# David Soroka v. Department of Commerce

> Merit Systems Protection Board · August 30, 2024

URL: https://www.frixlaw.com/law-library/cases/10569700

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** August 30, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

DAVID SOROKA, DOCKET NUMBER
Appellant, DC-0752-20-0180-I-1

v.

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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.
3

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
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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
5

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,
6

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
7

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
8

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

2
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.
9

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
10

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
11

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
3
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.
12

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. Contact information for
the courts of appeals can be found at their respective websites, which can be
accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10569700. Public record. Not legal advice.