                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     ROGER GRESHAM,                                  DOCKET NUMBER
                 Appellant,                          AT-0752-15-0311-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: April 15, 2016
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Earline Smith-Montgomery, Esquire, Stone Mountain, Georgia, for
             the appellant.

           Earl L. Cotton, Esquire, Atlanta, Georgia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     erroneous application of the law to the facts of the case; the administrative
     judge’s rulings during either the course of the appeal or the initial decision
     were not consistent with required procedures or involved an abuse of discretion,
     and the resulting error affected the outcome of the case; or new and material
     evidence or legal argument is available that, despite the petitioner’s due
     diligence, was not available when the record closed. See title 5 of the Code of
     Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).          After fully
     considering the filings in this appeal, we conclude that the petitioner has not
     established any basis under section 1201.115 for granting the petition for review.
     Therefore, we DENY the petition for review. Except as expressly MODIFIED by
     this Final Order to incorporate the standards set out in Savage v. Department of
     the Army, 122 M.S.P.R. 612 (2015), for affirmative defenses of equal
     employment opportunity (EEO) reprisal and age discrimination, we AFFIRM the
     initial decision.

                                     BACKGROUND
¶2         The agency removed the appellant from the EAS-17 position of
     Transportation Operations Supervisor based on the charge of improper conduct.
     Initial Appeal File (IAF), Tab 5, Subtabs 4F, 4I. Specifically, the agency charged
     that, on numerous occasions (at least 40), the appellant used another employee’s
     Time and Attendance Control System (TACS) identification and authorization to
     access the TACS and manually adjust his own clock rings to reflect that he
     reported for work earlier than he actually did. Id. In proposing the penalty of
     removal, the agency relied on the appellant’s past misconduct, a Notice of
     Proposed Letter of Warning in Lieu of a 14-day Time-Off Suspension, for
     Unacceptable Conduct.    Id., Subtab 4F.   The appellant appealed the agency’s
     removal action alleging that his actions were based on past practices, that he had
     his coworker’s permission to use his TACS identification and authorization, and
                                                                                        3

     that the agency’s action constituted discrimination on the basis of age and
     retaliation for filing EEO complaints. IAF, Tabs 1, 31.
¶3        Based on the record developed by the parties, including the testimony at the
     hearing, the administrative judge found that the appellant admitted that he used a
     coworker’s TACS credentials to adjust his own clock rings and that he was aware
     that doing so was improper. IAF, Tab 53, Initial Decision (ID) at 9. Specifically,
     the administrative judge found that the appellant had received training about the
     agency’s prohibition against providing one’s TACS credentials to a coworker,
     and, although the appellant’s coworker had provided the appellant with the
     coworker’s TACS credentials, the coworker did not authorize the appellant to
     make all of the adjustments charged in the proposed removal. 2 ID at 7, 10. The
     administrative judge found further that, even if the coworker authorized the
     appellant’s use of the coworker’s TACS credentials, the agency’s policy prohibits
     use of another employee’s TACS credentials, and the appellant’s assertion that he
     was unaware of this prohibition is not credible. ID at 10. The administrative
     judge noted that the agency requires TACS adjustments to be accounted for by a
     form 1260, and the appellant did not provide a single form 1260 to cover the
     TACS adjustments identified in the proposed removal.               ID at 11.     The
     administrative judge also found that the appellant failed to show that providing
     TACS credentials for others’ use in his facility was commonplace. ID at 11‑12.
¶4        The administrative judge found that the appellant failed to prove his
     affirmative defenses. ID at 17-22. He found that the appellant failed to submit
     evidence in support of his mere assertion that other employees at his facility were
     either removed or forced to retire due to their age. ID at 20. The administrative
     judge also found that the appellant failed to prove that the agency removed him in

     2
       The agency proposed the appellant’s coworker’s removal for improper conduct on the
     basis of providing unauthorized persons access to his personal TACS credentials. IAF,
     Tab 6, Subtab 4G. Prior to the agency’s decision on the coworker’s proposed removal,
     the coworker retired from Federal service. ID at 3 n.2.
                                                                                           4

     retaliation for filing EEO complaints.       He found that, although the deciding
     official knew of the appellant’s EEO activity, the appellant submitted no
     meaningful evidence that the deciding official had a motive to retaliate against
     him. ID at 21‑22.
¶5         Finally, the administrative judge found the removal penalty was within the
     bounds of reasonableness. ID at 13-15. He found that, although the appellant
     had 29 years of service and was regarded as an excellent performer, the appellant
     remained steadfast in his position that he did nothing wrong and this undermines
     his potential for rehabilitation. ID at 16. The administrative judge further found
     that the deciding official properly considered the letter of warning as an
     aggravating factor. ID at 15. The administrative judge found that in light of the
     appellant’s poor potential for rehabilitation, taken in connection with the
     seriousness of his misconduct, the appellant’s supervisory position, and the
     attendant erosion of supervisory confidence in him that his misconduct created,
     removal was not an unreasonable penalty.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶6         In his petition for review, 3 the appellant contends that the administrative
     judge improperly denied his motion to compel.            The record shows that the
     appellant served a discovery request on the agency after the close of business on
     the last day to timely initiate discovery. The agency refused to respond to the
     appellant’s discovery request, asserting that it was untimely filed after the close
     of business, and the appellant filed a motion to compel. IAF, Tabs 16‑19. The
     administrative judge found that the agency’s close of business argument was
     without authority or merit and granted the appellant’s motion to compel

     3
       The appellant generally alleges that the administrative judge was biased. To the
     extent the appellant is alleging that the administrative judge was biased against him or
     in favor of the agency, we find that he has failed to set forth any evidence or argument
     to overcome the presumption of honesty and integrity that accompanies administrative
     adjudicators. See Fox v. Department of the Army, 120 M.S.P.R. 529, ¶ 46 (2014).
                                                                                       5

     discovery. IAF, Tab 20. Subsequently, the appellant filed a second motion to
     compel, asserting that the agency failed to respond to a number of his
     interrogatories and requests for production of documents.       IAF, Tab 30.    The
     administrative judge denied the appellant’s second motion to compel, finding that
     it was filed late by 6 days. IAF, Tab 38.
¶7        An administrative judge has broad discretion in ruling on discovery matters,
     and, absent an abuse of discretion, the Board will not find reversible error in such
     rulings. Vaughn v. Department of the Treasury, 119 M.S.P.R. 605, ¶ 15 (2013).
     The administrative judge denied the appellant’s motion to compel discovery
     because he failed to comply with 5 C.F.R. § 1201.73(d)(3), which provides that a
     motion for an order to compel must be filed with the administrative judge within
     10 days of the date of service of objections. IAF, Tabs 38, 41. We find that the
     administrative judge did not abuse his discretion in denying the appellant’s
     second motion to compel discovery.
¶8        In his petition for review, the appellant appears to allege that the
     administrative judge erred in denying him some of the witnesses that he
     requested. In his petition, he states that “any witness that I requested was crucial
     to my defense and for the sake of truth should have been allowed.” Petition for
     Review (PFR) File, Tab 3. The appellant requested 10 witnesses. IAF, Tab 31.
     The administrative judge approved seven.       He denied two of the appellant’s
     requested witnesses because the appellant failed to proffer what relevant
     testimony those witnesses would provide. Id. The administrative judge reserved
     a ruling on one witness pending a proffer at the hearing. Id.
¶9        The appellant’s assertion on review that the administrative judge erred in
     disallowing two of his witnesses does not show that their testimony would have
     been relevant, material, or not repetitious.    PFR File, Tab 3.     Therefore, he
     has not shown that the administrative judge abused his discretion in disallowing
     these witnesses.   See, e.g., Franco v. U.S. Postal Service, 27 M.S.P.R. 322,
     325 (1985).
                                                                                         6

¶10         Next, the appellant asserts that the agency presented no evidence of fraud.
      The agency’s charge, as written, did not require the agency to prove fraud.
      Rather, it simply charged the appellant with improper conduct.        The Board is
      bound to evaluate the charges as written and not to remake the charges into
      something that could have been charged, but was not.              See Reynolds v.
      Department of Agriculture, 54 M.S.P.R. 111, 113 (1992).
¶11         The appellant also generally disagrees with the administrative judge’s
      findings of fact. He asserts that, contrary to the administrative judge’s findings,
      he used his coworker’s TACS code according to the longstanding and widespread
      custom, practice, and policy in his facility. PFR File, Tab 3. We agree with the
      administrative judge that the appellant failed to show that use of another
      employee’s TACS code was commonplace and known to management. Further,
      regardless of the fact that the log-in screen does not specifically prohibit use of a
      coworker’s TACS code, as the appellant’s asserts, the agency had provided the
      appellant training that included the prohibition against using a coworker’s TACS
      credentials to log in. Thus, the appellant knew or should have known that using
      his coworker’s TACS credentials to alter his clock rings was a violation. The
      appellant’s assertion that his coworker approved the appellant’s actions of
      changing his start times by signing form 1260s is wholly unsupported by the
      record. As the administrative judge found, the appellant did not provide a single
      form 1260 to cover the TACS adjustments identified in the proposed removal.
      Accordingly, the appellant’s contentions do not provide a basis for disturbing the
      administrative judge’s decision to sustain the agency’s charge.       See 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 references, and made reasoned conclusions); Broughton v.
      Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
¶12         After the initial decision was issued, the Board issued a decision that
      clarified the evidentiary standards and burdens of proof under which the Board
                                                                                        7

      analyzes discrimination claims.       Savage, 122 M.S.P.R. 612, ¶¶ 42-43, 51.   We
      find that applying the analytical framework set forth in Savage would not change
      the result in this case. Thus, based on the existing record, and for the reasons
      contained in the initial decision, we affirm the administrative judge’s findings
      that the appellant did not meet his burden of proving his affirmative defenses of
      discrimination based on age and retaliation for filing EEO complaints.
¶13        Regarding nexus and the penalty, the appellant argues on review that the
      agency’s action did not promote the efficiency of the service and that the deciding
      official did not consider all of the Douglas factors.       PFR File, Tab 3.    The
      appellant’s vague arguments, however, do not provide a basis for disturbing the
      administrative judge’s well-reasoned findings concerning nexus and the penalty.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            The initial decision, as supplemented by this Final Order, constitutes the
      Board’s final decision in this matter. 5 C.F.R. § 1201.113. 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 U.S. 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:
                                                                                 8

                           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 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.
