Opinion

Frances Honesty v. Social Security Administration

Court: Merit Systems Protection Board
Filed: Mar 14, 2025
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 34.4%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

FRANCES HONESTY, DOCKET NUMBER

Appellant, AT-0752-23-0336-I-1

SOCIAL SECURITY DATE: March 14, 2025

ADMINISTRATION,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Carson Bridges , Esquire, and Claire Ocana , Esquire, Dallas, Texas,

for the appellant.

Natalie Liem , Esquire, and Dana L. Myers , Esquire, Atlanta, Georgia,

for the agency.

Anthony Sokolowski , Esquire, New York, New York, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

Cathy A. Harris, Member

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

FINAL ORDER

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

reversed the appellant’s removal on due process grounds and concluded that she

did not prove her disability discrimination affirmative defense. On petition for

review, the agency argues that the administrative judge erred in finding that the

agency violated her due process rights, and he failed to adjudicate the charge,

nexus, and reasonableness of the penalty. Petition for Review (PFR) File, Tab 1.

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 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 and AFFIRM the initial decision, which is now the Board’s

final decision. 5 C.F.R. § 1201.113(b).

For a tenured public employee facing removal from her position, minimum

due process requires prior notice and an opportunity to respond. Cleveland Board

of Education v. Loudermill, 470 U.S. 532, 546 (1985). A deciding official may

not consider new and material information that the appellant was not aware would

be taken into consideration in connection with the charges or the penalty.

Ward v. U.S. Postal Service, 634 F.3d 1274, 1280 (Fed. Cir. 2011); Stone v.

Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. Cir. 1999).

In determining whether a deciding official’s consideration of information violates

due process, the question is whether the information is “so substantial and so

likely to cause prejudice that no employee can fairly be required to be subjected

to a deprivation of property under such circumstances.” Stone, 179 F.3d at 1377.

When such a due process violation has occurred, the violation is not subject to the

“harmless error test,” and the appellant is entitled to a new constitutionally

correct administrative procedure. Id.

We discern no error with the administrative judge’s finding that the

deciding official’s consideration that the appellant was “insubordinate”—which

has an element of intent—constituted new and material information. Initial

Appeal File (IAF), Tab 31, Initial Decision (ID) at 7; see Ward, 634 F.3d

at 1280 n.2. (finding that “the materiality of the ex parte communication appears

to be self-evident from the [d]eciding [o]fficial’s admission”); Howard v.

Department of the Air Force, 118 M.S.P.R. 106, ¶ 6 (2012) (concluding that the

information in question was “clearly material” because the deciding official

admitted that it influenced his penalty determination). We further find that the

deciding official’s consideration of the appellant’s insubordination under the

circumstances was “so likely to cause prejudice that no employee can fairly be

required to be subjected to a deprivation of property under such circumstances.”

Stone, 179 F.3d at 1377.

We have considered the agency’s arguments in its petition for review. For

example, the agency asserts that the deciding official, a “non-attorney,” used the

term “insubordinate” as a layperson, meaning “[n]ot obedient to the orders of

superiors,” whereas the administrative judge used the legal definition, i.e., a

willful and intentional refusal to obey an authorized order of a superior officer,

which the officer is entitled to have obeyed. PFR File, Tab 1 at 9-10. Compare

Walker v. Department of the Army, 102 M.S.P.R. 474, ¶ 8 (2006), with

insubordinate - Quick search results | Oxford English Dictionary . This argument

is not persuasive. Despite the deciding official’s non-attorney status, he testified

that he has been an agency employee for 20 years, and during that time, he served

as a District Manager, an Operations Supervisor, and a Labor Relations team

member. IAF, Tab 24-3, Hearing Recording (testimony of the deciding official).

The deciding official also has experience as a deciding official. E.g.,

Kortleever v. Social Security Administration, MSPB Docket No. AT-0752-23-

0289-I-1, Initial Decision (Jun. 10, 2024). Contrary to the agency’s assertion, the

deciding official’s experience in management, labor relations, and disciplinary

actions would make him familiar with the legal definition of “insubordinate.”

The agency also asserts that the administrative judge’s finding was

erroneous because a review of the context in which the deciding official used the

term “insubordinate,” particularly in relation to his other testimony, shows that he

did not mean it to imply intent. PFR File, Tab 1 at 10-14. It asserts that the

deciding official’s testimony as a whole supports the more plausible

interpretation that he considered the appellant’s failure to return to the office

following her receipt of the return-to-work notices without regard to any intent.

Id. at 12. We have considered this evidence, but a different outcome is not

warranted. Indeed, it is precisely because the deciding official stated that the

appellant’s absences were beyond her control that the “insubordinate” comment is

so problematic.

The agency also relies on the Board’s nonprecedential decision in Grina v.

Department of the Army, MSPB Docket Nos. DE-0752-21-0174-I-1, DE-0752-20-

0417-I-1, Final Order (Apr. 8, 2024), to support its assertion that there was no

due process violation. PFR File, Tab 1 at 17. In Grina, Final Order at * 2-3, the

Board found no due process violation when the deciding official considered the

appellant’s alleged untruthfulness an aggravating factor in his decision, but the

proposal notice only discussed her prior inconsistent statements. In pertinent

part, the Board found that the appellant was on notice that her inconsistent

statements might be a factor in the agency’s decision, she was aware of the

significance of her apparently contradictory statements, and the deciding official

did not consider information that was not included in the proposal notice or draw

any conclusions that might represent a departure from the reasons stated in the

proposal itself. Id. at *3. Grina is distinguishable, however, because, here, the

appellant was not, in any way, on notice that the deciding official considered her

insubordinate, and the deciding official’s statement in this regard was a departure

from the reasons stated in the proposal notice. Moreover, the Board is not

required to follow Grina in this matter because Grina is a nonprecedential

decision. See 5 C.F.R. § 1201.117(c)(2).

We have considered the agency’s remaining arguments on review, but none

warrants a different outcome. Because we affirm the administrative judge’s

decision to reverse the removal on due process grounds, we need not address the

agency’s arguments on review regarding whether it proved the excessive absences

charge, nexus, and/or the reasonableness of the penalty. 2 PFR File, Tab 1

at 7, 18-20.

ORDER

We ORDER the agency to cancel the removal action and retroactively

restore the appellant, effective March 13, 2023. See Kerr v. National Endowment

for the Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this

action no later than 20 days after the date of this decision.

We also ORDER the agency to pay the appellant the correct amount of

back pay, interest on back pay, and other benefits under the Back Pay Act and/or

Postal Service regulations, as appropriate, no later than 60 calendar days after the

date of this decision. We ORDER the appellant to cooperate in good faith in the

agency’s efforts to calculate the amount of back pay, interest, and benefits due,

and to provide all necessary information the agency requests to help it carry out

the Board’s Order. If there is a dispute about the amount of back pay, interest

The appellant does not challenge the administrative judge’s finding that she did not

prove her disability discrimination affirmative defense, ID at 7-13, and we affirm the

initial decision in this regard.

due, and/or other benefits, we ORDER the agency to pay the appellant the

undisputed amount no later than 60 calendar days after the date of this decision.

We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

the agency about its progress. See 5 C.F.R. § 1201.181(b).

No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision on this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 3

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).

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.

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

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:

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. 4 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