UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

SCOTT KLIPPEL, Appellant,

v

. DEPARTMENT OF HOMELA ND SECURITY, Agency

. DOCKET NUMBER DC

- 0752

- 13

- 0616

- I

- 2

DATE: December 20, 2016



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Mordy Yankovich , Esquire, Garden City, New York, for the appellant

. Michael W. Gaches , Esquire, and Steven E. Colon , Esquire, Arlington, Virginia, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman Mark A. Robbins, Member

FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which
sustained his 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

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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

erroneous application of the law t o 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. 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 th e 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 from a GS

- 11 attorney position based on a charge of unacceptable conduct, which was supported by nine specifications. Initial Appeal File (IAF), Tab 5 at 125. Each specification alleged tha t the appellant sent emails that were inappropriate, threatening in nature, and likely in
violation of 18 U.S.C. § 875 (c)

. 2 Id

. ¶3 The appellant appealed the agency’s a ction. He did not deny th at he sent the emails as specified, but he asserted that the misconduct was not sufficient to
warrant removal

. IAF, Tab 1. He also asserted as affirmative defenses that the

agency violated his constitutional right to due process, engaged in harmful procedural error
, and discriminated against him on the basis of religion. Id

. ¶4 The administrative judge found that the agency proved the charge through the appe llant’s stipulation that he sent the emails identified in the specifications.
Refiled A ppeal F ile (RAF) , Tab 20, Initial Deci sion (ID) at 8. The administrative judge found that the agency failed to prove that the appellant sent the emails

2 Section 875(c) of t itle 18 provides that w hoever transmits in interstate or foreign commerce any communication containing any threat to kidnap an y person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than 5 years, or both. 18 U.S.C. § 875 (c).3

while he was on duty because the time stamps on the emails suggested that they
were sent in the middle of the night ; however, the administrative judge found

nexus between the appellant’s off

- duty misconduct based on the agency’s internal regulations that prohibit conduct which could c ause embarrassment to the agency, or cause the public and/or T ransportation S ecu rity A dministration to question the employee’s reliabilit y, judgment
, or trustworthiness. ID at 8

- 15. The administrative judge also found that the agency established that the removal penalty was within the bounds of reasonableness for the sustained misco nduct.
ID at 15

- 22. Additionally, the administrative judge found that the appellant failed to prove that the agency violate d his right to constitutional due process,
commit ted harmful procedural erro r, or discriminated against him on the basis of religion. ID at 22

- 30.

DISCUSSION OF ARGUME NTS ON REVIEW ¶5 In his petition for review, the appellant contends that the administrative judge abused his discretion in limiting the hearing evidence. Petition for Review (PFR) File, Tab 1. We disagree. A n a dministrative judge has wide discretion to control the proceedings, including the authority to exclude testimony he believes would be irrelevant, immaterial, or unduly repetitious. Guerrero v. Department of Veterans Affairs , 105 M.S.P.R. 617 , ¶ 20 (2007); Miller v. Department of Defense , 85 M.S.P.R. 310 , ¶ 8 (2000). T o obtain reversal of an in itial decision on the ground that the administrative judge abused his discretion in excluding evidence, the petitioning party must show on review that relevant evidence, which could have affected the outcome, was disallowed. Jezouit v. Office of Personnel Management , 97 M.S.P.R. 48 , ¶ 12 (2004), aff ’ d
, 121 F

. App ’ x 865 (Fed. Cir. 2005). The appellant failed to do so here. ¶6 The appellant asserts that the administrative judge abused his authority by disallowing witnesses that could have explained why the appellant sent the emails specified in the charge and could have testified to the appellant’s excellent4

performance. PFR File, Tab 6 at 20. However, the appellant himself co uld testify regarding the context in which he sent the emails, and the parties stipulated to his good performance. The appellant has failed to show that the administrative judge disallowed any relevant testimony that could have affected
the outcome

. Jezo uit , 97 M.S.P.R. 48 , ¶ 12. Accordingly, the appellant has not shown that the administrative judge abused his discretion by denying
certain witnesses

. ¶7 The appellant also contends that his due process rights were violated
because he was not provided with a meaningful opportunity to respond as the deciding official made the decision to remove the appellant before he made his oral reply. The appellant based his assertion tha t the deciding official decided to remove him prior to hearing his response to the notice of propose d removal based on the purported fact that an agency official stated that
, because of the appellant’s charged misconduct
, he would not be given an opportuni ty to be a reemployed annuitant, which was in the p lanning stages at about the time that the agency investigated the emails that formed the basis of the notice of proposed removal. ¶8 D ue process requirements entail: (1) written notice of the charges again st the employee, with an expla nation of the evidence; and (2) an opportunity for the employee to present his account of events. Dawson v. Department of Agriculture
, 121 M.S .P.R. 495 , ¶ 9 (2014). We agree with t he administrative judge that the appellant’s assertion, even if proven
, does not show that the deciding official decided to remove the appellant prior to hearing his response to the notice. The official making the purported statement was not the deciding official. Further, the administrative judge found that the deciding official credibly testified that she

was not influenced in her decision to remove the appellant by the official who allegedly told the appellant h e would not have an opportunity to be a re employed
annuitant. The Board must defer to an administrative judge ’ s credibility determinations when, as here, they are based, explicitly or implicitly, on the5

observation of the demeanor of witnesses testifying at a hearing. Haebe v. Department of Justice , 288 F.3d 1288 , 1301 (Fed. Cir. 2002)

. ¶9 The appellant also contends that he was denied due proces s because the deciding official considered that the appellant may have violated 18 U.S.C. § 875 (c) without providing the express language of the statute to him

. There is no dispute , however, th at the notice of proposed removal listed 18 U.S.C. § 875 (c) as am ong the item s upon which the agency intended to rely o n in support of the charge

. ID at 23

- 24. Thus, we agree with the administrative judge , who properly found that the appellant , an attorney, was notified that the agency considered that he may have violated this statute, and that he had an opportunity
to review the language of the statute prior to providing oral and writt en replies to the notice of proposed removal. ID at 24. ¶10 T he appellant also asserts that removal is too harsh a penalty for the charged misconduct and is inconsistent with the agency’s table of penalties

. A n
agency ’ s table of penalties is only one factor to be considered in assessing the reasonableness of a penalty. See Phillips v. Department of the Interior
, 95 M.S.P.R. 21 , ¶ 17 (2003) , aff ’ d , 131 F. App ’ x 709 (Fed. Cir. 2005). Moreover, the Board and its reviewing court have found that an agency ’ s table of penalties is merely a guide and is not mandatory unless the agency has a specific statement making the table mandatory and binding rather than advisory. Id .; see Farrell v. Department of the Interior
, 314 F. 3d 584 , 590

– 92 (Fed. Cir. 2002). The appellant
did not present any evidence below or on review establishing that the agency ’ s table of penalties is mandatory and binding and not simply advisory. ¶11 The appellant further asserts that he was treated disparately from another employee who engaged in similar misconduct. T o tr igger the agency ’ s evidentiary burden on disparate penalties, the appellant must show that there is enough similarity between both the nature of the misconduct and other relevant factors to lead a reasonable person to conclude that the agency treated simil arly situated emplo yees differently. Lewis v. Department of Veterans Affairs ,6

113 M.S.P.R. 657 , ¶ 15 (2010). However, the Board does not have hard and fast rules regarding the “outcome determinative” nature of these factors. Id .; see Boucher v. U.S. Postal Service
, 118 M.S.P.R. 640 , ¶ 20 (2012). If the appe llant makes the required showing, the agency then must prove a legitimate reason for the difference in treatment by a preponderance of the evidence before the penalty can be upheld. Boucher
, 118 M.S.P.R. 640 , ¶ 20

. ¶12 Here, the appellant asserts that the charged misconduct is substantially
similar to a comparator’s possession of off

- color material. We disagree. As the deciding official testified
, the gravamen of the appella nt’s misconduct was the
threats to inflict bodily injury on another human being and to enlist the support of
others i n that en deavor. Hearing Transcript, October 28, 2014 (HT1) at 276. Because the appellant failed to demonstrate enough similarity between both the nature of the misconduct and other relevant factors to lead a reasonable person to conclude that the agency treated similarly situated emplo yees differently, he
failed to t rigger the agency ’ s evidentiary burden under Lewis

. 3 Further, even had
th e appellant satisfied this burden, the threatening nature of the appellant’s emails
constitutes a legitimate reason for the difference in treatment between the appellant and the comparator

. ¶13 The appellant asserts , moreover, that he established his claim o f
discrimination on the basis of religion th r ough his evidence that he was treated differently than the comparator. His assertion is unavailing. As explained above
, he failed to show sufficient similarity in the misconduct. Additionally, the appellant f ailed to demonstrate that his religious beliefs were a motivating factor in the agency’s determination to remove him

. The agency’s counsel did ask the

3 Furthermore , the record shows that the punishment meted out to the comparator was harsher than the appellant suggests. In addition to the letter of reprimand, the comparator was taken out of the Acting Deputy Chief Counsel position, was permanently removed from consideration to be placed into the position, and was reassigned to a position where he had no contact with the public. HT1 at 175, 178, 229, 230.7

appellant questions about whether the appellant believed that his misconduct lived up to the expectation s of members of his religious community. HT
October 29, 2014 (H T2) at 146. The appellant answered “ yes ” to the question whether he believed that his religion permitted him to engage in the charged
misconduct. HT2 at 147. Even if the appellant believed that his actions were consistent with his religious beliefs, he was not held to a higher standard because
of those beliefs . He was only held to the agency’s standards of conduct

. 4

4 In deny ing the appellant's religious discrimination affirmative defense , the administrative judge applied the evidentiary standards set forth in Savage v. Department of the Army
, 122 M.S.P.R. 612 , ¶ ¶ 42

- 43, 51 (2015); ID at 27

- 32. In Savage , we stated that, when an appellant asserts an affirmative defense of discrimination or retaliation under 42 U.S.C. § 2000e

- 16 , the Board first will inquire whether the appellant has shown by preponderant evidence that the prohibited consideration was a motivating factor in the contested personnel action. Savage , 122 M.S.P.R. 612 , ¶ 51. We fu rther stated that, in making his initial showing, an appellant may rely on direct evidence or any of the three types of circumstantial evidence described in Troupe v. May Department Stores Co ., 20 F. 3d 734 (7th Cir. 1994), i.e., pretext, comparator or “convincing mosaic,” either alone or in combination. Savage , 122 M.S.P.R. 612 , ¶ 51

. Recently, the U.S. Court of Appeals for the Seventh Circuit further clarified its explanation in Troupe that the phrase “convincing mosaic” was not meant to impose a new, separate legal req uirement or to serve as a legal test, but was instead “designed as a metaphor to illustrate why courts should not try to differentiate between direct and indirect evidence.” Ortiz v. Werner Enterprises, Inc ., 834 F. 3d 760 , 765 (7th Cir. 2016). Noting that the phrase “convincing mosaic” continued to be misused as a governing legal standard in cases decided after Troupe , Ortiz again rejected the proposition that “evidence must be sorted into d ifferent piles, labeled ‘direct’ and ‘indirect,’ that are evaluated differently,” instead holding that “all evidence belongs in a single pile and must be evaluated as a whole.” Id

. The B oard recognized the holding of Ortiz in Gardner v. Department of Veterans Affairs
, 123 M.S.P.R. 647 , ¶¶ 29

- 30 (2016). Here, we find that r egardless of the characterization of the evidence, the administrative judge properly found that the appellant failed to meet his burden to prove that discrimination based on religion was a motivating factor in the contested personnel action. T he administrative judge properly considered t he evidence
, and, a lthough he discussed the distinction between direct and indirect evidence, he did not disregard any evidence because it was not direct or indirect or treat the phrase convincing m osaic as a legal requirement. H e thoroughly considered the documentary evidence and the witnesses ’ testimony as a whole and found no evidence that prohibited discrimination was a motivating factor in the appellant ’ s removal. ID at 30

- 32.8

¶14 Finally, the appellant argues for the first time on petition for review that the agency’s Office of Professional Responsibility should have decided his discipline.
The Board will not consider an argument raised for the first time in a petition for review absent a showing that it is based on new and material evidence not previ ously available despite the party ’ s due diligence. Banks v. Department of
the Air Force , 4 M.S.P.R. 268 , 271 (1980) . The appellant has made no such showing. In any event, t he appellant failed to demonstrate that he was subject to the jurisdiction of the agency’s Office of Professional Responsibility.

NOTICE TO THE APPELL ANT REGARDING YOUR FURTHER REVIEW RIGHTS You have the right to request further rev iew of this final deci sion.

Discrimination Claims: Administrative Review You may request review of this final decision on your discrimination claims by the Equal Employment Opport unity Commission (EEOC). 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: Office of Federal Operations Equal Employment Opportunity Commission

P.O. Box 77960 Washington, D.C. 200 13 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 no9

later than 30 calend ar days after receipt by your representative. If you choose to
f ile, 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 a ction 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 3 0 calendar days after receipt by your representative. If you choose to f ile, 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 ent itled 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:

Washington, D.C. ______________________________ Jennifer Everling Acting Clerk of the Board