UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

KASHIF A. RASHEED,

Appellant,

v.

DEPARTMENT OF 

TRANSPORTATION,

Agency.

DOCKET NUMBER

SF-0752-13-0191-I-1

DATE: August 4, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL1

Kashif A. Rasheed, Compton, California, pro se.

Lierre M. Green, Esquire, Los Angeles, California, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

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

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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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

erroneous application of the law to the facts of the case; the 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, 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 employed the appellant as a Drug and Alcohol Compliance and 

Enforcement Inspector. Initial Appeal File (IAF), Tab 7, Subtab 4b. From July 

25-28, 2011, the appellant took leave. IAF, Tab 4, Subtab 4m at 2. Due to the 

appellant’s conduct in connection with this leave and the subsequent 

investigation, the agency proposed his removal. IAF, Tab 4, Subtab 4g. The 

charges included (1) making false or misleading statements in connection with 

any inquiry, investigation, etc., for oneself or another; (2) misrepresenting 

information on time and attendance records for oneself; and (3) absence without 

leave. Id. at 1-6. 

¶3 For the first charge, the agency alleged that the appellant made false or 

misleading statements during his interview with the agency when he claimed to 

have been instructed to appear for jury service and claimed that he appeared for 

that jury service. Id. at 1-4. For the second charge, the agency alleged that the 

appellant misrepresented information on his time and attendance records by 

claiming court leave when he was not actually serving or required to serve jury 

duty. Id. at 4-5. For the third charge, the agency alleged that the appellant’s 

leave was denied, resulting in his being absent without leave for the days and 
3

times that he claimed court leave. Id. at 5-6. The appellant responded to the 

charges, IAF, Tab 4, Subtab 4f, but the agency sustained the removal, effective 

March 21, 2012, IAF, Tab 4, Subtab 4d at 1-4, Tab 7, Subtab 4b.

¶4 The appellant appealed to the Board, IAF, Tab 1, and the administrative 

judge affirmed the removal, IAF, Tab 25, Initial Decision (ID). The appellant has 

filed a petition for review. 2

 Petition for Review (PFR) File, Tab 1. The agency 

has submitted a response, PFR File, Tab 8, and the appellant has replied, PFR 

File, Tabs 9-10.

¶5 In his petition for review, the appellant presents several arguments, which 

we construe liberally. See Melnick v. Department of Housing and Urban 

Development, 42 M.S.P.R. 93, 97 (1989) (a pro se appellant’s pleadings are to be 

liberally construed), aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table). He asserts 

that the agency did not provide preponderant evidence to support its charges, PFR 

File, Tab 1 at 5, and that the agency failed to establish a nexus between the

charged misconduct and the efficiency of the service, id. at 5-7. The appellant 

also claims that the agency did not properly consider several mitigating factors

and that the penalty of removal was beyond the tolerable limits of reasonableness. 

Id. at 5-6, 20-24. He reasserts two affirmative defenses, alleging that he was 

subject to a disparate penalty based upon race, id. at 4, and that the agency’s 

removal was reprisal for equal employment opportunity (EEO) activity, id. at 8, 

10. Finally, he alleges that the administrative judge abused his discretion or 

otherwise exhibited bias. Id. at 9-10.

 2 Because the appellant initially filed his petition for review with the Board’s Western 

Regional Office on an initial appeal form, rather than with the Clerk of the Board, as 

required, his August 19, 2013 petition was not recognized until May 14, 2014. See PFR 

File, Tab 1 at 1-3, Tab 7 at 1; see also 5 C.F.R. § 1201.114(d) (indicating that petitions 

for review are to be filed with the clerk of the Board). The Clerk of the Board served 

the agency with the filing, providing until June 9, 2014, to respond. PFR File, Tab 7 at 

1. Although the agency timely responded, PFR File, Tab 8, the appellant alleges that 

the agency was given an unfair advantage, PFR File, Tab 9 at 5. However, we find no 

such advantage. The agency was provided an appropriate deadline for responding under 

the circumstances.
4

The administrative judge applied the correct burden of proof and made 

appropriate credibility determinations.

¶6 The administrative judge sustained each of the agency’s three charges. ID 

at 5-9. On review, the appellant asserts that the agency and administrative judge

distorted the facts and “only made attempts at inferences and implications,” rather 

than proving the charges on the merits. PFR File, Tab 1 at 5. He also disputed 

the administrative judge’s credibility determinations and called the charges 

“arbitrary [and] unsubstantiated allegations.” Id. at 7.

¶7 Generally, in an adverse action appeal, the agency must prove its charge by 

a preponderance of the evidence. 5 U.S.C. § 7701(c)(1)(B). A preponderance of 

the evidence is that degree of relevant evidence that a reasonable person, 

considering the record as a whole, would accept as sufficient to find that a 

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2). 

¶8 Here, the agency presented significant evidence. See ID at 2-9. Most 

notably, the agency supplied a letter from the Director of the Jury Services 

Division for the Los Angeles County Superior Court, and testimony of a Los 

Angeles County Superior Court Senior Court Services Supervisor. IAF, Tab 4, 

Subtab 4k at 7-9; Hearing CD (Testimony of Maisha Elis). Both indicated that 

the appellant was not instructed to report for jury duty during the week he 

claimed 4 days of court leave. IAF, Tab 4, Subtab 4k at 8; Hearing CD 

(Testimony of Elis). The Director’s letter detailed the timeline of events, 

including the appellant’s calls, each night during the week in question, to the 

court’s automated system which instructed him not to report for jury duty the 

following day but instead to call again the next night. IAF, Tab 4, Subtab 4k at 

7-8.

¶9 When he responded to the agency’s inquiry about his conduct, the appellant 

provided a different account of the events. In a sworn statement, the appellant 

alleged that the court’s automated system directed him to appear for jury duty on 

each of the 4 days he was absent from work and took court leave. Id. at 15-16. 
5

He alleged that he spent all or part of each of those 4 days at the courthouse. Id. 

However, after the appellant’s sworn statement, the agency sought and received a 

follow-up letter from the court’s Jury Services Director. IAF, Tab 4, Subtab 4h at 

2-4. According to the Director, the court’s records indicated that the appellant 

had not been at the courthouse, because his name did not appear on any of the 

week’s roll call lists, and his juror badge was never scanned. Id. at 3.

¶10 Testifying at his hearing, the appellant alleged that the court’s records may 

have been altered by someone within the agency. See ID at 7; Hearing CD 

(Testimony of the appellant). 

¶11 On review, the appellant alleges that the administrative judge erred in 

crediting the agency’s witnesses’ testimony and discrediting the testimony of his 

witnesses. PFR File, Tab 1 at 10, 17-20. Specifically, he asserts that his 

supervisor and the manager of the Drug Abatement Division provided incredible 

or even perjured testimony in describing their own conduct and prior discipline

the agency has imposed. Id. According to the appellant, his witnesses, PW, AM, 

and KG, provided the more truthful and relevant testimony, discrediting the 

agency’s witnesses while also demonstrating a pattern of discrimination. Id. at 

17-20.

¶12 In his decision, the administrative judge properly identified the factual 

questions in dispute, summarized the evidence, stated which version he believed, 

and explained why he found the chosen version of events more credible than the 

other. ID at 2-8; see Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 

(1987) (listing those factors to be considered by an administrative judge in 

resolving credibility issues). The Board must give deference to an administrative 

judge’s credibility determinations when they are based, explicitly or implicitly, 

on the observation of the demeanor of witnesses testifying at a hearing; the Board 

may overturn such determinations only when it has “sufficiently sound” reasons 

for doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 

2002). Although the appellant disagrees with the administrative judge’s
6

conclusions in favor of the agency, his petition has provided no reason for the 

Board to overturn the judge’s credibility determinations and substitute its own, 

nor has he otherwise shown that the judge erred in finding the agency’s charges 

supported by preponderant evidence.

The agency established a nexus between the appellant’s discipline and the 

efficiency of the service.

¶13 The administrative judge found that there was a clear nexus between the 

agency’s discipline for the charged conduct and the efficiency of the service. ID 

at 15; see 5 U.S.C. § 7513(a). The appellant disputes this, alleging that, even if 

the agency proved its charges, it failed to establish a nexus. PFR File, Tab 1 at 

5-7. 

¶14 As previously discussed, the charges included (1) making false or 

misleading statements in connection with any inquiry, investigation, etc., for 

oneself or another; (2) misrepresenting information on time and attendance 

records for oneself; and (3) absence without leave. IAF, Tab 4, Subtab 4g at 1-6. 

Although the appellant’s petition describes the conduct at issue as off-duty 

misconduct, PFR File, Tab 1 at 6, the charges clearly reflect otherwise. In 

addition, while the appellant asks the Board to address the issue of nexus, his 

petition does not provide a substantive basis for such review. See PFR File, Tab 

1 at 5-7, Tab 9 at 15. He has failed to present any argument that the charged 

misconduct does not disrupt the efficiency of the service. Id. 

¶15 Mere disagreement with the administrative judge’s findings does not 

warrant full review of the record by the Board. Weaver v. Department of the 

Navy, 2 M.S.P.R. 129, 133-34 (1980). Moreover, the Board has previously found 

that falsification is inherently destructive of the agency’s faith in an employee’s 

trustworthiness and honesty, essential elements in the relationship of an employer 

and employee, Connett v. Department of Navy, 31 M.S.P.R. 322, 328 (1986), 

aff’d, 824 F.2d 978 (Fed. Cir. 1987), and that unauthorized absence is a proper 

ground for removal since by its very nature it disrupts the efficiency of the 
7

service, Roberson v. Veterans Administration, 27 M.S.P.R. 489, 493-94 (1985). 

Accordingly, we find no error in the administrative judge’s conclusion that the 

agency proved nexus.

The agency established that removal was within the tolerable bounds of 

reasonableness.

¶16 The appellant’s petition argues that mitigating factors outweigh the 

seriousness of his alleged misconduct. 3

 PFR File, Tab 1 at 20-24. He asserts that 

he had no prior misconduct; this was an isolated incident; he is not a manager; he 

is extremely dependable; and he was under distress due to a hostile work 

environment. Id. at 21-24. The appellant also alleges that the charged conduct 

did not affect the agency’s operation and mission because, according to the 

testimony of his supervisor, the agency avoided any negative impact by simply 

replacing him. Id. at 20. Finally, he alleges that the agency failed to consider 

alternative sanctions. Id. at 24.

¶17 In Douglas v. Veterans Administration, the Board recognized a number of 

relevant factors in determining that a penalty is within the tolerable bounds of 

reasonableness. 5 M.S.P.R. 280, 305-07 (1981). The evidence demonstrated that 

the agency weighed relevant factors before finding that the mitigating factors 4 did 

not outweigh the seriousness of his misconduct and the resulting loss of trust. 

 3 The appellant’s petition also alleges that the agency erred by not providing him with 

this Douglas factor analysis. PFR File, Tab 1 at 5. However, to the contrary, the 

agency’s consideration of Douglas factors is contained within its proposal and decision

letters. IAF, Tab 4, Subtab 4d at 3-4, Subtab 4g at 6-7. 

4 The appellant’s petition indicates that he did not gain anything from the misconduct 

and that he apologized for the error. PFR File, Tab 1 at 21-22. However, an individual 

clearly gains by taking court leave if he is not actually entitled to court leave. In 

addition, while the appellant acknowledged some mistakes with inputting time and 

attendance, he continually disputed the allegations that he was not entitled to court 

leave and that he provided false information about it. See IAF, Tab 4, Subtab 4f, 

Subtab 4d at 1-3. Even on petition for review, the appellant characterizes his apology 

as for his “unintentional error.” PFR File, Tab 1 at 22. Therefore, we do not agree with 

the appellant that these were additional mitigating factors that the agency should have 

considered.
8

IAF, Tab 4, Subtab 4d at 3-4, Subtab 4g at 6-7. The agency acknowledged that 

the appellant had 11 years of service with no history of discipline, and that he had 

met performance expectations. IAF, Tab 4, Subtab 4d at 3. Nevertheless, 

removal was consistent with its table of penalties, and the agency reasoned that 

behavior of employees in the appellant’s position must be beyond reproach, as 

they may be required to serve as a witness in litigation. IAF, Tab 4, Subtab 4d at 

3-4, Subtab 4g at 6-7; see IAF, Tab 4, Subtab 4s at 4-5 (relevant pages from the 

agency’s table of penalties). 

¶18 The administrative judge concluded that the agency’s deciding official 

adequately addressed all the relevant factors and exercised his management 

discretion within tolerable limits of reasonableness in selecting the penalty of 

removal. ID at 15-16; see Douglas, 5 M.S.P.R. at 306 (the Board’s review of an 

agency-imposed penalty is essentially to ensure that the agency did 

conscientiously consider the relevant factors and did strike a responsible balance 

within tolerable limits of reasonableness). Although the appellant asserts that a 

lesser penalty would have been reasonable, we find no reason to disturb the 

administrative judge’s conclusion that removal was within the tolerable limits of 

reasonableness.

The appellant failed to prove his affirmative defense of race discrimination.

¶19 The administrative judge found that the appellant failed to prove any of his 

affirmative defenses, including his allegation of race discrimination. ID at 10-14. 

On review, the appellant again asserts that his penalty was more severe than the 

penalties of others. PFR File, Tab 1 at 4, 6-7. He alleges that at least four other 

employees of another race were similarly situated but received lesser penalties. 

Id. at 12-16.

¶20 For employees to be deemed similarly situated for purposes of an 

affirmative defense of discrimination based on disparate treatment, all relevant 

aspects of the appellant’s employment situation must be “nearly identical” to 

those of the comparator employees. Hooper v. Department of 
9

Interior, 120 M.S.P.R. 658, ¶ 6 (2014). Therefore, comparators must have 

reported to the same supervisor, been subjected to the same standards governing 

discipline, and engaged in conduct similar to the appellant’s without 

differentiating or mitigating circumstances. Id. 

¶21 In his decision, the administrative judge found that only one of the alleged

comparators was disciplined by the same deciding official. ID at 13. He also 

found that, while the appellant’s comparative examples involved false or 

inaccurate time and attendance records, they did not include multiple charges nor 

did they pertain to making false statements under oath in an official investigation. 

ID at 13. Therefore, the administrative judge reasoned that the appellant’s 

comparative examples were not meaningfully similar. ID at 13-14. Although the 

appellant repeats his claims of disparate treatment on review, citing to the same 

four comparative examples, PFR File, Tab 1 at 12-16, he has failed to 

demonstrate any error in the administrative judge’s conclusion that they were not 

meaningfully similar. 

The appellant failed to prove his affirmative defense of reprisal for a protected 

activity.

¶22 The administrative judge found that the appellant failed to meet this burden 

of proving the affirmative defense of retaliation for a protected activity. ID at 

14-15. On review, the appellant reiterates his allegations that the removal action 

was taken in reprisal for prior EEO activity. PFR File, Tab 1 at 8, 10.

¶23 To prove retaliation based on prior EEO activity, an appellant must show 

that: (1) he engaged in a protected activity; (2) the accused official knew of the 

protected activity; (3) the adverse action under review could have been retaliation 

under the circumstances; and (4) there was a genuine nexus between the alleged 

retaliation and the adverse action. Oulianova v. Pension Benefit Guaranty 

Corporation, 120 M.S.P.R. 22, ¶ 14 (2013). To establish a genuine nexus 

between the protected activity and the adverse employment action, the appellant 
10

must prove that the employment action was taken because of the protected 

activity. Id. 

¶24 In concluding that the appellant failed to meet his burden, the 

administrative judge found that the appellant had not shown that the deciding 

official had any knowledge of the prior EEO activity. ID at 14-15. The appellant 

repeats the assertion that his removal action was taken in reprisal for prior EEO 

activity on review, but he has provided no substantive argument on the point. 

PFR File, Tab 1 at 8, 10. The appellant simply alleges that the administrative 

judge erred in finding that he failed to establish EEO reprisal. Id. at 10. 

However, this disagreement does not warrant full review of the record by the 

Board. See Weaver, 2 M.S.P.R. at 133-34 (when an alleged factual error relates 

to a credibility determination, the petition for review must contain some specific 

citation of evidence or reasons warranting review). We find the administrative 

judge’s finding regarding the appellant’s reprisal claim to be well-reasoned, and 

decline to disturb that finding on review.

The administrative judge did not abuse his discretion by limiting the hearing, 

denying some of the appellant’s requested witnesses, or limiting discovery, and 

the appellant failed to demonstrate judicial bias.

¶25 According to the appellant, the administrative judge cited a limited schedule 

and busy calendar during a prehearing conference as he questioned how long the 

proceedings would last. PFR File, Tab 1 at 9. The appellant also alleges that the 

administrative judge denied his request to call several witnesses regarding 

comparable discipline. Id. at 9-10. Next, the appellant alleges that he was denied 

access to internal security reports of investigations for other employees. Id. at 9. 

Finally, the appellant alleges that the administrative judge exhibited bias. Id. at 

26.

¶26 While the appellant alleges that the judge questioned how long the hearing 

would last, he did not allege that the amount of time provided for the hearing was 

actually limited. Id. at 9. In addition, he presented no argument that his 
11

substantive rights were prejudiced, even if the judge did limit his hearing in some 

way. Moreover, the Board’s regulations provide an administrative judge with 

wide discretion to control a hearing. Franco v. U.S. Postal Service, 27 M.S.P.R. 

322, 325 (1985); 5 C.F.R. § 1201.41(b). This includes the authority to regulate 

the course of the hearing. 5 C.F.R. § 1201.41(b)(6). 

¶27 An administrative judge also is provided with the authority to exclude 

witnesses an appellant has not shown would offer relevant, material, and 

nonrepetitious evidence. Franco, 27 M.S.P.R. at 325; 5 C.F.R. § 1201.41(b)(8), 

(10). Where an appellant presents a vague assertion on review that the 

administrative judge erred in disallowing witnesses, without showing that the 

testimony would have been relevant, material, or not repetitious, he has not 

shown that the administrative judge abused his discretion. Vaughn v. Department 

of Treasury, 119 M.S.P.R. 605, ¶ 13 (2013). In addition, an appellant’s failure to 

timely object to rulings on witnesses precludes him from doing so on petition for 

review. Tarpley v. U.S. Postal Service, 37 M.S.P.R. 579, 581 (1988). Finally, an 

administrative judge also has broad discretion in ruling on discovery matters, and, 

absent a showing of abuse of discretion, the Board will not find reversible error in 

such rulings. Vaughn, 119 M.S.P.R. 605, ¶ 15; 5 C.F.R. § 1201.41(b)(4). 

¶28 As the Board understands his petition, the appellant asserts that the rejected 

witnesses and records would have aided in establishing his affirmative defense of 

discrimination. However, the appellant did not object below, and, on review, he 

has failed to specify how the testimony or evidence was relevant, material and 

nonrepetitious. Regarding the alleged denial of internal security reports relating 

to other employees, the appellant failed to show any relevance in light of the 

administrative judge’s conclusion that the comparator employees were not 

similarly situated. Therefore, we find no abuse of discretion. We also find that 

the appellant’s broad, general allegations of bias are not sufficient to rebut the 

presumption of the administrative judge’s honesty and integrity. See Oliver v. 

Department of Transportation, 1 M.S.P.R. 382, 386, 389 (1980).
12

¶29 Based upon the above, we deny the appellant’s petition for review and 

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. 

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:

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 
13

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. § 2000e5(f) 

and 29 U.S.C. § 794a.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board