Opinion

Michael Dobbins v. Department of Transportation

Court: Merit Systems Protection Board
Filed: Jul 5, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.2%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MICHAEL D. DOBBINS, DOCKET NUMBER

Appellant, CH-0752-18-0471-I-1

DEPARTMENT OF DATE: July 5, 2024

TRANSPORTATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

H. Jerome Briscoe , Windsor Mills, Maryland, for the appellant.

Jose Ortiz , Esquire, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

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

affirmed his demotion. Generally, we grant petitions such as this one only in the

following circumstances: the initial decision contains erroneous findings of

material fact; the initial decision is based on an erroneous interpretation of statute

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

or regulation or the erroneous application of the law to 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 the petition for review.

Therefore, we DENY the petition for review. Except as expressly MODIFIED to

supplement the administrative judge’s analysis of the appellant’s retaliation claim

and allegation that the penalty was not consistent with penalties levied against

other employees for similar offenses, we AFFIRM the initial decision.

BACKGROUND

Effective June 29, 2014, the agency demoted the appellant from the

position of Supervisory Air Traffic Control Specialist, AT-2152-EJ, to the

position of Air Traffic Control Specialist, AT-2152-EH, based on the following

reasons: (1) exhibiting a sleep-like state while on duty; (2) misuse of

Government time; and (3) failure to comply with security procedures. Initial

Appeal File (IAF), Tab 21 at 54-57, 63-64. 1 Both positions are with the Federal

Aviation Administration at the Willow Run Air Traffic Control Tower in

Belleville, Michigan. Id. at 54-55.

The appellant timely filed a Board appeal of his demotion, and he requested

a hearing. IAF, Tab 1 at 1-9, Tab 50, Initial Decision (ID) at 2 & n.1. He raised

the affirmative defenses of race discrimination, retaliation for activity protected

under Title VII of the Civil Rights Act of 1964, and harmful procedural error.

IAF, Tab 1 at 9, Tab 26, Tab 32 at 1-2, Tab 37 at 2.

The appellant’s supervisor was the proposing and deciding official. IAF, Tab 21

at 55-56, 63

After holding a hearing by video conference, the administrative judge

issued an initial decision affirming the appellant’s demotion. ID at 2, 17; IAF,

Tab 7 at 1-2. Specifically, she found that the agency proved all of its stated

reasons for the demotion, that the agency’s action was taken for such cause as

promotes the efficiency of the service, and that the penalty of demotion is within

the bounds of reasonableness. ID at 3-9, 13-17. She further found that the

appellant did not prove his affirmative defenses. ID at 9-13.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. The agency has filed a response. PFR File, Tab 5.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant does not challenge, and we discern no reason to disturb, the

administrative judge’s findings that the agency proved that the charged

misconduct occurred and there was a nexus between the sustained misconduct and

the efficiency of the service. PFR File, Tab 1; ID at 3-9. Instead, his arguments

on review mainly concern the affirmative defenses and the reasonableness of the

penalty. PFR File, Tab 1. For the following reasons, we find that he has failed to

provide a basis to disturb the initial decision. 2

The appellant’s due process and harmful procedural error arguments are

unavailing.

For the first time on review, the appellant argues that the agency violated

his constitutional due process rights by providing false “notice” in the notice of

proposed demotion that the deciding official would consider the agency’s Table

of Penalties. Id. at 2; IAF, Tab 21 at 64. The appellant asserts that the deciding

official testified that he did not consider the Table of Penalties. PFR File, Tab 1

The appellant’s mere disagreement with the administrative judge’s findings regarding

his harmful procedural error claims does not provide a basis to disturb the initial

decision. PFR File, Tab 1 at 9; ID at 9-10; see Crosby v. U.S. Postal Service,

74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the administrative judge’s

findings when she considered the evidence as a whole, drew appropriate inferences, and

made reasoned conclusions).

at 2. Further, the appellant reasserts his claim from his written closing argument

that the deciding official’s testimony that the Table of Penalties did not apply to

the appellant as a non-bargaining-unit, supervisory employee shows that the

agency committed harmful procedural error. Id. at 2-3; IAF, Tab 45 at 7.

The appellant has not explained why he was unable to raise his new due

process argument before the administrative judge despite his due diligence. See

Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980) (observing that

the Board generally 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 previously available despite the party’s due diligence). Nevertheless, as the

U.S. Court of Appeals for the Federal Circuit held in Farrell v. Department of the

Interior, 314 F.3d 584, 593 (Fed. Cir. 2002), “there is no constitutional

requirement that an agency provide advance notice of the possible range of

penalties. Due process does not require that an agency post the specific penalties

to which an employee could be subject for any particular violation.” Moreover,

the appellant has mischaracterized the deciding official’s testimony. Although

the deciding official testified that he believed the Table of Penalties did not apply

to the appellant, he also testified that he still considered it in making his decision.

ID at 16; Hearing Transcript (HT) at 38-39, 101, 107 (testimony of the deciding

official). Thus, even assuming that the deciding official held a mistaken belief

about the Table of Penalties, the appellant has failed to explain how the deciding

official’s alleged error was harmful. See Forte v. Department of the Navy,

123 M.S.P.R. 124, ¶ 19 (2016) (explaining that, to establish harmful error, an

appellant must prove that a procedural error was likely to have caused the agency

to reach a conclusion different from the one it would have reached in the absence

or cure of the error); see also 5 C.F.R. § 1201.4(r) (providing that the appellant

has the burden to show that the error was harmful, i.e., that it caused substantial

harm or prejudice to his rights).

We affirm the administrative judge’s findings that the appellant failed to prove

the affirmative defenses of race discrimination and retaliation for protected

activity under Title VII, as modified to supplement her analysis of his retaliation

claim.

The appellant challenges on review the administrative judge’s findings that

he failed to prove the affirmative defenses of race discrimination and retaliation

for protected activity under Title VII. PFR File, Tab 1 at 3-4, 7-9; ID at 10-13.

To establish a claim of race discrimination or retaliation, an appellant must show

that the prohibited consideration was at least a motivating factor in the personnel

action at issue. Pridgen v. Office of Management and Budget , 2022 MSPB 31,

¶¶ 21-22. Considering the record evidence as a whole, we agree with the

administrative judge’s finding that the appellant did not meet his burden of

proving that race discrimination was a motivating factor in his demotion. 3 ID

at 12; see Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) (finding that

the Board will not disturb an administrative judge’s findings when the

administrative judge considered the evidence as a whole, drew appropriate

inferences, and made reasoned conclusions on issues of credibility); Broughton v.

Department of Health and Human Services, 33 M.S.P.R. 357, 359 (1987) (same).

Regarding his retaliation claim, the appellant contends that the

administrative judge erroneously failed to find that he engaged in protected

activity under Title VII when he purportedly told the deciding official in February

2014 that the agency’s investigation into allegations against him was the product

of racial animus. PFR File, Tab 1 at 3-4. The administrative judge acknowledged

the appellant’s argument that his protected activity was “speaking his mind”

about alleged harassment due to the investigation into the subordinate employee’s

allegations against him. ID at 11; IAF, Tab 26 at 2. However, she apparently

found that the appellant did not engage in prior equal employment opportunity

Because we find no error with the administrative judge’s motivating factor analysis or

conclusion regarding the appellant’s discrimination claim, we do not reach the question

of whether the appellant’s race was a “but-for” cause of the demotion. Johnson v.

Department of Veterans Affairs, 2023 MSPB 9, ¶ 5 n.2.

(EEO) activity because he filed an EEO complaint after his demotion. ID

at 11-12. We modify the initial decision to supplement the administrative judge’s

analysis of the appellant’s retaliation claim, as follows.

Even assuming that the appellant’s alleged February 2014 conversation

constitutes protected activity under the opposition clause of 42 U.S.C. § 2000e-

3(a), we find that he has failed to prove by preponderant evidence that such

activity was a motivating factor in his demotion. The appellant testified

regarding the alleged February 2014 conversation with the deciding official and

his belief that the agency retaliated against him for objecting to “harassment” by

the subordinate employee. HT at 160-61, 177, 179-80 (testimony of the

appellant). Although the deciding official did not testify about the alleged

February 2014 conversation, he testified that he did not consider the subordinate

employee’s potential bias as a mitigating factor. HT at 105 (testimony of the

deciding official).

The administrative judge acknowledged the appellant’s argument that the

agency’s reasons for demoting him were not worthy of belief and were pretext

retaliation. ID at 11. The administrative judge considered the testimony of the

subordinate employee, the appellant, and the deciding official, and she concluded

that the deciding official credibly testified about the reasons he proposed and

decided to demote the appellant. ID at 11-12. She further found no evidence

linking the subordinate employee’s allegedly discriminatory animus to the

deciding official’s decision to demote the appellant. Id.; cf. Brown v. Department

of Justice, EEOC Appeal No. 0120045121, *16 (December 20, 2006) (holding

that the responsible management official did not need to have racial animus

against the complainant to support a finding of discrimination when the official

heavily relied upon the accounts of employees who harbored racial animus

against the complainant in deciding to terminate). We find that he has failed to

provide a sufficiently sound reason to disturb the administrative judge’s finding

that the deciding official credibly testified about the reasons he proposed and

decided to demote the appellant. ID at 11-12; see Haebe v. Department of

Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). After reviewing the documentary

and testimonial evidence as a whole, we find very little evidence to support the

appellant’s speculation that the February 2014 conversation influenced the

demotion decision in any way. In particular, we find that the appellant’s

speculative and conclusory testimony on this issue and the close proximity in

time between the alleged February 2014 conversation and his demotion, without

more, are insufficient to prove by preponderant evidence that this conversation

was a motivating factor in the demotion.

We affirm the administrative judge’s finding that the penalty of demotion is

within the bounds of reasonableness, as modified to supplement her analysis of

the appellant’s claim that the agency treated him more harshly than similarly

situated individuals.

For the reasons described in the initial decision, we agree with the

administrative judge’s findings that the deciding official considered the relevant

Douglas factors and that the penalty of demotion is within the bounds of

reasonableness. ID at 13-17; see Douglas v. Veterans Administration, 5 M.S.P.R.

280, 305-06 (1981) (articulating a nonexhaustive list of 12 factors that are

relevant for consideration in assessing the reasonableness of an agency-imposed

penalty). Specifically, the deciding official considered the appellant’s sincere

apology, length of service, lack of prior discipline, satisfactory performance, and

personal and medical issues, but he justifiably decided to demote him because of

the seriousness of the three offenses that were directly related to his supervisory

position. ID at 15; HT at 38-41, 99-100, 105 (testimony of the deciding official);

IAF, Tab 21 at 56; see Martin v. Department of Transportation, 103 M.S.P.R.

153, ¶ 13 (2006) (observing that the most important factor in assessing the

reasonableness of a penalty is the nature and seriousness of the misconduct and

its relation to the employee’s duties, position, and responsibilities and that

agencies are entitled to hold supervisors to a higher standard of conduct because

they occupy positions of trust and responsibility), aff’d, 224 F. App’x 974 (Fed.

Cir. 2007).

The appellant reasserts on review his arguments from his closing argument

that the agency failed to consider the following relevant factors: the lack of

discipline imposed on a supervisor who was known to have slept on the job; the

consistency of the penalty with the Table of Penalties; the lack of prior warning

about his conduct; and certain mitigating circumstances (the illegality of the

photographs, his serious back injury, his wife’s car emergency, and the

subordinate employee’s jealousy and biased motives). PFR File, Tab 1 at 4-5;

IAF, Tab 45 at 9-10. The appellant further argues that the deciding official failed

to follow the guidance provided in the Table of Penalties. PFR File, Tab 1 at 7.

For the reasons explained below, we discern no basis to disturb the administrative

judge’s finding that the deciding official considered the relevant Douglas factors.

ID at 14.

The deciding official testified that he considered the appellant’s back injury

as a mitigating factor but not the subordinate employee’s possible bias or the

illegality of the photographs. HT at 105-06 (testimony of the deciding official).

The deciding official stated in his decision that he considered as mitigating

factors the appellant’s personal and medical issues that he mentioned in his

written reply to the proposed demotion. IAF, Tab 21 at 56. In his written reply,

the appellant discussed having medical issues and that his fiancé was pregnant

and had car problems. Id. at 60-62. Because the appellant has failed to explain

how the purported illegality of the photographs and the allegedly improper

motives of the subordinate employee contributed to his misconduct, we find that

the deciding official did not need to consider them as mitigating factors. Cf. Gill

v. Department of Defense, 92 M.S.P.R. 23, ¶¶ 2, 27 (2002) (finding that the

appellant’s anxiety and depression and provocation by her supervisor were

mitigating factors because they contributed to her disrespectful conduct).

Moreover, the record reflects that the deciding official informed the

appellant in April 2013 that employee breaks away from the facility should not

exceed 30 minutes typically. ID at 5-6; HT at 44-46 (testimony of deciding

official); IAF, Tab 21 at 64. The record further reflects that the deciding official

considered the Table of Penalties and that the penalty of demotion is within the

recommended range of penalties. HT at 38-39, 101 (testimony of the deciding

official). Specifically, the Table of Penalties recommends the following range of

penalties for the following types of first offenses: 10-day suspension to removal

for misuse of Government time; 14-day suspension to removal for failure to

perform duties while sleeping or exhibiting a sleep-like state when the employee

occupies a position where safety of personnel or property is endangered; and

reprimand to 14-day suspension for ignoring signs, posted rules, fire alarms, or

written or verbal safety instructions or regulations. IAF, Tab 18 at 42, 46-47.

The appellant does not dispute that the agency proved all three offenses and that

he is held to a higher standard as a supervisor.

In addition, the appellant alleges that the penalty was inconsistent with

penalties previously levied against other employees for similar offenses. The

“consistency of the penalty with those imposed upon other employees for the

same or similar offenses” is only one of the factors for consideration in

determining the reasonableness of the penalty. Douglas, 5 M.S.P.R. at 305.

Here, the administrative judge discussed the appellant’s testimony that a retired

supervisor who would sleep on duty was never disciplined. ID at 14; HT

at 161-63 (testimony of the appellant). However, she did not determine whether

the appellant’s purported comparator is similarly situated for purposes of the

appellant’s allegation that the agency treated him more harshly than similarly

situated individuals. Therefore, we modify the initial decision to supplement the

administrative judge’s analysis on this issue.

After the administrative judge issued the initial decision, the Board issued

Singh v. U.S. Postal Service, 2022 MSPB 15. In Singh, the Board stated that the

universe of potential comparators “should be limited to those employees whose

misconduct and/or other circumstances closely resemble those of the appellant.”

Id., ¶ 13.

Here, we find that the appellant has failed to provide a valid comparator

because the retired supervisor did not purportedly engage in “the same or similar

offenses” as him, i.e., exhibiting a sleep-like state while on duty, misuse of

Government time, and failure to comply with security procedures. Douglas,

5 M.S.P.R. at 305; see Singh, 2022 MSPB 15, ¶ 17 (observing that the Board

should not attempt to weigh the relative seriousness of various offenses in order

to determine whether two employees who committed different acts of misconduct

were treated differently). Therefore, we find that the appellant has failed to

establish that the agency treated him more harshly than similarly situated

individuals. We further find that the deciding official’s testimony that he worked

with Human Resources to confirm that demotion was consistent with the penalties

previously imposed for similar offenses by other employees proves that the

agency considered the corresponding Douglas factor. ID at 16; HT at 37-38, 101,

108 (testimony of the deciding official); see Douglas, 5 M.S.P.R. at 305.

To support his arguments, the appellant cites the following court cases

finding that the Board erred in analyzing the relevant Douglas factors: Tartaglia

v. Department of Veterans Affairs, 858 F.3d 1405 (Fed. Cir. 2017); and Bal v.

Department of the Navy, 729 F. App’x 923 (Fed. Cir. 2018). PFR File, Tab 1

at 5-6. He also cites a decision from the District of Columbia, Office of

Employee Appeals (OEA), discussing a finding by the District of Columbia Court

of Appeals that an administrative law judge erred by failing to discuss the

relevant Douglas factors. PFR File, Tab 1 at 6; see Washington v. District of

Columbia Public School System, Department of Transportation , OEA Matter

No. 1601-0129-11R16 (July 18, 2016), available at https://casesearch.oea.dc.gov.

Here, because we agree with the administrative judge’s thorough and

well-reasoned analysis of the relevant Douglas factors, as modified, we find that

the cases cited by the appellant are unavailing. ID at 13-17.

Accordingly, we affirm the agency’s demotion action. See Little v.

Department of Transportation, 112 M.S.P.R. 224, ¶¶ 2, 5, 32 (2009) (concluding

that, given the multiplicity of charges, the serious nature of each of the charges,

the appellant’s status as a supervisor, his admissions regarding his misconduct,

and the deciding official’s proper consideration of the relevant Douglas factors,

the administrative judge properly affirmed the appellant’s demotion from a

Supervisory Air Traffic Control Specialist to an Air Traffic Control Specialist).

NOTICE OF APPEAL RIGHTS 4

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. 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.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC 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 a request for review to the EEOC 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, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and you wish to challenge the Board’s rulings on your whistleblower claims

only, excluding all other issues , then you may file a petition for judicial review

either with the U.S. Court of Appeals for the Federal Circuit or any court of

appeals of competent jurisdiction. The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the