DC-0752-20-0180-I-1
MSPBAug 30, 2024Background
- David Soroka, a GS-14 Physical Scientist at NOAA, was convicted in Maryland state court of fourth-degree sex offense (unconsented sexual contact with a minor) and second-degree assault.
- The conduct became highly publicized, explicitly linking his identity and occupation to NOAA.
- The Department of Commerce removed Soroka for conduct unbecoming a federal employee, citing a loss of public trust and impaired ability to represent the agency.
- Soroka appealed his removal to the Merit Systems Protection Board (MSPB), arguing the penalty did not serve the efficiency of the service, and that there was disparate disciplinary treatment compared to a purported comparator.
- The administrative judge affirmed his removal; Soroka filed a petition for review, contesting the penalty analysis and arguing new evidence warranted reconsideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Nexus and Efficiency of Service | Agency failed to prove that his removal promoted efficiency of the service. | Conviction and publicity damaged agency reputation; appellant's public-facing duties aggravated harm. | Charge and nexus established; Board will not revisit these findings. |
| Reasonableness of Penalty | Removal excessive given long service and lack of prior discipline; comparator not removed for similar conduct. | Gravity of misconduct outweighed mitigating factors; comparator not similarly situated or known. | Penalty was reasonable; Agency considered all relevant Douglas factors. |
| Comparator Consistency | Agency knowingly treated him more harshly than a similarly situated colleague on sex offender registry. | Comparator's situation not comparable and deciding official unaware of comparator’s misconduct. | No disparate penalty; any organizational leniency to others does not mandate mitigation here. |
| Consideration of New Evidence | Newly acquired evidence proves deciding official knew of comparator's situation; supports mitigation. | Evidence not previously unavailable with due diligence; immaterial to penalty decision. | New evidence not admitted; not shown to be material or previously unavailable. |
Key Cases Cited
- MacDonald v. Department of the Navy, 4 M.S.P.R. 403 (agency bears burden to prove removal promotes service efficiency)
- Pope v. U.S. Postal Service, 114 F.3d 1144 (agency must establish charge, nexus, and penalty reasonableness)
- Douglas v. Veterans Administration, 5 M.S.P.R. 280 (articulates factors for Board to consider in penalty review, deference to agency discretion)