UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

PHILLIP SPYROPOULOS,

Appellant,

v.

SOCIAL SECURITY 

ADMINISTRATION,

Agency.

DOCKET NUMBER

NY-0752-17-0121-I-1

DATE: April 17, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Robert Glazer, Esquire, and Stephen Goldenzweig, Esquire, Houston, 

Texas, for the appellant.

Vernon Norwood, Esquire, New York, New York, for the agency.

John Kelly, Esquire, and David B. Myers, Esquire, Baltimore, Maryland, 

for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

sustained his removal. Generally, we grant petitions such as this one only in the

following circumstances: the initial decision contains erroneous findings of

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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, 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

(1) VACATE the administrative judge’s finding that the agency proved

specification 4 under its lack of candor charge; (2) incorporate the correct

standards for the appellant’s claims of disparate treatment disability

discrimination and retaliation for requesting reasonable accommodation;

(3) VACATE the administrative judge’s alternative finding that the agency

proved by clear and convincing evidence that it would have removed the

appellant in the absence of his alleged protected disclosures; and (4) supplement

the administrative judge’s analysis on the appellant’s claim of disparate penalties,

we AFFIRM the initial decision.

BACKGROUND

The appellant was a GS-12 Attorney Advisor with the agency’s Office of

Disability, Adjudication, and Review in Newark, New Jersey. Initial Appeal File

(IAF), Tab 8 at 16. On October 27, 2016, the agency proposed his removal based

on the following four charges: (1) failure to safeguard Personally Identifiable

Information (PII); (2) lack of candor; (3) misuse of position; and (4) misuse of

Government property. IAF, Tab 7 at 5-16. By letter dated March 20, 2017, the

2
deciding official sustained the proposed removal. Id. at 18-37. The appellant’s

removal was effective that same date. IAF, Tab 8 at 16. 

The appellant subsequently filed a Board appeal challenging the basis for

the removal action and raising numerous affirmative defenses. IAF, Tab 1 at 7;

Tab 43 at 2-3. Following a hearing, the administrative judge issued an initial

decision affirming the agency’s action. IAF, Tab 52, Initial Decision (ID).

Regarding Charge 1, failure to safeguard PII, the administrative judge found that

the agency proved 29 of the 32 specifications underlying this charge and,

therefore, she sustained the charge. 2 ID at 8-19. The administrative judge also

sustained Charge 2, lack of candor, finding that the agency established all 4

supporting specifications. ID at 19-26. The administrative judge also sustained

Charge 3, misuse of position, and Charge 4, misuse of Government property,

finding that the agency established the 1 specification underlying the former

charge and both specifications underlying the latter charge. ID at 27-33. As to

the appellant’s affirmative defenses, the administrative judge found that he failed

to establish his claims of harmful procedural error, due process violation,

disability discrimination based on failure to accommodate and disparate

treatment, retaliation for requesting reasonable accommodation, retaliation for

filing grievances, and whistleblower reprisal. 3 ID at 33-61. Lastly, the

2

 While the administrative judge noted at the end of her analysis of Charge 1 that she

was sustaining 28 of the 32 specifications, ID at 19, this is a typographical error.

Specifically, the administrative judge found that the agency failed to sustain only 3 of

the 32 specifications underlying this charge and noted earlier in her analysis that the

agency established 29 of the specifications under this charge. ID at 17-18.

3

 In considering the appellant’s allegation of reprisal for filing grievances, the

administrative judge applied the general reprisal standard. ID at 46-47. However, the

statutory changes made as part of the Whistleblower Protection Enhancement Act of

2012 (WPEA) significantly narrowed the scope of cases to which this standard applies.

See Alarid v. Department of the Army, 122 M.S.P.R. 600, ¶ 15 & n.7 (2015).

Specifically, the general reprisal standard is inapplicable to claims that are subject to

the burden-shifting framework set forth in 5 U.S.C. § 1221(e), such as a reprisal claim

under 5 U.S.C. § 2302(b)(9)(A)(i), which makes it a prohibited personnel practice “to

take or fail to take, or threaten to take or fail to take, any personnel action against any

employee or applicant for employment because of the exercise of any appeal, complaint,

3
administrative judge found that the agency established the nexus requirement and

that the penalty of removal was reasonable under the circumstances. ID at 61-66. 

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 5. On review, he contends that the agency failed to prove that the

emails at issue under Charge 1 contained PII, that the administrative judge failed

to apply the proper legal standard to Charge 2, that the administrative judge did

not apply the proper factors in conducting her penalty analysis, and that the

administrative judge erred in finding that the appellant did not establish his

affirmative defense of whistleblower reprisal. 4 PFR File, Tab 5 at 9-28. The

agency has filed a response in opposition to the appellant’s petition. PFR File,

Tab 7.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant has failed to provide a basis for disturbing the administrative

judge’s findings regarding Charge 1, failure to safeguard PII.

Under its charge of failure to safeguard PII, the agency charged that, on

32 separate instances, the appellant sent emails containing PII of claimants who

or grievance right granted by any law, rule, or regulation, with regard to remedying a

violation” of 5 U.S.C. § 2302(b)(8). Clay v. Department of the Army, 123 M.S.P.R.

245, ¶ 10 (2016). To the extent the appellant was attempting to assert a claim of

reprisal under section 2302(b)(9)(A)(i), any such claim lacks merit because the

appellant has not alleged that his grievances involved remedying a violation of section

2302(b)(8). Thus, the administrative judge applied the proper standard to the

appellant’s claim of retaliation for having filed grievances.

4

 In his petition for review, the appellant does not challenge the administrative judge’s

findings regarding Charge 3, misuse of position, Charge 4, misuse of Government

property, his affirmative defenses other than his claim of whistleblower reprisal, or the

nexus requirement. We discern no basis for disturbing the administrative judge’s

well-reasoned findings that the agency proved Charges 3 and 4 and that it established

nexus. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) (finding no

reason to disturb the administrative judge’s findings when the administrative judge

considered the evidence as a whole, drew appropriate inferences, and made reasoned

conclusions). Moreover, we agree with the administrative judge’s findings that the

appellant failed to establish harmful procedural error or a due process violation. See id.

While we similarly agree that the appellant failed to establish his remaining affirmative

defenses, as discussed below, we have modified the administrative judge’s analysis on

these claims.

4
had applied for Social Security disability benefits to non-work related email

addresses. IAF, Tab 7 at 5-8. The administrative judge noted that, effective

May 2010, the agency adopted the definition of PII as found in Chapter 15,

Section 01.08 of the Administrative Instructions Manual System (AIMS), which

defined PII as the following:

any information about an individual maintained by an agency,

including (1) any information that can be used to distinguish or trace

an individual’s identity, such as name, social security number, date

and place of birth, mother’s maiden name, or biometric records; and

(2) any other information that is linked or linkable to an individual,

such as medical, educational, financial, and employment information.

ID at 11-12; IAF, Tab 7 at 49. The administrative judge found that the agency’s

witnesses—the Regional Chief Administrative Law Judge (Regional Chief ALJ),

the appellant’s first-line supervisor, and the deciding official—defined PII in a

manner consistent with this definition. ID at 12. The administrative judge also

found that the AIMS prohibits employees from emailing PII to or from any

non-secure personal computing devices or from emailing PII using any

non-secure email account. Id.; IAF, Tab 7 at 43.

On review, the appellant contends that the administrative judge improperly

considered the testimony of the agency’s witnesses in determining whether the

emails specified under the charge contained PII. PFR File, Tab 5 at 10. The

appellant contends that the administrative judge weighed the credibility of the

agency’s witnesses’ testimony against that of the appellant in determining

whether the emails contained PII, and that this constituted error because any such

determination should be based on the application of the agency’s relevant policy

and not on the credibility of witnesses. Id. at 11, 15. In addition, the appellant

argues that the administrative judge should not have determined that the deciding

official was a credible witness. Id. at 11-14. The appellant also argues that the

administrative judge erroneously concluded that most of the emails at issue

contained PII. Id. at 15-16.

5
Contrary to the appellant’s contentions on review, the administrative judge

properly considered and applied the definition of PII as set forth in the AIMS.

Pursuant to this policy, PII is defined, inter alia, as “information that is linked or

linkable to an individual, such as medical, educational, financial, and employment

information.” IAF, Tab 7 at 49. The administrative judge considered the

testimony of the appellant’s first-line supervisor and the deciding official to

ascertain what type of medical history and information is “linkable” to a claimant.

ID at 15-16. The administrative judge then reviewed each specification

underlying the charge and found that the agency established 29 of the 32

specifications. ID at 17-18. In doing so, the administrative judge noted that the

agency witnesses testified that all of the emails at issue contained PII, but the

administrative judge disagreed with these witnesses with regard to three

specifications. ID at 15, 17-18. Thus, while the administrative judge considered

the agency’s witnesses’ testimony in an effort to interpret and apply the definition

of PII under the AIMS, she independently reviewed and applied the definition to

each instance of charged misconduct. ID at 17-18.

The appellant’s assertion that the administrative judge erred in finding the

deciding official to be credible does not provide a basis for review. In making

this credibility determination, the administrative judge properly considered

relevant factors including the consistency of the deciding official’s testimony

with that of the appellant’s supervisor. ID at 15, 17; see Hillen v. Department of

the Army, 35 M.S.P.R. 453, 458 (1987). Furthermore, the administrative judge’s

credibility findings were implicitly based on demeanor, and are therefore entitled

to deference. See Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir.

2002) (stating that the Board must give deference to an administrative judge’s

findings regarding credibility when those findings are based on the demeanor of

the testifying witnesses); Little v. Department of Transportation, 112 M.S.P.R.

224, ¶ 4 (2009) (when an administrative judge has heard live testimony, her

credibility determinations must be deemed to be implicitly based upon the

6
demeanor of witnesses). As to the appellant’s assertion that the administrative

judge erred in finding that most of the emails at issue in the charge contained PII,

this assertion constitutes mere disagreement with the administrative judge’s

well-reasoned findings regarding these emails and does not provide a basis for

review. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106 (1997) (finding

no reason to disturb the administrative judge’s findings when the administrative

judge considered the evidence as a whole, drew appropriate inferences, and made

reasoned conclusions); Broughton v. Department of Health and Human Services,

33 M.S.P.R. 357, 359 (1987) (same). Thus, we discern no reason for disturbing

the administrative judge’s finding that the agency proved its charge of failure to

safeguard PII.

The administrative judge correctly sustained Charge 2, lack of candor.

The agency provided the following four specifications in support of this

charge:

Specification No. 1: On April 6, 2015, you reported that you were

using your personal computer to perform your agency work. When I

informed you that this is a PII violation, you stated, “[t]he emails

contain only raw narratives of the medical evidence with no names,

[social security numbers] or other PII.” An audit of your [agency]

email account, however, revealed that you sent numerous emails that

contained claimants’ names, social security numbers, medical

information, and/or other PII outside of [agency] custody.

Specification No. 2: In an email dated April 9, 2015, you stated, “I

have never included PII in any emails, on my personal laptop or in

any other electronic communications outside of my work-issued

laptop.” However, as detailed above, an audit of your email account

revealed that you sent numerous emails containing PII outside of

[agency] custody.

Specification No. 3: On April 6, 2015 and on April 9, 2015, I

advised you that you may not email agency work using your personal

laptop. On May 5, 2015, you were questioned regarding the emails

that you sent outside of [agency] custody, which contained claimant

PII. You stated that you do not send these emails anymore because

you were told not to. However, as specified above, from April 6,

7
2015 through May 5, 2015, you sent at least nine emails containing

claimant information outside of [agency] custody.

Specification No. 4: On July 27, 2015, you denied that you ever sent

any [agency] work-related materials between your personal email

account(s) and any email address, other than your [agency] email

address. An audit of your [agency] email account, however, revealed

that you have sent PII outside of [agency] custody to multiple email

addresses . . . .

IAF, Tab 7 at 8-9.

An agency alleging lack of candor must prove the following elements:

(1) that the employee gave incorrect or incomplete information; and (2) that he

did so knowingly. Fargnoli v. Department of Commerce, 123 M.S.P.R. 330, ¶ 17

(2016). Here, the appellant does not dispute on review that the agency

established prong one of this test; specifically, that he provided incorrect

information as set forth in each of the four specifications underlying the lack of

candor charge. Rather, the appellant argues that the administrative judge failed to

make findings regarding the second element of this test. PFR File, Tab 1 at 17.

As discussed below, we find that the administrative judge made findings on this

element with regard to specifications 1-3. However, we agree that the

administrative judge did not make findings on this element with regard to

specification 4, and we modify the initial decision accordingly. 

Regarding specifications 1 and 2, in which the agency charged the

appellant with making incorrect statements concerning whether he had

inappropriately sent emails containing PII, the administrative judge considered

the appellant’s testimony that he was not even aware that he had sent PII between

his personal and work email addresses. ID at 24. However, the administrative

judge found the appellant’s version of events to be highly unlikely in light of the

fact that he was working from home regularly and the number of emails at issue

was close to 30. Id. The administrative judge considered the relevant factors,

including the consistency of the testimony with other evidence, in making this

credibility determination. See Hillen, 35 M.S.P.R. at 458. Thus, contrary to the

8
appellant’s assertions on review, the administrative judge did make findings on

whether the appellant was aware that he provided incorrect information when he

stated that he had not sent PII between his work and personal email addresses. 

The administrative judge also considered the appellant’s testimony

regarding specification 3, which concerned the appellant’s denial that he sent

emails between his personal and work email addresses following his supervisor’s

April 2015 warnings. ID at 24-25. Specifically, the administrative judge

considered the appellant’s explanation that he actually meant that, although he

continued to send such emails after his supervisor’s warnings, those subsequent

emails constituted “evidence of retaliation” from his work email address to his

personal email address. ID at 24. The administrative judge found this version of

events to be highly improbable because three of these emails had nothing to do

with the alleged preservation of evidence. ID at 25. This determination belies

the appellant’s assertion that the administrative judge failed to make a finding on

the knowledge element regarding specification 3. 

As for specification 4, in which the agency alleged that the appellant

incorrectly denied having sent work-related emails between his personal email

account and any other email address other than his work email address, we agree

that the administrative judge did not make a finding on whether the appellant

knowingly provided incorrect information. Thus, we vacate the administrative

judge’s determination that the agency proved specification 4 under its lack of

candor charge. However, we need not remand this matter to the New York Field

Office or make a finding on the knowledge element concerning this specification.

In particular, because the agency proved at least one of the specifications

underlying its lack of candor charge, the charge is still sustained. Burroughs v.

Department of the Army, 918 F.2d 170, 172 (Fed. Cir. 1990) (finding that proof of

one or more the supporting specifications is sufficient to sustain the charge).

Accordingly, the administrative judge’s failure to make a finding on the

knowledge element concerning specification 4 does not provide a basis for

9
reversing the initial decision. 5

 See Panter v. Department of the Air Force,

22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory error that is not

prejudicial to a party's substantive rights provides no basis for reversal of an

initial decision). 

The administrative judge properly found that the appellant failed to establish his

affirmative defense of whistleblower reprisal. 6

In an adverse action in which the appellant has raised a claim of

whistleblower reprisal, once the agency proves its adverse action case, the

appellant must show by preponderant evidence that he made a disclosure

protected under 5 U.S.C. § 2302(b)(8) and that the disclosure was a contributing

factor in the agency’s personnel action. Simmons v. Department of the Air Force,

99 M.S.P.R. 28, ¶ 22 (2005), aff’d sub nom. Gebhardt v. Department of the Air

Force, 186 F. App’x 996 (Fed. Cir. 2006). 7 A protected disclosure is a disclosure

of information that the appellant reasonably believes evidences any violation of

any law, rule, or regulation, gross mismanagement, a gross waste of funds, an

abuse of authority, or a substantial and specific danger to public health or safety.

5 U.S.C. § 2302(b)(8)(A). Only if the appellant establishes a prima facie case of

reprisal for whistleblowing does the burden of persuasion shift to the agency to

5

 We have considered whether our decision to not sustain this specification affects the

administrative judge’s determinations regarding the penalty, and we find that it does

not. See Dunn v. Department of the Air Force, 96 M.S.P.R. 166, ¶ 10 (2004) (stating

that, when 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), aff’d, 139 F. App’x 280 (Fed. Cir. 2005).

6

 During the pendency of this appeal, the National Defense Authorization Act for Fiscal

Year 2018 (NDAA), Pub. L. No. 115-91, 131 Stat. 1283, was signed into law on

December 12, 2017. Section 1097 of the NDAA amended various provisions of title 5

of the U.S. Code. Our decision in this appeal would be the same under both pre- and

post-NDAA law.

7

 The WPEA, which went into effect on December 27, 2012, does not affect the relevant

holding in this cited authority, nor does it affect the relevant holdings in the other

authorities cited herein that were issued prior to the effective date of the WPEA.

See Pub. L. No. 112-199, 126 Stat. 1465 (2012).

10
show by clear and convincing evidence that it would have taken the same

personnel action absent any protected activity. Simmons, 99 M.S.P.R. 28, ¶ 23.

Here, the administrative judge found that the appellant raised five allegedly

protected disclosures. ID at 49-54. Disclosure 1 pertained to a letter that the

appellant drafted in June 2007 to the Acting Regional Chief ALJ in which the

appellant complained about a supervisor and the management of the office. ID

at 49-50; IAF, Tab 35 at 57-59. Disclosure 2 related to November 2014 emails

the appellant sent to an ALJ concerning an issue in one of that ALJ’s Social

Security decisions; specifically, the appellant expressed concern about a

statement in the decision linking a claimant’s depression to his criminal record.

ID at 51-52; IAF, Tab 36 at 45, 51-52. Disclosure 3 pertained to a May 2015

email in which the appellant forwarded these November 2014 emails to his

first-line supervisor. ID at 53; IAF, Tab 36 at 51. Disclosure 4 related to an

April 2015 email the appellant sent to his first-line supervisor expressing

concerns with instructions the same ALJ had given the appellant regarding

drafting a Social Security decision and questioning whether these instructions

raised “ethics concerns.” ID at 53; IAF, Tab 37 at 4. Disclosure 5 concerned a

May 2015 email the appellant sent to his supervisor in which he again expressed

concern with the same ALJ’s instructions for writing Social Security decisions

and stated that the ALJ had a “pattern of bias” regarding granting benefits. ID

at 53-54; IAF, Tab 37 at 6. 

The administrative judge found that disclosures 2-5, in which the appellant

expressed concern with the ALJ’s Social Security decisions, constituted

disagreements with the ALJ’s conclusions, over which the ALJ had discretion.

ID at 54-58; see Webb v. Department of the Interior, 122 M.S.P.R. 248, ¶ 8

(2015) (determining that, even under the expanded protections afforded to

whistleblowers under the Whistleblower Enhancement Act of 2012, general

philosophical or policy disagreements with agency decisions or actions are not

protected unless they separately constitute a protected disclosure of one of the

11
categories of wrongdoing listed in 5 U.S.C. § 2302(b)(8)(A)). As for

disclosure 1, the administrative judge determined that the appellant failed to show

that this disclosure evidenced gross mismanagement because an agency’s ability

to accomplish its mission is not significantly affected by the fact that a supervisor

is disliked by his subordinates. ID at 58; see Swanson v. General Services

Administration, 110 M.S.P.R. 278, ¶ 11 (2008) (defining gross mismanagement as

a management action or inaction that creates a substantial risk of significant

adverse impact on the agency’s ability to accomplish its mission). On review, the

appellant alleges that the administrative judge erred in finding that these

disclosures were not protected, but he does not provide argument or evidence in

support of this contention. PFR File, Tab 1 at 27. The appellant’s assertion

constitutes mere disagreement with the administrative judge’s well-reasoned

finding that the appellant did not make protected disclosures and, accordingly,

does not provide a basis for review. See Crosby, 74 M.S.P.R. at 106; Broughton,

33 M.S.P.R. at 359.

Although the administrative judge found that the appellant failed to

establish that he made protected disclosures under 5 U.S.C § 2302(b)(8), she

made alternative findings that the agency established by clear and convincing

evidence that it would have removed the appellant even in the absence of his

protected disclosures. ID at 61-62. The appellant contends on review that the

agency failed to meet this burden. PFR File, Tab 1 at 27. We need not, however,

reach this issue. Because the administrative judge correctly determined that the

appellant failed to establish that he made protected disclosures, the administrative

judge erred in making these alternative findings, and we vacate this portion of the

initial decision. See Scoggins v. Department of the Army, 123 M.S.P.R. 592,

¶ 28 (2016) (stating that the Board may not proceed to the clear and convincing

evidence test unless it has first made a finding that the appellant established his

prima facie case).

12
The administrative judge properly found that the appellant failed to meet his

burden of proof on his disparate treatment disability discrimination claim.

Following the issuance of the initial decision, the Board clarified that a

Federal employee proves disparate treatment disability discrimination by

establishing that his disability was a motivating factor in the challenged action.

Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 20-22, 40. The

administrative judge determined that the record was devoid of any evidence

indicating that the agency treated the appellant disparately from other employees

who did not suffer from the appellant’s alleged disability—carpal tunnel

syndrome.8 ID at 44. Further, the administrative judge found that there was no

evidence that the agency had failed to upload onto the appellant’s work laptop

dictation software, which the appellant alleged he needed due to his carpal tunnel

syndrome. ID at 16, 44. The administrative judge noted that, in fact, the

appellant admitted that the agency had loaded dictation software onto both his

work desktop and government-issued laptop in 2013. ID at 44. The appellant’s

petition for review contains no argument to the contrary. We therefore adopt the

administrative judge’s factual findings and conclude that the appellant failed to

show that any disability was a motivating factor in the agency’s decision to

remove him. Pridgen, 2022 MSPB 31, ¶ 24 (stating that comparator evidence is

one method by which an appellant may prove discrimination). 9

The appellant did not prove that his protected activity of requesting reasonable

accommodation was a “but for” cause of his removal.

In analyzing the appellant’s allegation of retaliation for requesting

reasonable accommodation, the administrative judge set forth the legal standard

8

 The administrative judge found that the appellant failed to show that he was an

individual with a disability. ID at 41, 44.

9

 Because we affirm the administrative judge’s finding that the appellant failed to show

that any prohibited consideration was a motivating factor in the agency’s action, we

need not resolve the issue of whether the appellant proved that discrimination or

retaliation was a “but for” cause of the agency’s decisions. See Pridgen, 2022 MSPB

31, ¶¶ 20-22, 29 33.

13
that applies to a claim of retaliation for engaging in protected equal employment

activities. ID at 44-45. Specifically, relying on the Board’s decision in Savage v.

Department of the Army, 122 M.S.P.R. 612, ¶¶ 36-37, 41 (2015), overruled in

part by Pridgen, 2022 MSPB 31, ¶¶ 23-25, she found that Federal employees are

protected against retaliation for the exercise of Title VII rights, and that a

violation is established when the appellant shows that retaliation was a motivating

factor in the contested personnel action. ID at 44. 

Asserting disability discrimination, including filing requests for reasonable

accommodation, is an activity protected by the Rehabilitation Act, not Title VII. 10

Pridgen, 2022 MSPB 31, ¶ 44. The anti-retaliation provision of the Americans

with Disabilities Act of 1990, which is incorporated by reference in the

Rehabilitation Act, prohibits discriminating against any individual “because such

individual” has engaged in protected activity. 42 U.S.C. § 12203(a); Pridgen,

2022 MSPB 31, ¶ 44. An affirmative defense of retaliation for engaging in

activity protected by the Rehabilitation Act is analyzed under the “but-for”

causation standard, i.e., if the agency would not have taken the same action in the

absence of the protected activity. Pridgen, 2022 MSPB 31, ¶¶ 44-47. Here,

because the administrative judge found that the appellant failed to prove that any

of his prior requests for reasonable accommodation were a motivating factor in

his removal, we find that he cannot meet the higher “but-for” causation standard

to prove retaliation for engaging in activity protected by the Rehabilitation Act.

The administrative judge properly found that the penalty of removal is reasonable

under the circumstances.

When, as here, all of the agency’s charges are sustained, the Board will

review the agency-imposed penalty only to determine if the agency considered all

of the relevant factors and exercised management discretion within the tolerable

10 The standards under the Americans with Disabilities Act of 1990 have been

incorporated by reference into the Rehabilitation Act, and the Board applies them to

determine whether there has been a Rehabilitation Act violation. 29 U.S.C. § 791(f);

Pridgen, 2022 MSPB 31, ¶ 35; Miller v. Department of the Army, 121 M.S.P.R. 189,

¶ 13 n. 3 (2014).

14
limits of reasonableness. Davis v. U.S. Postal Service, 120 M.S.P.R. 457, ¶ 6

(2013); Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981). 11 The

agency need not address all 12 factors, merely those that are relevant. Douglas,

5 M.S.P.R. at 306. The Board will modify or mitigate an agency-imposed penalty

only when it finds that the agency failed to weigh the relevant factors or the

penalty clearly exceeds the bounds of reasonableness. Davis, 120 M.S.P.R.

457, ¶ 6. 

The appellant contends on review that the administrative judge erred in

determining that the deciding official adequately weighed the relevant Douglas

factors. PFR File, Tab 5 at 18-28. Specifically, the appellant contends that the

deciding official failed to appropriately consider the nature and seriousness of the

offense because she did not consider that the misconduct was unintentional and

that there were no negative consequences as a result of the appellant’s actions.

Id. at 19-20. The appellant also argues that the deciding official failed to

adequately consider his job position and his supervisor’s confidence in his ability

to perform his job. Id. at 20, 22. In addition, he contends that the deciding

official incorrectly considered his past disciplinary record as a “neutral factor but

[that] it should have been a mitigating factor.” Id. at 21. The appellant further

alleges that the administrative judge erred in finding that he did not establish his

disparate penalties claim and failed to consider as a mitigating factor incidents

that were occurring in his personal life at the time of the misconduct. Id.

at 22-26.

Contrary to the appellant’s allegations, the administrative judge scrutinized

the penalty factors considered by the agency and correctly determined that the

deciding official considered the nature and seriousness of the offense, the nature

11 In Douglas, 5 M.S.P.R. at 305-06, the Board articulated a nonexhaustive list of

12 factors that are relevant in assessing the appropriate penalty for an act of

misconduct. These so-called Douglas factors include the nature and seriousness of the

offense, the appellant’s past disciplinary record, his past work record, his potential for

rehabilitation, and mitigating circumstances surrounding the offense. Id. 

15
of the appellant’s position, the appellant’s past disciplinary record, and the effect

of the offense on his ability to perform his duties and his supervisor’s confidence

in his job-related abilities. ID at 64-65; IAF, Tab 7 at 29-31. Regarding the

seriousness of the misconduct, the administrative judge properly noted that the

deciding official stated that the disclosure of PII exposes the public to severe

risks, such as identify theft. ID at 64; IAF, Tab 7 at 29. As to the appellant’s

argument that the misconduct was unintentional, the deciding official specifically

considered this issue and found that the appellant “repeatedly and intentionally

transmitted PII from [his agency] account to several different unsecured email

addresses. . . .” IAF, Tab 7 at 29. In addition, concerning the appellant’s past

disciplinary record, the deciding official noted that, on April 13, 2016, the

appellant was reprimanded for working over his tour without approval or

authority.12 Id. at 30. Thus, to the extent the deciding official did consider this

as a neutral and not as a mitigating factor, the appellant has failed to show how

any such consideration of this factor constituted error by the deciding official.

Regarding the effect of the appellant’s misconduct on the appellant’s ability to do

his job and his supervisor’s confidence in him, the administrative judge properly

noted that the deciding official stated that the public entrusted the agency with

safeguarding PII and that the appellant violated that trust. ID at 64; IAF, Tab 7

at 30. The deciding official noted that the appellant’s supervisor could no longer

trust him “to handle private and confidential records with the necessary level of

care.” IAF, Tab 7 at 30. 

As to the appellant’s allegation of disparate penalties, the Board has

recently clarified that, in assessing such a claim, the relevant inquiry is whether

the agency knowingly and unjustifiably treated employees differently. Singh v.

U.S. Postal Service, 2022 MSPB 15, ¶ 14. Proper comparators for disparate

penalty purposes should be limited to those employees whose misconduct and/or

12 The notice of proposed removal also referenced this April 13, 2016 reprimand. IAF,

Tab 7 at 12.

16
other circumstances closely resemble those of the appellant, id., ¶ 13, and the

Board should not attempt to weigh the relative seriousness of various offenses in

order to determine whether two employees who committed different acts of

misconduct were treated disparately, id., ¶ 17. While Singh had not yet been

issued when the administrative judge issued the initial decision, we find that she

properly found that the appellant failed to establish his claim of disparate

penalties. Consistent with Singh, the administrative judge found that the

appellant did not identify any employee who had engaged in similar conduct and

who was similarly situated to the appellant. ID at 65-66. The appellant argues on

review that other employees engaged in more serious misconduct and were not

removed but fails to provide a basis for disturbing the administrative judge’s

finding that these employees were not proper comparators for disparate penalty

purposes. PFR File, Tab 5 at 23-25. Based on the foregoing, we find that the

appellant has failed to establish that the agency knowingly and unjustifiably

treated employees differently, as required under Singh. Singh, 2022 MSPB 15,

¶ 14.

Regarding the appellant’s contention that the administrative judge did not

consider all of the incidents that were occurring in his personal life at the time of

the misconduct, the administrative judge's failure to mention all of the evidence

of record does not mean that she did not consider it in reaching her decision.

Marques v. Department of Health and Human Services, 22 M.S.P.R. 129, 132

(1984), aff'd, 776 F.2d 1062 (Fed. Cir. 1985) (Table). In light of the above, we

agree with the administrative judge that the agency considered the appropriate

Douglas factors, and we defer to the agency’s imposed penalty of removal.

See Dunn v. Department of the Air Force, 96 M.S.P.R. 166, ¶¶ 2, 12-18 (2004)

(determining that removal was reasonable when the employee engaged in conduct

unbecoming and exhibited a lack of candor), aff’d, 139 F. App’x 280 (Fed. Cir.

2005).

17
NOTICE OF APPEAL RIGHTS13

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

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: 

13 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.

18
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

19
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).

20
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.14 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 

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

14 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. 

21
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.

22