                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     KASHIF A. RASHEED,                              DOCKET NUMBER
                   Appellant,                        SF-0752-13-0191-I-1

                  v.

     DEPARTMENT OF                                   DATE: August 4, 2014
       TRANSPORTATION,
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Kashif A. Rasheed, Compton, California, pro se.

           Lierre M. Green, Esquire, Los Angeles, California, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     upheld 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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, and based on the following points and authorities, 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 employed the appellant as a Drug and Alcohol Compliance and
     Enforcement Inspector. Initial Appeal File (IAF), Tab 7, Subtab 4b. From July
     25-28, 2011, the appellant took leave. IAF, Tab 4, Subtab 4m at 2. Due to the
     appellant’s   conduct   in   connection   with   this   leave   and   the   subsequent
     investigation, the agency proposed his removal. IAF, Tab 4, Subtab 4g. The
     charges included (1) making false or misleading statements in connection with
     any inquiry, investigation, etc., for oneself or another; (2) misrepresenting
     information on time and attendance records for oneself; and (3) absence without
     leave. Id. at 1-6.
¶3         For the first charge, the agency alleged that the appellant made false or
     misleading statements during his interview with the agency when he claimed to
     have been instructed to appear for jury service and claimed that he appeared for
     that jury service. Id. at 1-4. For the second charge, the agency alleged that the
     appellant misrepresented information on his time and attendance records by
     claiming court leave when he was not actually serving or required to serve jury
     duty. Id. at 4-5. For the third charge, the agency alleged that the appellant’s
     leave was denied, resulting in his being absent without leave for the days and
                                                                                             3

     times that he claimed court leave. Id. at 5-6. The appellant responded to the
     charges, IAF, Tab 4, Subtab 4f, but the agency sustained the removal, effective
     March 21, 2012, IAF, Tab 4, Subtab 4d at 1-4, Tab 7, Subtab 4b.
¶4         The appellant appealed to the Board, IAF, Tab 1, and the administrative
     judge affirmed the removal, IAF, Tab 25, Initial Decision (ID). The appellant has
     filed a petition for review. 2 Petition for Review (PFR) File, Tab 1. The agency
     has submitted a response, PFR File, Tab 8, and the appellant has replied, PFR
     File, Tabs 9-10.
¶5         In his petition for review, the appellant presents several arguments, which
     we construe liberally.      See Melnick v. Department of Housing and Urban
     Development, 42 M.S.P.R. 93, 97 (1989) (a pro se appellant’s pleadings are to be
     liberally construed), aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table). He asserts
     that the agency did not provide preponderant evidence to support its charges, PFR
     File, Tab 1 at 5, and that the agency failed to establish a nexus between the
     charged misconduct and the efficiency of the service, id. at 5-7. The appellant
     also claims that the agency did not properly consider several mitigating factors
     and that the penalty of removal was beyond the tolerable limits of reasonableness.
     Id. at 5-6, 20-24. He reasserts two affirmative defenses, alleging that he was
     subject to a disparate penalty based upon race, id. at 4, and that the agency’s
     removal was reprisal for equal employment opportunity (EEO) activity, id. at 8,
     10.   Finally, he alleges that the administrative judge abused his discretion or
     otherwise exhibited bias. Id. at 9-10.

     2
       Because the appellant initially filed his petition for review with the Board’s Western
     Regional Office on an initial appeal form, rather than with the Clerk of the Board, as
     required, his August 19, 2013 petition was not recognized until May 14, 2014. See PFR
     File, Tab 1 at 1-3, Tab 7 at 1; see also 5 C.F.R. § 1201.114(d) (indicating that petitions
     for review are to be filed with the clerk of the Board). The Clerk of the Board served
     the agency with the filing, providing until June 9, 2014, to respond. PFR File, Tab 7 at
     1. Although the agency timely responded, PFR File, Tab 8, the appellant alleges that
     the agency was given an unfair advantage, PFR File, Tab 9 at 5. However, we find no
     such advantage. The agency was provided an appropriate deadline for responding under
     the circumstances.
                                                                                       4

     The administrative judge applied the correct burden of proof and made
     appropriate credibility determinations.
¶6          The administrative judge sustained each of the agency’s three charges. ID
     at 5-9. On review, the appellant asserts that the agency and administrative judge
     distorted the facts and “only made attempts at inferences and implications,” rather
     than proving the charges on the merits. PFR File, Tab 1 at 5. He also disputed
     the administrative judge’s credibility determinations and called the charges
     “arbitrary [and] unsubstantiated allegations.” Id. at 7.
¶7          Generally, in an adverse action appeal, the agency must prove its charge by
     a preponderance of the evidence. 5 U.S.C. § 7701(c)(1)(B). A preponderance of
     the evidence is that degree of relevant evidence that a reasonable person,
     considering the record as a whole, would accept as sufficient to find that a
     contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).
¶8          Here, the agency presented significant evidence.     See ID at 2-9.    Most
     notably, the agency supplied a letter from the Director of the Jury Services
     Division for the Los Angeles County Superior Court, and testimony of a Los
     Angeles County Superior Court Senior Court Services Supervisor. IAF, Tab 4,
     Subtab 4k at 7-9; Hearing CD (Testimony of Maisha Elis). Both indicated that
     the appellant was not instructed to report for jury duty during the week he
     claimed 4 days of court leave.       IAF, Tab 4, Subtab 4k at 8; Hearing CD
     (Testimony of Elis).     The Director’s letter detailed the timeline of events,
     including the appellant’s calls, each night during the week in question, to the
     court’s automated system which instructed him not to report for jury duty the
     following day but instead to call again the next night. IAF, Tab 4, Subtab 4k at
     7-8.
¶9          When he responded to the agency’s inquiry about his conduct, the appellant
     provided a different account of the events. In a sworn statement, the appellant
     alleged that the court’s automated system directed him to appear for jury duty on
     each of the 4 days he was absent from work and took court leave. Id. at 15-16.
                                                                                       5

      He alleged that he spent all or part of each of those 4 days at the courthouse. Id.
      However, after the appellant’s sworn statement, the agency sought and received a
      follow-up letter from the court’s Jury Services Director. IAF, Tab 4, Subtab 4h at
      2-4. According to the Director, the court’s records indicated that the appellant
      had not been at the courthouse, because his name did not appear on any of the
      week’s roll call lists, and his juror badge was never scanned. Id. at 3.
¶10         Testifying at his hearing, the appellant alleged that the court’s records may
      have been altered by someone within the agency.          See ID at 7; Hearing CD
      (Testimony of the appellant).
¶11         On review, the appellant alleges that the administrative judge erred in
      crediting the agency’s witnesses’ testimony and discrediting the testimony of his
      witnesses.   PFR File, Tab 1 at 10, 17-20.        Specifically, he asserts that his
      supervisor and the manager of the Drug Abatement Division provided incredible
      or even perjured testimony in describing their own conduct and prior discipline
      the agency has imposed. Id. According to the appellant, his witnesses, PW, AM,
      and KG, provided the more truthful and relevant testimony, discrediting the
      agency’s witnesses while also demonstrating a pattern of discrimination. Id. at
      17-20.
¶12         In his decision, the administrative judge properly identified the factual
      questions in dispute, summarized the evidence, stated which version he believed,
      and explained why he found the chosen version of events more credible than the
      other. ID at 2-8; see Hillen v. Department of the Army, 35 M.S.P.R. 453, 458
      (1987) (listing those factors to be considered by an administrative judge in
      resolving credibility issues). 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; the Board
      may overturn such determinations only when it has “sufficiently sound” reasons
      for doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir.
      2002) .   Although the appellant disagrees with the administrative judge’s
                                                                                       6

      conclusions in favor of the agency, his petition has provided no reason for the
      Board to overturn the judge’s credibility determinations and substitute its own,
      nor has he otherwise shown that the judge erred in finding the agency’s charges
      supported by preponderant evidence.

      The agency established a nexus between the appellant’s discipline and the
      efficiency of the service.
¶13          The administrative judge found that there was a clear nexus between the
      agency’s discipline for the charged conduct and the efficiency of the service. ID
      at 15; see 5 U.S.C. § 7513(a). The appellant disputes this, alleging that, even if
      the agency proved its charges, it failed to establish a nexus. PFR File, Tab 1 at
      5-7.
¶14          As previously discussed, the charges included (1) making false or
      misleading statements in connection with any inquiry, investigation, etc., for
      oneself or another; (2) misrepresenting information on time and attendance
      records for oneself; and (3) absence without leave. IAF, Tab 4, Subtab 4g at 1-6.
      Although the appellant’s petition describes the conduct at issue as off-duty
      misconduct, PFR File, Tab 1 at 6, the charges clearly reflect otherwise.        In
      addition, while the appellant asks the Board to address the issue of nexus, his
      petition does not provide a substantive basis for such review. See PFR File, Tab
      1 at 5-7, Tab 9 at 15. He has failed to present any argument that the charged
      misconduct does not disrupt the efficiency of the service. Id.
¶15          Mere disagreement with the administrative judge’s findings does not
      warrant full review of the record by the Board. Weaver v. Department of the
      Navy, 2 M.S.P.R. 129, 133-34 (1980). Moreover, the Board has previously found
      that falsification is inherently destructive of the agency’s faith in an employee’s
      trustworthiness and honesty, essential elements in the relationship of an employer
      and employee, Connett v. Department of Navy, 31 M.S.P.R. 322, 328 (1986),
      aff’d, 824 F.2d 978 (Fed. Cir. 1987), and that unauthorized absence is a proper
      ground for removal since by its very nature it disrupts the efficiency of the
                                                                                            7

      service, Roberson v. Veterans Administration, 27 M.S.P.R. 489, 493-94 (1985).
      Accordingly, we find no error in the administrative judge’s conclusion that the
      agency proved nexus.

      The agency established that removal was within the tolerable bounds of
      reasonableness.
¶16         The appellant’s petition argues that mitigating factors outweigh the
      seriousness of his alleged misconduct. 3 PFR File, Tab 1 at 20-24. He asserts that
      he had no prior misconduct; this was an isolated incident; he is not a manager; he
      is extremely dependable; and he was under distress due to a hostile work
      environment. Id. at 21-24. The appellant also alleges that the charged conduct
      did not affect the agency’s operation and mission because, according to the
      testimony of his supervisor, the agency avoided any negative impact by simply
      replacing him. Id. at 20. Finally, he alleges that the agency failed to consider
      alternative sanctions. Id. at 24.
¶17         In Douglas v. Veterans Administration, the Board recognized a number of
      relevant factors in determining that a penalty is within the tolerable bounds of
      reasonableness. 5 M.S.P.R. 280, 305-07 (1981). The evidence demonstrated that
      the agency weighed relevant factors before finding that the mitigating factors 4 did
      not outweigh the seriousness of his misconduct and the resulting loss of trust.

      3
        The appellant’s petition also alleges that the agency erred by not providing him with
      this Douglas factor analysis. PFR File, Tab 1 at 5. However, to the contrary, the
      agency’s consideration of Douglas factors is contained within its proposal and decision
      letters. IAF, Tab 4, Subtab 4d at 3-4, Subtab 4g at 6-7.
      4
        The appellant’s petition indicates that he did not gain anything from the misconduct
      and that he apologized for the error. PFR File, Tab 1 at 21-22. However, an individual
      clearly gains by taking court leave if he is not actually entitled to court leave. In
      addition, while the appellant acknowledged some mistakes with inputting time and
      attendance, he continually disputed the allegations that he was not entitled to court
      leave and that he provided false information about it. See IAF, Tab 4, Subtab 4f,
      Subtab 4d at 1-3. Even on petition for review, the appellant characterizes his apology
      as for his “unintentional error.” PFR File, Tab 1 at 22. Therefore, we do not agree with
      the appellant that these were additional mitigating factors that the agency should have
      considered.
                                                                                               8

      IAF, Tab 4, Subtab 4d at 3-4, Subtab 4g at 6-7. The agency acknowledged that
      the appellant had 11 years of service with no history of discipline, and that he had
      met performance expectations.          IAF, Tab 4, Subtab 4d at 3.            Nevertheless,
      removal was consistent with its table of penalties, and the agency reasoned that
      behavior of employees in the appellant’s position must be beyond reproach, as
      they may be required to serve as a witness in litigation. IAF, Tab 4, Subtab 4d at
      3-4, Subtab 4g at 6-7; see IAF, Tab 4, Subtab 4s at 4-5 (relevant pages from the
      agency’s table of penalties).
¶18           The administrative judge concluded that the agency’s deciding official
      adequately addressed all the relevant factors and exercised his management
      discretion within tolerable limits of reasonableness in selecting the penalty of
      removal. ID at 15-16; see Douglas, 5 M.S.P.R. at 306 (the Board’s review of an
      agency-imposed        penalty   is   essentially   to   ensure   that   the   agency   did
      conscientiously consider the relevant factors and did strike a responsible balance
      within tolerable limits of reasonableness). Although the appellant asserts that a
      lesser penalty would have been reasonable, we find no reason to disturb the
      administrative judge’s conclusion that removal was within the tolerable limits of
      reasonableness.

      The appellant failed to prove his affirmative defense of race discrimination.
¶19           The administrative judge found that the appellant failed to prove any of his
      affirmative defenses, including his allegation of race discrimination. ID at 10-14.
      On review, the appellant again asserts that his penalty was more severe than the
      penalties of others. PFR File, Tab 1 at 4, 6-7. He alleges that at least four other
      employees of another race were similarly situated but received lesser penalties.
      Id. at 12-16.
¶20           For employees to be deemed similarly situated for purposes of an
      affirmative defense of discrimination based on disparate treatment, all relevant
      aspects of the appellant’s employment situation must be “nearly identical” to
      those     of    the   comparator      employees.        Hooper     v.    Department      of
                                                                                            9

      Interior, 120 M.S.P.R. 658, ¶ 6 (2014).        Therefore, comparators must have
      reported to the same supervisor, been subjected to the same standards governing
      discipline,   and   engaged   in   conduct   similar    to   the   appellant’s   without
      differentiating or mitigating circumstances. Id.
¶21         In his decision, the administrative judge found that only one of the alleged
      comparators was disciplined by the same deciding official. ID at 13. He also
      found that, while the appellant’s comparative examples involved false or
      inaccurate time and attendance records, they did not include multiple charges nor
      did they pertain to making false statements under oath in an official investigation.
      ID at 13.     Therefore, the administrative judge reasoned that the appellant’s
      comparative examples were not meaningfully similar. ID at 13-14. Although the
      appellant repeats his claims of disparate treatment on review, citing to the same
      four comparative examples, PFR File, Tab 1 at 12-16, he has failed to
      demonstrate any error in the administrative judge’s conclusion that they were not
      meaningfully similar.

      The appellant failed to prove his affirmative defense of reprisal for a protected
      activity.
¶22         The administrative judge found that the appellant failed to meet this burden
      of proving the affirmative defense of retaliation for a protected activity. ID at
      14-15. On review, the appellant reiterates his allegations that the removal action
      was taken in reprisal for prior EEO activity. PFR File, Tab 1 at 8, 10.
¶23         To prove retaliation based on prior EEO activity, an appellant must show
      that: (1) he engaged in a protected activity; (2) the accused official knew of the
      protected activity; (3) the adverse action under review could have been retaliation
      under the circumstances; and (4) there was a genuine nexus between the alleged
      retaliation and the adverse action. Oulianova v. Pension Benefit Guaranty
      Corporation, 120 M.S.P.R. 22, ¶ 14 (2013).             To establish a genuine nexus
      between the protected activity and the adverse employment action, the appellant
                                                                                       10

      must prove that the employment action was taken because of the protected
      activity. Id.
¶24         In concluding that the appellant failed to meet his burden, the
      administrative judge found that the appellant had not shown that the deciding
      official had any knowledge of the prior EEO activity. ID at 14-15. The appellant
      repeats the assertion that his removal action was taken in reprisal for prior EEO
      activity on review, but he has provided no substantive argument on the point.
      PFR File, Tab 1 at 8, 10. The appellant simply alleges that the administrative
      judge erred in finding that he failed to establish EEO reprisal.         Id. at 10.
      However, this disagreement does not warrant full review of the record by the
      Board. See Weaver, 2 M.S.P.R. at 133-34 (when an alleged factual error relates
      to a credibility determination, the petition for review must contain some specific
      citation of evidence or reasons warranting review). We find the administrative
      judge’s finding regarding the appellant’s reprisal claim to be well-reasoned, and
      decline to disturb that finding on review.

      The administrative judge did not abuse his discretion by limiting the hearing,
      denying some of the appellant’s requested witnesses, or limiting discovery, and
      the appellant failed to demonstrate judicial bias.
¶25         According to the appellant, the administrative judge cited a limited schedule
      and busy calendar during a prehearing conference as he questioned how long the
      proceedings would last. PFR File, Tab 1 at 9. The appellant also alleges that the
      administrative judge denied his request to call several witnesses regarding
      comparable discipline. Id. at 9-10. Next, the appellant alleges that he was denied
      access to internal security reports of investigations for other employees. Id. at 9.
      Finally, the appellant alleges that the administrative judge exhibited bias. Id. at
      26.
¶26         While the appellant alleges that the judge questioned how long the hearing
      would last, he did not allege that the amount of time provided for the hearing was
      actually limited.   Id. at 9.   In addition, he presented no argument that his
                                                                                         11

      substantive rights were prejudiced, even if the judge did limit his hearing in some
      way.     Moreover, the Board’s regulations provide an administrative judge with
      wide discretion to control a hearing. Franco v. U.S. Postal Service, 27 M.S.P.R.
      322, 325 (1985); 5 C.F.R. § 1201.41(b). This includes the authority to regulate
      the course of the hearing. 5 C.F.R. § 1201.41(b)(6).
¶27           An administrative judge also is provided with the authority to exclude
      witnesses an appellant has not shown would offer relevant, material, and
      nonrepetitious evidence. Franco, 27 M.S.P.R. at 325; 5 C.F.R. § 1201.41(b)(8),
      (10).     Where an appellant presents a vague assertion on review that the
      administrative judge erred in disallowing witnesses, without showing that the
      testimony would have been relevant, material, or not repetitious, he has not
      shown that the administrative judge abused his discretion. Vaughn v. Department
      of Treasury, 119 M.S.P.R. 605, ¶ 13 (2013). In addition, an appellant’s failure to
      timely object to rulings on witnesses precludes him from doing so on petition for
      review. Tarpley v. U.S. Postal Service, 37 M.S.P.R. 579, 581 (1988). Finally, an
      administrative judge also has broad discretion in ruling on discovery matters, and,
      absent a showing of abuse of discretion, the Board will not find reversible error in
      such rulings. Vaughn, 119 M.S.P.R. 605, ¶ 15; 5 C.F.R. § 1201.41(b)(4).
¶28           As the Board understands his petition, the appellant asserts that the rejected
      witnesses and records would have aided in establishing his affirmative defense of
      discrimination. However, the appellant did not object below, and, on review, he
      has failed to specify how the testimony or evidence was relevant, material and
      nonrepetitious. Regarding the alleged denial of internal security reports relating
      to other employees, the appellant failed to show any relevance in light of the
      administrative judge’s conclusion that the comparator employees were not
      similarly situated.   Therefore, we find no abuse of discretion. We also find that
      the appellant’s broad, general allegations of bias are not sufficient to rebut the
      presumption of the administrative judge’s honesty and integrity. See Oliver v.
      Department of Transportation, 1 M.S.P.R. 382, 386, 389 (1980).
                                                                                     12

¶29         Based upon the above, we deny the appellant’s petition for review and
      affirm the initial decision.

                       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.

      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
                                                                                   13

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. § 2000e5(f)
and 29 U.S.C. § 794a.




FOR THE BOARD:                             ______________________________
                                           William D. Spencer
                                           Clerk of the Board
Washington, D.C.
