Keith R. Hankins v. Department of the Army ( 2014 )


Menu:
  •                            UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    KEITH R. HANKINS,                               DOCKET NUMBER
    Appellant,                        DA-0752-13-0423-I-1
    v.
    DEPARTMENT OF THE ARMY,                         DATE: September 8, 2014
    Agency.
    THIS FINAL ORDER IS NONPRECEDENTIAL 1
    Andrea Goplerud, Esquire, and Jessica L. Parks, Esquire, Washington,
    D.C., for the appellant.
    Norbert S. Walker, El Paso, Texas, 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
    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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
    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 appellant was a GS-13 Supervisory Range Officer for the agency at
    Fort Bliss, Texas. Initial Appeal File (IAF), Tab 6, Subtab 4A. As such, the
    appellant was responsible for supervising staff and carrying out various functions
    at the Fort Bliss training complex and firing range. IAF, Tab 6, Subtab 4E. On
    November 14, 2011, the appellant was designated primary Accountable Officer at
    the Range Branch. 2 IAF, Tab 6, Subtab 4F at 6. This means that the appellant
    was responsible for maintaining formal accounting records for range property in
    accordance with Army Regulation (AR) 735-5 § 2-12, Policies and Procedures for
    Property Accountability. Id., Subtab 4L at 2, 18-19. During the time period in
    question, the appellant worked at Site Monitor, a Fort Bliss administrative
    facility. Hearing Compact Disc (HCD) (testimony of the appellant). 3
    ¶3        This case concerns the mishandling of certain property delivered to Site
    Monitor.    The agency constructed some “mock villages” on the range for
    2
    It appears that the appellant did not actually receive this memorandum designating
    him Accountable Officer until November 22, 2011. IAF, Tab 6, Subtab 4F at 6.
    3
    There are portions of the hearing transcript in the record, but the record does not
    contain a complete transcript.
    3
    purposes of combat training. See id. In May 2011, Site Monitor began receiving
    and storing furniture destined to furnish these mock villages and create a realistic
    combat environment for the soldiers training there. 4 Id.; IAF, Tab 4, Subtab 4D
    at 24, 26. There was a large amount of furniture involved—over 3,000 pieces.
    HCD (testimony of the proposing official).
    ¶4        In January 2012, some agency employees informed the appellant’s first-line
    supervisor that a certain employee was misappropriating Site Monitor furniture.
    IAF, Tab 6, Subtab 4K at 1. The agency investigated the matter internally, and
    several employees were disciplined as a result. IAF, Tab 6, Subtab 4F at 2-4,
    Tab 14 at 14-45; HCD (testimony of the proposing and deciding officials).
    Among those disciplined was the appellant, whom the agency removed on three
    charges:    (1) “Failure to observe a written regulation or procedures in
    safeguarding Army property”; (2) “Misuse of Position and Army Property”; and
    (3) “Failure to cooperate in a properly authorized investigation.” IAF, Tab 6,
    Subtabs 4A, 4B, 4D. Under the first charge, the agency alleged that there was no
    inventory or accounting of the furniture when Site Monitor received it, that it was
    released to training areas without proper documentation, and that this failure was
    in violation of AR 735-5. IAF, Tab 6, Subtab 4C at 1, Subtab 4L. Under the
    second charge, the agency alleged that the appellant allowed two employees to
    take furniture for their personal use.    IAF, Tab 6, Subtab 4C at 1.        Under
    charge 3, the agency alleged that, during two investigatory interviews, the
    appellant was evasive and refused to answer questions directly, candidly, and
    completely. Id. at 2.
    ¶5        The appellant proceeded through the formal equal employment opportunity
    (EEO) process and, after the agency issued a final decision finding no
    4
    The parties frequently refer to this furniture as “DRMO furniture.” “DRMO” stands
    for “Defense Reutilization and Marketing Office,” which is apparently the Department
    of Defense component that originally acquired the furniture for the government. IAF,
    Tab 14 at 10. The record does not indicate the dates that the furniture deliveries
    spanned.
    4
    discrimination, he appealed to the Board. IAF, Tab 1, Tab 6, Subtab 3. After a
    hearing, the administrative judge issued an initial decision finding that the agency
    failed to prove charge 2.       IAF, Tab 17, Initial Decision (ID) at 7-10.
    Nevertheless, he sustained charges 1 and 3, and found that these charges alone
    supported the removal penalty.      ID at 2-7, 10-13, 15-17.    The administrative
    judge also considered the appellant’s claim that his removal was in retaliation for
    protected EEO activity but found that the appellant failed to prove this
    affirmative defense. ID at 13-15.
    ¶6        The appellant has filed a petition for review, arguing that the administrative
    judge erred in sustaining charges 1 and 3, that the removal penalty was not
    reasonable for these two charges, and that the administrative judge did not
    analyze his EEO retaliation defense properly. Petition for Review (PFR) File,
    Tab 5. The agency has filed a response to the petition for review, PFR File,
    Tab 8, and the appellant has filed a reply to the agency’s response, PFR File,
    Tab 9.
    Charge 1
    ¶7        As to charge 1, “Failure to observe a written regulation or procedures in
    safeguarding Army property,” the appellant argues that under Mendez v.
    Department of the Treasury, 
    88 M.S.P.R. 596
     (2001), the charge should not be
    sustained because his failure to account for the furniture was consistent with his
    training and prior agency practice. PFR File, Tab 5 at 13. We disagree. Mendez,
    
    88 M.S.P.R. 596
    , ¶ 2, involved a charge of negligence in the performance of
    duties. The Board found that the appellants were not negligent even though they
    failed to follow the agency handbook because their actions were consistent with
    their training, knowledge, and experience, as well as actual agency practices. 
    Id., ¶¶ 24-28
    . Charge 1 in this case contains no element of negligence or intent. IAF,
    Tab 6, Subtab 4D at 1.      The issue is strictly whether the appellant’s actions
    5
    violated written agency regulation or procedure.            We find that the Board’s
    analysis in Mendez does not apply to the facts of this case.
    ¶8         It is undisputed that the appellant made no accounting of the furniture in
    question. The issue is whether AR 735-5 required him to do so. 5 There is a great
    deal of evidence and argument in this appeal concerning what accounting, if any,
    the appellant and various other agency employees believed AR 735-5 to require.
    As far as proof of charge 1 is concerned, the subjective beliefs of these individual
    employees are irrelevant except to the extent that they shed light on the question
    of what AR 735-5 objectively requires. In this regard, there appear to be two
    factual disputes: (1) whether the furniture is “durable” or “expendable” under
    AR 735-5, chapter 7; and (2) whether Site Monitor was the “user” of the furniture
    for purposes of AR 735-5, chapter 7. PFR File, Tab 5 at 10-16; HCD (testimony
    of the proposing official). The appellant argues that, under AR 735-5, end users
    need to account for durable property but do not need to account for expendable
    property. PFR File, Tab 5 at 10-16. Thus, to prove its charge, the agency must
    show either that the furniture was durable property or that Site Monitor was not
    the end user. He argues that the agency is unable to show either. 
    Id.
    ¶9         As to the first question, we agree with the appellant that the agency failed to
    show that the Site Monitor furniture was durable property.                 The appellant
    explained why he believed that the furniture was expendable property, and this
    explanation makes sense on its face, i.e., that the furniture was destined for use as
    training aids and would likely be rendered unserviceable during that process. See
    AR 735-5, § 7-4c; IAF, Tab 6, Subtab 4L at 25, Tab 9 at 6; HCD (testimony of
    5
    The agency argues that the appellant’s failure to account for the furniture also violated
    a May 27, 2009 memorandum concerning “Accountability of Garrison and Quarters
    Furnishings.” IAF, Tab 6, Subtab 4F at 34-35. We find that the agency failed to prove
    that this memorandum applied to the furniture stored at Site Monitor. There is no
    evidence that the Site Monitor furniture was intended to furnish any garrison or
    quarters, and there is unrebutted testimony that this memorandum was meant to address
    the specific situation of a troop realignment that was occurring at that time. HCD
    (testimony of the appellant).
    6
    the appellant). There is no countervailing explanation from the agency as to why
    the furniture should be classified as durable property.           All that the agency
    provided was a conclusory assertion from a Logistics Management Specialist
    stating, without elaboration or specific reference to any written agency policy or
    procedure, that the Site Monitor furniture was classified as durable. 6 IAF, Tab 6,
    Subtab 4F at 67. In fact, our review of the actual language of the regulation
    leaves us wanting an explanation of why even furniture put to normal use should
    be classified as “durable” rather than “nonexpendable.” See AR 735-5, §§ 7-2,
    7-6; IAF, Tab 6, Subtab 4L at 24, 26. The agency’s responses regarding this
    technical regulation are insufficient for us to replicate its analysis of the issue
    much less reach the same conclusion. See Glover v. West, 
    185 F.3d 1328
    , 1332
    (Fed. Cir. 1999) (regulatory analysis begins with the language of the regulation
    itself).
    ¶10          Nevertheless, we find that the agency proved that Site Monitor was not the
    “user” of the furniture and was therefore required to account for it regardless of
    whether it was durable or expendable. See AR 735-5, §§ 7-5a, 7-7a (accounting
    for nonexpendable, expendable, and durable property is all the same until it is
    issued to the user); IAF, Tab 6, Subtab 4L at 25-26. The appellant cites a single
    line of the hearing transcript in which the deciding official appears to state that
    the appellant himself was the end user of the furniture. PFR File, Tab 5 at 16,
    109. However, this snippet of the deciding official’s testimony is not an accurate
    reflection of the evidence as a whole. In fact, on the very transcript page that the
    appellant cites, the deciding official appears also to state that the soldiers in the
    training areas were the end users. Id. at 109. We think that the better evidence
    comes from the proposing official, who testified on this specific matter for more
    6
    The proposing official echoed the Logistics Management Specialist’s opinion during
    his hearing testimony, but likewise did not explain it or tie his conclusion to the actual
    language of any written policy or procedure. HCD (testimony of the proposing
    official).
    7
    than 5 minutes and gave reasoned, explained, clear, and unequivocal testimony
    that the ranges in the field were the end users—not Site Monitor.             HCD
    (testimony of the proposing official). This comports with our understanding of
    how the arrangement with the furniture actually worked, and it is consistent with
    the employees at Site Monitor having created at least one receipt when they
    issued furniture to one of the individual ranges, thus indicating that the ranges
    were distinct entities for purposes of property accountability. See IAF, Tab 6,
    Subtab 4F at 20.
    ¶11         Because Site Monitor was not the “user” of the furniture within the meaning
    of AR 735-5, it was required to keep an accounting of it. See AR 735-5, § 7-5a;
    IAF, Tab 6, Subtab 4L at 25. As the Accountable Officer at Site Monitor, the
    appellant was required to “maintain a formal set of property accounting records
    that show, on a continuing basis, the item identification, gains and losses, on hand
    balances, and the conditions and locations of all property assigned to the property
    account.” AR 735-5 § 2-12a; IAF, Tab 6, Subtab 4L at 18-19. It is undisputed
    that he failed to do so. On this basis, charge 1 is sustained.
    Charge 2
    ¶12         The administrative judge did not sustain charge 2, in which the agency
    alleged that the appellant allowed two employees to take furniture for personal
    use without authorization. ID at 7-10; IAF, Tab 6, Subtab 4D at 1. The agency
    has not challenged the administrative judge’s findings on this charge and
    therefore we will not disturb them on review. See 
    5 C.F.R. § 1201.115
     (the Board
    normally will consider only issues raised in a petition or cross petition for
    review).
    Charge 3
    ¶13         Regarding charge 3, “Failure to cooperate in a properly authorized
    investigation,” the appellant argues that the agency failed to prove the charge
    because it could not identify a single question that the appellant refused to answer
    8
    or answered untruthfully. PFR File, Tab 5 at 16-22. In particular, the appellant
    challenges the administrative judge’s finding that the appellant was being evasive
    when he responded “I have no recollection” in response to the question, “Were
    you aware that . . . furniture was taken from Site Monitor for personal use?” PFR
    File, Tab 5 at 17; ID at 12-13; IAF, Tab 6, Subtab 4F at 73.            The appellant
    advances a facially plausible explanation on review, asserting that the ambiguity
    in his answer is due to the lack of a time frame in the question. PFR File, Tab 5
    at 17.    However, considering that the appellant asked for and received
    clarification multiple times during the interviews concerning various other
    questions, see HCD (testimony of the appellant, the proposing official, and the
    interview witness), we do not believe that he would have declined to ask for
    clarification on this point if he found the question ambiguous. Nevertheless, in
    the context of this question, we think that the answer can fairly be construed as a
    “no,” albeit an indirect one. IAF, Tab 6, Subtab 4F at 73. The appellant also
    challenges the administrative judge’s disbelief that the appellant did not recall
    whether he had told a particular employee that the furniture did not need to be
    accounted for. PFR File, Tab 5 at 17-18; ID at 12-13; IAF, Tab 6, Subtab 4F
    at 76. We agree with the appellant that there is no basis to doubt the veracity of
    this answer.
    ¶14        The appellant also challenges the administrative judge’s credibility findings
    regarding his allegedly “evasive and argumentative” approach to the interviews.
    PFR File, Tab 5 at 18-19. Specifically, he argues that, in weighing the testimony
    of the appellant against that of the proposing official and the interview witness,
    the administrative judge failed to make explicit demeanor findings and failed to
    analyze the appellant’s credibility at all. 7 
    Id. at 19-22
    . We disagree. First, the
    7
    The appellant also argues that the      administrative judge erred in his credibility
    determinations concerning whether the    furniture required accounting at Site Monitor.
    PFR File, Tab 5 at 21; ID at 6. As       explained above, these individual employees’
    opinions of what AR 735-5 required are   immaterial to the charge. Supra, ¶ 8.
    9
    Board has long recognized that demeanor-based credibility determinations that an
    administrative judge makes during an in-person hearing need not be explicit to be
    entitled to deference. See Haebe v. Department of Justice, 
    288 F.3d 1288
    , 1301
    (Fed. Cir. 2002) (the Board is required to give deference to an administrative
    judge’s credibility determinations when they are based explicitly or implicitly on
    witness demeanor); Rumsey v. Department of Justice, 
    120 M.S.P.R. 259
    , ¶ 12
    (2013) (same).     Furthermore, the administrative judge conducted a proper
    credibility analysis for all relevant witnesses under Hillen v. Department of the
    Army, 
    35 M.S.P.R. 453
    , 458 (1987), when he compared the agency witnesses’
    testimony to one another, reviewed the appellant’s written responses to the
    interview questions, and considered the witnesses’ potential bias. ID at 13. We
    lack a sufficiently sound basis to disturb these credibility determinations. See
    Haebe, 
    288 F.3d at 1301
    .
    ¶15        Although we agree with the appellant that the agency did not show that he
    outright refused to answer any questions or that he falsely answered any
    particular question, we still find that the agency presented sufficient evidence to
    sustain the charge as written.   In the notice of proposed removal, the agency
    explained that the appellant was evasive, refused to answer questions directly,
    and failed to provide candid and complete answers to the interview questions.
    IAF Tab 6, Subtab 4D at 2. Based on the agency witnesses’ testimony, which the
    administrative judge credited, as well as the appellant’s terse and indirect written
    answers to the interview, we agree with the administrative judge that charge 3
    should be sustained.    See HCD (testimony of the proposing official and the
    interview witness); IAF, Tab 6, Subtab 4F at 72-77.
    Retaliation for protected EEO activity
    ¶16        The appellant renews his argument that the agency removed him in
    retaliation for his testimony against his first-line supervisor in another
    employee’s November 2011 EEO hearing.              PFR File, Tab 1 at 27-28.
    10
    Specifically, he argues that his first-line supervisor may have influenced the
    proposing and deciding officials’ actions when he gave the appellant a negative
    performance rating and moved the appellant from Site Monitor to division
    headquarters shortly after the agency discovered the problem with the Site
    Monitor furniture. 
    Id.
     However, we find that the appellant’s theory of the case is
    little more than speculation. Even assuming that his poor performance review
    was based on retaliatory animus, there is no evidence that either the proposing or
    deciding official took this into account when they removed the appellant. In fact,
    the deciding official seems to have considered the appellant to have had a good
    work record. IAF, Tab 6, Subtab 4B at 2. Likewise, the appellant’s basis for
    arguing that his reassignment to division headquarters was retaliatory is unclear
    because he seems to have testified that this was the deciding official’s—not his
    first-line supervisor’s—action. See HCD (testimony of the appellant). In any
    event, there is no evidence that this reassignment had any influence over the
    removal action.
    Penalty
    ¶17        On review, the appellant argues that his alleged failure to cooperate in the
    investigation was less serious than the failures to cooperate involved in the cases
    that the administrative judge cited in his penalty analysis.     PFR File, Tab 5
    at 22-23; ID at 16-17.   He also argues that the administrative judge failed to
    consider or improperly considered several pertinent penalty factors. PFR File,
    Tab 5 at 24-27.
    ¶18        The Board will review an agency-imposed penalty only to determine if the
    agency considered all the relevant factors and exercised management discretion
    within tolerable limits of reasonableness. Douglas v. Veterans Administration,
    
    5 M.S.P.R. 280
    , 306 (1981). When not all of the charges are sustained, and the
    agency has not indicated that that it desires that a lesser penalty be imposed on
    fewer charges, the Board will consider carefully whether the sustained charges
    11
    merited the penalty imposed by the agency and may mitigate to the maximum
    reasonable penalty. Lachance v. Devall, 
    178 F.3d 1246
    , 1260 (Fed. Cir. 1999);
    Douglas, 5 M.S.P.R. at 308. For the following reasons, we disagree with the
    appellant that mitigation is warranted.
    ¶19        In assessing an agency’s penalty determination, the Board will consider the
    totality of the circumstances.       Brown v. Department of Transportation,
    
    21 M.S.P.R. 572
    , 573 (1984) (citing Douglas, 5 M.S.P.R. at 305). Chief among
    these is the nature and seriousness of the offense and its relation to the
    appellant’s duties, position, and responsibilities.    Downey v. Department of
    Veterans Affairs, 
    119 M.S.P.R. 302
    , ¶ 9 (2013); Williams v. Government Printing
    Office, 
    7 M.S.P.R. 183
    , 185 (1981). In this regard, we find that charge 2—that
    the appellant allowed employees to take the furniture for personal use—was the
    most serious of all the charges. The deciding official’s penalty determination
    relied, in part, on this charge, including the deciding official’s belief that the
    appellant actively assisted another employee in taking the furniture. IAF, Tab 6,
    Subtab 4B at 2-3; HCD (testimony of the deciding official). However, because
    this charge is not sustained, it cannot figure into the penalty analysis. See Mann
    v. Department of Health & Human Services, 
    78 M.S.P.R. 1
    , 14 (1998).
    ¶20        As to charges 1, and 3, the deciding official stated that they described “very
    serious” offenses as well. IAF, Tab 6, Subtab 4B at 2; HCD (testimony of the
    deciding official).   We agree that charge 1 is serious to the extent that the
    appellant’s failure to follow AR 735-5 involved a large amount of government
    property and touched directly upon his duties as Accountable Officer. Although
    the appellant argues that there is insufficient evidence to find that his failure to
    follow AR 735-5 was knowing and willful, PFR File, Tab 5 at 26, as explained
    above, this charge contains no element of intent, supra, ¶ 7. Furthermore, the
    military services place great importance on the tracking of people and resources.
    Their missions depend on it. We believe that the appellant must have been aware,
    12
    after his decades-long uniformed and civil service career with the Army, that Site
    Monitor should have been keeping some sort of account of the furniture.
    ¶21          We also agree with the deciding official that charge 3 was very serious. As
    the administrative judge pointed out, the Board has upheld the removal penalty
    based on a failure-to-cooperate charge alone.       ID at 16-17 (citing Weston v.
    Department of Housing & Urban Development, 
    724 F.2d 943
    , 950-51 (Fed. Cir.
    1983), Negron v. Department of Justice, 
    95 M.S.P.R. 561
    , ¶ 34 (2004), and
    Hamilton v. Department of Homeland Security, 
    117 M.S.P.R. 384
    , ¶ 12 (2012)).
    The appellant is correct that the nature of his failure to cooperate is different than
    those involved in the cases that the administrative judge cited. PFR File, Tab 5
    at 22-23. However, we are not persuaded by the appellant’s argument regarding
    degrees of non-cooperation; one either cooperates in an investigation or one does
    not.     The agency showed that the appellant made the interview process
    unnecessarily difficult and gave terse and indirect answers to several of the
    interview questions.    IAF, Tab 6, Subtab 4F at 71-78.        This undermined the
    purpose of the investigation as surely as if the appellant had provided false
    information or no information.      Furthermore, the appellant’s behavior is not
    excused by any feelings that he may have had that he was being interrogated or
    unfairly criticized.
    ¶22          The administrative judge found that the appellant’s status as a supervisor
    was an aggravating factor. ID at 15. The appellant disagrees on the basis that his
    supervisory role was not directly implicated in charges 1 and 3. PFR File, Tab 5
    at 26.   Although the appellant’s supervisory role may not have been directly
    implicated in charges 1 or 3, we still find that it is relevant to the penalty
    determination and an aggravating factor on the general basis that supervisors are
    supposed to be models of conduct and competence and set a good example for
    their subordinates.    See Sublette v. Department of the Army, 
    68 M.S.P.R. 82
    ,
    89-90 (1995).
    13
    ¶23         The appellant also argues that his work record weighs in favor of
    mitigation. PFR File, Tab 5 at 26. We agree. The appellant has a substantial, if
    not particularly lengthy, 7-year work history with the agency with no prior
    discipline and the highest performance reviews. IAF, Tab 6, Subtab 4A; HCD
    (testimony of the appellant); see Bonacchi v. U.S. Postal Service, 
    40 M.S.P.R. 364
    , 370 (1989) (the appellant’s 7 years of good service was a mitigating factor).
    ¶24         The appellant further argues that the administrative judge and the deciding
    official erred in concluding that he lacks rehabilitative potential. PFR File, Tab 5
    at 26-27. Although the agency failed to prove that the appellant was actively
    involved in misappropriating the furniture, it does not appear that the appellant
    has ever apologized or otherwise expressed any remorse for his failure to account
    for the furniture, or for his conduct during the investigative interviews. This does
    not bode well for his rehabilitative potential. See Neuman v. U.S. Postal Service,
    
    108 M.S.P.R. 200
    , ¶ 26 (2008) (the appellant’s rationalizations and lack of
    remorse indicated little potential for rehabilitation and were aggravating factors).
    ¶25         We also have considered the appellant’s claim of disparate penalties, but we
    find that he failed to prove it. PFR File, Tab 5 at 24-25; see Lewis v. Department
    of Veterans Affairs, 
    113 M.S.P.R. 657
    , ¶ 5 (2010) (the appellant bears the burden
    of proving an allegation of disparate penalties). As for two employees whom the
    agency reprimanded for failing to follow AR 735-5, IAF, Tab 14 at 31-40, we
    find that the agency had legitimate reasons for treating those employees less
    harshly than the appellant:      they were not supervisors, they were not the
    Accountable Officer, and they were not charged with failure to cooperate in an
    investigative interview or with abetting the misappropriation of government
    property.   As for the two employees whom the agency found were actively
    involved in misappropriating the furniture, the agency treated them exactly the
    14
    same as it treated the appellant. It removed them. 8 IAF, Tab 14 at 14-18, 20-23.
    The appellant argues that the agency failed to discipline his first-line supervisor
    at all, even though he was in charge at Site Monitor and failed to follow a specific
    directive to account for the furniture. PFR File, Tab 5 at 25; see HCD (testimony
    of the proposing official and the Supervisory Range Specialist). However, we
    find that the appellant and his immediate supervisor were in fundamentally
    different situations; the appellant’s supervisor was not the Accountable Officer,
    and there is no indication that the agency suspected him of assisting with the
    misappropriation of property or of not cooperating in an interview. See Davis v.
    U.S. Postal Service, 
    120 M.S.P.R. 457
    , ¶ 8 (2013) (an agency may rebut a
    disparate penalties argument by providing a legitimate reason for the difference in
    treatment).
    ¶26        Considering the totality of the evidence, including the nature and
    seriousness of the misconduct at issue, the appellant’s good work record, his lack
    of expressed remorse, and his supervisory status, we agree with the administrative
    judge that the removal penalty is within the tolerable limits of reasonableness.
    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:
    8
    As the appellant points out on review, the other employees’ removals were mitigated
    during the grievance process. PFR File, Tab 5 at 24; IAF, Tab 14 at 19, 24. We find,
    however, that the outcome of proceedings in another forum has no bearing on whether
    the agency imposed disparate penalties.
    15
    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
    representation by a court-appointed lawyer and to waiver of any requirement of
    16
    prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e-5(f) and
    29 U.S.C. § 794a.
    FOR THE BOARD:                         ______________________________
    William D. Spencer
    Clerk of the Board
    Washington, D.C.