                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SAILESH SINGH,                                  DOCKET NUMBER
                         Appellant,                  SF-0752-15-0774-I-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: April 15, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Mark Vinson, Esquire, Washington, D.C., for the appellant.

           Nancy C. Rusch, Esquire, Stockton, California, 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 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
     erroneous application of the law to the facts of the case; the administrative

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 agency removed the appellant from the GS-6 position of Transportation
     Assistant based on the charge of making comments of a threatening nature.
     Initial Appeal File (IAF), Tab 5, Subtabs 4C, 4J. The agency based its action on
     an email that the appellant sent to the facility manager while he was on leave and
     awaiting a decision on his request for a transfer to a different supervisor. In the
     email, the appellant stated “if i [sic] experience any form of stress, intimidation,
     hostile, or abusive behavior towards me by [my supervisor], i [sic] may perceive
     it as a THREAT and i [sic] may be obligated to DEFEND myself with FORCE.
     I’m just giving you both a fair warning, this is not what i [sic] want.”        Id.,
     Subtab 4J (emphasis in original). In proposing the removal penalty, the agency
     relied on the appellant’s prior disciplinary record, a reprimand for absence
     without leave (AWOL). Id.
¶3        The appellant appealed the agency’s action, alleging that the action was
     retaliation for his filing an equal employment opportunity complaint and
     discrimination on the basis of disability stemming from the fact that, prior to
     sending the email, he had been on leave for 3 months under the Family and
     Medical Leave Act of 1993 (FMLA). IAF, Tab 1. During proceedings before the
     administrative judge, the appellant also raised the affirmative defense of harmful
     procedural error, alleging that the agency’s failure to conduct an investigation or
                                                                                        3

     threat assessment before taking an adverse action was a violation of agency
     policy. IAF, Tab 11.
¶4        Based on the record developed by the parties, including the testimony at the
     hearing, the administrative judge found that the agency proved its charge and that
     the appellant failed to prove his affirmative defenses.        IAF, Tab 17, Initial
     Decision (ID) at 3-17. She also found that removal was a reasonable penalty for
     the sustained charge and that it promoted the efficiency of the service.          ID
     at 17-19.
¶5        In his petition for review, 2 the appellant alleges that the administrative
     judge erred in disallowing two of his requested witnesses. He also contends that
     the administrative judge erred in finding that the appellant’s statement constituted
     a threat because it was conditional. He contends further that the administrative
     judge erred in finding that the appellant did not prove his affirmative defense of
     disability discrimination.   Finally, the appellant asserts that the administrative
     judge erred in finding that the penalty was reasonable.        He alleges that the
     deciding official did not consider the appellant’s rehabilitative potential, the
     mitigating circumstances that the appellant was under the influence of psychiatric
     drugs and that he had remorse for his actions.
¶6        An administrative judge has wide discretion to control the proceedings
     before her, including the authority to exclude testimony she believes would be
     irrelevant, immaterial, or unduly repetitious. Guerrero v. Department of Veterans

     2
       Attached to the appellant’s petition for review are documents showing that in prior
     years he had been employed by a different Federal agency and that while employed at
     the Department of Defense, he twice had been employee of the quarter. Petition for
     Review File, Tab 1, Exhibits 1-2. Under 5 C.F.R. § 1201.115, 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. Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980). The appellant
     has made no such showing. In any event, we find that the evidence submitted by the
     appellant on petition for review is not of sufficient weight to warrant an outcome
     different from that of the initial decision. See Russo v. Veterans Administration,
     3 M.S.P.R. 345, 349 (1980).
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     Affairs,   105 M.S.P.R.    617,   ¶ 20   (2007);    Miller   v.   Department     of
     Defense, 85 M.S.P.R. 310, ¶ 8 (2000).     The Board has found that, to “obtain
     reversal of an initial decision on the ground that the administrative judge abused
     his discretion in excluding evidence, the petitioning party must show on review
     that relevant evidence, which could have affected the outcome, was disallowed.”
     Jezouit v. Office of Personnel Management, 97 M.S.P.R. 48, ¶ 12 (2004), aff’d,
     121 F. App’x 865 (Fed. Cir. 2005).
¶7         The administrative judge denied the witnesses that the appellant identifies
     in his petition for review, T.A. and F.L., because their proposed testimony
     regarding alleged disparate treatment of the appellant vis‑à‑vis comparators
     did not involve employees who had engaged in the same misconduct, i.e., making
     a threat. IAF, Tab 13. In his petition for review, the appellant claims that these
     witnesses had information regarding how he was treated by his second-level
     supervisor.   PFR File, Tab 1.    In his prehearing submissions, however, the
     appellant indicated that their proposed testimony related to the penalty.      IAF,
     Tab 11.    The administrative judge properly ruled on whether to allow the
     appellant’s witnesses on the basis of his prehearing submission. See Banks v.
     Department of the Air Force, 4 M.S.P.R. 268, 271 (1980) (finding that the Board
     will not consider an argument raised for the first time in a petition for review
     absent a showing that it is based on new and material evidence not previously
     available despite the party’s due diligence). The appellant has failed to show that
     the administrative judge disallowed any relevant testimony based on the
     appellant’s representation of these witnesses’ testimony.         Accordingly, the
     appellant has not shown that the administrative judge abused his discretion in
     excluding witnesses.
¶8         In determining whether a charge of making threats or engaging in
     threatening behavior can be sustained, the Board will apply the reasonable person
     standard, considering the speaker’s intent, the conditional nature of his
     statements, the listeners’ reactions, their apprehension of harm, and the attendant
                                                                                        5

     circumstances. See Metz v. Department of the Treasury, 780 F.2d 1001, 1004
     (Fed. Cir. 1986).    Here, we agree with the administrative judge that the most
     significant criteria are the listeners’ reactions and apprehension of harm and the
     attendant circumstances. ID at 4. The employee who received the appellant’s
     email testified that its wording caused her great concern. Id. She testified further
     that she did not consider the appellant’s statements to be conditional, but saw
     them as him verbalizing a threat against his supervisor if he came back to work
     for her, and others who read the email perceived it in the same way. Id. Another
     employee who received the email immediately contacted the agency’s legal office
     about it, and the agency issued an order to bar the appellant from entering the
     agency’s premises.     Id.   When the appellant’s supervisor read the email she
     testified that she was not feeling well, remembered that the appellant had earlier
     stated to others that he disliked the supervisor, and that he was not going to listen
     to her. ID at 5. She testified, moreover, that, after she read the email, she took a
     different route home and went to the police to obtain a restraining order. Id. The
     administrative judge found the appellant’s supervisor testified credibly. Id.
¶9         In contrast, the administrative judge found the appellant’s testimony
     inaccurate, unworthy of belief, and on the whole not credible. ID at 8-9. The
     administrative judge found not credible the appellant’s testimony that he did not
     recall writing the email and did not understand why he used the words he chose or
     why he capitalized specific words, such as “threat,” “defend,” and “force.” ID
     at 10. Also, the administrative judge found that there is no medical evidence to
     support the appellant’s assertion that his threatening comments were the result of
     any medical condition or medication. Id. The administrative judge found that
     there is no evidence that the medications that the appellant was taking would
     cause him to say the words or use the phrasing in his email. Id. On petition for
     review, the appellant merely disagrees with the administrative judge’s findings.
     However, the record reflects that the administrative judge considered the
     evidence as a whole, drew appropriate inferences, and made reasoned conclusions
                                                                                        6

      on the issue of credibility. See, e.g., Crosby v. U.S. Postal Service, 74 M.S.P.R.
      98, 105–06 (1997) (finding no reason to disturb the administrative judge’s
      findings where she considered the evidence as a whole, drew appropriate
      inferences, and made reasoned conclusions); Broughton v. Department of
      Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).              Thus, we
      will not disturb the administrative judge’s finding that the agency proved
      its charge.
¶10         Regarding the appellant’s assertion that he proved his affirmative defense of
      disability discrimination, a mixed-motive analysis applies to claims of disparate
      treatment     based   on    disability.      Southerland     v.   Department      of
      Defense, 119 M.S.P.R. 566, ¶¶ 18–22 (2013). Under a mixed-motive analysis, an
      employee is entitled to some relief if he proves that his disability was “a
      motivating factor” in the decision, “even though other factors also motivated the
      practice.” Id., ¶ 23 (citing 42 U.S.C. §§ 2000e–2(m), 2000e–5(g)(1)). An agency
      may limit the extent of the remedy if it demonstrates that it “would have taken the
      same action in the absence of the impermissible motivating factor.” Id., ¶¶ 23–25
      (citing 42 U.S.C. § 2000e–5(g)(2)(B)).
¶11         The appellant asserts that he proved that his disability, a diagnosis of anger
      issues for which he was granted leave under the FMLA, was a motivating factor
      in the decision to remove him. In support of his assertion he relies on a statement
      by the deciding official in a Memorandum for Human Resources and a statement
      by the proposing official, who was also the official considering his request for
      reassignment. In the Memorandum, the deciding official stated “[the appellant’s]
      medical information submitted prior to the threat indicated anger issues, problems
      getting along with others. . . . I believe that when [the appellant] became
      concerned that his transfer request for a different supervisor might not be granted,
      his primarily diagnosed anger issues resulted in the threat of violence toward [his
      supervisor].” IAF, Tab 4, Subtab 4D. In an email, the proposing official stated
      “[the appellant has] been out of work since 13 Apr on FMLA and is due back on
                                                                                         7

      8 June. . . . I really feel he is someone who would easily commit workplace
      violence.” Id., Subtab 4M.
¶12           The administrative judge did not specifically address these statements in her
      discussion of whether the appellant met his burden to prove disability
      discrimination.     However, she found that both the proposing and deciding
      officials credibly testified that the basis for the agency action concerned the
      appellant’s email threat and was not due to any disability. The Board must give
      deference to an administrative judge’s credibility determinations when they are
      based, explicitly or implicitly, on the observation of the demeanor of witnesses
      testifying at a hearing. Haebe v. Department of Justice, 288 F.3d 1288, 1301
      (Fed. Cir. 2002) . Deferring to the administrative judge’s credibility finding, we
      find, notwithstanding the statements made by the proposing and decision officials
      that the appellant identifies, that the appellant failed to show that his disability
      was a motivating factor in the decision to remove him, and thus failed to meet his
      burden to prove disability discrimination. See Southerland, 119 M.S.P.R. 566,
      ¶ 31.
¶13           Finally, we find that the appellant’s assertion that the penalty was
      unreasonable is unavailing. When the Board sustains an agency’s charges, it will
      defer to the agency’s penalty determination unless the penalty exceeds the range
      of allowable punishment specified by statute or regulation, or unless the penalty
      is “so harsh and unconscionably disproportionate to the offense that it amounts to
      an abuse of discretion.” Saiz v. Department of the Navy, 122 M.S.P.R. 521, ¶ 5
      (2015). That is because the employing agency, and not the Board, has primary
      discretion in maintaining employee discipline and efficiency.       Id.; Balouris v.
      U.S. Postal Service, 107 M.S.P.R. 574, ¶ 6 (2008), aff’d, No. 2008-3147, 2009
      WL 405827 (Fed. Cir. 2009).           The Board will not displace management’s
      responsibility, but instead will ensure that managerial judgment has been properly
      exercised.    Id.   Mitigation of an agency‑imposed penalty is appropriate only
      where the agency failed to weigh the relevant factors or where the agency’s
                                                                                       8

      judgment clearly exceeded the limits of reasonableness. Id. The deciding official
      need not show that he considered all the mitigating factors, and the Board will
      independently weigh the relevant factors only if the deciding official failed to
      demonstrate that he considered any specific, relevant mitigating factors before
      deciding on a penalty. Id.
¶14        In the removal decision, the deciding official stated that he considered the
      relevant factors of Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306
      (1981), to be the nature and seriousness of the offense, the appellant’s past
      discipline, his past work record and length of service, the consistency of the
      penalty and consistency with the table of offenses, and the use of alternative
      sanctions.   IAF, Tab 4, Subtab 4C.        He indicated that he considered the
      appellant’s threatening email very serious and considered that the appellant was
      recently reprimanded for AWOL. Id. The deciding official also considered the
      mitigating factors of the appellant’s 16 years of Federal service and his fully
      successful performance rating.     Id.   He further considered that removal was
      within the range of penalties in the agency’s table of penalties and that he
      believed that alternative sanctions would not serve to correct the appellant’s
      misconduct. Id. The deciding official stated that he did not consider any of the
      Douglas factors not listed in the decision. Id.
¶15        The appellant asserts that the deciding official did not specifically consider
      the appellant’s rehabilitative potential, the mitigating circumstances that he was
      under the influence of psychiatric drugs, and that he had remorse for his actions.
      However, the deciding official testified that he did not agree with the appellant’s
      representation that his medication caused him to write the email containing the
      threatening comments. Further, in finding that the agency proved its charge, the
      administrative judge found that there was no medical evidence provided that the
      appellant’s threatening comments in his email were the result of any medical
      condition or medication, thus making unpersuasive the appellant’s assertion that
      the influence of psychiatric drugs is a mitigating circumstance. ID at 10. As to
                                                                                 9

the appellant’s unsupported assertion that he has rehabilitative potential and
remorse for his actions, these factors are outweighed by the seriousness of his
misconduct. We thus conclude that the administrative judge properly found that
the removal penalty was within the bounds of reasonableness for the sustained
misconduct. See Douglas, 5 M.S.P.R. at 306.

                 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:
                           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.
                                                                                10

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 U.S. 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.
