                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     HAROLD E. BROOKS,                               DOCKET NUMBER
                  Appellant,                         SF-0752-14-0752-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: July 2, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Larry Provencio, Barstow, California, for the appellant.

           Loren Baker, Barstow, 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
     affirmed 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 judge’s rulings

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 removed the appellant, a Heavy Mobile Equipment Repairer,
     WG-08, with the agency’s Marine Corps Logistics Command in Barstow,
     California, on two of four proposed charges, possession of a controlled substance
     and drug paraphernalia aboard a military installation, and testing positive for
     amphetamine(s), methamphetamine, and marijuana while in a duty status. Initial
     Appeal File (IAF), Tab 3, Subtabs 4, 4a-4c. The appellant filed a timely Board
     appeal. IAF, Tab 1. In a prehearing conference, the appellant stipulated that, as
     charged, he possessed a controlled substance and drug paraphernalia aboard a
     military   installation   and    that   he   tested   positive   for   amphetamine(s),
     methamphetamine, and marijuana while in a duty status. IAF, Tab 9 at 2; IAF,
     Tab 3, Subtab 4c. The appellant also stipulated to the facts set forth in supporting
     paragraphs e-f of the possession charge, and to supporting paragraphs g-j of the
     positive test charge, specifically acknowledging that he had used “weed” and
     “speed” before work that very morning. Id.
¶3        After holding a hearing, the administrative judge sustained both charges
     based on the appellant’s stipulations, the appellant’s failure to dispute them, and
     the evidentiary record.         IAF, Tab 14, Initial Decision (ID) at 6.          The
     administrative judge also rejected the appellant’s affirmative defenses of age and
                                                                                      3

     race discrimination, individually analyzing each of the potential comparators to
     find that none of them were similarly situated to the appellant for the purpose of
     an affirmative defense of discrimination on the basis of disparate treatment and
     determining that the appellant failed to prove that either racial or age
     discrimination motivated the agency to remove him.           ID at 4-10; see, e.g.,
     Hooper v. Department of the Interior, 120 M.S.P.R. 658, ¶ 6 (2014) (for
     employees to be deemed similarly situated for an affirmative defense of
     discrimination on the basis of disparate treatment, all relevant aspects of the
     appellant’s employment situation must be nearly identical to those of the
     comparators, including reporting to the same supervisor, being subjected to the
     same standards, and engaging in conduct similar to the appellant’s without
     differentiating or mitigating circumstances).
¶4        The administrative judge also found that any delay in the appellant’s
     referral to the agency’s Employee Assistance Program was consistent with the
     requirements of the parties’ collective bargaining agreement and had no effect on
     the agency’s decision, especially considering that the appellant self-referred to
     the program on the day after the specified misconduct occurred. ID at 10-11.
     The administrative judge further found that the agency established a nexus
     between the appellant’s misconduct and the efficiency of the service and that the
     agency both considered all the relevant Douglas factors and exercised its
     managerial discretion such that the penalty of removal was well within the
     tolerable limits of reasonableness. ID at 12-18. The administrative judge also
     rejected the appellant’s claim of disparate penalty, finding that the proffered
     comparators were not valid ones, as their proposed removals were resolved
     through settlements or involved misconduct that was either less serious or too
     remote in time to the appellant’s misconduct. ID at 15-16.
¶5        In his timely filed petition for review, the appellant does not challenge the
     administrative judge’s findings that the agency proved the charges, that the
     appellant failed to establish his affirmative defenses, and that the agency
                                                                                         4

     established nexus. 2 Petition for Review (PFR) File, Tab 1. His sole assertion on
     review is that the Board should mitigate the penalty in this appeal based on the
     initial decision of a different administrative judge in a different case in which the
     appellant’s contentions are both similar as to the charge as well as to the tenure
     and work history of the employee involved therein. Id. at 3-4, 6-30. In that other
     initial decision, rendered the week after the hearing on the appellant’s appeal, the
     administrative judge mitigated the penalty from a removal to a 60-day suspension.
     See Saiz v. Department of the Navy, MSPB Docket No. SF-0752-14-0054-I-1,
     Initial Decision (Nov. 6, 2014).      The agency responds in opposition to the
     appellant’s petition for review. PFR File, Tab 3.
¶6         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.
     Evidence submitted with a petition for review, in addition to being new, must also
     be material to the appeal. 5 C.F.R. § 1201.115(d). Although the initial decision
     in Saiz was issued after the conclusion of the hearing in this appeal, and therefore
     was unavailable before the close of the record in the appellant’s appeal, see
     5 C.F.R. § 1201.58, the Board has long held that an initial decision issued in
     another case does not constitute new and material evidence, e.g., Taggart v. U.S.
     Postal Service, 3 M.S.P.R. 108, 110 (1980); Berry v Department of Energy,
     21 M.S.P.R. 95, 96 (1984).
¶7         Moreover, the agency filed a petition for review of the initial decision in
     Saiz, which the Board granted. The Board reversed the administrative judge’s


     2
       Because the appellant has not challenged these findings and because we discern no
     error in the administrative judge’s well-reasoned initial decision regarding these
     matters, we will not disturb the findings.     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); see also Broughton v. Department of Health & Human
     Services, 33 M.S.P.R. 357, 359 (1987) (same).
                                                                                      5

     mitigation of the penalty and sustained the agency’s removal action, affording
     deference to the deciding official’s penalty determination. Saiz v. Department of
     the Navy, 2015 MSPB 40. Like the appellant in this matter, Mr. Saiz was found
     in possession and under the influence of the same illegal drugs that the appellant
     admitted to using, also while on duty at a military installation. Id., ¶ 11, see ID
     at 3-4. In sustaining the removal penalty, the Board commented that, even if the
     penalty determination of the deciding official in Saiz, who was the same deciding
     official as in the instant matter, was not entitled to deference, its independent
     analysis found that the penalty of removal was within the tolerable limits of
     reasonableness for the misconduct established. Saiz, 2015 MSPB 40, ¶¶ 10-12.
¶8         We find that the same is true in this appeal.        The appellant’s serious
     misconduct was directly related to the duties and responsibilities of his position
     repairing heavy mobile equipment and the safety of those who use the equipment
     he repaired.   See, e.g., Saiz, 2015 MSPB 40, ¶ 11; Cole v. Department of the
     Air Force, 120 M.S.P.R. 640, ¶ 16 (2014) (finding drug use by an aircraft
     mechanic a serious act of misconduct).          Additionally, we agree that the
     appellant’s mitigating factors, including his previously clean disciplinary record
     and long record of acceptable performance, simply do not outweigh the serious
     misconduct established in this matter.     ID at 17.   Accordingly, we DENY the
     appellant’s petition for review.

                     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:
                                                                                    6

                           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
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
                                                                            7

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.
