Kenneth M. Hulett v. Department of the Navy

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

KENNETH M. HULETT, DOCKET NUMBER

Appellant, SF-0752-11-0690-B-1

v.

DEPARTMENT OF THE NAVY,

Agency. DATE: September 26, 2014

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Brook L. Beesley, Alameda, California, for the appellant.

Patricia Zengel, Esquire, San Diego, California, 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 remand initial decision,

which sustained the appellant’s removal. Generally, we grant petitions such as

this one only when: the initial decision contains erroneous findings of material

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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

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, 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 and AFFIRM

the remand initial decision, which is now the Board’s final decision. 5 C.F.R.

§ 1201.113(b).

¶2 As a Lead Firefighter, the appellant was subject to random drug testing.

Initial Appeal File (IAF), Tab 7 at 11. On March 26, 2011, he exhibited behavior

which gave the agency a reasonable suspicion that he was unable to perform his

duties. He was directed to undergo a drug test, which verified positive for

marijuana. The agency proposed his removal for Illegal Drug Use, specifically,

testing positive for marijuana, id. at 123, and, at the same time, referred him to

the Civilian Employee Assistance Program (CEAP), id. at 125. He was removed

effective May 31, 2011. Id. at 14, 11. On appeal, the appellant admitted that he

used marijuana but alleged, inter alia, that the agency committed harmful error in

that the deciding official considered, in her penalty determination, aggravating

factors with which the appellant was not charged and/or had ex parte

communications that violated his due process rights. Id., Tab 17 at 3. The

appellant also raised claims of disability discrimination and retaliation for

engaging in protected activity. Id. at 3-4; Tab 20 at 4-5.

¶3 After convening the requested hearing, the administrative judge issued an

initial decision affirming the removal action. Id., Tab 21, Initial Decision (ID) at

3

1, 18. He found that the charge was sustained, ID at 1-6; that the appellant failed

to prove his affirmative defenses of harmful error, disability discrimination, and

retaliation for protected activity, ID at 7-10; and that the agency proved that a

nexus existed between the sustained charge and the efficiency of the service and

that the penalty of removal was reasonable, ID at 10-17.

¶4 On the appellant’s petition for review, the Board first noted that he did not

challenge the administrative judge’s findings that the agency proved the charge

and that the appellant did not prove his affirmative defenses of disability

discrimination and retaliation, stating that “we do not address these issues.”

Hulett v. Department of the Navy, 120 M.S.P.R. 54, ¶ 5 n.2 (2013). The Board

found, however, that the appellant implicitly raised a due process claim

concerning the penalty imposed but that the administrative judge neither informed

him of the applicable burdens of proof nor adjudicated the claim. Id., ¶¶ 9-10. In

remanding the case for further adjudication, id., ¶ 10, the Board directed the

administrative judge to apprise the appellant of his burden and the elements of

proof regarding his due process claim and to obtain clarification from him as to

the alleged ex parte communications regarding aggravating factors that the

deciding official allegedly considered in her penalty assessment. Id., ¶ 11. If the

administrative judge found that there was an ex parte communication and that it

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 the circumstances,

then the administrative judge was to find a due process violation and reverse the

agency action; if not, then the administrative judge was to conduct a harmful

error analysis as to any procedural error concerning the penalty determination.

Id. The Board also vacated the administrative judge’s findings regarding nexus

and penalty. Id., ¶ 1.

¶5 On remand and as directed, the administrative judge issued an order setting

out for the appellant the applicable burdens of proof on his claims of denial of

due process and harmful procedural error. Remand Appeal File (RAF), Tab 3 at

4

1-2. And, as directed, the administrative judge afforded the appellant an

opportunity to clarify the ex parte communications that he alleged the deciding

official considered without notice to him. Id. at 3. The administrative judge

referred the appellant to the matters the Board had set forth in its Opinion and

Order as those he had identified in his petition for review. Id. at 3 n.1; see

Hulett, 120 M.S.P.R. 54, ¶ 2. The appellant responded, RAF, Tab 4, as did the

agency, id., Tab 5.

¶6 In his remand initial decision, the administrative judge first repeated the

analysis of the charge of Illegal Drug Use that he made in his earlier initial

decision and his finding that the agency met its burden of proof. 2 RAF, Tab 6,

Remand Initial Decision (RID) at 2-7. In addressing the denial of due process

claim, the administrative judge considered the appellant’s response to the order

he issued wherein the appellant appeared to allege that the deciding official had

ex parte communications with the commanding officer of the naval base

regarding the events underlying the agency’s charge and that that information

influenced the deciding official’s decision to remove the appellant, thus depriving

him of due process. RAF, Tab 4. Noting the testimony of the deciding official

that she never spoke with the commanding officer or received any guidance from

him, the administrative judge concluded that the appellant did not establish an ex

parte communication. RID at 10.

¶7 The administrative judge then considered the allegations the appellant

raised in his petition for review, matters of which, he contended, he was not made

aware in the notice of proposed removal. They included his conviction for

driving under the influence, his observed impairment, his inability to perform his

duties, his use of a mind-altering drug, and his insubordination in not taking the

2

The administrative judge need not have undertaken this analysis, given that the Board

affirmed his earlier finding that the agency proved its charge by preponderant evidence.

Hulett, 120 M.S.P.R. 54, ¶ 1. Nonetheless, the administrative judge’s additional

analysis did not constitute error.

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drug test on the date he was ordered to do so. The administrative judge found

that, based on the proposal notice, the appellant was aware of these matters and

had a full and fair opportunity to respond to them, which he did, and that the

record contained no evidence of ex parte communication of any new and material

information to the deciding official that was not brought to the appellant’s

attention in the proposal notice. RID at 11. As to the consistency of the penalty,

the notoriety of the misconduct, the deciding official’s belief that, as an illegal

drug user, the appellant lacked rehabilitative potential and that lesser discipline is

not a successful deterrent for such employees, the administrative judge found that

the appellant did not explain what he believed to be any ex parte communication

from or to the deciding official that she considered without giving him notice and

an opportunity to respond and that, to the extent the deciding official testified that

she considered these factors, they too were referenced in the proposal notice.

RID at 11-13.

¶8 Having found no due process violation, the administrative judge as directed

considered whether the appellant had established harmful error. In finding that he

did not, the administrative judge similarly found that he had not established that

the agency committed any procedural error, much less any error that was likely to

have caused the agency to reach a conclusion different from the one it would have

reached in the absence or cure of the error. RID at 14-15.

¶9 Next, the administrative judge repeated the findings he had earlier made in

concluding that the appellant failed to establish his allegations of disability

discrimination and retaliation. 3 RID at 15-16. Lastly, the administrative judge

3

As noted, the Board found in its Opinion and Order that the appellant did not

challenge the administrative judge’s finding that he failed to prove his affirmative

defenses of disability discrimination and retaliation and that “[t]herefore, we do not

address these matters.” Hulett, 120 M.S.P.R. 54, ¶ 5 n.2. The Board’s Opinion did not

direct the administrative judge to make any further findings as to these claims and

therefore he need not have done so. See Umshler v. Department of the Interior,

55 M.S.P.R. 593, 597, aff’d, 6 F.3d 788 (Fed. Cir. 1992) (Table). Again, however, this

did not constitute error.

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found, as he had earlier, that the agency established that discipline for the

sustained misconduct promoted the efficiency of the service and that removal for

that misconduct was a reasonable penalty. RID at 17-24.

¶10 The appellant has filed a petition for review, Remand Petition for Review

(RPFR) File, Tab 6, to which the agency has responded in opposition, id., Tab 8.

¶11 Concerning the due process issue, the appellant argues on review that,

although not part of the agency’s charge, the deciding official considered as an

aggravating factor that the appellant was or may have been under the influence

and/or was impaired. RPFR File, Tab 6 at 4; IAF, Tab 7 at 14. It is well

established that only ex parte communications that introduce new and material

information to the deciding official will violate the due process guarantee of

notice. Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377

(Fed. Cir. 1999); Lopes v. Department of the Navy, 116 M.S.P.R. 470, ¶ 7 (2011).

Here, as the administrative judge found, the notice of proposed removal includes,

in the narrative of the facts underlying the charge, a description of the appellant

as provided by the Chief who interviewed him after several members of the

Federal Fire Department reported that he did not appear to be able to perform his

duties. IAF, Tab 7 at 123. The proposing official related that the Chief described

the appellant as slumped in his chair, with bloodshot eyes, pinpointed pupils, and

slurred speech, and agreed that he was not capable of performing his duties. Id.;

RID at 11. The appellant has not shown error in the administrative judge’s

finding that, to the extent that there was an ex parte communication regarding the

appellant’s possible impairment, it introduced only cumulative evidence, not new

and material evidence, and therefore did not constitute a due process violation.

For the same reason, we find that the appellant has not shown error in the

administrative judge’s finding that, to the extent there was ex parte

communication regarding the appellant’s having used a mind-altering drug, it

introduced only cumulative evidence, not new and material evidence, and

therefore did not constitute a denial of due process. RID at 11.

7

¶12 The appellant argues further that, without giving advance notice to him, the

deciding official relied in her penalty determination on the fact that he had

received a Driving Under the Influence criminal conviction in 1998. RPFR File,

Tab 6 at 4; IAF, Tab 7 at 16-19 (the agency’s Douglas factors analysis).

However, the administrative judge considered the hearing testimony of the

deciding official wherein she specifically denied having given that conviction any

weight in her penalty assessment. RID at 11. The appellant has failed to show

error in the administrative judge’s findings that, because the 1998 conviction was

not a basis for the deciding official’s determination on either the merits of the

charge or the penalty to be imposed, there was no due process violation. Cf.

Lopes, 116 M.S.P.R. 470, ¶ 12 (explaining that the deciding official’s hearing

testimony confirmed his consideration of ex parte information about prior

misconduct found on the Douglas factors worksheet); Pickett v. Department of

Agriculture, 116 M.S.P.R. 439, ¶ 12 (2011) (highlighting that the deciding

official “testified that he considered information he received” outside the

proposal notice).

¶13 Finally, the appellant argues on review that he was not on notice of the

deciding official’s consideration in her penalty determination of certain matters

she deemed as aggravating factors, specifically, the notoriety of the offense and

the appellant’s being willfully defiant and insubordinate. RPFR File, Tab 6 at 5.

As the administrative judge found, however, both of these matters were

referenced in the notice of proposed removal, wherein the proposing official

noted that the appellant initially refused to report for drug testing on the date

identified and that, for a Lead Firefighter, the use of illegal drugs violates the

special trust of the general public who rely on Firefighters to protect life and

property. RID at 11-12; IAF, Tab 6 at 123. We find therefore that the appellant

has not shown error in the administrative judge’s finding that, to the extent these

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matters constituted ex parte communications, they did not constitute a denial of

due process. 4

¶14 The appellant also appears to challenge on review the administrative

judge’s finding that removal is a reasonable penalty. 5 Specifically, the appellant

argues, as he did below, that the agency’s policy on illegal drug use provides that

a removal will be initiated for a first-time use if the employee refuses to obtain

counseling or rehabilitation through the CEAP or for a second finding of illegal

drug use. RPFR File, Tab 6 at 6. The appellant asserts that he fully cooperated

with the CEAP and completed an “extensive rehabilitation program” and that

these factors and others preclude the agency’s imposition of the removal penalty.

Id. The administrative judge carefully considered the appellant’s claim but

found, based on Board precedent, that removal may be appropriate for a first-time

offense, notwithstanding the employee’s participation in the CEAP, depending on

the deciding official’s careful consideration of the factors set out by the Board in

Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981). RID at 22-24;

see Zazueta v. Department of Justice, 94 M.S.P.R. 493, ¶¶ 6-11 (2003), aff’d,

104 F. App’x 166 (Fed. Cir. 2004).

¶15 Here, as the administrative judge correctly found, the deciding official did

consider the relevant Douglas factors in rendering her decision, including:

(1) the seriousness nature of the appellant’s misconduct that was antithetical to

4

The appellant has not, on review, challenged the administrative judge’s finding that he

did not establish harmful procedural error, and we discern no basis upon which to

disturb that finding.

5

In connection therewith, the appellant argues that, by not allowing him to fully

question the deciding official on cross-examination, the administrative judge prevented

him from presenting his claim related to disparate penalty, that is, that other agency

employees who had tested positive for illegal drugs were not ultimately removed from

their positions because the agency offered, and they accepted, last-chance settlement

agreements. RPFR File, Tab 6 at 2-3. A majority of the Board considered this

argument in its Opinion and Order but found that it provided no basis to disturb the

initial decision. Hulett, 120 M.S.P.R. 54, ¶ 5 n.2. Therefore we will not further

consider it.

9

the duties of his position, which require critical thinking and the ability to

manage stressful situations; (2) the fact that, as a Lead Firefighter, he directly

supervised a crew of three or four personnel and was therefore required to be

alert, attentive, and responsible for the safety of his crew; (3) that he provided

emergency services of a critical nature, impacting the preservation of life and

property, and was in contact with the public who depends on Firefighters and

typically holds them in high regard; (4) that she had lost confidence in the

appellant’s ability to perform his duties, which negatively impacted the agency’s

ability to accomplish its mission; (5) that the appellant’s drug test was the result

of his crew members’ reasonable suspicion of his impairment; (6) that removal

was within the range of penalties for a first offense of illegal drug use in the

applicable Table of Penalties; and (7) that the appellant was subject to random

drug testing and had been warned by a policy statement that illegal drug use could

lead to removal. RID at 17-23. The administrative judge further found that the

deciding official considered the appellant’s satisfactory performance ratings, his

past training, and letters of appreciation he had received but found that these

factors were not significant, given his 21 years of service. RID at 18-19. And,

she considered that he was experiencing personal and medical problems, but

found that he did not explain why these problems led him to illegal drug use,

rather than other coping mechanisms. RID at 23-24.

¶16 The administrative judge considered other mitigating factors cited by the

appellant, that is, his years of discipline-free service and the lack of notoriety

surrounding his misconduct, but found that these matters were outweighed by the

seriousness of his misconduct. RID at 24. Beyond his disagreement, the

appellant has not shown error in the administrative judge’s finding that, based on

the sole sustained charge, the penalty of removal did not exceed the bounds of

reasonableness. Ellis v. Department of Defense, 114 M.S.P.R. 407, ¶ 11 (2010);

Zazueta, 94 M.S.P.R. 493, ¶¶ 6-11. Accordingly, we affirm the remand initial

decision.

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NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request further review of this final decision.

Discrimination Claims: Administrative Review

You may request review of this final decision on your discrimination

claims by the Equal Employment Opportunity Commission (EEOC). See Title 5

of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you

submit your request 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 your request 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, NE

Suite 5SW12G

Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after

your receipt of this order. If you have a representative in this case, and your

representative receives this order before you do, then you must file with EEOC no

later than 30 calendar days after receipt by your representative. If you choose to

file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your

discrimination claims, you may file a civil action against the agency on both your

discrimination claims and your other claims in an appropriate United States

district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with

the district court no later than 30 calendar days after your receipt of this order. If

you have a representative in this case, and your representative receives this order

11

before you do, then you must file with the district court no later than 30 calendar

days after receipt by your representative. If you choose to file, be very careful to

file on time. 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. § 2000e5(f) and

29 U.S.C. § 794a.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.