                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ROBERT E. YOUNG,                                DOCKET NUMBER
                  Appellant,                         CH-0752-13-2103-B-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: October 29, 2015
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Donna Drake, Markham, Illinois, for the appellant.

           Deborah L. Lisy, Esquire, Chicago, Illinois, 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 remand initial decision,
     which sustained his reduction in grade and pay. 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 the facts of the case; 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 remand initial
     decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2           Effective November 6, 2010, the agency reduced the appellant in grade and
     pay from his position as EAS-17 Supervisor, Distribution Operations, to the
     position of Part-time Flexible City Carrier, Level CC-1. The agency charged that,
     on seven occasions between January 23, and April 8, 2010, the appellant
     improperly recorded and adjusted an employee’s time in the Time and Attendance
     Collection System (TACS), resulting in his being paid for hours he was not
     present at the work site.        Young v. U.S. Postal Service, MSPB Docket No.
     CH-0752-13-2103-I-1, Initial Appeal File (IAF), Tab 7 at 8-15, 16-20, 21. The
     appellant filed an equal employment opportunity (EEO) complaint in which he
     alleged that the agency’s action was due to discrimination based on age and sex.
     Id. at 22-25.      After the agency issued a final agency decision finding no
     discrimination, id. at 26-38, the appellant filed an appeal with the Equal
     Employment Opportunity Commission’s Office of Federal Operations, which
     dismissed it as improperly filed, id. at 39-42. The appellant then filed an appeal
     with the Board, 2 which the administrative judge dismissed as untimely filed.
     IAF, Tab 12, Initial Decision at 2, 9.          On review, however, the full Board
     reversed that finding and remanded the case for adjudication on the merits.

     2
         The appellant requested a hearing before the Board. IAF, Tab 1 at 2.
                                                                                     3

     Young v. U.S. Postal Service, MSPB Docket No. CH-0752-13-2103-I-1, Remand
     Order at 2, 4 (June 6, 2014).
¶3        During the remand proceeding, the appellant challenged the merits of the
     agency’s action and alleged that the penalty was too severe. Remand File (RF),
     Tab 17. He also added a claim of race discrimination. RF, Tab 18.
¶4        Following a hearing, the administrative judge issued a remand initial
     decision in which she sustained the agency’s action. RF, Tab 22, Remand Initial
     Decision (RID) at 2, 20.        After considering the hearing testimony and
     documentary evidence, RF, Tab 6 at 94-102, 116-37; RID at 3-11, she found that,
     on all seven occasions, the appellant manually input end tour (ET) clock rings for
     D.L., the Mail Handler employee in question, while he was absent from his
     assignment and outside of the building without his authorization, resulting in his
     being paid for time he did not work, 3 RID at 12.      As such, the administrative
     judge sustained all specifications and the charge of improper recording and
     adjusting of an employee’s time in TACS. RID at 12-14. The administrative
     judge also found a nexus between the sustained misconduct and the efficiency of
     the service. RID at 14-15. She considered the appellant’s affirmative defenses of
     age, race, and sex discrimination, but found that, other than asserting his own
     beliefs and bare allegations, he had presented no credible supporting evidence,
     and therefore failed to prove his claim of discrimination. RID at 15-17. Finally,
     the administrative judge found that the reduction in grade and pay is a reasonable
     penalty for the sustained charge. RID at 17-30.
¶5        The appellant has filed a petition for review, Petition for Review (PFR)
     File, Tab 1, to which the agency has responded in opposition, PFR File, Tab 5,
     and the appellant has filed a reply thereto, PFR File, Tab 6.


     3
        The agency subsequently removed D.L. based on a charge of “Unacceptable
     Conduct/Unauthorized Absences from Assignment Without Authorization on
     27 Occasions.” RAF, Tab 17 at 16-21. Seven of those 27 occasions formed the basis
     for this action against the appellant.
                                                                                                4

¶6         On review, the appellant argues that the administrative judge erred in
     sustaining the charge. The appellant acknowledges that he “input” D.L.’s time on
     the occasions in question, but alleges that he did not “adjust” the time because he
     did not make any changes to it. 4 PFR File, Tab 1 at 4. The nature of an adverse
     action charge should be construed in light of the accompanying specifications and
     circumstances. George v. Department of the Army, 104 M.S.P.R. 596, ¶ 7 (2007),
     aff’d, 263 F. App’x 889 (Fed. Cir. 2008). When a single stated charge contains
     two separate acts of misconduct that are not dependent upon each other and that
     do not comprise a single, inseparable event, each act constitutes a separate
     charge. Chauvin v. Department of the Navy, 38 F.3d 563, 565 (Fed. Cir. 1994).
     That is not the case here. The narrative in the proposal notice makes clear the
     agency’s claim that, when the appellant input incorrect entries, he thereby
     adjusted or changed the TACS report to reflect that D.L. worked hours that he did
     not, resulting in his receiving pay to which he was not entitled.               IAF, Tab 7
     at 8-13.   The administrative judge found that, when the appellant input the
     incorrect entries, he did “adjust” D.L.’s time, changing it from what otherwise
     would have resulted in an error in the TACS report and no pay for an employee
     who was not working, to an entry that resulted in what looked like an errorless
     TACS report and pay for an undeserving employee. RID at 12, 14. In ascribing
     no weight to the appellant’s contention that he only input D.L’s time, but did not
     adjust it on the dates identified in the proposal notice, the administrative judge
     considered the appellant’s admissions and what the administrative judge found
     were implausible and materially inconsistent explanations for the appellant’s



     4
       In the same vein, the appellant challenges the administrative judge’s statement that he
     initially stipulated to all seven specifications, although he later rescinded the part of the
     stipulation related to the last specification, January 23, 2010. RID at 3; Hearing
     Transcript at 93-95, 176-77; PFR File, Tab 1 at 6 n.2. The appellant argues that he only
     stipulated to having input incorrect information regarding D.L. into the TACS, not to
     having adjusted D.L.’s time. PFR File, Tab 1 at 6.
                                                                                           5

     actions. 5 RID at 12; Hillen v. Department of the Army, 35 M.S.P.R. 453, 458
     (1987).    To the extent the appellant challenges the administrative judge’s
     credibility findings in this regard, the appellant’s mere disagreement does not
     warrant full review of the record by the Board.         See Gager v. Department of
     Commerce, 99 M.S.P.R. 216, ¶ 5 (2005).
¶7         The appellant further challenges the administrative judge’s reliance on
     several agency witnesses’ testimony that the appellant improperly entered ET
     clock rings for D.L. when he had neither personal knowledge that D.L. had
     actually worked the hours nor a Postal Service (PS) Form 1260, Non-Transactor
     Card, generated from a supervisor to substantiate D.L.’s ET time.            PFR File,
     Tab 1 at 9; RID at 5 (testimony of proposing official, Hearing Transcript (HT)
     at 72), 6 (testimony of deciding official, HT at 154). The administrative judge
     credited these witnesses, finding their testimony consistent with one another and
     with the record evidence, and she particularly found that the proposing official’s
     demeanor while testifying to be forthright and direct and not impeached on
     cross-examination.    RID at 13.     The administrative judge also noted that the
     appellant’s own witness testified similarly to the consistent practice of using the
     PS-1260 when making changes in the TACS, RID at 13-14 (testimony of
     supervisor J.M, HT at 201, 208, 214), and the administrative judge found that
     witness credible as well, RID at 13.       Based on the appellant’s arguments on
     review, we discern no reason to reweigh the evidence or substitute our assessment
     of the record evidence for that of the administrative judge. See Crosby v. U.S.
     Postal Service, 74 M.S.P.R. 98, 105-06 (1997); see also Haebe v. Department of
     Justice, 288 F.3d 1288, 1302 (Fed. Cir. 2002) (discussing that the Board may
     overturn credibility determinations only when it has “sufficiently sound” reasons
     for doing so). We conclude therefore that the appellant has not shown error in the

     5
       The administrative judge considered the appellant’s inconsistent responses during the
     three pre-disciplinary interviews that the agency conducted, and in his written reply to
     the charge, the summary of his oral reply, and his hearing testimony. RID at 10-14.
                                                                                        6

     administrative judge’s finding that the agency proved that he improperly recorded
     and adjusted an employee’s time in TACS.
¶8         The appellant also disputes on review the administrative judge’s finding
     that he did not establish his claims of discrimination based on age, race, and sex.
     In particular, the appellant argues that former supervisor J.M., identified only as
     an Asian female, RF, Tab 21 at 9, also adjusted D.L.’s time without following
     proper procedures but was not disciplined, and that other supervisors input clock
     rings for D.L., but also were not disciplined, PFR File, Tab 1 at 24-25.          In
     considering this claim, the administrative judge found that, on a single occasion,
     J.M. did adjust D.L.’s time, but only to disallow unauthorized overtime he did not
     earn, and that therefore she and the appellant were not similarly situated. And, in
     response to the appellant’s claim regarding other supervisors, the administrative
     judge found that the appellant failed to specifically identify any supervisor or
     manager who, like the appellant, repeatedly entered ET for undeserving craft
     employees. RID at 15. Although the appellant asserts on review that both the
     proposing and deciding officials testified that they were aware of other
     supervisors who committed similar acts as the appellant, PFR File, Tab 1 at 24, a
     review of their testimony does not support his claim, HT at 113 (testimony of
     proposing official that “it’s possible” that another supervisor provided an ET for
     D.L.); 160 (testimony of deciding official that it is “a problem” if a supervisor
     “just fixed what was wrong” with employees’ entries for out lunch or in lunch).
     Neither the proposing nor the deciding official testified that J.M. or any other
     supervisor input and adjusted an employee’s time, resulting in his being paid for
     time he did not work. We therefore find that the appellant has not shown that the
     administrative judge erred in finding that the appellant failed to present any direct
     evidence of age, race, or sex discrimination. RID at 15-16.
¶9         In finding that the appellant failed to establish discrimination by
     circumstantial evidence, the administrative judge found that he did not
     demonstrate that the agency’s stated reason for its action was a pretext for
                                                                                              7

      discrimination, or, as to the appellant’s claim of age discrimination, that age was
      a factor in the agency’s action. RID at 16. Other than his argument on review
      that J.M. was a proper comparator employee who was treated less harshly, an
      argument we have considered but, like the administrative judge, have rejected, the
      appellant has failed to show error in the administrative judge’s findings regarding
      his discrimination claim. 6
¶10         Finally, the appellant argues on review that the administrative judge erred
      in upholding the reduction in grade and pay penalty. PFR File, Tab 1 at 21-24.
¶11         Where, as here, the agency’s charge is sustained, the Board will modify an
      agency-imposed penalty only when it finds that the agency failed to weigh the
      relevant factors under Douglas v. Veterans Administration, 5 M.S.P.R. 280,
      305-06 (1981), or the penalty imposed clearly exceeded the bounds of

      6
         The administrative judge referenced the burden-shifting analysis of McDonnell
      Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), in analyzing the appellant’s
      discrimination claim. RID at 16. After this initial decision was issued, the Board
      issued Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 46 (2015), in which it
      determined that that framework has no application to our proceedings. Rather, the
      Board in Savage reaffirmed that it will adhere to the test set forth in Mt. Healthy City
      School District Board of Education v. Doyle, 429 U.S. 274, 287 (1977), in cases
      involving discrimination or retaliation allegations under 42 U.S.C. § 2000e-16. Savage,
      122 M.S.P.R. 612, ¶ 50. Specifically, where an appellant asserts such an affirmative
      defense, the Board first will inquire whether the appellant has shown by preponderant
      evidence that the prohibited consideration was a motivating factor in the contested
      personnel action. In making his initial showing, an appellant may rely on direct
      evidence or any of the three types of circumstantial evidence described in Troupe v.
      May Department Stores Company, 20 F.3d 734, 736-37 (7th Cir. 1994) (holding that
      evidence of suspicious timing, ambiguous oral or written statements, behavior toward or
      comments directed at other employees in the protected group, and other bits and pieces
      from which an inference of discriminatory intent might be drawn, comparator evidence,
      and evidence that the agency’s stated reason for its action is a pretext for
      discrimination). If the appellant meets that burden, the Board then will inquire whether
      the agency has shown by preponderant evidence that the action was not based on the
      prohibited personnel practice, i.e, that it still would have taken the contested action in
      the absence of the discriminatory motive, and, if the Board finds that the agency has
      made that showing, its violation of 42 U.S.C. § 2000e-16 will not require reversal of the
      action. Savage, 122 M.S.P.R. 612, ¶ 51. Application of Savage to the facts of this case
      similarly results in a finding that the appellant failed to establish his claims
      of discrimination.
                                                                                      8

      reasonableness, Jacoby v. U.S. Postal Service, 85 M.S.P.R. 554, ¶ 15 (2000). In
      determining whether the selected penalty is reasonable, the Board gives due
      deference to the agency’s discretion in exercising its managerial function of
      maintaining employee discipline and efficiency. The Board recognizes that its
      function is not to displace management’s responsibility or to decide what penalty
      it would impose, but to assure that management judgment has been exercised
      properly and that the penalty selected by the agency does not exceed the
      maximum limits of reasonableness. Douglas, 5 M.S.P.R. at 306. Thus, the Board
      will modify a penalty only when it finds that the agency failed to weigh the
      relevant factors or that the penalty the agency imposed clearly exceeded the
      bounds of reasonableness.     Woebcke v. Department of Homeland Security,
      114 M.S.P.R. 100, ¶ 7 (2010).    The Board will defer to the agency’s penalty
      determination unless the deciding official failed to appropriately consider the
      relevant factors. Id.
¶12         The Board has articulated factors to be considered in determining the
      propriety of a penalty, such as, first and foremost, the nature and seriousness of
      the misconduct and its relationship to the employee’s duties, position, and
      responsibilities, including whether the offense was intentional or was repeated
      frequently.   Singletary v. Department of the Air Force, 94 M.S.P.R. 553, ¶ 12
      (2003), aff’d, 104 F. App’x 155 (Fed. Cir. 2004). Other relevant factors may
      include the employee’s past discipline, his past work record, the effect of the
      offenses on his ability to perform his duties, consistency with the agency’s Table
      of Penalties, the employee’s potential of rehabilitation, and any mitigating
      circumstances. Douglas, 5 M.S.P.R. at 305-06.
¶13         The deciding official indicated that he considered, first and foremost, the
      seriousness of the offense and its relation to the appellant’s position as a
      supervisor, his ability to properly administer employees’ time and attendance, his
      responsibility to fairly compensate agency employees, and his repeated failure to
      do so. The deciding official also considered the impact of the offense upon the
                                                                                           9

      agency and its employees, the fact that the appellant was on clear notice of the
      rules of time and attendance based on training records that reflect an extensive
      history of TACS training for supervisors and managers, and the deciding
      official’s lack of trust and confidence in the appellant’s ability to properly
      administer time for agency employees. IAF, Tab 7 at 18. The deciding official
      also considered mitigating factors, including the appellant’s 22 years of service to
      the agency, 11 as a supervisor, and his potential for rehabilitation as evidenced by
      his having ultimately admitted to the misconduct and expressed remorse. The
      deciding official concluded that a reduction to craft was a reasonable penalty. Id.
      His testimony was in accord.       HT at 155-58.      In upholding the penalty, the
      administrative judge found that the deciding official gave adequate consideration
      to all of the relevant penalty factors. RID at 19.
¶14         The appellant argues on review that the administrative judge failed to
      consider as a mitigating factor the fact that the appellant was not properly trained
      “for clock ring errors.” PFR File, Tab 1 at 22. The agency submitted a copy of
      the appellant’s training records that include an entry, at around the time of the
      charged misconduct, for “Function 1 Clock Ring Procedures,” RF, Tab 6 at 148,
      and the deciding official testified that TACS also was included as a part of other
      training the appellant received, HT at 168-69.        The appellant also argues on
      review that he did not act intentionally or for gain, PFR File, Tab 1 at 22,
      although the deciding official did not consider that he had, IAF, Tab 7 at 18.
      Finally, the appellant notes that the agency allowed him to continue to supervise
      for a period of time after the charged misconduct.            PFR File, Tab 1 at 23.
      Notwithstanding, it is well established that the Board’s review of an
      agency-imposed     penalty   is   essentially   to   assure   that   the   agency   did
      conscientiously consider the relevant factors and did strike a responsible balance
      within tolerable limits of reasonableness. Douglas, 5 M.S.P.R. at 306. Under
      these circumstances, we agree with the administrative judge that the agency’s
                                                                                      10

selection of the reduction in grade and pay penalty was a proper exercise of
managerial judgment and did not exceed the limits of reasonableness. 7

                 NOTICE TO THE APPELLANT REGARDING
                    YOUR FURTHER REVIEW RIGHTS
      You have the right to request further review of this final decision. 8

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:


7
  With his petition for review, the appellant has submitted new evidence that he asks the
Board to consider. PFR File, Tab 1 at 9-10. The first document is Time is Money:
Time and Attendance for Supervisors, Facilitator’s Guide TD-11A (June 1999), id.
at 29-48, and the second document is Participant’s Workbook, TACS: Time and
Attendance Collection System, Supervisor Training (Feb. 23, 2001), id. at 52-60. The
appellant asserts that the Board should consider these documents rather than the exhibit
the agency submitted below, Time is Money: Time and Attendance for Supervisors,
Facilitator’s Guide TD-11A (Apr. 2014). RF, Tab 16 at 66-74. The appellant failed to
challenge this document below, and therefore cannot be heard to do so now. See Banks
v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980). Moreover, the proffered
documents themselves are not new. See Avansino v. U.S. Postal Service, 3 M.S.P.R.
211, 214 (1980) (discussing that the Board 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). Therefore, we have not
considered them.
8
  The administrative judge did not, in her remand initial decision, afford the appellant
the mixed-case appeal rights to which he was entitled by virtue of his claims of
discrimination that the administrative judge adjudicated. RID at 24-25. We provide
those rights now.
                                                                                   11

                           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
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.
