Donald Prohaska v. Department of Transportation ( 2023 )

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THIS FINAL ORDER IS NONPRECEDENTIAL 1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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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