Opinion

David Soroka v. Department of Commerce

Court: Merit Systems Protection Board
Filed: Aug 30, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.5%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DAVID SOROKA, DOCKET NUMBER

Appellant, DC-0752-20-0180-I-1

DEPARTMENT OF COMMERCE, DATE: August 30, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

David Soroka , Rockville, Maryland, pro se.

Adam A. Chandler , Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

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

affirmed his removal for misconduct. 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 or regulation or the erroneous application of the law to

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 and AFFIRM the initial

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

The appellant was a GS-14 Physical Scientist for the agency’s National

Oceanic and Atmospheric Administration (NOAA). Initial Appeal File (IAF),

Tab 6 at 30. He served as the Winter Weather Program Lead in the agency’s

Severe, Fire, Public, and Winter Weather Services Branch. His major duties in

that role included planning, conducting, coordinating, and reviewing scientific

work, as well as representing the organization on technical committees. IAF,

Tab 27 at 42, 44.

The appellant was indicted in the Circuit Court for Montgomery County,

Maryland on the charges of fourth degree sex offense (“unconsented sexual

contact” with a minor) and second degree assault. IAF, Tab 6 at 114-15. On

July 9, 2019, the appellant pleaded guilty to both charges, and on August 20,

2019, he was sentenced to 1-year and 10-year suspended sentences, running

concurrently, a $2,500 suspended fine, and 5 years of supervised probation. Id.

at 106, 111-12. He was ordered to and did register with the sex offender registry.

Id. at 94, 112. These incidents were highly publicized in numerous blogs and

news articles, which identified the appellant as a NOAA meteorologist. Id.

at 128-67.

On September 4, 2019, the agency issued the appellant a notice of proposed

removal based on one charge of conduct unbecoming a Federal employee, with

two specifications based on the conduct underlying his conviction:

Specification 1: On or about and between July 15, 2017 and July 15,

2018, you had unconsented sexual contact with a minor of whom you

had temporary care and custody, and responsibility for supervision.

Specification 2: On or about and between July 15, 2017 and July 15,

2018, you assaulted a minor in the second degree.

Id. at 101-04. After the appellant responded to the notice both orally and in

writing, the agency issued a decision removing him effective November 6, 2019.

Id. at 22-71.

The appellant filed a Board appeal, arguing that the agency failed to prove

that his removal promoted the efficiency of the service. IAF, Tab 1 at 5, Tab 28

at 5-6. After a hearing, the administrative judge issued an initial decision

affirming the appellant’s removal. IAF, Tab 40, Initial Decision (ID). She found

that the charge was proven through the parties’ stipulations, the agency

established a nexus between the charges and the efficiency of the service, and the

removal penalty was within the tolerable limits of reasonableness. ID at 6-16.

The appellant has filed a petition for review contesting the administrative

judge’s penalty analysis, particularly with regard to the nature of his duties and

evidence concerning a proffered comparator. Petition for Review (PFR) File,

Tab 1. The agency has responded to the petition for review, and the appellant has

filed a reply to the agency’s response. PFR File, Tabs 8-9.

ANALYSIS

In an appeal of a removal under 5 U.S.C. chapter 75, the agency bears the

burden of proving by preponderant evidence that its action was taken for such

cause as would promote the efficiency of the service. MacDonald v. Department

of the Navy, 4 M.S.P.R. 403, 404 (1980); 5 U.S.C. § 1201.56(a)(1)(ii). To meet

this burden, the agency must prove its charge, establish a nexus between the

charge and the efficiency of the service, and demonstrate that the penalty imposed

was reasonable. Pope v. U.S. Postal Service, 114 F.3d 1144, 1147 (Fed. Cir.

1997). In this case, the appellant does not dispute the administrative judge’s

finding that the agency proved its charge and established nexus. For the reasons

explained in the initial decision, these findings are supported by the record and by

the law, and we will not revisit them here. ID at 6-7; see 5 C.F.R. § 1201.115

(“The Board normally will consider only issues raised in a timely filed petition or

cross petition for review.”). Accordingly, the only issue before the Board on

petition for review is that of penalty.

Because the agency’s charge was sustained, the Board’s authority to review

the penalty is limited. Cantu v. Department of the Treasury, 88 M.S.P.R. 253, ¶ 4

(2001). Specifically, the Board reviews an agency-imposed penalty only to

determine if the agency considered all of the relevant factors and exercised

management discretion within tolerable limits of reasonableness . Douglas v.

Veterans Administration, 5 M.S.P.R. 280, 306 (1981). In determining whether

the selected penalty is reasonable, the Board gives due deference to the agency’s

discretion in exercising its managerial function of maintaining employee

discipline and efficiency, recognizing that the Board’s function is not to displace

management’s responsibility but to assure that management’s judgment has been

properly exercised. Id. at 302. Thus, the Board will disturb an agency’s chosen

penalty only if it finds that the agency failed to weigh relevant factors or that the

agency’s judgment clearly exceeded the limits of reasonableness. Id. at 306. The

Board has identified a nonexhaustive list of factors that are normally relevant for

consideration in determining the appropriateness of a penalty. Id. at 305-06.

In her initial decision, the administrative judge found that the deciding

official considered relevant factors and exercised his discretion within tolerable

limits of reasonableness. ID at 15. Specifically, the deciding official considered

the mitigating factors of the appellant’s 25 years of good service and lack of prior

discipline, but he found that these did not outweigh the gravity of the appellant’s

misconduct and the effect that it had on his ability to represent the agency

publicly. ID at 7-8, 15. The administrative judge also considered the appellant’s

argument that the agency treated him disparately from another employee who was

on a sex offender registry, removing the appellant but doing nothing at all to the

comparator. However, the administrative judge found that the proffered

comparator was not similarly situated to the appellant, and in any event, the

deciding official did not know about this other individual when he issued his

decision. ID at 9-15.

On petition for review, the appellant advances two main arguments: first,

that publicly representing the agency is only a minor part of his job, and second,

that the agency did knowingly treat him differently than a similarly situated

individual. Regarding his public contacts, the appellant argues that the extent of

these contacts was a monthly email and an annual webinar. PFR File, Tab 1 at 6.

He also argues that he did not serve as “Acting Branch Chief” often, but rather

once a month or less over a 2-year period. Id. at 7. We agree with the appellant

that his occasional service as the Severe, Fire, Public, and Winter Weather

Services Acting Branch Chief does not seem to be particularly significant. It is

listed as a duty in his position description, IAF, Tab 27 at 46, but it does not

appear to be one of his core duties, there is no indication that it could not just as

easily be fulfilled by other program leads, and there is no explanation of how the

appellant’s misconduct would impair his ability to perform in that role any more

than in his normal role of Winter Weather Program Lead.

However, we cannot agree with the appellant that the Winter Weather

Program Lead lacks significant contacts with the public. Even if the appellant

only interacted with the public and agency partners about once a month as he

asserts, it was not necessarily the frequency of these interactions but rather their

nature that the deciding official found incompatible with his misconduct and the

surrounding publicity. Hearing Recording (HR), Track 1 at 30:40 (testimony of

the deciding official). As the deciding official explained it, as a Program Lead,

the appellant was the public face of the Winter Weather Program and was the

designated point of contact for inquiries and comments from the public and

agency partners concerning Winter Weather Program matters. Id. at 11:35, 17:20,

29:00 (testimony of the deciding official). We find that the deciding official

properly considered the appellant’s interface with the public to be an aggravating

factor. See Von Muller v. Department of Energy, 101 M.S.P.R. 91, ¶¶ 23, aff’d,

204 F. App’x 17 (Fed. Cir. 2006), and modified on other grounds by Lewis v.

Department of Veterans Affairs, 113 M.S.P.R. 657 (2010), overruled on other

grounds by Singh v. U.S. Postal Service, 2022 MSPB 15.

Regarding the appellant’s argument that the agency knowingly treated him

differently than a similarly situated individual, we agree with the administrative

judge that the appellant and the proffered comparator were not similarly situated

and that even if they were, the agency did not knowingly and unjustifiably treat

them differently. See Singh, 2022 MSPB 15, ¶¶ 13-14. We further find that any

difference in treatment between the appellant and the comparator would not

justify mitigation of the penalty in this case in any event. The consistency of the

penalty is just one of many relevant factors to be considered in determining an

appropriate penalty. Therefore, while the fact that one employee receives a more

severe penalty than that imposed on a comparator who has committed the same or

similar misconduct should be considered in favor of mitigating the penalty in a

given case, mitigation is by no means required in all such cases. Id., ¶ 18.

Additionally, a manager should not be forced to go easy on an employee who

committed serious misconduct because of the unwarranted leniency of some other

manager in the past. Id., ¶ 18 n.5. If the agency took no disciplinary action

against an employee who engaged in conduct similar to that of the appellant, we

find that the agency’s failure to act against that employee would constitute

unwarranted leniency that does not provide a basis for mitigation in this case.

On petition for review, the appellant has proffered evidence that he

obtained after the initial decision was issued. Specifically, he has submitted what

appear to be excerpts from an email exchange between two coworkers, as well as

recordings of telephone conversations that he had with other coworkers. PFR

File, Tab 1 at 10-11, 13, Tabs 3-4. According to the appellant, the excerpts relate

to when the deciding official learned about the comparator’s conduct. PFR File,

Tab 9 at 7. Under 5 C.F.R. § 1201.115, the Board will not consider evidence

submitted for the first time on petition for review absent a showing that it is both

new and material. Archuleta v. Department of the Air Force, 16 M.S.P.R. 404,

407 n.3 (1983). Evidence is material when it is of sufficient weight to warrant an

outcome different from that of the initial decision. Russo v. Veterans

Administration, 3 M.S.P.R. 345, 349 (1980).

We find that the appellant has not shown that this evidence was previously

unavailable despite his due diligence. The appellant was notified at the time the

removal decision was issued that the deciding official claimed to be unaware of

the comparator’s identity. IAF, Tab 6 at 24. The appellant could have sought

further information about this during discovery, through deposition or otherwise,

and either learned of the deciding official’s expected testimony ahead of time or

obtained information to impeach that testimony. See generally 5 C.F.R.

§ 1201.71. The appellant’s failure to avail himself of the Board’s discovery

procedures with respect to the central point of his appeal does not demonstrate

due diligence. See Campbell v. U.S. Postal Service, 51 M.S.P.R. 122, 125 (1991).

We also find that the appellant has not shown that this evidence would

likely be material to the outcome of the appeal. In light of our finding above

regarding the consistency of the penalty, evidence about the deciding official’s

knowledge of the comparator’s conduct would not warrant a different outcome.

In his reply to the agency’s response to the petition for review, the

appellant has submitted for the first time a letter from the attorney in his criminal

case and an email from his former supervisor, which he proffers for the purpose

of establishing his rehabilitative potential. PFR File, Tab 9 at 4, 18, 26-28.

However, as with the other evidence on review, the appellant has not shown that

this information was previously unavailable despite his due diligence, and we

therefore decline to consider it. See Avansino v. U.S. Postal Service, 3 M.S.P.R.

211, 214 (1980).

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

administrative judge that the deciding official considered the relevant penalty

factors and exercised his discretion within the tolerable limits of reasonableness.

Given the nature and seriousness of the appellant’s misconduct and its highly

publicized nature, we cannot conclude that the deciding official abused his

discretion in determining that removal was the appropriate course of action to

protect the agency and its public image, despite the appellant’s otherwise

excellent service record.

NOTICE OF APPEAL RIGHTS 2

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 your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” 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. 3 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

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.