Donald Prohaska v. Department of Transportation ( 2023 )


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  •                            UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    DONALD PROHASKA,                                DOCKET NUMBER
    Appellant,                          PH-0752-16-0205-I-1
    v.
    DEPARTMENT OF                                   DATE: July 27, 2023
    TRANSPORTATION,
    Agency.
    THIS FINAL ORDER IS NONPRECEDENTIAL 1
    Bobby R. Devadoss, Esquire, and Megan Zeller, Esquire, Dallas, Texas, for
    the appellant.
    Daniel P. Kohlmeyer, Esquire, and Christian Lewerenz, Esquire, Jamaica,
    New York, for the agency.
    BEFORE
    Cathy A. Harris, Vice Chairman
    Raymond A. Limon, Member
    FINAL ORDER
    ¶1         The appellant has filed a petition for review of the initial decision, which
    affirmed the agency’s removal action. Generally, we grant petitions such as this
    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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
    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
    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, d espite
    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 lack of
    candor     charge,   to   analyze   the   appellant’s   affirmative   defense     of   age
    discrimination under the correct causation standard, and to address the appellant’s
    disparate penalties claim, we AFFIRM the initial decision.
    ¶2         On petition for review, the appellant challenges the administrative judge’s
    findings regarding the agency’s charges of misconduct, the affirmative defense s
    of age discrimination and retaliation for filing a restraining order against his
    coworker, the existence of nexus, and the reasonableness of the imposed penalty.
    Petition for Review (PFR) File, Tab 3 at 8-19. Further, the appellant reasserts his
    disparate penalties claim and disputes the administrative judge’s denial of his
    motion to strike the agency’s pleading. 
    Id. at 16-17, 19-20
    . In addition, he has
    filed a motion for leave to file an additional pleading on review.              PFR File,
    Tab 7. 2
    2
    We deny the appellant’s request to supplement his petition for review after the close
    of the record with additional evidence because he has failed to show that it constitutes
    material evidence. PFR File, Tab 7 at 6-7; see, e.g., Sabio v. Department of Veterans
    Affairs, 
    124 M.S.P.R. 161
    , ¶ 13 (2017); 
    5 C.F.R. § 1201.114
    (k).
    3
    ¶3        After considering the appellant’s challenges to the administrative judge’s
    findings on the merits of the appeal, we discern no reason to disturb his thorough
    and well-reasoned findings regarding:        the agency’s charges of providing
    inaccurate information on Government documents having a direct connection to
    the National Airspace System and of negligent work performance; the affirmative
    defense of retaliation; the existence of nexus; and the reasonableness of the
    penalty. Initial Appeal File (IAF), Tab 45, Initial Decision (ID) at 4-26, 30-36.
    Moreover, we find that the administrative judge did not abuse his discretion in
    denying the appellant’s motion to strike the agency’s pleading . ID at 3-4; IAF,
    Tab 44; see 
    5 C.F.R. § 1201.41
    (b)(8). The record supports the administrative
    judge’s explanation that the agency’s pleading was submitted in rebuttal to the
    appellant’s closing submissions containing new evidence and argument that he
    filed on the date the record was to close. ID at 3-4; IAF, Tab 17 at 1, Tabs 19-43;
    see, e.g., Bucci v. Department of Education, 
    42 M.S.P.R. 47
    , 52 (1989); 
    5 C.F.R. § 1201.59
    (c)(2). However, for the reasons discussed below, we modify the initial
    decision to supplement the administrative judge’s analysis of the lack of candor
    charge, to analyze the appellant’s affirmative defense of age discrimination under
    the correct causation standard, and to address his disparate penalties claim.
    The appellant’s claims of discrimination based on disability, race, and sex have
    been effectively waived or abandoned.
    ¶4        The appellant raised claims of discrimination based on disability, race, and
    sex in his closing submission, but the administrative judge did not address those
    claims in the initial decision. IAF, Tab 19 at 29. The appellant has not raised
    this as an issue on review. In Thurman v. U.S. Postal Service, 
    2022 MSPB 21
    ,
    ¶¶ 17-18, the Board articulated relevant factors we will consider to determine
    whether a previously raised affirmative defense has been effectively waived or
    abandoned by the appellant.       Here, the appellant has been represented by
    attorneys throughout the appeal, he raised nonspecific claims of discrimination
    based on disability, race, and sex without elaboration or reference to the record,
    4
    his only reference to such claims was in his closing submission, he has not
    reasserted such claims on review, and there is no reason to believe that his
    apparently abandoning such claims resulted from confusion or misleading or
    incorrect information. IAF, Tab 19 at 29. Thus, we find that the appellant’s
    claims of discrimination based on disability, race, and sex have been effectively
    waived or abandoned.
    We modify the initial decision to supplement the administrative judge’s analysis
    of the lack of candor charge.
    ¶5        In disputing the administrative judge’s finding that the agency proved its
    lack of candor charge, the appellant argues that the agency failed to show that he
    had the requisite element of deception necessary to sustain the charge. PFR File,
    Tab 3 at 12-13. To establish the “element of deception” necessarily involved in a
    lack of candor charge, the agency must prove that the appellant knowingly gave
    incorrect or incomplete information.     Fargnoli v. Department of Commerce,
    
    123 M.S.P.R. 330
    , ¶¶ 17-18 (2016) (holding that lack of candor requires proof of
    the following elements:      (1) the employee gave incorrect or incomplete
    information; and (2) he did so knowingly).     Here, although the administrative
    judge did not make an explicit finding of deception, he made the credibility
    determinations needed to resolve the disputed matter. ID at 26-30.
    ¶6        In sustaining the lack of candor charge, the administrative judge found the
    appellant’s explanation of events to be not credible when compared with the
    agency’s evidence of a log summary report and the deciding official’s affidavit .
    ID at 26-30; IAF, Tab 3, Subtab 4h at 1, Tab 18 at 29-30.            Further, the
    administrative judge found that the appellant did not provide credible evidence
    that any of the agency’s systems were defective so as to inhibit the proper
    recording of data. ID at 27. For the following reasons, we find that the appellant
    has failed to provide a reason to disturb the administrative judge’s credibility
    findings.   PFR File, Tab 3 at 12-13; see Crosby v. U.S. Postal Service,
    
    74 M.S.P.R. 98
    , 105-06 (1997) (finding no reason to disturb the administrative
    5
    judge’s credibility findings when she considered the evidence as a whole, drew
    appropriate inferences, and made reasoned conclusions) . In particular, we find
    that the administrative judge properly considered the relevant factors in making
    credibility determinations. ID at 26-30; see Hillen v. Department of the Army,
    
    35 M.S.P.R. 453
    , 458 (1987) (explaining the relevant factors an administrative
    judge must consider in making credibility determinations).              Moreover, the
    administrative judge properly considered the appellant’s evidence of his affidavit
    and the 2015 National Airspace System Technical Evaluation Program Bulletin.
    ID at 10, 26-28; IAF, Tab 19 at 34-41, 130. Based on our review of the record
    and the administrative judge’s credibility findings, we modify the initial decision
    to find that the agency proved by preponderant evidence that the appellant
    knowingly    gave   incorrect   or   incomplete      information   as   described   in
    specifications 1-6 of the lack of candor charge.         ID at 26-30; IAF, Tab 3,
    Subtab 4f at 5-7, Subtab 4h at 1, Tab 18 at 28-34.
    We modify the initial decision to analyze the affirmative defense of age
    discrimination under the correct causation standard .
    ¶7        The administrative judge analyzed the affirmative defense of age
    discrimination under the erroneous causation standard set forth in Borowski v.
    Department of Agriculture, 
    40 M.S.P.R. 372
    , 374 (1989), requiring the appellant
    to show that his age was the determining factor in the agency’s action .            ID
    at 33-34. Thus, we modify the initial decision as follows to analyze that claim
    under the correct motivating factor standard set forth in Wingate v. U.S. Postal
    Service, 
    118 M.S.P.R. 566
    , ¶ 7 (2012), and Savage v. Department of the Army,
    
    122 M.S.P.R. 612
    , ¶ 40 (2015), overruled in part by Pridgen v. Office of
    Management and Budget, 
    2022 MSPB 31
    , ¶¶ 23-25. 3
    3
    Although Savage involved allegations of race and sex discrimination and retaliation
    for protected equal employment opportunity activity, the Board discussed analogous
    provisions from the Age Discrimination in Employment Act in concluding that
    6
    ¶8        A Federal employee may prove age discrimination by establishing that age
    was a factor in the challenged personnel action. Wingate, 
    118 M.S.P.R. 566
    , ¶ 7.
    In determining whether an appellant has met his initial burden to show a
    motivating factor, the Board must consider all of the evidence together as a whole
    without sorting evidence into different piles, labeled “direct ” or “indirect,” that
    are evaluated differently. Sabio v. Department of Veterans Affairs, 
    124 M.S.P.R. 161
    , ¶ 36 (2017).    For another employee to be deemed similarly situated for
    purposes of an affirmative defense of discrimination based on disparate treatment,
    all relevant aspects of the appellant’s employment situation must be “nearly
    identical” to that of the comparator employee. Ly v. Department of the Treasury,
    
    118 M.S.P.R. 481
    , ¶ 10 (2012). Thus, to be similarly situated, a comparator must
    have reported to the same supervisor, been subjected to the same standards
    governing discipline, and engaged in conduct similar to the appellant’s without
    differentiating or mitigating circumstances. 
    Id.
    ¶9        Here, the appellant asserted before the administrative judge that he was
    treated differently than younger employees for similar charges, and he submitted
    evidence of comparator employees. IAF, Tab 19 at 30-31, 76-84. The appellant
    reasserts such argument on review. PFR File, Tab 3 at 18-19. After considering
    the appellant’s evidence as a whole, we find that he has failed to identify a valid
    comparator for purposes of proving age discrimination based on disparate
    treatment. In particular, the appellant has failed to specify whether any of the
    alleged comparators reported to the same supervisor and were subjected to the
    same standards governing discipline. IAF, Tab 3, Subtab 4b at 5 (explaining that
    the appellant is held to a higher standard of conduct as an employee holding a
    safety-sensitive position).   Therefore, we find that the appellant has failed to
    42 U.S.C. § 2000e-16 is violated when discrimination or retaliation is a motivating
    factor in the contested personnel action. Savage, 
    122 M.S.P.R. 612
    , ¶¶ 35-41.
    7
    prove that his age was a motivating factor in the agency’s decision to remove
    him. 4
    We modify the initial decision to address the appellant’s disparate penalties
    claim.
    ¶10            The administrative judge did not address the appellant’s disparate penalties
    claim in determining the reasonableness of the penalty. ID at 31-33; see Vargas
    v. U.S. Postal Service, 
    83 M.S.P.R. 695
    , ¶ 9 (1999). Thus, we modify the initial
    decision as follows to consider his disparate penalties claim.
    ¶11            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     v.   Veterans
    Administration, 
    5 M.S.P.R. 280
    , 305-06 (1981). Since the issuance of the initial
    decision, the Board has issued Singh v. U.S. Postal Service, 
    2022 MSPB 15
    , ¶ 9, a
    precedential decision reinstating our former law governing the analysis of
    disparate penalties claims. As explained in Singh, the fact that two employees
    come from different work units and/or supervisory chains remains an important
    factor in determining whether it is appropriate to compare the penalties they are
    given. Id., ¶ 13. In most cases, employees from another work unit or supervisory
    chain will not be proper comparators.        Id.   There must be a close connection
    between the misconduct or some other factor for an employee from another work
    unit or supervisory chain to be a proper comparator for disparate penal ty
    purposes. Id.
    ¶12            Here, the appellant submitted before the administrative judge a chart
    explaining the comparator evidence for purposes of a disparate penalties claim,
    which he reasserts on review. PFR File, Tab 3 at 16-17; IAF, Tab 19 at 25-26,
    4
    Because we find that the appellant failed to prove motivating factor regarding this
    claim, we need not resolve the issue of whether the appellant proved that discrimination
    was a “but-for” cause of the removal action. See Pridgen, 
    2022 MSPB 31
    , ¶¶ 20-22,
    29-33.
    8
    26 n.1, 136-43. After considering the appellant’s chart, we find that he has failed
    to allege a valid comparator because none of the proffered employees allegedly
    engaged in “the same or similar offenses,” i.e., an employee holding a
    safety-sensitive position who provided inaccurate information on Government
    documents and engaged in negligent work performance and lack of candor .
    Douglas, 5 M.S.P.R. at 305; IAF, Tab 3, Subtab 4b at 1-5; see Singh, 
    2022 MSPB 15
    , ¶ 17 (observing that the Board should not attempt to weigh the relative
    seriousness of various offenses to determine whether two employees who
    committed different acts of misconduct were treated disparately). Therefore, we
    find that the appellant has failed to establish that the agenc y imposed disparate
    penalties.
    ¶13         Accordingly, we affirm the agency’s removal action.
    NOTICE OF APPEAL RIGHTS 5
    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 an d
    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
    5
    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
    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.
    10
    (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 tha t 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:
    11
    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. 6 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).
    6
    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
    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
    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:                                    /s/ for
    Jennifer Everling
    Acting Clerk of the Board
    Washington, D.C.
    

Document Info

Docket Number: PH-0752-16-0205-I-1

Filed Date: 7/27/2023

Precedential Status: Non-Precedential

Modified Date: 7/28/2023