Opinion

Richard Mroczka v. Department of the Navy

Court: Merit Systems Protection Board
Filed: Jun 9, 2026
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 40.9%

observing that when more than one event or factual specification supports a single charge, proof of one or more, but not all, of the supporting specifications is sufficient to sustain the charge

How later courts described this case

observing that when more than one event or factual specification supports a single charge, proof of one or more, but not all, of the supporting specifications is sufficient to sustain the charge

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RICHARD P. MROCZKA, DOCKET NUMBER

Appellant, SF-0752-22-0608-I-1

DEPARTMENT OF THE NAVY, DATE: June 9, 2026

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Paige Chretien , Esquire, San Diego, California, for the appellant.

Richard Ruppe , Esquire, and Eva Lautemann , Esquire, San Diego,

California, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

FINAL ORDER

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

sustained his removal from service. 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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. Except as expressly

MODIFIED to supplement the administrative judge’s analysis of the second

specification underlying the agency’s lone charge and the penalty, we AFFIRM

the initial decision.

On petition for review, the appellant reasserts that the agency committed

due process violations or harmful procedural errors regarding the deciding

official’s consideration of his response to the proposed removal and aggravating

factors to his penalty determination. Petition for Review (PFR) File, Tab 1

at 7-10. He also reasserts that he did not engage in the misconduct underlying the

agency’s removal action. Id. at 10-14. The appellant lastly argues that the

agency did not prove the requisite nexus or reasonableness of its penalty. Id.

at 14-17.

We find that only one of these arguments requires further analysis. The

agency’s lone charge, inappropriate conduct, consisted of two specifications.

Initial Appeal File (IAF), Tab 4 at 129-32. In short, they described two separate

instances of the appellant interacting with two different coworkers in ways that

were unwelcome and caused those coworkers concern, discomfort, or fear. Id.

The administrative judge found that the agency proved both specifications,

though he indicated that the second was a closer call. IAF, Tab 51, Initial

Decision (ID) at 16-48.

Most relevant to our discussion, the second specification alleged that the

appellant was socializing with a coworker in February 2019, when he

“made unwelcome suggestive or insulting comments and unwanted physical

contact towards her, which caused her concern and made her uncomfortable.”

IAF, Tab 4 at 129. In a subsequent portion of the proposal, the agency

elaborated. Id. at 130. It described how this coworker came to the appellant’s

home, how they went out to eat, and how they then walked appellant’s dog on the

beach, at which point the appellant began to verbally harass her, tried to kiss her,

tried to prevent her from pulling away, then commented that she lets everyone

else flirt with her and questioned why she would not let the appellant kiss her.

Id.

For this specification, the administrative judge considered, inter alia, the

complainant’s testimony about what happened, ID at 27-28, the appellant’s

testimony, ID at 29-30, text and Facebook messages between them, ID at 30-34,

evidence collected during the agency’s investigation of the matter, ID at 34-38,

and deposition transcripts, ID at 38-41. The administrative judge recognized

inconsistencies, discrepancies, and disputes throughout this evidence before

finding that the specification was proven. ID at 41-48.

Notably, one of the disputes surrounding this second specification involved

the question of who paid for the parties’ meal. While the complainant indicated

that she paid, because the appellant had left his wallet at home, and that this was

why she also gave the appellant a ride home after he had already engaged in

inappropriate conduct towards her, the appellant disagreed. ID at 28-29, 47. He

insisted that he paid for their meal and that credit card statements proved as

much. ID at 29-30; IAF, Tab 39 at 4. The administrative judge found the credit

card statement unhelpful because the transaction was dated 2 days after the date

in question. ID at 47.

On review, the appellant once again disputes the complainant’s version of

events, in large part because of this question about who paid for their meal. He

argues that the administrative judge misinterpreted his credit card statement. PFR

File, Tab 1 at 12-13. On this discrete point, we agree with the appellant.

The appellant’s credit card statement lists a $51.72 charge for the

restaurant. IAF, Tab 39 at 4. The “date” listed for the charge is May 28, 2019.

However, the description of the charge includes “0526 Aroma Thai Restaurant.”

Id. The administrative judge seems to have overlooked this description. In

context, it is most likely that the “0526” is a reference to the date the charge was

incurred, while the “05/28/19” in the “Date” field is a reference to the date on

which the charge posted to the appellant’s account.

We modify the initial decision to supplement the administrative judge’s

analysis and correct this error. Nevertheless, we do not find that this changes the

outcome of this appeal. The administrative judge noted several ways in which

this complainant’s version of events was at times confusing and inconsistent.

ID at 44-47. For example, he discussed how she gave conflicting explanations

about why she went to the appellant’s house, whether they hugged when she

arrived, and when the appellant’s inappropriate conduct began on the date in

question. Id. However, for the most part, the administrative judge attributed

these inconsistencies to faded memories. Id. For another inconsistency about

whether she had been drinking before she arrived, he found that the complainant

had likely lied to the appellant on the night in question when she indicated that

she had been drinking. ID at 46. Ultimately, the administrative judge found that

there was insufficient proof that the appellant repeatedly touched or tried to kiss

the complainant, but that there was preponderant evidence that he kissed her once

against her wishes and told her that she disrespected herself. ID at 47-48. The

discrepancy about who paid for their dinner and the administrative judge’s

misinterpretation of the appellant’s credit card statement regarding the same does

not persuade us otherwise.

In the alternative, we modify the initial decision to note that the deciding

official stated in his decision letter that either specification would have supported

the removal action on their own. IAF, Tab 4 at 21. Based upon this and the

remainder of his penalty analysis, we find that removal would be reasonable and

appropriate even if the agency’s second specification were not proven. See

Burroughs v. Department of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990)

(observing that when more than one event or factual specification supports a

single charge, proof of one or more, but not all, of the supporting specifications is

sufficient to sustain the charge); Kamahele v. Department of Homeland Security,

108 M.S.P.R. 666, ¶ 11 (2008) (recognizing that, if the Board sustains the

agency’s charges, but not all of the specifications of those charges, it will review

the agency-imposed penalty to determine whether it is within the parameters of

reasonableness); Suarez v. Department of Housing and Urban Development,

96 M.S.P.R. 213, ¶ 47 (2004) (stating that, where all of the agency’s charges are

sustained, but not all of the underlying specifications are sustained, the agency’s

penalty determination is entitled to deference and should be reviewed to

determine whether it is within the parameters of reasonableness), aff’d,

125 F. App’x 1010 (Fed. Cir. 2005),

NOTICE OF APPEAL RIGHTS 2

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

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.

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

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

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.

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