 657, ¶ 5 (2010).         The appellant has the initial

      6
        The appellant also refers to his argument as one alleging “disparate treatment.” PFR
      File, Tab 1 at 6. However, based on the argument itself, he is seeking review of the
      penalty determination, as distinct from seeking review of the finding that he did not
      prove his affirmative defense of disparate treatment under the ADAAA. E.g., id. at 7
      (asserting that he is not seeking review of an affirmative defense); see Chavez v. Small
      Business Administration, 121 M.S.P.R. 168, ¶ 19 (2014) (explaining that disparate
      penalty and disparate treatment are different theories that have different elements of
      proof).
      7
         Although we find that the administrative judge erred in failing to adjudicate this
      claim, we do not find remand necessary because the record is complete, allowing us to
      address this claim. See Davis v. Department of Defense, 82 M.S.P.R. 347, ¶ 12 (1999)
      (it is unnecessary to remand an appeal for further adjudication when the record is
      complete with respect to the issue under review).
                                                                                     7

      burden of showing that there is enough similarity between both the nature of the
      misconduct and other factors to lead a reasonable person to conclude that the
      agency treated similarly-situated employees differently. Boucher v. U.S. Postal
      Service, 118 M.S.P.R. 640, ¶¶ 20, 24 (2012). We find that the appellant did not
      meet this initial burden.
¶12         In an attempt to meet this burden, the appellant points to the agency’s
      responses to his discovery requests. PFR File, Tab 1 at 7. The agency admitted
      in discovery that within the appellant’s immediate supervisory rating chain there
      had been other employees who were charged with AWOL but were not
      terminated. 8 IAF, Tab 18 at 18.     The agency additionally admitted that other
      employees within the deciding official’s chain of command were charged with
      AWOL and/or failure to follow leave procedures but were not terminated. Id.
      at 18-19; see id at 20 (conceding that within the appellant’s “Activity” and/or
      supervisory rating chain, the agency had not terminated every employee found
      guilty of “AWOL and/or Failure to Follow Leave Letter Procedures”).          The
      agency denied that there were “no other employees within the Deciding Official’s
      chain of command who were charged with AWOL and/or Failure to Follow Leave
      Procedures who were not terminated.” Id. at 19. The agency declined to provide
      specific information, such as the identity of, penalty issued to, or race or
      disability of, any individual so charged. Id. at 24.
¶13         The appellant has provided some evidence that other employees received
      lesser discipline for one or both of the charges that serve as the basis for his
      removal.     However, these facts are not sufficient for a reasonable person to
      conclude that the agency treated similarly-situated employees differently. There
      were distinguishing factors that led the agency to treat these employees more
      leniently.   For example, the deciding official provided a sworn statement, in

      8
        The appellant’s immediate supervisor was also the individual who proposed his
      removal. IAF, Tab 5 at 22 of 24 (first submission), Tab 19 at 12 of 62.
                                                                                        8

      which he specifically indicated that he had removed another employee besides the
      appellant for AWOL, notwithstanding the fact that the other employee “had
      significantly less sustained AWOL” instances than did the appellant. IAF, Tab 19
      at 5 of 32. The deciding official also emphasized the special “time sensitive”
      nature of the appellant’s responsibilities in his Douglas factor checklist for
      assessing which penalty to impose.       In that checklist, the deciding official
      indicated that the appellant’s AWOL adversely affected his ability to do his job
      because he was the responsible official “for a few of the critical procurements”
      and his absences put the agency “in jeopardy of missing critical milestone dates,”
      which in turn caused its acquisition schedules to suffer. IAF, Tab 19 at 51 of 62.
      The deciding official also remarked that, because of the appellant’s extensive
      absences, the deciding official and others were repeatedly forced to stop what
      they were doing so as to cover for the appellant at the last minute. See id. The
      deciding official believed that this disrupted the agency’s mission and put great
      stress on the appellant’s colleagues.
¶14         Furthermore, the appellant himself served a 5-day suspension in July 2012,
      prior to his removal, for the charges of AWOL, failure to follow leave restriction
      procedures, and discourtesy toward a supervisor.      IAF, Tab 5 at 18-23 of 24
      (second submission), 4-6 of 26, Tab 19 at 15 of 16, 5 of 32. In addition, other
      distinguishing factors might include the number of absences and whether the
      comparison employees were, like the appellant, on leave restriction. See Weber
      v. U.S. Postal Service, 47 M.S.P.R. 360, 362-64 (1991) (finding removal
      warranted where an employee on leave restriction was informed that his past
      pattern of unscheduled absences was unacceptable and that he could be
      disciplined for further such conduct, but he continued to fail to maintain a regular
      work schedule).
¶15         Moreover, the appellant did not fully avail himself of the discovery process
      to obtain information related to the disparate penalty issue. The appellant, who
      was represented by an attorney, had the option of filing a motion to compel the
                                                                                             9

      agency to disclose such relevant information, but he chose not to do so. See
      5 C.F.R. § 1201.74; see also Carter v. Department of Labor, 29 M.S.P.R. 500,
      502 (1985) (employee not entitled to have agency produce documents absent
      showing how such information was relevant and material to specific issues). This
      is so, despite the fact that the administrative judge suspended the case for 30 days
      to allow the parties additional time to engage in discovery.             IAF, Tab 14.
      Additionally, even though the appellant had the opportunity, if he wished, to
      further develop the record through testimony on the disparate penalty issue, he
      opted instead to cancel the scheduled hearing and to request a decision based only
      on the parties’ written submissions.        IAF, Tab 6.      Therefore, based on the
      evidence presented by the appellant, we find that he has not met his initial burden
      regarding disparate penalties, and we affirm the penalty of removal. 9
      The administrative judge properly concluded that the appellant did not prove his
      claims of harmful procedural error or violation of due process.
¶16         The appellant argues on petition for review that the administrative judge
      erred in crediting the agency’s assertion that he did not request the materials
      underlying his proposed removal. PFR File, Tab 1 at 10-11. Under Office of
      Personnel Management regulations, an agency is required to provide an employee
      the opportunity to review any materials on which it relied in support of the


      9
        The appellant does not challenge the administrative judge’s finding that the penalty of
      removal was within the tolerable limits of reasonableness, and we affirm that finding on
      review. ID at 19-22; see Payne v. U.S. Postal Service, 72 M.S.P.R. 646, 650 (1996)
      (when all of the agency’s charges are sustained, but some of the underlying
      specifications are not sustained, the agency’s penalty determination is entitled to
      deference and should be reviewed only to determine whether it is within the parameters
      of reasonableness); see also McCauley v. Department of the Interior, 116 M.S.P.R. 484,
      ¶ 14 (2011) (penalty of removal for more than 20 consecutive workdays of AWOL
      does not exceed the tolerable limits of reasonableness, particularly where the employee
      has prior discipline for the same offense); Johnson v. General Services Administration,
      46 M.S.P.R. 630, 635 (finding removal for the charges of failure to follow proper leave
      procedures and AWOL to be within the bounds of reasonableness), aff’d, 944 F.2d 913
      (Fed. Cir. 1991) (Table).
                                                                                     10

      charges.   5 C.F.R. § 752.404(b)(1).   Failure to comply with this regulation is
      procedural error and, if harmful to the appellant, would provide a basis for
      reversal of the action.   Forrester v. Department of Health & Human Services,
      27 M.S.P.R. 450, 453 (1985). In a sworn affidavit submitted prior to the close of
      record, the appellant stated that, although he requested the materials relied upon
      from the individual listed in the proposed removal, the agency did not provide
      them. IAF, Tab 18 at 12-13. The agency provided a sworn declaration from the
      identified individual, indicating that he received no such request. IAF, Tab 19
      at 29-30 of 32.
¶17         When an administrative judge’s findings are not based on the observation
      of witnesses’ demeanor, 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). In this instance, we agree with the administrative
      judge that the appellant’s claim that he requested the underlying materials is not
      credible. ID at 17. The appellant did not provide any details such as when, or
      how, the request was made. ID at 17; IAF, Tab 18 at 12-13. Further, although
      the appellant was in contact with the agency via email to request an extension in
      his response to the proposed removal, noticeably absent from his messages are
      any request for the underlying materials. ID at 17; IAF, Tab 19 at 6-8 of 32.
      Therefore, the appellant failed to prove his affirmative defense of harmful
      procedural error.
¶18         We likewise affirm the administrative judge’s finding that the agency
      did not violate the appellant’s due process rights.   ID at 18.    Procedural due
      process guarantees are not met if the employee has notice of only certain charges
      or portions of the evidence and the deciding official considers new and material
      information; therefore, it is constitutionally impermissible to allow a deciding
      official to receive additional material information that may undermine the
      objectivity required to protect the fairness of the process.      Stone v. Federal
      Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999).          The
                                                                                      11

      appellant challenges the administrative judge’s finding on review, claiming that
      “the burden should have been on the agency” to prove that it provided the
      appellant with the materials underlying his proposed removal or that he never
      requested this information. PFR File, Tab 1 at 10. The appellant is correct that
      the agency must comply with the minimum requirements of due process. See
      Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985) (an
      agency’s failure to provide a tenured public employee with an opportunity to
      present a response, either in person or in writing, to an appealable agency action
      that deprives him of his property right in his employment constitutes an
      abridgement of his constitutional right to minimum due process of law, i.e., prior
      notice and an opportunity to respond). However, regardless of the allocation of
      burdens, we find, as discussed above, that the weight of the evidence establishes
      that the appellant did not request the underlying materials. Therefore, we decline
      to find that the agency violated the appellant’s due process rights.

                                            ORDER
¶19         This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).

                        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:
                                                                                   12

                           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
                                                                           13

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.
     SEPARATE OPINION OF ANNE M. WAGNER, CONCURRING IN PART AND
                          DISSENTING IN PART

                                              in

                          Sean McNab v. Department of the Army

                          MSPB Docket No. CH-0752-13-4643-I-1

¶1        I agree that the agency proved its charges of absence without leave (AWOL)
     and failure to follow leave restriction procedures, and with the majority’s
     conclusion that the appellant failed to prove his affirmative defenses of disability
     discrimination, harmful procedural error, and violation of his due process rights.
     I dissent from the majority’s analysis of the disparate penalties issue and its
     determination that penalty of removal was within the tolerable limits of
     reasonableness and would, instead, remand this appeal for further adjudication to
     allow the Board to determine those issues on the basis of a fully-developed
     record, as is required by Williams v. Social Security Administration, 586 F.3d
     1365, 1368 (Fed. Cir. 2009).
¶2         One of the grounds upon which the appellant challenged the penalty of
     removal as unreasonable was that the agency had imposed a more severe penalty
     on him than it had imposed upon other employees for the same or similar
     offenses. The basis for the appellant’s position was the agency’s admissions in
     discovery that: (1) “within the Appellant’s immediate supervisory rating chain
     there have been other employees who were charged with AWOL and were not
     terminated”; and (2) “there were other employees under the Deciding Official’s
     chain of command who were charged with AWOL and/or Failure to Follow Leave
     Procedures that were not terminated . . . .” IAF, Tab 18 at 18-19. The agency,
     however, refused to provide any information concerning such employees in
     response to the appellant’s discovery requests, in redacted form or otherwise, on
                                                                                             2

     the grounds that the appellant’s requests sought documents and information
     protected by the Privacy Act. 1
¶3         As the majority recognizes, the administrative judge’s initial decision is
     devoid of any discussion or analysis of this issue.           Majority Opinion, ¶ 10.
     Nonetheless, rather than remanding for further development of the record, the
     majority instead concludes that the appellant has not met his burden concerning
     his disparate penalties claim, finding that the record evidence is: (1) insufficient
     for a reasonable person to conclude that the agency treated similarly-situated
     employees differently, but (2) sufficiently complete for the Board to consider
     distinguishing factors upon which the agency “might” have relied in treating
     other employees more leniently.        Id., ¶¶ 12-15.    The majority’s analysis and
     conclusions cannot be reconciled with Federal Circuit or Board precedent, which
     places the evidentiary burden on this issue upon the agency, not the appellant,
     and which requires that such determinations be based on evidence contained in a
     fully-developed record, rather than on mere speculation.
¶4         In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the
     Board set forth a nonexhaustive list of factors that are generally recognized as
     relevant in arriving at a penalty determination. One of the Douglas factors that
     agencies are required to consider in determining an appropriate penalty for
     employee misconduct is “consistency of the penalty with those imposed upon
     other employees for the same or similar offenses.” Id.; see Williams, 586 F.3d
     1365, 1368 (Fed. Cir. 2009). Despite the majority’s repeated references to the

     1
        The agency’s blanket refusal was not supportable. See 5 C.F.R. § 293.311
     (identifying, as available to the public, information from an Official Personnel File such
     as the name, present and past position titles, duty stations, and position descriptions of
     present and former federal employees); see also Eaks v. Department of Justice,
     18 M.S.P.R. 328, 333 (1983) (the administrative judge did not abuse his discretion in
     imposing sanctions on the agency when it offered nothing more in support of its
     resistance to discovery than its conclusory assertion that the Privacy Act prohibited the
     production of information).
                                                                                               3

     appellant’s “burden,” it is well-established that a disparate penalties argument is
     not an affirmative defense.            Chavez v. Small Business Administration,
     121 M.S.P.R. 168, ¶ 9 (2014); Downey v. Department of Veterans Affairs,
     119 M.S.P.R. 302, ¶ 11 (2013); Malinconico v. U.S. Postal Service, 14 M.S.P.R.
     542, 544 (1983) (the presiding official erroneously considered the appellant’s
     claim of disparate penalties as an affirmative defense and improperly placed the
     burden of proof on the appellant). Rather, it is an attack on the agency’s penalty
     determination, i.e., an argument that the agency failed to carry its burden on the
     penalty issue. See Douglas, 5 M.S.P.R. at 307-08 (the agency bears the burden of
     proving the appropriateness of the penalty) (citing 5 U.S.C. § 7701(c)(1)).
     Although the appellant must raise the disparate penalties issue, the agency bears
     the evidentiary burden on the matter.         Miille v. Department of the Air Force,
     28 M.S.P.R. 248, 251 (1985); Bivens v. Tennessee Valley Authority, 8 M.S.P.R.
     458, 463 (1981); Woody v. General Services Administration, 6 M.S.P.R. 486, 488
     (1981).
¶5          The Board has recently clarified that, to “trigger” the agency’s evidentiary
     burden on 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 and/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 & n.4 (2012); Lewis v. Department of Veterans Affairs,
     113 M.S.P.R. 657, ¶¶ 12, 15 (2010). 2 The agency’s burden was clearly triggered


     2
       Despite references in prior Board opinions such as Lewis to the appellant’s “initial
     burden,” it is clear from the analysis in those cases that the appellant’s burden is only to
     raise the issue of disparate penalties. This is because a deciding official does not have
     to consider each of the Douglas factors in making his penalty determination. See Nagel
     v. Department of Health & Human Services, 707 F.2d 1384, 1386 (Fed. Cir. 1983)
                                                                                             4

     in this case. Here, the agency’s admissions that within the appellant’s immediate
     supervisory rating chain there had been other employees who were charged with
     AWOL but were not terminated, and that other employees within the deciding
     official’s chain of command were charged with AWOL and/or failure to follow
     leave procedures but were not terminated, plainly are sufficient to lead a
     reasonable person to conclude that the agency treated similarly-situated
     employees differently.      Thus, it was incumbent upon the agency to prove a
     legitimate reason for the difference in treatment by a preponderance of the
     evidence.
¶6         The majority’s conclusion that this evidence fails to satisfy the appellant’s
     burden turns longstanding Board precedent on its head, transforming an
     appellant’s obligation to raise the disparate penalties issue into an evidentiary
     burden of proof on the matter. This is especially inappropriate when the issue is
     the consistency of the penalty because it is the agency, not the appellant, that
     possesses information concerning comparator employees.
¶7         In the absence of any record evidence on comparators to support its
     conclusion that “[t]here were other distinguishing factors that led the agency to
     treat these employees more leniently,” the majority cites the deciding official’s
     uncorroborated and vague statement in his declaration that “[r]emoval was also
     consistent with the penalty imposed in other AWOL cases in which I have been
     the Deciding Official . . . . In that case I removed an employee for AWOL who
     had significantly less sustained AWOL compared to this case.” IAF, Tab 19 at 5
     of 32 (emphasis added); see Majority Opinion, ¶ 13.           In light of the agency’s

     (“The [B]oard never intended that each factor be applied mechanically, nor did it intend
     mandatory consideration of irrelevant factors in a particular case.”); Chavez,
     121 M.S.P.R. 168, ¶ 9; Douglas, 5 M.S.P.R. at 306 (not all of the factors will be
     pertinent in every case, and it must be borne in mind that the relevant factors are not to
     be evaluated mechanistically). Rather, the deciding official must consider the relevant
     Douglas factors implicated by the facts of the case before him. Portner v. Department
     of Justice, 119 M.S.P.R. 365, ¶ 10 (2013).
                                                                                            5

     refusal to offer any evidence to support or clarify this statement, it is of little, if
     any, probative value and certainly does not amount to a “fully-developed record”
     upon which the Board can determine this issue. The other grounds cited by the
     majority, such as the deciding official’s emphasis on the time-sensitive nature of
     the appellant’s responsibilities, the disruption that his absences caused, and his
     prior disciplinary record, would only be relevant to the disparate penalties
     analysis had the agency produced evidence concerning the nature of the
     comparator     employees’     responsibilities,   whether    their   absences    caused
     comparable disruptions, and whether they had comparable disciplinary records.
     Yet, the agency failed to do so here.
¶8         The majority compounds its error by offering its own possible reasons for
     the agency’s difference in treatment, stating “distinguishing factors might include
     the number of absences, and whether the comparison employees were, like the
     appellant, on leave restriction.” Majority Opinion, ¶ 14 (emphasis added). 3 The
     record, however, shows none of these facts. 4 Speculation as to why the agency
     might have imposed different penalties is no substitute for record evidence. Cf.
     Williams, 586 F.3d at 1369 (“We decide cases on the record before us, not on the
     basis of facts stated by counsel. The record before the Board, which is the only



     3
       The majority also states that the appellant does not challenge the administrative
     judge’s finding that the penalty of removal was within the tolerable limits of
     reasonableness, and affirms that finding on review. Majority Opinion, ¶ 15 n.10. I
     disagree. By challenging the penalty on the ground that the agency had imposed a more
     lenient penalty on employees for the same or similar offenses, the appellant is
     contending that the agency’s determination is not an exercise of management discretion
     within tolerable limits of reasonableness.
     4
       Rather than drawing an adverse inference based on the agency’s failure to offer any
     evidence on an issue upon which it bears the burden of proof, the majority instead faults
     the appellant for failing to fully avail himself of the discovery process. Majority
     Opinion, ¶ 15. Because, as stated above, the agency’s admissions establish that it
     treated similarly-situated employees differently, it was incumbent upon the agency, not
     the appellant, to offer additional evidence on this issue.
                                                                                       6

      record we have, does not establish government counsel’s factual description of
      what occurred, and we cannot base our decision on those statements.”).
¶9          I neither express nor intimate any views as to what would be an appropriate
      resolution of this case, but only my view that the appropriate disposition of this
      case is to remand it to the administrative judge for further proceedings. See id.
      On remand, the administrative judge should: (1) develop, as fully as possible, the
      facts relating to whether the agency conscientiously considered the consistency of
      the penalty here with those imposed upon other employees for the same or similar
      offenses; (2) make findings and conclusions on that issue; and (3) based on that
      augmented record and those findings and conclusions, redetermine whether the
      agency met its burden to establish the appropriateness of the penalty in this case.
      See id. Under similar circumstances, the Board in Voss v. U.S. Postal Service,
      119 M.S.P.R. 324 (2013), recently remanded an appeal for the administrative
      judge to reconsider the reasonableness of the penalty in light of the appellant’s
      claim of disparate penalties, with instructions to allow the parties to submit
      supplemental evidence and argument, including a hearing, if requested, so that
      the administrative judge may analyze the appellant’s claim based on a
      fully-developed record. I believe that the Board should take the same approach in
      this case.
¶10         Accordingly, I respectfully dissent from the majority’s decision to not
      remand this appeal for further development of the record on disparate penalties
      and reconsideration of whether the agency-imposed penalty is entitled to
      deference as an exercise of management discretion within tolerable limits of
      reasonableness.



      ______________________________
      Anne M. Wagner
      Vice Chairman
