Mark A. Terrano v. United States Postal Service

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MARK A. TERRANO, DOCKET NUMBER

Appellant, SF-0752-13-0369-I-1

v.

UNITED STATES POSTAL SERVICE, DATE: September 11, 2014

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Joyce E. Kitchens, Esquire, Atlanta, Georgia, for the appellant.

David P. Larson, Esquire, and Samuel J. Schmidt, Esquire, Sandy, Utah,

for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

FINAL ORDER

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

reversed its removal of the appellant for violating the agency’s zero tolerance

policy. Generally, we grant petitions such as this one only when: the initial

decision contains erroneous findings of material fact; the initial decision is based

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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on an erroneous interpretation of statute or regulation or the erroneous application

of the law to the facts of the case; the 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. See

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, and based on the

following points and authorities, 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 by

this Final Order finding an additional due process violation, we AFFIRM the

initial decision.

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant worked as a Sales, Services/Distribution Associate at the

agency’s Paradise Valley Station in Las Vegas, Nevada. Initial Appeal File

(IAF), Tab 8 at 9. During a work shift in January 2013, the appellant and the

station’s Manager of Customer Service came into physical contact with each other

at the facility. Id. at 44, 48. The appellant alleged that he only bumped into the

manager and did not do so intentionally. Id. at 44. The manager alleged that the

appellant stepped on his foot, hit the manager with his elbow and knocked him

into a cement pole, causing the manager to hit his head and twist his right knee.

Id. at 48. The agency conducted an investigation and subsequently charged the

appellant with unacceptable conduct—engaging in a physical altercation with a

manager and violation of the agency’s zero tolerance policy—and proposed his

removal. Id. at 23. The deciding official sustained the charge and directed the

appellant’s removal. Id. at 11, 14.

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¶3 The appellant initiated a Board appeal challenging his removal and raised

affirmative defenses of national origin and disability discrimination. IAF, Tab 1

at 2, 5. He amended his affirmative defenses during the proceedings by adding

the defenses of reprisal for whistleblowing and discrimination under the

Uniformed Services Employment and Reemployment Rights Act of 1994

(USERRA), and by withdrawing the defenses of national origin and disability

discrimination. IAF, Tab 4 at 4, Tab 16 at 4. The administrative judge conducted

a hearing and issued an initial decision that reversed the agency’s removal action.

IAF, Tab 37, Initial Decision (ID) at 1. The administrative judge found that the

deciding official received new and material information via an ex parte

communication when he visited the incident location between the time the

appellant presented his oral reply and the deciding official made his decision on

the charge and penalty. ID at 8. The administrative judge found that the ex parte

communication violated the appellant’s due process rights, and the agency’s

removal action could not be sustained. ID at 9-10. The administrative judge also

found that the appellant did not prove either his reprisal for whistleblowing or

USERRA discrimination claims. ID at 15.

¶4 The agency has filed a timely petition for review, including a certification

that it has complied with the administrative judge’s interim relief order. Petition

for Review (PFR) File, Tab 1 at 14. The appellant has responded in opposition to

the agency’s petition for review. PFR File, Tab 4.

The deciding official’s visit to the incident location was not cumulative

information and thus denied the appellant his right to a constitutionally correct

removal procedure.

¶5 Our reviewing court has held that, when a deciding official receives new

and material information relating to either the merits of the underlying charge or

to the penalty determination by means of ex parte communications, then a due

process violation has occurred, and the appellant is entitled to a new

constitutionally correct procedure. Ward v. U.S. Postal Service, 634 F.3d 1274,

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1280 (Fed. Cir. 2011). An ex parte communication is a term of art, and refers to

information available to the deciding official, where the appellant is not on notice

that the information may be considered. See Stone v. Federal Deposit Insurance

Corporation, 179 F.3d 1368, 1376-77 (Fed. Cir. 1999) (discussing when ex parte

concerns arise in connection with an adverse action); Black’s Law Dictionary

316 (9th ed. 2009) (defining an ex parte communication as one “between counsel

and the court when opposing counsel is not present,” and noting that “such

communications are ordinarily prohibited”).

¶6 Not every ex parte communication undermines the due process guarantee

and entitles an appellant to an entirely new administrative proceeding; rather,

only ex parte communications that introduce new and material information will

violate the due process guarantee of notice and opportunity to respond. Gray v.

Department of Defense, 116 M.S.P.R. 461, ¶ 6 (2011). Factors to be considered

are whether: (1) the ex parte communication merely introduces “cumulative”

information or new information; (2) the employee knew of the communication

and had a chance to respond to it; and (3) the ex parte communication was of the

type likely to result in undue pressure upon the deciding official to rule in a

particular manner. Young v. Department of Housing & Urban

Development, 706 F.3d 1372, 1376 (Fed. Cir. 2013) (citing Stone, 179 F.3d at

1376-77) (the three “Stone” factors). The ultimate inquiry is whether the ex parte

communication was so substantial and so likely to cause prejudice that no

employee could fairly be required to be subjected to a deprivation of property

under such circumstances. Gray, 116 M.S.P.R. 461, ¶ 7.

¶7 As to the first Stone factor, the administrative judge found the site visit to

be new and material information because the visit did more than clarify or

confirm information already in the record. ID at 8. The administrative judge

found that the deciding official learned that alternate paths away from the

incident location were available to the appellant, something he did not know at

the close of the appellant’s oral reply meeting. ID at 9. The agency argues in its

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petition for review that the deciding official’s observations from the site visit

were not new and only confirmed evidence of which the appellant was aware.

PFR File, Tab 1 at 8. The agency argues that the appellant was aware of the

facility layout and location where the incident occurred, so the information

could not be new, and the deciding official’s visit to the location only confirmed

information known by the parties. Id. at 11.

¶8 We disagree with the agency’s argument; the fact that the underlying

information is known to the appellant does not determine whether it is

cumulative. See Lopes v. Department of the Navy, 116 M.S.P.R. 470, ¶¶ 11, 13

(2011) (holding that it was improper for the deciding official to consider a prior

3-day suspension and other alleged past instances of misconduct because the

agency failed to advise the appellant of these factors in the proposal notice).

Here, the deciding official testified that at the end of the oral reply meeting he

was unaware as to whether an alternate route for walking away from the incident

was available to the appellant. Hearing Transcript (HT) at 242-43. The deciding

official also testified that it was after the site visit that he determined the

appellant had violated the agency’s zero tolerance policy partly because there

were alternate routes to walk and the appellant chose to walk into the manager’s

space. Id. at 239-40. Because the information influenced the deciding official’s

determination on the charge, the ex parte communication was not clarifying

information already in the record but was new and material information. See

Young, 706 F.3d at 1377 (where the deciding official admits that the ex parte

communication played a significant role in her decision, such communication

introduced new and material information).

¶9 As to the second Stone factor, the deciding official admitted that he did not

provide the appellant with an opportunity to respond to the information obtained

at the site visit. HT at 221-22. Based on the deciding official’s own testimony,

we agree with the administrative judge that the appellant did not have an

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opportunity to respond to the new information as required under the second Stone

factor. ID at 9.

¶10 As for the third Stone factor, undue pressure, our reviewing court has held

that this factor is less relevant to determining whether the ex parte

communication deprived the employee of due process where the deciding official

admits that the ex parte communication influenced his determination. Young,

706 F.3d at 1377. The administrative judge found that the deciding official relied

on the site visit information to reach his conclusion that the appellant

intentionally walked towards the manager rather than using an alternate route and

to influence his determination that the appellant lacked the potential for

rehabilitation. ID at 9; HT at 202. The deciding official testified that he wanted

to see for himself whether there were alternate exits from the area where the

incident occurred because the appellant did not respond to his statement during

the oral reply meeting regarding whether alternate routes were available. HT

at 219-20, 242-43. The deciding official also testified that the appellant’s

decision not to choose an alternate path of walking away from the manager was

the deciding factor to him in sustaining the charge. Id. at 240. Based on the

deciding official’s testimony, the information obtained ex parte during his visit to

the incident location influenced his decision to sustain the charge. Therefore, we

affirm the administrative judge’s finding that the ex parte communication

introduced new and material information to the deciding official regarding both

the charge and the penalty that violated the appellant’s right to due process.

The deciding official’s consideration of the appellant’s contact with the public as

an aggravating factor in his penalty determination likewise violated the

appellant’s right to due process.

¶11 When an agency intends to rely on aggravating factors as the basis for the

imposition of a penalty, such factors should be included in the advance notice of

adverse action so that the employee will have a fair opportunity to respond to

those factors before the agency’s deciding official. Bennett v. Department of

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Justice, 119 M.S.P.R. 685, ¶ 7 (2013). When an employee is not given notice of

any aggravating factors supporting an enhanced penalty, an ex parte

communication with the deciding official regarding such factors may constitute a

constitutional due process violation because it potentially deprives the employee

of notice of all the evidence being used against him and the opportunity to

respond to it. Id. However, such ex parte information will only violate an

employee’s right to due process when it introduces new and material information

to the deciding official. Howard v. Department of the Air Force, 118 M.S.P.R.

106, ¶ 4 (2012).

¶12 The deciding official testified at the hearing that he considered the fact that

the appellant’s job description included having customer contact to be an

aggravating factor. HT at 200-01. He further clarified his response under

questioning from the administrative judge that it is common for a supervisor to

come to the front windows where customers are and direct employees to adjust

their duties based on work load. Id. at 232. The deciding official testified, “if

there was a confrontation in the back, could there not be a confrontation in the

front in view of the public.” Id. For this reason, he considered having customer

contact as an aggravating factor.

¶13 The agency did not refer to the appellant’s customer contact in its

February 12, 2013 notice of proposed removal. IAF, Tab 8 at 23-28. The

deciding official also did not refer to the specific aggravating factor in the

decision letter, other than referencing that the appellant’s position had daily

contact with the public. Id. at 11. During his hearing testimony, the deciding

official stated that his concern regarding the appellant’s customer contact was not

discussed during the oral reply meeting with the appellant. HT at 233. The

deciding official only considered this item as an aggravating factor as part of his

Douglas factor analysis. Id. Because the information was not included in the

notice of proposed removal, the appellant was unaware that the deciding official

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would consider it and had no chance to respond before the deciding official

issued his decision.

¶14 As we stated previously, to find a violation of the appellant’s due process

rights, not only must the ex parte communication considered by the deciding

official be new, but the communication must also be material. See Ward,

634 F.3d at 1279. An ex parte communication is material when it influences the

deciding official’s penalty determination. Seeler v. Department of the

Interior, 118 M.S.P.R. 192, ¶ 9 (2012). Though the deciding official did not

specifically state that he was influenced by the appellant’s customer contact, we

find that his identification of customer contact in his deliberations of the Douglas

factors shows that the determination was material to his decision in this case. See

Silberman v. Department of Labor, 116 M.S.P.R. 501, ¶ 12 (2011) (specific

identification of memoranda as factors in deciding official’s decision show that

they were material to the case). Here, we find the deciding official’s testimony

regarding the appellant’s customer contact, along with the apparent manner in

which the information was used as an aggravating factor in the penalty

determination, without advising the appellant, establishes that the appellant’s

right to due process was violated by the deciding official’s ex parte

communication. See Young, 706 F.3d at 1377. Consequently, because the agency

twice, through consideration of ex parte communications, violated the appellant’s

due process guarantee to notice and an opportunity to respond, the appellant’s

removal must be cancelled. 2 See Lopes, 116 M.S.P.R. 470, ¶ 13. The agency

may not remove the appellant unless and until he is afforded a new

constitutionally correct removal procedure. Id. Accordingly, we affirm the initial

decision to not sustain the removal action.

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We modify the initial decision to include the finding that use of ex parte information

regarding the appellant’s customer contact was an additional violation of the appellant’s

right to constitutional due process.

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ORDER

¶15 We ORDER the agency to cancel the removal action effective March 23,

2013. 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.

¶16 We also ORDER the agency to pay the appellant the correct amount of back

pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, 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 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.

¶17 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

took 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).

¶18 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).

¶19 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

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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 out 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

WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You

must file your attorney fees motion with the office that issued the initial decision

on your appeal.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

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 have the right to

request review of this final decision by the United States Court of Appeals for the

Federal Circuit.

The court must receive your request for review no later than 60 calendar

days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.

27, 2012). If you choose to file, be very careful to file on time. The court has

held that normally it does not have the authority to waive this statutory deadline

and that filings that do not comply with the deadline must be dismissed. See

Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).

If you want to request review of the Board’s decision concerning your

claims of prohibited personnel practices under 5 U.S.C. § 2302(b)(8),

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(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge

the Board’s disposition of any other claims of prohibited personnel practices, you

may request review of this final decision by the United States Court of Appeals

for the Federal Circuit or any court of appeals of competent jurisdiction. The

court of appeals must receive your petition for review within 60 days after the

date of this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If

you choose to file, be very careful to file on time. You may choose to request

review of the Board’s decision in the United States Court of Appeals for the

Federal Circuit or any other court of appeals of competent jurisdiction, but not

both. Once you choose to seek review in one court of appeals, you may be

precluded from seeking review in any other court.

If you need further information about your right to appeal this decision to

court, you should refer to the federal law that gives you this right. It is found in

Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.

Dec. 27, 2012). You may read this law as well as other sections of the United

States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.

Additional information about the United States 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, and 11.

Additional information about other courts of appeals can be found at their

respective websites, which can be accessed

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

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

the United States Court of Appeals for the Federal Circuit, you may visit our

website at http://www.mspb.gov/probono for a list of attorneys who have

expressed interest in providing pro bono representation for Merit Systems

Protection Board appellants before the Federal Circuit. The Merit Systems

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Protection Board neither endorses the services provided by any attorney nor

warrants that any attorney will accept representation in a given case.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.

DFAS CHECKLIST

INFORMATION REQUIRED BY DFAS IN

ORDER TO PROCESS PAYMENTS AGREED

UPON IN SETTLEMENT CASES OR AS

ORDERED BY THE MERIT SYSTEMS

PROTECTION BOARD

AS CHECKLIST: INFORMATION REQUIRED BY IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT

CASES

CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL

OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:

1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address

and POC to send.

2. Statement that employee was counseled concerning Health Benefits and TSP and the

election forms if necessary.

3. Statement concerning entitlement to overtime, night differential, shift premium,

Sunday Premium, etc, with number of hours and dates for each entitlement.

4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay

System), a statement certifying any lump sum payment with number of hours and

amount paid and/or any severance pay that was paid with dollar amount.

5. Statement if interest is payable with beginning date of accrual.

6. Corrected Time and Attendance if applicable.

ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:

1. Copy of Settlement Agreement and/or the MSPB Order.

2. Corrected or cancelled SF 50's.

3. Election forms for Health Benefits and/or TSP if applicable.

4. Statement certified to be accurate by the employee which includes:

a. Outside earnings with copies of W2's or statement from employer.

b. Statement that employee was ready, willing and able to work during the period.

c. Statement of erroneous payments employee received such as; lump sum leave, severance

pay, VERA/VSIP, retirement annuity payments (if applicable) and if employee withdrew

Retirement Funds.

5. If employee was unable to work during any or part of the period involved, certification of the

type of leave to be charged and number of hours.

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NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES

Below is the information/documentation required by National Finance Center to process

payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as

ordered by the Merit Systems Protection Board, EEOC, and courts.

1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise

information describing what to do in accordance with decision.

2. The following information must be included on AD-343 for Restoration:

a. Employee name and social security number.

b. Detailed explanation of request.

c. Valid agency accounting.

d. Authorized signature (Table 63)

e. If interest is to be included.

f. Check mailing address.

g. Indicate if case is prior to conversion. Computations must be attached.

h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to

be collected. (if applicable)

Attachments to AD-343

1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday

Premium, etc. with number of hours and dates for each entitlement. (if applicable)

2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and

amounts.

3. Outside earnings documentation statement from agency.

4. If employee received retirement annuity or unemployment, provide amount and address

to return monies.

5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)

6. If employee was unable to work during any or part of the period involved, certification of

the type of leave to be charged and number of hours.

7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual

Leave to be paid.

NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay

Period and required data in 1-7 above.

The following information must be included on AD-343 for Settlement Cases: (Lump

Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)

a. Must provide same data as in 2, a-g above.

b. Prior to conversion computation must be provided.

c. Lump Sum amount of Settlement, and if taxable or non-taxable.

If you have any questions or require clarification on the above, please contact NFC’s

Payroll/Personnel Operations at 504-255-4630.