UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

RAMON GOMEZ,

Appellant,

v.

DEPARTMENT OF HOMELAND 

SECURITY,

Agency.

DOCKET NUMBER

DE-0752-18-0219-I-1

DATE: April 24, 2024

THIS FINAL ORDER IS NONPRECEDENTIAL1

Scott E. Beemer, Tempe, Arizona, for the appellant.

Carolyn D. Jones, Esquire, Williston, Vermont, 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 the appellant’s removal. Generally, we grant petitions such as this one

only in the following circumstances: the initial decision contains erroneous

findings of material fact; the initial decision is based on an erroneous

interpretation of statute or regulation or the erroneous application of the law to

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 A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 apply the correct legal standard for a lack of candor charge and to

supplement the initial decision’s discrimination and disparate penalty analysis,

we AFFIRM the initial decision. 

Effective March 8, 2017, the agency removed the appellant from his

deportation officer position based on three charges: (1) sleeping on duty on

May 3, 2016; (2) conduct unbecoming a Federal employee relating to his May 4,

2016 contact with a potential witness to the conduct alleged in the first charge;

and (3) lack of candor relating to a May 4, 2016 memorandum he wrote

concerning the conduct alleged in the first charge. Initial Appeal File (IAF),

Tab 10 at 23-31. The appellant appealed his removal, and, after a hearing, the

administrative judge issued an initial decision in which he sustained all three

charges and affirmed the removal. IAF, Tab 25, Initial Decision (ID). The

administrative judge further found that the appellant failed to prove his

affirmative defenses. ID at 16-21. 

The appellant has filed a petition for review, and the agency has filed a

response in opposition to the appellant’s petition. Petition for Review (PFR) File,

Tabs 1, 5.

We decline to consider the documents the appellant submits on review.

On review, the appellant submits the deposition transcripts of six agency

employees. PFR File, Tab 1 at 33-309. These documents predate the close of the
3

record, and the appellant has not shown that these documents, or the information

contained therein, were unavailable before the record closed despite his due

diligence. Therefore, we have not considered them. See Avansino v. U.S. Postal

Service, 3 M.S.P.R. 211, 214 (1980).

The administrative judge correctly found that the agency proved its charges by

preponderant evidence.

The administrative judge found that the agency proved the first two charges

by preponderant evidence based largely on his assessment of the witnesses’

credibility. ID at 9-15. These findings are entitled to deference, and the

appellant has not proffered sufficiently sound reasons for overturning them. See

Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). We find,

therefore, that the administrative judge correctly sustained the charges of sleeping

on duty and conduct unbecoming a Federal employee.

As the administrative judge correctly noted, a charge of lack of candor is a

flexible charge, and unlike a charge of falsification, it does not require proof of

intent to deceive. ID at 8; see Ludlum v. Department of Justice, 278 F.3d 1280,

1283-84 (Fed. Cir. 2002). However, the administrative judge did not apply the

proper legal standard for analyzing a lack of candor charge. ID at 15-16. In

Fargnoli v. Department of Commerce, 123 M.S.P.R. 330 (2016), relying on the

U.S. Court of Appeals for the Federal Circuit and Board precedent, the Board

held that lack of candor requires proof of the following elements: (1) that the

employee gave incorrect or incomplete information; and (2) that he did so

knowingly. Id., ¶ 17. 

Although the administrative judge failed to explicitly rely on Fargnoli in

sustaining this charge, he nonetheless made findings regarding the requisite

elements of proof. Specifically, he found that the appellant on May 6, 2016,

submitted a memorandum dated May 4, 2016, stating “I do not recall [this] taking

place,” referring to the sleeping on duty incident. However, on May 4, he told a

coworker that he was “just resting [his] eyes and not sleeping” and also claimed
4

he was not snoring but was a “loud breather.” ID at 14-15. Given this May 4,

2016 conversation with his coworker, the appellant knew of the incident in which

he was allegedly sleeping on duty before he submitted his memorandum on

May 6, 2016. Id. at 15-16. The administrative judge found that the appellant was

therefore less than candid when he stated in his memorandum that he did not

recall the incident taking place. ID at 16. Thus, because the administrative judge

made findings regarding the issue of whether the appellant knowingly provided

incorrect information, his failure to rely on Fargnoli does not require remanding

the initial decision. Because the appellant had discussed the sleeping incident

before he submitted his May 4, 2016 memorandum, he clearly knew of the

incident when he submitted the memorandum. We therefore find that the

appellant knowingly provided incorrect information when he stated in his

memorandum that he did not recall the incident. Accordingly, we conclude that

the administrative judge correctly sustained the charge.

The administrative judge correctly found that the appellant failed to prove his

affirmative defenses.

Discrimination based on race, color, age, sex, and national origin

In his petition for review, the appellant reiterates his affirmative defenses

of discrimination based on his race, color, age, sex, and national origin. PFR

File, Tab 1 at 7. After the initial decision was issued, the Board clarified the

proper analytical framework for adjudicating discrimination claims under Title

VII and the Age Discrimination in Employment Act. Pridgen v. Office of

Management and Budget, 2022 MSPB 31, ¶¶ 21-25. Under Pridgen, the appellant

bears the initial burden of proving by preponderant evidence that his race, color,

age, sex, or national origin were at least a motivating factor in his removal.

Pridgen, 2022 MSPB 31, ¶ 31. 

Here, the administrative judge found that the appellant failed to prove any

of his discrimination claims. ID at 17. More specifically, the administrative

judge found that the appellant appeared to abandon his race, sex, and age
5

discrimination claims at the hearing, as he did not ask the witnesses any questions

related to those claims. Id. As for the appellant’s affirmative defenses of

discrimination based on his national origin and color, the administrative judge

found that there was no proof that anyone involved in the appellant’s removal

considered the appellant’s national origin or color. Id. Therefore, the

administrative judge found that the appellant failed to show that any of these

prohibited considerations was a motivating factor in his removal. Id.

On review, the appellant challenges the administrative judge’s finding that

he abandoned his discrimination claims at the hearing. PFR File, Tab 1 at 27. He

asserts that his counsel raised the “issue of color” several times during the

hearing by specifically stating that the witnesses who testified against the

appellant were “white in color.” 2 Id. In addition, the appellant contends that his

counsel believed that the appellant’s race, color, age, sex, and national origin

discrimination claims were “implied affirmative defenses.” Id. These arguments

do not show error in the administrative judge’s findings. We therefore agree that

the appellant did not show that his race, color, age, sex, or national origin were

motivating factors in the agency’s decision to remove him. 3

Disability discrimination

The appellant reasserts his disability discrimination claim on review,

alleging that the agency removed him from his position due to his disability

(sleep apnea). PFR File, Tab 1 at 6-11, 28-29. To the extent the appellant claims

disparate treatment disability discrimination, such claims are subject to the same

analytic framework as Title VII discrimination claims. Pridgen, 2022 MSPB 31,

¶ 40. At the beginning of the hearing, the appellant’s counsel admitted that the

2

 Contrary to the appellant’s argument on review, the administrative judge did not find

that the appellant abandoned his affirmative defenses of discrimination based on his

color and national origin. ID at 17.

3

 Because we discern no error with the administrative judge’s motivating factor analysis

or conclusions regarding the appellant’s discrimination claims, it is unnecessary for us

to address whether discrimination was a “but-for” cause of the removal action.

Pridgen, 2022 MSPB 31, ¶¶ 20-25.
6

appellant did not inform the agency that he had sleep apnea prior to his removal,

ID at 18, and, on review, he contends that he did not learn that he had sleep apnea

until after his removal. PFR File, Tab 1 at 7-11, 28-29. The administrative judge

found that there was no evidence that the agency either knew or reasonably

should have known that the appellant had a disability, and the appellant does not

challenge this finding on review. ID at 18. Under the circumstances, we find that

the appellant has not shown that his disability was a motivating factor in his

removal. 

To the extent the appellant claims that the agency failed to accommodate

his disability, an agency must “make reasonable accommodation to the known

physical or mental limitations of an otherwise qualified . . . employee with a

disability.” 29 C.F.R. 1630.9(a). Even assuming that the appellant can show that

he is “otherwise qualified,” the agency had no obligation to accommodate a

disability of which it was unaware. Schulte v. Department of the Air Force,

50 M.S.P.R. 126, 130 (1991). Thus, the administrative judge correctly found that

the appellant did not show that the agency engaged in disability discrimination

based on a failure to accommodate. ID at 18.

The administrative judge correctly found that removal is a reasonable penalty.

We agree with the administrative judge that the deciding official properly

considered the relevant Douglas4 factors and that the penalty of removal was

reasonable. ID at 21-23; IAF, Tab 6 at 26-27, 33-37. We have considered the

appellant’s arguments on review that the penalty is unreasonable, PFR File, Tab 1

at 16, 22, and we find them unpersuasive. 

However, the administrative judge, relying on Lewis v. Department of

Veterans Affairs, 113 M.S.P.R. 657 (2010), also considered the appellant’s claim

that other agency employees were not removed for similar or more egregious

4

See Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981) (setting forth a

nonexhaustive list of 12 factors that are relevant for assessing the appropriate penalty

for an act of misconduct).
7

misconduct. ID at 22-23. We have since overruled Lewis and subsequent cases

to clarify that, when analyzing disparate penalty claims, broad similarity between

employees is insufficient to establish that they are appropriate comparators, and

the relevant inquiry is whether the agency knowingly and unjustifiably treated

employees who engaged in the same or similar offenses differently. Singh v. U.S.

Postal Service, 2022 MSPB 5, ¶ 14; see Facer v. Department of the Air Force,

836 F.2d 535, 539 (Fed. Cir. 1988) (finding that a person does not have a legally

protected interest in the evenness of a misconduct penalty assessed on him

compared to that assessed on others unless employees are knowingly treated

differently “in a way not justified by the facts, and intentionally for reasons other

than the efficiency of the service”). While the universe of potential comparators

will vary from case to case, it should be limited to those employees whose

misconduct and/or circumstances closely resemble those of the appellant. Singh,

2022 MSPB 15, ¶ 21. There is no evidence in this appeal that the employee

identified by the appellant as a potential comparator was sleeping on duty,

engaged in unbecoming conduct, and exhibited a lack of candor, as the appellant

did. Given these circumstances, we find that the appellant failed to show that the

employee is an appropriate comparator for purposes of the appellant’s disparate

penalties claim.5 In sum, we agree with the administrative judge that the penalty

of removal does not clearly exceed the bounds of reasonableness in this case.

See, e.g., Kamahele v. Department of Homeland Security, 108 M.S.P.R. 666, ¶¶ 2,

15 (2008) (finding the penalty of removal reasonable when the appellant

demonstrated lack of candor and inappropriate conduct).

Finally, we have considered the appellant’s claim that the administrative

judge was biased. The appellant’s allegations on review, which do not relate to

5

 Although the appellant identified only one potential comparator during the

proceedings below, on review he identifies several agency employees who allegedly

were treated differently for their misconduct. PFR File, Tab 1 at 29-30. We have not

considered this information because the appellant has not shown that it was unavailable

before the record closed despite his due diligence. See Avansino, 3 M.S.P.R. at 214.
8

any extrajudicial conduct by the administrative judge, neither overcome the

presumption of honesty and integrity that accompanies an administrative judge

nor establish that he showed a deep-seated favoritism or antagonism that would

make fair judgment impossible. Simpkins v. Office of Personnel Management,

113 M.S.P.R. 411, ¶ 4 (2010). We therefore find that the appellant has failed to

show that the administrative judge was biased in favor of the agency.

We have considered the appellant’s remaining arguments on review and

find no basis for disturbing the initial decision.

NOTICE OF APPEAL RIGHTS6

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. 

6

 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

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A). 

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the following

address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11. 

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court (not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
10

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is: 

Office of Federal Operations 

Equal Employment Opportunity Commission 

P.O. Box 77960 

Washington, D.C. 20013 

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to: 
11

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.7 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 

7

 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

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: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.