                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     FABRIAN B. WILSON,                              DOCKET NUMBER
                   Appellant,                        AT-0752-15-0194-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: December 29, 2016
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Brandi Nave, Esquire, Washington, D.C., for the appellant.

           Sandra W. Bowens, Esquire, Memphis, Tennessee, 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 administrative

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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.       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).

                                      BACKGROUND
¶2         Effective February 28, 2014, the agency removed the appellant, a
     preference-eligible   Tractor Trailer     Operator at   the   Memphis, Tenn essee
     Processing and Distribution Center, for unacceptable conduct , alleging that, on
     December 12, 2013, he pulled a coworker from his vehicle, threw him against the
     truck, and pinned him down against the truck by placing a forearm at the bottom
     of his neck. Initial Appeal File (IAF), Tab 1 at 1, Tab 7 at 26-29, 140. The union
     grieved the appellant’s removal on his behalf, and the grievance proceeded to
     arbitration.   IAF, Tab 7 at 13‑23, 32‑48.      On June 30, 2014, after holding a
     hearing, the arbitrator issued an award sustaining the charge of unacceptable
     conduct and finding no evidence of discrimination. Id. at 21, 23. In sustaining
     the charge, the arbitrator noted that “[i]t is undisputed that [the appellant] was
     involved in a physical altercation with a co-worker on the evening of
     December 12, 2013.     The victim filed charges and [the appellant] was found
     guilty of assault/bodily harm by the State of Tennessee.” 2 Id. at 21. Nonetheless,


     2
       The record contains a copy of the Memphis police report of the incident and the
     resulting arrest of the appellant based on a criminal charge of simple assault. IA F,
     Tab 7 at 77‑81. According to the September 4, 2014 final agency decision on the
                                                                                           3

     the arbitrator mitigated the removal penalty to a time-served suspension.           Id.
     at 23.     The agency returned the appellant to work pursuant to the arbitration
     award on July 5, 2014. IAF, Tab 1 at 16.
¶3            The appellant also filed a formal equal employment opportunity (EEO)
     complaint in which he claimed that the agency discriminated against him on the
     basis of sex when it proposed his removal on January 8, 2014, and when it
     removed him effective February 28, 2014.                Id. at 8, 17-18.           In a
     September 4, 2014 final agency decision (FAD), the agency found that the
     evidence did not support a finding that the appellant was subjected to
     discrimination as alleged. Id. at 21-22. The FAD notified the appellant of his
     right to appeal the decision to the Board as a mixed‑case appeal. Id. at 21.
¶4            On October 3, 2014, the appellant appealed his “long term suspension” to
     the Board and requested a hearing. Id. at 1-2. He argued that the time‑served
     suspension imposed by the arbitrator was too harsh for a “minor altercation” and
     asserted that the agency’s action was discriminatory because “the Postal Service
     should have known the long term suspension was too harsh.”             Id. at 5.    The
     administrative judge issued several orders regarding the Board ’s jurisdiction and
     directed the appellant to clarify whether he was seeking to appeal the arbitr ator’s
     award, a matter over which the Board would lack jurisdiction, or the underlying
     removal action.     IAF, Tab 2 at 2‑3, Tab 15 at 2-5.      The administrative judge
     explained that, if the appellant were appealing the underlying removal, then
     collateral estoppel would preclude relitigation of the charged misconduct, but that
     collateral estoppel would not be applied to the arbitrator’s penalty determination
     because it was determined “by accident,” i.e., by reference to the length of time
     taken by the appeal or administrative review process. IAF, Tab 15 at 3. The
     administrative judge further explained that the Board would review the penalty


     appellant’s discrimination complaint, “he was found guilty of assault and was sentenced
     to 11 months and 29 days of diversion in late March 2014.” IAF, Tab 1 at 15.
                                                                                       4

     determination de novo and could sustain the removal and order it reinstated,
     notwithstanding the arbitration award mitigating the penalty to a time‑served
     suspension. Id. The appellant responded, confirming that he sought to challenge
     the removal action, not the arbitrator’s award. IAF, Tab 6 at 5-7, Tab 18 at 4-7.
     The administrative judge also apprised the appellant of his burden and elements
     of proof as to his discrimination affirmative defense. IAF, Tab 20 at 4‑5.
¶5        After holding a hearing, the administrative judge issued an initial decision
     applying collateral estoppel to the merits of the removal acti on and reviewing the
     appropriateness of the penalty and the discrimination issues de novo.          IAF,
     Tab 25, Initial Decision (ID) at 3.    The administrative judge found that the
     agency’s selected penalty of removal was within the tolerable limits of
     reasonableness and entitled to deference and that the appellant failed to establish
     his affirmative defense. ID at 3‑8. Thus, the administrative judge held that the
     agency could reinstate the removal if it deemed it appropriate and if it were not
     precluded from doing so by its own regulations or any applicable collective
     bargaining agreement (CBA). ID at 8.
¶6        The appellant has filed a petition for review of the initial decision , and the
     agency has responded in opposition. Petition for Review (PFR) File, Tabs 1, 3.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶7        Preference-eligible employees of the U.S. Postal Service, like the appellant,
     are entitled to simultaneously pursue both a grievance pursuant to a CBA and a
     Board appeal under 5 U.S.C. § 7513.           Milligan v. U.S. Postal Service,
     106 M.S.P.R. 414, ¶ 7 (2007). An appeal under 5 U.S.C. § 7513 is a de novo
     proceeding.   Id. The burden and standards of proof in such a proceeding are
     governed by 5 U.S.C. § 7701, and do not include review of an arbitrator’s
     findings under a deferential or any other standard. Id. However, when a Postal
     grievance goes to arbitration, collateral estoppel may preclude relitigation of the
                                                                                          5

      underlying adverse action in a subsequent Board appeal. Farrelly v. U.S. Postal
      Service, 86 M.S.P.R. 230, ¶ 9 (2000), aff’d, 13 F. App’x 910 (Fed. Cir. 2001).
¶8          Applying the doctrine of collateral estoppel is appropriate when: (1) the
      issue previously adjudicated is identical to that now presented; (2) that issue was
      actually litigated in the prior case; (3) the previous determination of that issue
      was necessary to the resultant judgment; and (4) the party pre cluded by the
      doctrine was fully represented in the prior action. Id. Here, the issue before the
      Board is identical to that adjudicated by the arbitrator, the removal was actually
      litigated in an evidentiary hearing on the grievance, the previous determi nation of
      the issues was necessary to the resulting judgment, and the appellant was fully
      represented in the arbitration proceedings. IAF, Tab 7 at 13‑23. Thus, we agree
      with the administrative judge that the record in this case establishes that the
      requirements of collateral estoppel are satisfied. ID at 2.
¶9          Nonetheless, the application of collateral estoppel is discretionary and, even
      when the criteria have been met, there are circumstances in which it is improper
      to apply collateral estoppel. Milligan, 106 M.S.P.R. 414, ¶ 9; Hay v. U.S. Postal
      Service, 103 M.S.P.R. 167, ¶ 19 (2006); see Kroeger v. U.S. Postal Service,
      865 F.2d 235, 239 (Fed. Cir. 1988). As relevant here, the Board has held that
      collateral estoppel should not be applied when the prior decision involves a pure
      question of law—such as whether the length of the suspension may be
      “determined by accident”—or when the prior decision is facially incorrect under
      the Board’s interpretation of civil service law. Milligan, 106 M.S.P.R. 414, ¶ 10;
      Montalvo v. U.S. Postal Service, 50 M.S.P.R. 48, 50‑51 (1991).
¶10         The Board’s case law requires the body reviewing the appropriateness of a
      disciplinary   action   to   consider   the   Douglas   factors   in   assessing   the
      reasonableness of the penalty. 3    Milligan, 106 M.S.P.R. 414, ¶ 11; Douglas v.

      3
        In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305‑06 (1981), the Board
      articulated a nonexhaustive list of 12 factors that are relevant in assessing the
      appropriate penalty for an act of misconduct. These so-called Douglas factors include
                                                                                            6

      Veterans Administration, 5 M.S.P.R. 280, 305‑06 (1981). Our reviewing court
      has stated that, when a penalty is “determined by accident,” i.e., by reference to
      the length of time taken by the appeal or othe r administrative review process,
      “rather than by a process of logical deliberation and decision” and a consideration
      of the Douglas factors, the selected penalty is “inherently arbitrary.” Greenstreet
      v. Social Security Administration, 543 F.3d 705, 709-10 (Fed. Cir. 2008) (quoting
      Cuiffo v. United States, 131 Ct. Cl. 60, 69 (1955)); see Milligan, 106 M.S.P.R.
      414, ¶ 13; Montalvo, 50 M.S.P.R. at 50. The Board cannot sustain penalties that
      are arbitrary on their face and may not apply collateral estoppel to an arbitrary
      penalty selected by an arbitrator. See Milligan, 106 M.S.P.R. 414, ¶¶ 13-14.
¶11         In the instant matter, the arbitrator found that the testimony of the
      proposing official, C.T., was “to say the least, inconsistent” and concluded that
      “the Notice of Proposed Removal was issued because of the zero tolerance for
      workplace violence and not for just cause.”          IAF, Tab 7 at 23.       Thus, the
      arbitrator found that C.T. “violated the appellant's due process rights by not
      considering his overall record and/or any mitigating factors which included
      [18] years of service with no discipline on file.” Id. The arbitrator noted that the
      appellant “appeared to be very remorseful for his actions and testified that he had
      no ill will toward the victim” and found that the appellant could be rehabilitated .
      Id. Nonetheless, because the appellant “was found guilty of assault/bodily harm
      by the State of Tennessee and he is guilty of unacceptable conduct,” the arbitrator
      “sustained [the grievance] to the extent that [the appellant] shall be returned to
      work with no back pay and his time off considered a long term suspension.” Id.
¶12         Although the arbitrator considered some of the Douglas factors, his analysis
      was focused on whether removal was an appropriate penalty and the opinion does
      not contain any findings or analysis regarding the appropriate length of the


      the nature and seriousness of the offense, the appellant’s past disciplinary record, his
      past work record, his potential for rehabilitation, and mitigating circumstances
      surrounding the offense. Id.
                                                                                       7

      suspension.   Id. at 13‑23.   Thus, the arbitrator’s imposition of a time-served
      suspension is arbitrary, and the Board will not apply collateral estoppel to the
      arbitrator’s penalty determination. See Milligan, 106 M.S.P.R. 414, ¶¶ 13‑14.
      The Board has held that the proper course of action in such a case is to apply
      collateral estoppel to the arbitrator’s decision regarding the charged misconduct
      and then apply the Douglas factors to the arbitrator’s factual findings to
      determine the appropriate penalty.   Jones v. U.S. Postal Service, 110 M.S.P.R.
      489, ¶ 7 (2009); Milligan, 106 M.S.P.R. 414, ¶ 14. Here, following Jones and
      Milligan, the administrative judge applied collateral estoppel to the arbitrator’s
      findings on the merits of the removal action and conducted a de novo review of
      the agency’s penalty determination. ID at 2-3.
¶13        On review, the appellant argues, in part, that the administrative judge
      misinterpreted Jones and Milligan and erred by “conduct[ing] a hearing in which
      he reached a completely different and adverse decision without any consideration
      for collateral estoppel to the merits of the arbitration a ward.” PFR File, Tab 1
      at 4-5. In Milligan, as noted above, the Board found that, when an arbitration
      decision imposes a time‑served suspension, the length of which is based solely on
      the time taken by the grievance proceedings, “[t]he proper course of action is to
      apply collateral estoppel to the arbitrator’s decision with regard to the charged
      misconduct . . . and then apply the Douglas factors to [the arbitrator's factual
      findings] to determine the appropriate penalty.”     Milligan, 106 M.S.P.R. 414,
      ¶¶ 13‑14. The Board further explained that, in such a case, the Board reviews the
      agency’s penalty determination de novo under 5 U.S.C. § 7513 and can uphold
      the removal action originally imposed by the agency. Id., ¶¶ 14-15, 19. In Jones,
      the Board dismissed the appeal for lack of jurisdiction because the appellant in
      that case sought Board review of the arbitrator’s award, rather than the underlying
                                                                                             8

      removal action. 4 See Jones, 110 M.S.P.R. 489, ¶¶ 4, 8-9. Consistent with Jones
      and Milligan, after confirming the appellant’s intent to appeal the underlying
      removal, the administrative judge correctly applied collateral estoppel to the
      arbitrator’s decision sustaining the charge and reviewed the penalty determination
      de novo. 5 ID at 3-8. The appellant’s contentions to the contrary are incorrect and
      provide no basis to disturb the initial decision.
¶14         After reviewing the agency’s penalty determination and considering the
      deciding official’s hearing testimony, the administrative judge found that the
      deciding official properly considered the relevant Douglas factors and that the
      appellant failed to establish his disparate penalties claim. ID at 6 -7. As such, he
      concluded that, although harsh, the removal penalty was within the tolerable
      limits of reasonableness and was entitled to deference. ID at 7. On review, the

      4
        The Board typically has jurisdiction to review an arbitration decision under 5 U.S.C.
      § 7121(d) when the subject matter of the grievance is one over which the Board has
      jurisdiction, the appellant has alleged discrimination as stated in 5 U.S.C. § 2302(b)(1)
      in connection with the underlying action, and a final decision has been issued.
      Anderson v. U.S. Postal Service, 109 M.S.P.R. 558, ¶ 4 (2008). However, a Postal
      Service employee does not have a right of Board review of an arbitration decision
      because 5 U.S.C. § 7121 does not apply to the U.S. Postal Service. Id.
      5
        The Board has, in some non-Postal Service cases, deferred to the arbitrator’s findings
      of fact concerning the mitigation issue and conclusion that the evidence warranted
      mitigation of the removal. See, e.g., Fulks v. Department of Defense, 100 M.S.P.R.
      228, ¶ 29 (2005). We find that it is not appropriate to apply collateral estoppel or
      otherwise defer to the arbitrator’s findings or conclusions regarding mitigation here,
      however, because the arbitrator did not properly apply the Board’s case law in his
      penalty analysis. IAF, Tab 7 at 23. As discussed below, the Board will review an
      agency-imposed penalty only to determine if the agency considered the relevant
      Douglas factors in imposing the penalty and whether the imposed penalty clearly
      exceeded the bounds of reasonableness. See Davis v. U.S. Postal Service, 120 M.S.P.R.
      457, ¶ 6 (2013); Douglas, 5 M.S.P.R. at 306. Here, the arbitrator’s analysis focused on
      the proposing official’s consideration of the Douglas factors in proposing the removal
      and did not address or consider the deciding official’s consideration of the Douglas
      factors in imposing the removal. IAF, Tab 1 at 13-23. Because the Board will not
      apply collateral estoppel to determinations that are facially incorrect under the Board’s
      interpretation of civil service laws, Montalvo, 50 M.S.P.R. at 50-51, we do not apply
      collateral estoppel to the arbitrator’s determinations that the agency failed to consider
      the relevant Douglas factors in imposing the removal or that mitigation is warranted.
                                                                                        9

      appellant argues, as he did below, that the deciding official failed to consider the
      Douglas factors and that the agency treated other employees more leniently for
      similar misconduct. PFR File, Tab 1 at 5-6. These arguments constitute mere
      disagreement with the administrative judge’s well‑reasoned findings and implied
      credibility findings and provide no basis to disturb the initial decision. See Forte
      v. Department of Navy, 123 M.S.P.R. 124, ¶ 16 (2016) (finding that mere
      disagreement with the administrative judge’s implied credibility findings provides
      no basis for disturbing the initial decision); Davison v. Department of Veterans
      Affairs, 115 M.S.P.R. 640, ¶ 9 (2011) (finding that mere disagreement with an
      administrative judge’s explained findings is not a basis to grant a petition for
      review).   Nonetheless, we have reviewed the administrative judge’s penalty
      analysis and, for the reasons that follow, find no reason to disturb it.
¶15         As noted above, we adopt the arbitrator’s decision sustaining the single
      charge of unacceptable conduct based on the appellant’s assault of a coworker in
      the workplace. When, 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. Davis v. U.S. Postal Service, 120 M.S.P.R.
      457, ¶ 6 (2013); Douglas, 5 M.S.P.R. at 306. In making such a determination, the
      Board must give due weight to the agency’s primary discretion in maintaining
      employee discipline and efficiency, recognizing that the Board’s function is not
      to displace management’s responsibility but to ensure that managerial judgment
      has been properly exercised. Davis, 120 M.S.P.R. 457, ¶ 6. Thus, the Board will
      modify a penalty only when it finds that the agency failed to weigh the relevant
      factors or that the penalty clearly exceeded the bounds of reasonableness. Id.
¶16         The Board has articulated factors to be considered in determining the
      propriety of a penalty, such as the nature and seriousness of the offense, the
      employee’s past disciplinary record, the supervisor’s confidence in the
      employee’s ability to perform his assigned duties, the consistency of the penalty
                                                                                       10

      with the agency’s table of penalties, and the consistency of the penalty with those
      imposed on other employees for the same or similar offenses. Id., ¶ 7. Not all of
      the factors will be pertinent in every instance, and so the relevant factors must be
      balanced in each case to arrive at the appropriate penalty. Id. The seriousness of
      the appellant’s offense is always one of the most important factors in assessing
      the reasonableness of an agency’s penalty determination. Id.
¶17         The removal decision reflects that the deciding official considered the
      appellant’s 18 years of service and his lack of prior discipline, but that he
      concluded that removal was warranted due to the seriousness of the appellant’s
      behavior and the agency’s zero tolerance policy for violent behavior in the
      workplace. IAF, Tab 7 at 26. The deciding official noted that he was not aware
      of any appropriate alternative sanction because “[i]ssuing a lesser penalty would
      subject this office to an untenable situation” and the appellant’s return to work
      “may instill fear in [his] coworker(s) who are aware of the altercation.” Id. The
      deciding official also noted that removal was consistent with the penalty imposed
      on other employees for the same or similar offenses. Id. In the initial decision,
      the administrative judge discussed the deciding official’s hearing testimony
      regarding his assessment of the penalty and found that he “conscientiously
      considered the Douglas factors.” ID at 6-7. The appellant’s bare contentions to
      the contrary on review provide no basis to disturb this finding. PFR File, Tab 1
      at 5. Thus, the agency’s penalty determination is entitled to deference unless it
      clearly exceeds the bounds of reasonableness. See Davis, 120 M.S.P.R. 457, ¶ 6.
¶18         As noted above, the consistency of the penalty with those imposed upon
      other employees for the same or similar offenses is one factor to be considered in
      determining the reasonableness of an agency-imposed penalty. Id., ¶ 7; Douglas,
      5 M.S.P.R. at 305. To establish disparate penalties, the appellant must show that
      the charges and circumstances surrounding the charged behavior are substantially
      similar.   Voss v. U.S. Postal Service, 119 M.S.P.R. 324, ¶ 6 (2013).         If an
      appellant makes such a showing, then the agency must prove a legitimate reason
                                                                                       11

      for the difference in treatment by a preponderance of the evidence before the
      penalty can be upheld. Id. To trigger the agency’s burden, the appellant must
      show that there is enough similarity between both the nature of the misconduct
      and other factors, such as whether the appellant 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 conclu de
      that the agency treated similarly situated employees differently. Id. However,
      the Board will not have hard and fast rules regarding the outcome determinative
      nature of these factors.   Id.   (citing Lewis v. Department of Veterans Affairs,
      113 M.S.P.R. 657, ¶¶ 12, 15 (2010)).
¶19        The administrative judge found that the misconduct of the first proffered
      comparator, B.P., who attempted to put a piece of paper into her supervisor’s
      pocket, was trivial compared to the appellant’s physical altercation, which
      involved a criminal assault. ID at 6. The administrative judge further determined
      that the other three alleged comparators, S.M., W.B., and E.C., were treated the
      same as the appellant because the agency imposed their removals after they
      engaged in a physical altercation with a coworker. ID at 6‑7. The administrative
      judge explained that the fact that the agency ultimately reduced t he penalties
      imposed on S.M., W.B., and E.C. as a result of litigation was not relevant to the
      disparate penalty claim. Id. Thus, the administrative judge concluded that the
      appellant failed to establish his disparate penalties claim. ID at 7. On review, the
      appellant challenges this finding, arguing that “[t]he fact that the discipline was
      mitigated indicates that the agency should have known that [it] would not prevail
      in an adverse action which was similar.” PFR File, Tab 1 at 5.
¶20        The record reflects that the agency removed W.B. and S.M., who were
      charged with engaging in a physical altercation with each other, effective
      March 14, 2007.    IAF, Tab 19 at 42-43, 46-47.       During the hearing, a labor
      relations official, J.B., testified that S.M. and W.B. were later returned to work
      through “some other process.”       IAF, Tab 24, Hearing Compact Disc (HCD)
                                                                                       12

      (testimony of J.B.). The record also contains a proposal notice and decision letter
      showing that the agency removed E.C. for assault and improper conduct on
      March 14, 2007. IAF, Tab 19 at 19-25. However, the agency appears to have
      returned E.C. to work as well, as evidenced by a redacted Postal Service Form 50
      in the record dated November 16, 2013, documenting an unascertainable
      personnel action. IAF, Tab 7 at 138. In addition, J.B. testified that the agency
      proposed E.C.’s removal again in 2013 and that she ultimately served a 7‑day
      suspension. 6 HCD (testimony of J.B.). The record reflects, furthermore, that the
      agency suspended B.P. for 7 days in 2014 after she put a piece of paper into a
      supervisor’s pocket. IAF, Tab 7 at 119‑22.
¶21        We agree with the administrative judge that a physical altercation is not
      substantially similar in nature to placing a piece of paper in someone ’s pocket,
      even where such contact is unwanted. ID at 6. Regarding W.B., S.M., and E.C.,
      we agree that the agency treated them the same as it did the appellant by
      removing them for engaging in a physical altercation in the workplace. ID at 6‑7.
      As the administrative judge correctly noted, the fact that W.B., S.M., and E.C.
      ultimately received a lesser penalty after exercising their appeal or grievance
      rights to challenge their removals does not change the fact that the agency
      initially imposed their removal, as it did the appellant’s removal. Id.; see, e.g.,
      Davis, 120 M.S.P.R. 457, ¶ 10 (stating that an agency is not required to explain
      the difference in treatment when another employee receives a lesser penalty,
      despite apparent similarities in circumstances, as the result of a settlement
      agreement).   Moreover, S.M., W.B., and E.C. did not have the same deciding
      official as did the appellant and their 2007 removals did not occur relatively close
      in time to the appellant’s 2014 removal. IAF, Tab 19 at 19-25, 42‑43, 46‑47.


      6
        The record does not contain any documentation regarding a proposed action against
      E.C. in 2013. However, the FAD notes that the agency proposed E.C.’s removal on at
      least two occasions. IAF, Tab 1 at 17.
                                                                                       13

¶22         The appellant’s contentions on review, even if true, do not establish that
      there is enough similarity between both the nature of his misconduct and other
      factors to lead a reasonable person to conclude that the agency treated similarly
      situated employees differently. See Voss, 119 M.S.P.R. 324, ¶ 6. Accordingly,
      we discern no basis to disturb the administrative judge’s finding that the appellant
      failed to establish his disparate penalties claim.
¶23         As stated above, the Board’s function is not to displace management’s
      responsibility or to decide what penalty it would impose, but to assure that
      managerial judgment has been properly exercised and that the penalty selected by
      the agency does not exceed the maximum limits of reasonableness .            Davis,
      120 M.S.P.R. 457, ¶ 6. Recognizing that the Board must afford proper deference
      to the agency’s primary discretion in managing its workforce, the administrative
      judge found that removal was a reasonable penalty in this case. ID at 7. On
      review, the appellant has not presented any evidence or argument tending to show
      that the agency abused its managerial judgment or that the deciding official
      overlooked mitigating factors. PFR File, Tab 1. Therefore, we agree that the
      agency acted within the tolerable limits of its discretion in removing the
      appellant. See Bree v. Department of Health & Human Services, 49 M.S.P.R. 68,
      72 (1991) (stating that “[p]hysical altercations at the worksite directly affect the
      agency’s obligation to maintain a safe workplace, and, by their very nature, are
      disruptive to the efficiency of the service”).
¶24         Finally, the appellant generally disagrees with the administrative judge’s
      finding that he did not establish his affirmative defense of disparate treatment
      based on sex. PFR File, Tab 1 at 5. In considering an appellant’s affirmative
      defense of discrimination, the Board will first inquire whether the appellant has
      shown by a preponderance of the evidence that discrimination was “a motivating
      factor in the contested personnel action, even if it was not the only reason. ”
      Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 41 (2015). As discussed
      above, the appellant has not shown that the agency treated him more harshly than
                                                                                           14

      any similarly situated comparator employee. Moreover, he has failed on review,
      as he did below, to provide any evidence tending to show that the real reason for
      the agency’s action was discriminatory animus, as opposed to the reason
      articulated by the agency. PFR File, Tab 1. Accordingly, we find no reason to
      disturb the administrative judge’s finding on this issue. ID at 5.
¶25         In light of the foregoing, we affirm the initial decision.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
            You have the right to request further review of this fina l decision.

      Discrimination Claims: Administrative Review
            You may request review of this final decision on your discrimination
      claims by the Equal Employment Opportunity Commission (EEOC).                 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.
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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:                           ______________________________
                                         Jennifer Everling
                                         Acting Clerk of the Board
Washington, D.C.
