                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     BOONE RICHARDSON BRANTLEY,                      DOCKET NUMBER
       SR.,                                          DA-0752-14-0590-I-3
                  Appellant,

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



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           A. Brian Henson, Esquire, and Christopher D. Vaughn, Esquire, Decatur,
             Georgia, for the appellant.

           Theresa M. Gegen, Esquire, Dallas, Texas, 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 indefinite suspension. 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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     the 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 address the appellant’s claim of disparate penalties, we
     AFFIRM the initial decision.
¶2        Effective July 14, 2014, the agency indefinitely suspended the appellant,
     from his position as an EAS-18 Postmaster for improper conduct, specifying that
     the agency had reasonable cause to believe that he committed a crime that could
     result in his imprisonment.    Brantley v. U.S. Postal Service, MSPB Docket
     No. DA-0752-14-0590-I-1, Initial Appeal File (IAF), Tab 5 at 23, 28. The agency
     based the indefinite suspension on the appellant’s arrest on felony charges of
     accessory after the fact to armed robbery with a firearm, which carried a possible
     term of imprisonment. IAF, Tab 5 at 28. The charges arose from the appellant’s
     attempt to protect his son who was a suspect in the police investigation of an
     armed robbery.     Id. at 42; Brantley v. U.S. Postal Service, MSPB Docket
     No. DA-0752-14-0590-I-3, Refiled Appeal File (RAF), Tab 11 at 3-4.            The
     agency cancelled his suspension and returned him to duty after he pled guilty to
     an amended charge of resisting arrest.
¶3        The appellant filed an appeal of his indefinite suspension with the Board
     and requested that the administrative judge make a decision based on the written
                                                                                             3

     record. 2    RAF, Tabs 1, 13.    The appellant also raised an affirmative defense
     alleging disparate treatment based on his race (Caucasian), and he withdrew his
     request for a hearing. RAF, Tab 8, Tab 11 at 3-4, Tab 15 at 2. Following the
     submission of evidence, the administrative judge issued an initial decision
     affirming the appellant’s indefinite suspension. RAF, Tab 21, Initial Decision
     (ID) at 1.
¶4         The administrative judge sustained the agency’s charge finding that there
     was reasonable cause to believe that the appellant committed a crime for which a
     sentence of imprisonment could be imposed. ID at 5. The administrative judge
     also found that the indefinite suspension was reasonable and had an ascertainable
     end and that the agency proved there was a nexus between the alleged misconduct
     by the appellant and the efficiency of the service ID at 6, 10. In addition, the
     administrative judge found that the appellant failed to prove his affirmative
     defense based on race, and that the deciding official considered all the relevant
     factors in deciding to suspend the appellant indefinitely. ID at 10, 13.
¶5         The appellant filed a petition for review arguing that the agency failed to
     consider the consistency of his penalty with the penalty imposed on another
     employee, a District Safety Manager, who received paid administrative leave
     during the agency’s investigation of her arrest based on a charge of aggravated
     battery (two counts). Petition for Review (PFR) File, Tab 1 at 4-8. The agency
     opposed his petition and submitted evidence that the agency removed the alleged
     comparator after the initial decision was issued in this appeal. PFR File, Tab 3
     at 17. The appellant argued in reply that the agency failed to explain why he
     received an unpaid indefinite suspension and the alleged comparator received

     2
       The administrative judge dismissed the appellant’s first and second (refiled) appeals
     without prejudice to refiling. IAF, Tab 11, Initial Decision at 1; Brantley v. U.S. Postal
     Service, MSPB Docket No. DA-0752-14-0590-I-2, Tab 10, Initial Decision at 1. The
     case before the Board on review involves the appellant’s petition for review of the
     initial decision issued in his third refiled appeal. RAF, Tab 21, Initial Decision;
     Petition for Review File, Tab 1.
                                                                                      4

     paid administrative leave during the agency investigations following their arrests.
     PFR File, Tab 4.
     The administrative judge properly found that the agency proved the charge that it
     had reasonable cause to believe that the appellant had committed a crime for
     which a sentence of imprisonment may imposed.
¶6        To sustain an indefinite suspension, the agency must show: (1) it imposed
     the suspension for an authorized reason; (2) the suspension has an ascertainable
     end, i.e., a determinable condition subsequent that will bring the suspension to a
     conclusion; (3) the suspension bears a nexus to the efficiency of the service; and
     (4) the penalty is reasonable. Sanchez v. Department of Energy, 117 M.S.P.R.
     155, ¶ 9 (2011). One of the authorized circumstances for imposing an indefinite
     suspension is when the agency has reasonable cause to believe an employee has
     committed a crime for which a sentence of imprisonment could be imposed,
     pending the outcome of the criminal proceeding or any subsequent agency action
     following the conclusion of the criminal process.     Gonzalez v. Department of
     Homeland Security, 114 M.S.P.R. 318, ¶ 13 (2010). The U.S. Court of Appeals
     for the Federal Circuit has held that “[a]n inquiry into the propriety of an
     agency’s imposition of an indefinite suspension looks only to facts relating to
     events prior to suspension that are proffered to support such an imposition.”
     Rhodes v. Merit Systems Protection Board, 487 F.3d 1377, 1380 (Fed. Cir. 2007).
     The Federal Circuit also has held that “an indictment following an investigation
     and grand jury proceedings, would provide, absent special circumstances, more
     than enough evidence of possible misconduct to meet the threshold requirement
     of reasonable cause to suspend.” Dunnington v. Department of Justice, 956 F.2d
     1151, 1157 (Fed. Cir. 1992).
¶7        The administrative judge found that the agency had reasonable cause to
     believe that the appellant committed a crime punishable by imprisonment based
     on the undisputed evidence of his indictment on a felony charge of accessory
     after the fact to armed robbery with a firearm, which carried a possible term of
                                                                                     5

     imprisonment of up to 5 years. ID at 4. The administrative judge further found
     that, when that the agency proposed to suspend the appellant indefinitely, the
     agency had access to the documentation supporting his arrest, including a Bill of
     Information, a warrant, an affidavit for arrest warrant, and the Union Parrish
     Sheriff’s Office Event Attachment Report. ID at 4-5. On review, the appellant
     does not challenge the administrative judge’s finding that the agency had
     reasonable cause to believe that he committed a crime punishable by
     imprisonment when the agency proposed his July 14, 2014 indefinite suspension,
     and we discern no reason to disturb the administrative judge’s findings on this
     issue. ID at 5.
     The administrative judge properly found that the agency proved that the
     indefinite suspension had an ascertainable end.
¶8         For an indefinite suspension to be valid, it must have an ascertainable end.
     See Harding v. Department of Veterans Affairs, 115 M.S.P.R. 284, ¶ 15 (2010),
     aff’d, 451 F. App’x 947 (Fed. Cir. 2011). The Board has found that an indefinite
     suspension based on the existence of pending criminal charges has an
     ascertainable end, i.e., the resolution of the criminal proceedings that are the
     grounds for the suspension. Id., ¶ 17. In the decision letter, the agency informed
     the appellant that his suspension would continue until the termination of the
     criminal proceedings against him and for a reasonable time after the agency
     determined its course of action based on the disposition of his criminal charges.
     IAF, Tab 3 at 23.    The administrative judge found, and we agree, that the
     suspension had an ascertainable end. ID at 6. The appellant does not dispute this
     finding on review.
     The administrative judge properly found that the indefinite suspension of the
     appellant promoted the efficiency of the service.
¶9         To show that an indefinite suspension promotes the efficiency of the
     service, the agency must establish a nexus between the alleged misconduct and
     the efficiency of the service. Harding, 115 M.S.P.R. 284, ¶ 21. An agency may
     show nexus between off-duty misconduct and the efficiency of the service by
                                                                                           6

      three means:      (1) a rebuttable presumption in certain egregious circumstances;
      (2) preponderant evidence that the misconduct adversely affects the appellant’s or
      coworkers’ job performance or the agency’s trust and confidence in the
      appellant’s job performance; or (3) preponderant evidence that the misconduct
      interfered with or adversely affected the agency’s mission. Id.
¶10        The deciding official stated that he lost confidence in the appellant,
      considering the nature and the gravity of his alleged off-duty criminal conduct
      and his position of trust in the community as the Postmaster in charge of a postal
      facility. RAF, Tab 16 at 14. The deciding official also stated that he lost trust in
      the appellant’s ability to perform his duties, which involved making continual
      judgment calls, supervising employees, and ensuring safe delivery of the mail.
      Id. at 14, 18. The deciding official further stated that the media coverage of the
      appellant’s misconduct adversely affected the agency’s mission by diminishing
      the public’s trust and confidence. Id. at 18. The administrative judge found, and
      we agree, that the agency proved that there was a nexus between the charged
      off‑duty criminal misconduct and the efficiency of the service. ID at 6-7; see
      Johnson v. Department of Health & Human Services, 22 M.S.P.R. 521, 528‑29
      (1984) (finding nexus between off‑duty criminal misconduct and the efficiency of
      the service). The appellant does not dispute this finding on review.
      The administrative judge properly found that the appellant failed to prove his
      affirmative defense of disparate treatment based on race.
¶11        In finding that the appellant failed to prove his affirmative defense of race
      discrimination,    the   administrative   judge   properly   applied   the   analytical
      framework set forth in Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 51
      (2015).   ID at 10-11.      Pursuant to Savage, an appellant may establish an
      affirmative defense of race discrimination using direct evidence or any of three
      types of circumstantial evidence: a convincing mosaic of evidence from which a
      discriminatory intent may be inferred, evidence of disparate treatment of similarly
      situated comparators, or evidence that the agency’s stated reason is not worthy of
                                                                                             7

      credence but rather a pretext for discrimination. Id., ¶¶ 42-43. If an appellant
      shows by preponderant evidence that the prohibited consideration was a
      motivating factor in the contested personnel action, in violation of 42 U.S.C.
      § 2000e-16, the Board will inquire whether the agency has shown by
      preponderant evidence that it still would have taken the contested action in the
      absence of the discriminatory or retaliatory motive. Id., ¶¶ 49-51. If the agency
      meets that burden, its violation will not require reversal of the action. Id., ¶ 51.
¶12         For another employee 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 that
      of the comparator employee.       Minh Tuyet Ly v. Department of the Treasury,
      118 M.S.P.R. 481, ¶ 10 (2012). Thus, to be similarly situated, a comparator 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.
¶13         On appeal below, the appellant argued that he is a member of a protected
      class (Caucasian), that the agency subjected him to an adverse employment action
      based on his indefinite suspension, and that he received a harsher penalty than an
      African American employee who received paid administrative leave during the
      agency’s investigation of her alleged criminal misconduct.        RAF, Tab 11 at 3.
      The administrative judge found that the appellant failed to prove his disparate
      treatment claim based on race because the record was devoid of any facts to
      support his claim that the real reason for the agency’s action was discrimination
      as opposed to the reason articulated by the agency. ID at 10. The administrative
      judge also found that the appellant failed to identify any similarly situated
      employee who was not a member of his protected group and was treated more
      favorably by the agency. ID at 12.
¶14         In reaching his decision, the administrative judge found that the appellant
      did not hold the same job as the African American employee he identified, that
                                                                                        8

      they had different first-line supervisors, that the charges in their respective
      proposal letters were different, and that their alleged criminal misconduct was
      different. Id. The administrative judge also found that the agency considered
      placing the appellant on administrative leave, but that the appellant took sick
      leave the day after his arrest on January 30, 2014, and the agency granted the
      leave he requested under the Family and Medical Leave Act of 1993 (FMLA),
      from January 27, 2014, through June 14, 2015.       ID at 13.   The administrative
      judge further considered the agency’s evidence that, under agency policy, an
      employee is not entitled to paid administrative leave if he is unable to report to
      work. Id. The administrative judge also noted evidence that the agency proposed
      to remove the African American employee for her alleged misconduct, which is
      harsher than the indefinite suspension penalty imposed on the appellant for his
      alleged misconduct. ID at 12.
¶15        On review, the appellant does not dispute the administrative judge’s finding
      that the record is devoid of any facts to support his claim that the real reason for
      the agency’s action was discrimination, as opposed to the reason articulated by
      the agency. ID at 12. Based on our review of the record, we find no reason to
      disturb the administrative judge’s finding on this issue.           See Hooper v.
      Department of the Interior, 120 M.S.P.R. 658, ¶¶ 6-7 (2014) (finding that alleged
      comparators were not similarly situated to the appellant, and therefore the
      appellant did not establish discriminatory treatment, because the charged
      misconduct and all of the relevant aspects of employment were not “nearly
      identical” to the appellant’s); Hodge v. Department of Homeland Security,
      114 M.S.P.R. 636, ¶¶ 9, 11-13 (2010) (denying a discrimination affirmative
      defense because there was no evidence that the suspension was motivated by
      discriminatory animus).
      The administrative judge properly found that the penalty was reasonable.
¶16        Where, as here, the agency’s charge is sustained, the agency’s penalty
      determination is entitled to deference and should be reviewed only to determine
                                                                                         9

      whether it is within the parameters of reasonableness. See Payne v. U.S. Postal
      Service, 72 M.S.P.R. 646, 650 (1996). The factors that the Board will review in
      determining the reasonableness of the penalty include considering its consistency
      with the penalties imposed upon other employees for the same or similar offenses.
      Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981).               The
      appellant argues on review that the agency’s penalty determination is not entitled
      to deference by the Board because the deciding official failed to consider whether
      the penalty was consistent with those imposed on similarly situated employees.
      PFR File, Tab 1 at 4. We disagree. The record reflects that the deciding official
      considered the relevant Douglas factors, including the consistency of the penalty
      imposed on other employees for same or similar offenses, in determining that the
      appellant’s indefinite suspension was reasonable and promoted the efficiency of
      the service. RAF, Tab 16 at 17-18; IAF, Tab 5 at 22‑23.
¶17         The appellant argues on review that the administrative judge applied the
      wrong standard to his claim of disparate penalties.        PFR File, Tab 1 at 5-6.
      Although not addressed in the initial decision, the record reflects that the
      administrative judge properly informed the appellant of his burden of proof on
      this issue. RAF, Tab 15 at 2-3. While the appellant’s arguments below focus on
      his disparate treatment claim, see Chavez v. Small Business Administration,
      121 M.S.P.R. 168, ¶ 19 (2014) (explaining that disparate penalty and disparate
      treatment are different theories that have different elements of proof), he appears
      to have attempted to raise a disparate penalties claim, i.e., a claim that the agency
      failed to conscientiously consider the “consistency of the penalty with those
      imposed upon other employees for the same or similar offenses,” Douglas,
      5 M.S.P.R. 280, 305; RAF, Tab 18 at 5-6.         We therefore modify the initial
      decision to address the appellant’s contention, nonetheless finding his disparate
      penalties claim does not provide a basis for review.
¶18         The appellant’s allegation that the agency treated him disparately to another
      employee, without claiming prohibited discrimination, is an allegation of
                                                                                    10

      disparate penalties. Lewis v. Department of Veterans Affairs, 113 M.S.P.R. 657,
      ¶ 5 (2010). The appellant has the initial burden of showing that there is enough
      similarity between both the nature of the misconduct and other factors to lead a
      reasonable person to conclude that the agency treated similarly situated
      employees differently.   RAF, Tab 15 at 2-3; Boucher v. U.S. Postal Service,
      118 M.S.P.R. 640, ¶¶ 20, 24 (2012).       To “trigger” the agency’s burden of
      production on disparate penalties, the appellant must show that there is enough
      similarity between both the nature of the misconduct and other factors, such as
      whether he and the comparator were in the same work unit, had the same
      supervisor and/or deciding official, and whether the events occurred relatively
      close in time, to lead a reasonable person to conclude that the agency treated
      similarly situated employees differently.        RAF, Tab 15 at 2-3; McNab v.
      Department of the Army, 121 M.S.P.R. 661, ¶ 5 (2014).
¶19        Here, however, we discern no evidence or argument on review indicating
      that there is enough similarity between both the nature of the appellant’s
      misconduct and other factors to lead a reasonable person to conclude that the
      agency treated   similarly situated    employees    differently.   See   Boucher,
      118 M.S.P.R. 640, ¶¶ 20, 24. The appellant argued on appeal that he shared a
      second-level manager with the alleged comparator and that they engaged in
      similar conduct because they were subject to the same disciplinary standards and
      arrested for allegedly committing crimes that could result in imprisonment. RAF,
      Tab 11 at 3, Tab 18 at 12-13. We find, however, that the nature of their alleged
      misconduct and other factors lack sufficient similarity for a disparate penalties
      analysis. The undisputed record reflects that they held different positions and
      reported to different first‑line managers, and that different proposing and
      deciding officials took different adverse actions against them based on different
      charged misconduct after their arrests for allegedly committing different felony
      offenses under vastly different circumstances.     RAF, Tab 16 at 24-29, Tab 18
      at 12; IAF, Tab 5 at 37-62, 82-86.    The alleged comparator’s situation is also
                                                                                      11

      distinguishable from the appellant’s because he requested and received FMLA
      leave based on his medical inability to work immediately after his arrest on
      felony charges of accessory after the fact to an armed robbery with a firearm.
      RAF, Tab 17 at 21, 26. According to the sworn declaration of the District Human
      Resources Manager, the appellant was not entitled to paid administrative leave
      under agency policy based on his inability to work. RAF, Tab 17 at 16.
¶20        Moreover, the appellant does not dispute that the agency proved the charge
      underlying his indefinite suspension based on his indictment and his admissions
      in the documents supporting his arrest.     ID at 4-5.    In contrast, the alleged
      comparator received paid administrative leave during an agency investigation
      after her arrest for aggravated battery, which she claimed was self-defense. RAF,
      Tab 17 at 24; PFR File, Tab 3 at 17.      After completing its investigation, but
      before the court decided her criminal case, the agency removed the alleged
      comparator from her Safety Manager position based on the charge that she
      assaulted a young woman by throwing bleach in her face. PFR File, Tab 3 at 17.
      The nature of her alleged misconduct and other factors are not similar to the
      appellant’s, who remains employed by the agency as a Postmaster after his
      criminal conviction. RAF, Tab 17 at 22, 26, Tab 18 at 30.
¶21        Because the appellant failed to meet his initial burden of production, he
      failed to trigger the agency’s burden of proving it had a legitimate reason for the
      different treatment by a preponderance of the evidence. See Lewis, 113 M.S.P.R.
      657, ¶ 17. Accordingly, we need not consider the remaining arguments raised by
      the appellant disputing the evidence and argument submitted by the agency as
      proof that there was a legitimate reason for the difference in treatment.
      Moreover, unlike the appellant, the agency removed the alleged comparator
      before her criminal case for alleged aggravated battery was resolved by the court.
      PFR File, Tab 3 at 17.    The agency did not treat the alleged comparator less
      harshly than the appellant who remains employed by the agency after pleading
                                                                                      12

      guilty to an amended charge of resisting arrest. RAF, Tab 17 at 22-23, Tab 18
      at 30.
¶22            We find that the agency proved that the penalty was reasonable and
      consistent for the proven charge based on the relevant Douglas factors.        See
      White v. U.S. Postal Service, 22 M.S.P.R. 452, 454-57 (1984) (sustaining the
      indefinite suspension of a Postmaster indicted for tampering with evidence),
      aff’d, 768 F.2d 334 (Fed. Cir. 1985). We therefore deny the petition for review.

                        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:
                                  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
                                                                                13

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.
