                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     BYRON MCDONALD,                                 DOCKET NUMBER
                 Appellant,                          DE-0752-15-0358-I-1

                  v.

     DEPARTMENT OF THE INTERIOR,                     DATE: February 22, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Byron McDonald, North Las Vegas, Nevada, pro se.

           Grant L. Vaughn, Esquire, Salt Lake City, Utah, 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 the agency action indefinitely suspending him.          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

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 and AFFIRM the initial
     decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2         Effective May 4, 2015, the agency indefinitely suspended the appellant
     from his position as a Supervisory Police Officer, finding reasonable cause to
     believe that he committed a crime for which a term of imprisonment may be
     imposed. Initial Appeal File (IAF), Tab 13 at 14, 18-21, 39-42. The appellant
     was alleged to have put his service weapon to a taxi driver’s head, asked the
     driver whether he “wanted to live or die,” and subsequently grabbed the driver by
     his shirt and pulled him back into the vehicle when he attempted to run away
     from the appellant. Id. at 19, 93.
¶3         The appellant filed an appeal with the Board regarding the indefinite
     suspension. IAF, Tab 1. He argued that the indefinite suspension was invalid
     because the agency did not have reasonable cause to believe he committed the
     crime with which he was charged, there was no nexus between his alleged
     misconduct and the efficiency of the service, and the penalty was unreasonable.
     Id. at 5; IAF, Tab 15 at 5-6, Tabs 19, 36. He raised affirmative defenses of:
     (1) harmful error, in that the agency purportedly effected his indefinite
     suspension before informing him of its decision; and (2) discrimination based on
     race and national origin.    IAF, Tabs 7, 19, Tab 21 at 4.       After holding the
     requested hearing, the administrative judge issued an initial decision affirming
     the agency’s action. IAF, Tab 40, Initial Decision (ID). He found that: (1) the
                                                                                            3

     agency had reasonable cause to impose the indefinite suspension; (2) the
     indefinite suspension had an ascertainable end; (3) there was a nexus between the
     indefinite suspension and the efficiency of the service; (4) the penalty was
     reasonable; and (5) the appellant failed to prove his affirmative defenses.           ID
     at 5-20.
¶4         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. He argues that: (1) the indefinite suspension was invalid; (2) the
     administrative judge erred in finding that he failed to prove his discrimination
     claims 2; and (3) the agency violated his due process rights in effecting the
     indefinite suspension. 3   Id.   The agency filed a response in opposition to the
     petition for review, to which the appellant replied. PFR File, Tabs 4-5.
     The agency properly sustained the indefinite suspension.
¶5         An indefinite suspension can be sustained if: (1) there is reasonable cause
     to believe the employee committed a crime for which a term of imprisonment may
     be imposed; (2) the suspension has an ascertainable end; (3) there is a nexus
     between the alleged misconduct and the efficiency of the service; and (4) the
     penalty is reasonable.     Rittgers v. Department of the Army, 117 M.S.P.R. 182,
     ¶ 12 (2011). The appellant disputes that the agency satisfied the first, third and
     fourth requirements.

     2
       The appellant does not challenge, and we discern no basis to disturb, the
     administrative judge’s findings concerning his harmful error claim.
     3
       The appellant also argues that the administrative judge erred in failing to consider
     cases from various Federal district and circuit courts, which he cited to support his
     position. PFR File, Tab 1 at 14, 19-20. To the extent that the administrative judge
     disregarded these cases, we discern no error because decisions by Federal district courts
     and circuits other than the U.S. Court of Appeals for the Federal Circuit are not binding
     on the Board. Rassenfoss v. Department of the Treasury, 121 M.S.P.R. 512, ¶ 16 n.4
     (2014); Nigg v. U.S. Postal Service, 91 M.S.P.R. 164, ¶ 11 n.3 (2002), aff’d, 321 F.3d
     1381 (Fed. Cir. 2003). The appellant also asserts that the administrative judge should
     have considered Chambers v. Department of the Interior, 602 F.3d 1370 (Fed. Cir.
     2010), decision on remand, 116 M.S.P.R. 17 (2011). PFR File, Tab 1 at 19. He appears
     to be referring to the analysis of Chambers’ claim of whistleblower reprisal, which has
     no applicability in the instant appeal.
                                                                                          4

           Reasonable Cause
¶6         The appellant argues that the agency cannot satisfy the reasonable cause
     requirement because it improperly failed to verify whether he engaged in the
     criminal misconduct alleged, and also failed to consider evidence proving his
     innocence. PFR File, Tab 1 at 10, 12-14, 17-19. However, a substantive defense
     to the alleged criminal misconduct on which an indefinite suspension is based
     does not defeat an agency’s showing of reasonable cause. Pararas-Carayannis v.
     Department of Commerce, 9 F.3d 955, 957-58 (Fed. Cir. 1993).             Further, our
     reviewing court has held that an agency is not required to conduct an independent
     investigation in all circumstances and that a formal judicial determination made
     following a preliminary hearing provides 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, 1156-57 (Fed. Cir. 1992).
¶7         In October 2014, a district attorney filed criminal information with a district
     court charging that the appellant committed the third-degree felony of aggravated
     assault using a dangerous weapon or other means or force likely to produce death
     or serious bodily injury. IAF, Tab 13 at 122. A term of imprisonment may be
     imposed for this offense. Utah Code Ann. § 76-3-203(3); see IAF, Tab 13 at 19.
     On March 5, 2015, following a preliminary hearing, a court found “sufficient
     probable cause to bind the case over on all counts.”         IAF, Tab 13 at 49.    On
     March 23, 2015, the appellant was arraigned. Id. at 50. He entered a not guilty
     plea and the case was set for a jury trial. Id. These circumstances are sufficient
     for the agency to meet its burden of showing that it had reasonable cause to
     believe that the appellant committed a crime for which a term of imprisonment
     may be imposed. 4 See Dunnington, 956 F.2d at 1157. Further, in light of this

     4
       The appellant disputes that the deciding official relied upon the aforementioned
     circumstances in reaching his decision and states that the agency impermissibly relied
     solely on his arrest, his arraignment, and associated newspaper articles to sustain the
     indefinite suspension. PFR File, Tab 1 at 11-12. The appellant is incorrect. The
     decision notice summarizes the reasons for the agency’s actions including, inter alia,
                                                                                             5

     evidence, we discern no error in the agency’s failure to conduct an independent
     investigation. 5   See Hernandez v. Department of the Navy, 120 M.S.P.R. 14,
     ¶¶ 15-16 (2013) (finding that the reasonable cause requirement was satisfied,
     notwithstanding that the agency proposed the indefinite suspension based upon
     court documents and did not conduct an independent investigation into the
     criminal charges, because the district attorney had filed a complaint and the
     employee had been ordered to appear for a jury trial).
            Nexus
¶8         An agency may show a nexus between off-duty misconduct and the
     efficiency of the service by 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. 6   Harding v. Department of Veterans Affairs, 115 M.S.P.R. 284, ¶ 21
     (2010), aff’d, 451 F. App’x 947 (Fed. Cir. 2011). The administrative judge found
     that the agency established nexus based upon the latter two means because:
     (1) the appellant was a police officer and allegedly used his agency-issued service
     weapon in the crime with which he was charged; (2) the appellant’s service

     that the appellant: (1) was arrested; (2) was charged with aggravated assault by
     criminal complaint; (3) appeared before a judge and pled not guilty to that charge; and
     (4) was thereafter scheduled for a jury trial. IAF, Tab 13 at 19.
     5
       The appellant argues that the administrative judge erred in failing to consider
     Barresi v. U.S. Postal Service, 65 M.S.P.R. 656, 663 (1994). PFR File, Tab 1 at 18-19.
     However, the administrative judge considered Barresi and found it distinguishable from
     the instant appeal. ID at 6 n.9. We agree. In Barresi, the agency relied solely on
     arrest, arraignment, and unverified news reports. Barresi, 65 M.S.P.R. at 666. In the
     instant appeal, the agency relied on those same factors, but additionally relied on a
     probable cause finding made after a preliminary hearing. IAF, Tab 13 at 18-19.
     6
       The appellant asserts that indefinite suspensions cannot be taken based on the
     potential for loss of public trust or to protect the agency’s reputation, citing Thomas v.
     General Services Administration, 756 F.2d 86 (Fed. Cir. 1985). PFR File, Tab 1 at 22.
     The appellant’s argument is incorrect and Thomas does not support his position.
                                                                                            6

      weapon was confiscated following the criminal incident and remained in police
      custody, which inherently interfered with his ability to perform law enforcement
      duties; and (3) the appellant’s criminal matter generated widespread notoriety and
      media attention that adversely affected the agency’s mission and public trust. ID
      at 8-11.
¶9          The appellant disputes these findings, noting that: (1) his direct supervisor
      testified that he had not lost trust and confidence in him; (2) the deciding official
      did not testify that his presence in the workplace would undermine employee
      morale; (3) while he was on administrative leave prior to his indefinite
      suspension, the agency briefly returned him to duty, which indicates that his
      criminal matter did not adversely affect his work performance and that his
      continued presence in the workplace would not have jeopardized the agency’s
      interests; and (4) he could have performed his investigative duties without a
      service weapon and, in any event, he is still in possession of three other
      agency-issued weapons that he could have used in the performance of his duties. 7
      PFR File, Tab 1 at 9, 15-17, 20-21.
¶10         We discern no basis to disturb the administrative judge’s analysis
      concerning nexus. 8 When an employee engages in conduct antithetical to the
      agency’s mission, the agency is not required to demonstrate a specific impact on

      7
        The appellant argues that the administrative judge improperly assumed that the fact
      that his service weapon was confiscated inherently interfered with his duties. PFR File,
      Tab 1 at 20-21. We disagree. The appellant’s position involves 30% police officer
      work and requires “[t]horough knowledge of, and certification, of all firearms used in
      performing the work of the position” and “[s]kill in the use of firearms . . . and other
      specialized devices to perform required functions regarding law enforcement.” IAF,
      Tab 4 at 82-84 (emphasis added).
      8
        The appellant claims that the agency presented no evidence of nexus and that the
      administrative judge instead made arguments on the agency’s behalf. PFR File, Tab 1
      at 11, 16-17. We disagree and discern no error by the administrative judge. To the
      extent that the appellant claims bias or prejudice against the administrative judge, we
      find that he has not overcome the presumption of honesty and integrity that
      accompanies administrative adjudicators. See Oliver v. Department of Transportation,
      1 M.S.P.R. 382, 386 (1980).
                                                                                    7

his job performance or service efficiency to establish nexus.              Kruger v.
Department of Justice, 32 M.S.P.R. 71, 75-76 (1987). Thus, the appellant’s work
history, his ability to perform his duties, and his supervisor’s opinion of him,
while relevant, do not outweigh the fact that his misconduct was inconsistent with
the agency’s mission. See id. As the deciding official testified, the appellant was
charged with a crime which, as a law enforcement officer, he is expected to
protect against. August 21, 2015 Hearing Compact Disc (HCD) (testimony of
deciding official).   In addition, the appellant allegedly used his agency-issued
service weapon, which presumably should have been reserved for the
performance of his job duties, in the commission of the crime.               Id.; see
Pararas-Carayannis, 9 F.3d at 958 (finding that an employee’s use of
Government property and time to carry out illegal acts was sufficient for the
agency to lose trust in him and, therefore, to establish the requisite nexus in an
indefinite suspension appeal). Furthermore, the appellant’s continued presence in
the workplace affected the agency’s reputation because his alleged misconduct
was publicized in news reports that identified him as a Federal police officer for
the agency, including one report which showed a photo of him in his police
uniform.    HCD (testimony of deciding official); IAF, Tab 13 at 19, Tab 30
at 20-27; see Jones v. Government Printing Office, 13 M.S.P.R. 365, 369 (1982)
(affirming the administrative judge’s conclusion that nexus was shown because
the appellant’s continued presence in the workplace would affect the agency’s
reputation, given that the pending criminal action against her received widespread
notoriety). 9


9
  The administrative judge cited Jones in the initial decision. ID at 9-12, 17-19. The
appellant argues that this was error because Jones was indefinitely suspended based
upon a murder charge, which is not analogous to the crime he allegedly committed, and
his actions did not undermine employee morale like Jones’ did. PFR File, Tab 1 at 17.
We discern no error. The administrative judge cited Jones for the proposition that the
notoriety of an offense can support a finding of nexus and the reasonableness of an
indefinite suspension, which is accurate. ID at 9-12, 17-19.
                                                                                       8

            Penalty
¶11         Where, as here, all of the agency’s charges have been sustained, the Board
      will review an agency-imposed penalty only to determine if the agency
      considered all of the relevant factors and exercised management discretion within
      tolerable     limits   of     reasonableness.      Archerda   v.   Department    of
      Defense, 121 M.S.P.R. 314, ¶ 25 (2014).         In determining whether the selected
      penalty is reasonable, the Board gives due deference to the agency’s discretion in
      exercising its managerial function of maintaining employee discipline and
      efficiency.    Id. The Board recognizes that its function is not to displace
      management’s responsibility or to decide what penalty it would impose, but to
      assure that management judgment has been properly exercised and that the
      penalty selected by the agency does not exceed the maximum limits of
      reasonableness. Id. Thus, the Board will modify a penalty only when it finds that
      the agency failed to weigh the relevant factors or that the penalty the agency
      imposed clearly exceeded the bounds of reasonableness. Id.
¶12         The administrative judge found that the penalty of indefinite suspension
      was reasonable because: (1) the appellant allegedly committed a crime, using his
      agency-issued service weapon, which garnered media attention; and (2) law
      enforcement officers are held to a higher standard of public trust and confidence.
      ID at 11-13. The administrative judge rejected the appellant’s argument that the
      agency should have instead assigned him administrative duties.         ID at 11-12.
      Specifically, the administrative judge found that this penalty would not have
      safeguarded the agency’s interests because it would not have addressed the
      notoriety of the appellant’s alleged misconduct or the agency’s loss of trust and
      confidence in him.          Id.   The administrative judge found this conclusion
      appropriate notwithstanding favorable testimony regarding the appellant’s
      character and abilities. ID at 13 n.14.
¶13         On review, the appellant disputes the reasonableness of the agency’s
      selected penalty. He states that the decision notice failed to mention the Douglas
                                                                                           9

      factors and, therefore, the agency’s penalty is not entitled to deference. PFR File,
      Tab 1 at 6-7. He argues that the agency failed to properly weigh the Douglas
      factors, noting that: (1) his direct supervisor testified that he had not lost trust
      and confidence in him; (2) he has extensive training and experience in law
      enforcement, consistently good performance ratings, and “a spotless employee
      personnel file”; and (3) the deciding official testified that he did not review the
      appellant’s personnel file.      Id. at 7-9.   He claims that:     (1) while he was on
      administrative leave prior to his indefinite suspension, the agency briefly returned
      him to duty, which indicates that his criminal matter did not adversely affect his
      work performance and that his continued presence in the workplace would not
      have jeopardized the agency’s interests 10; (2) media reports concerning the
      alleged criminal incident were in an area several hundred miles away from his
      duty station and the community he serves; and (3) he could have performed his
      investigative duties without a service weapon. Id. at 15-16, 19-21. He further
      argues that the penalty was unreasonable because testimony from his direct
      supervisor established that a lesser penalty would have sufficed. Id. at 23.
¶14           We discern no basis to disturb the administrative judge’s penalty analysis.
      The appellant is merely disagreeing with the administrative judge’s weighing of
      the evidence, which does not establish a basis for review.             See Broughton v.
      Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (mere
      reargument of issues already raised and properly resolved by the administrative
      judge below do not establish a basis for review).




      10
           The administrative judge considered and rejected this argument. ID at 3 n.5.
                                                                                            10

      The appellant failed to prove his discrimination claims. 11
¶15         Below, the appellant relied on seven comparators to support his claims of
      discrimination based on race and national origin.             IAF, Tabs 19-20.      The
      administrative judge found that the appellant failed to prove his discrimination
      claims because none of these employees were similarly situated to him. 12 ID
      at 17-19. The appellant only challenges this finding as to two of the comparators,
      G.N. and R.B. PFR File, Tab 1 at 23-27.
¶16         The administrative judge found that G.N. and R.B. were not similarly
      situated to the appellant because:        (1) they were arrested for driving while
      intoxicated, which is categorically different from aggravated assault; (2) there

      11
         After the initial decision was issued, the Board issued a decision that clarified the
      evidentiary standards and burdens of proof under which it analyzes these
      claims. Savage v. Department of the Army, 122 M.S.P.R. 612, ¶¶ 42-43, 51 (2015). We
      find that applying the analytical framework 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 finding that the appellant did not
      meet his burden of proving these claims.
      12
          The administrative judge also considered testimony from an agency Human
      Resources (HR) Specialist regarding five employees in District 1 who were indefinitely
      suspended based upon criminal charges. ID at 19-20. The appellant argues that the
      administrative judge should not have permitted the agency to introduce this evidence
      because the appellant was not aware of it prior to the hearing. PFR File, Tab 1 at 27.
      He further states that his discovery requests were confined to comparators in District 3,
      rather than agency-wide. Id. The appellant’s arguments do not establish error because
      the agency is not precluded from introducing evidence simply because he failed to
      request it in discovery. Cf. Spates v. U.S. Postal Service, 68 M.S.P.R. 9, 12-13 (1995)
      (rejecting the appellant’s argument that the agency’s failure to produce evidence
      regarding a comparator precluded him from raising a disparate penalty claim below
      because, inter alia, he failed to request such information in discovery).
      Notwithstanding, we question whether these individuals were proper comparators for
      purposes of the appellant’s claims of discrimination. The HR Specialist did not identify
      their races or national origins during her testimony and the administrative judge did not
      do so in the initial decision. HCD (testimony of HR Specialist); ID at 19-20. Further,
      given that they were all employed in District 1, whereas the appellant was employed in
      District 3, it is unclear whether their employment situations were sufficiently identical
      to the appellant’s. See Adams v. Department of Labor, 112 M.S.P.R. 288, ¶ 13 (2009).
      We find it unnecessary to resolve this issue, however, because the appellant has not
      raised this argument and because we agree with the administrative judge’s analysis
      regarding the individuals whom the appellant proffered as comparators.
                                                                                       11

      was no evidence that their conduct received any media attention, or that they used
      Government property to commit their crimes; (3) the appellant failed to show that
      G.N. was subject to a probable cause finding; and (4) R.B.’s misconduct occurred
      in 2004, when the Office of Justice Services was under a different Director and
      agency leadership was considered more lenient. ID at 18-19.
¶17            The appellant argues that, contrary to the administrative judge’s findings,
      G.N. was subject to a probable cause finding. PFR File, Tab 1 at 23-24. He
      contends that it is not relevant whether G.N. used Government property in the
      commission of a crime because G.N.’s alleged misconduct was of comparable
      seriousness to the appellant’s alleged misconduct.      Id. at 25-27.   Further, the
      appellant reiterates his belief that he was treated less favorably than R.B. Id.
      at 25.
¶18            We discern no basis to disturb the administrative judge’s analysis. As an
      initial matter, to be similarly situated, employees must have reported to the same
      supervisor and been subject to the same standards governing discipline.          See
      Adams v. Department of Labor, 112 M.S.P.R. 288, ¶ 13 (2009). The appellant
      does not challenge the administrative judge’s finding that R.B.’s misconduct
      occurred more than a decade ago under different, more lenient agency leadership.
      As such, R.B. is not a proper comparator. Further, comparators must have been
      alleged to have engaged in misconduct similar to the appellant’s alleged
      misconduct without differentiating or mitigating circumstances.           Id.   The
      appellant does not challenge the administrative judge’s finding that neither G.N.
      nor R.B. received any media attention as a result of their alleged misconduct.
      The appellant, on the other hand, was the subject of news reports that revealed his
      identity and identified him as an agency employee. Even if we were to accept the
      appellant’s contention that driving while intoxicated is of comparable seriousness
      to aggravated assault using an agency-issued service weapon, this cannot defeat
      the aforementioned differences in notoriety. For this same reason, we find that it
      is ultimately immaterial whether G.N. was subject to a probable cause finding.
                                                                                        12

      The agency did not violate the appellant’s due process rights.
¶19         Before taking an appealable action that deprives a tenured Federal employee
      of his property right in his employment, an agency must provide the employee
      with notice and a meaningful opportunity to respond, i.e., an opportunity to
      present a response, either in person or in writing, why the proposed action should
      not   be   taken.      5 U.S.C.    § 7513(b);    Cleveland Board of Education      v.
      Loudermill, 470 U.S. 532, 543-46 (1985).
¶20         The appellant submitted a reply to the agency’s proposal notice, which the
      deciding official considered.     IAF, Tab 13 at 18-19, 23-37.        However, the
      appellant alleges that the agency violated his due process rights because it failed
      to inform him of several aggravating factors that the deciding official considered
      in reaching his decision, including that: (1) the appellant’s off-duty misconduct
      affected the efficiency of the service because he allegedly used his service
      weapon in the criminal incident; (2) the appellant’s service weapon being in
      police custody interfered with his ability to perform his duties; (3) the appellant’s
      conduct resulted in a national media incident; and (4) the deciding official
      received several telephone calls regarding the criminal incident. PFR File, Tab 1
      at 4-6, 17, 20-21.
¶21         The first two issues do not establish a due process violation. The proposal
      notice stated that the appellant was accused of putting his service weapon to the
      taxi driver’s head. IAF, Tab 13 at 40. Thus, the appellant was clearly on notice
      that his alleged use of his service weapon in the commission of a crime was a
      factor the agency was considering. Further, the deciding official did not testify
      that the fact that the appellant’s service weapon was confiscated constituted an
      aggravating factor. Rather, he simply testified that: (1) he believed there was a
      nexus between the appellant’s alleged crime and the efficiency of the service
      because the appellant allegedly used his service weapon to commit the crime; and
      (2) he was aware of this fact because the service weapon remained in police
                                                                                         13

      custody as evidence when the agency took its annual firearm inventory. HCD
      (testimony of deciding official).
¶22         The latter two arguments also do not establish a due process violation. At
      the hearing, in response to a request to describe how the agency suffered
      embarrassment as a result of the appellant’s criminal matter, the deciding official
      testified that: (1) the appellant’s misconduct “caused a national media incident”;
      (2) news of the appellant’s criminal matter reached the agency’s Washington,
      D.C. office; (3) he had received telephone calls from the Washington, D.C. office
      and his chain of command regarding the appellant’s criminal matter; and
      (4) while traveling to the Salt Lake City area, various agency employees have
      been asked if they are the individual who committed the criminal acts underlying
      the appellant’s criminal matter. Id. This information was not included in the
      agency’s proposal notice. Rather, the proposal notice stated only that there were
      multiple regional news reports regarding the appellant’s criminal matter. IAF,
      Tab 13 at 40. However, the deciding official did not testify that he relied upon
      the aforementioned information in reaching his decision, and it is not mentioned
      in the decision notice. Id. at 18-20; HCD (testimony of deciding official). Thus,
      we find that a due process violation did not occur. See Norris v. Securities &
      Exchange Commission, 675 F.3d 1349, 1353-54 (Fed. Cir. 2012) (finding no
      evidence that the deciding official improperly considered ex parte information
      because, although she was admittedly aware of prior misconduct not cited in the
      proposal notice, she testified that it did not influence her decision and that she did
      not consider any information not contained in the proposal notice).
¶23         Based on the foregoing, we find that the appellant has not established any
      basis for review and we 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.
                                                                                14

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
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,
                                                                             15

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.
