UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

HAROLD E. BROOKS,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

SF-0752-14-0752-I-1

DATE: July 2, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL1

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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board