The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RANDALL D. ROGERS, DOCKET NUMBER
Appellant, SF-0752-14-0006-I-1
v.
DEPARTMENT OF DATE: October 16, 2014
TRANSPORTATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jeffrey G. Letts, Esquire, Trenton, New Jersey, for the appellant.
Ann P. Herchenrider, Esquire, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s removal action. Generally, we grant petitions such as this
one only when: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. We MODIFY
the administrative judge’s analysis regarding the appellant’s constitutional due
process claim, still finding that the appellant failed to establish a constitutional
due process violation. Except as expressly modified by this Final Order, we
AFFIRM the initial decision.
BACKGROUND
¶2 The appellant was a GS-14 Gateway Port and Intermodal Specialist with the
Intermodal System Development Division, Maritime Administration. Initial
Appeal File (IAF), Tab 6 at 19, 21 of 56. On July 26, 2013, the agency issued the
appellant a notice of proposed removal based on the charge of conduct
demonstrating untrustworthiness, with four specifications. IAF, Tab 6 at 49-54 of
56. As background to the charge, the proposing official stated that he had
received a report that the appellant’s attendance at his place of duty and hours of
work were not consistent with agency requirements. Id. at 49 of 56. The
proposing official stated that, based on this report, he directed an administrative
inquiry that was conducted on April 24, 2013. Id. The proposing official stated
that, after reviewing the administrative inquiry report, he determined that the
appellant “engaged in an ongoing pattern and practice of egregious conduct” that
served as the basis for the charge. Id.
3
¶3 Under specification (1) of the charge, the agency stated that the appellant
failed to report to his official work station on a regular basis. Id. at 50 of 56.
The agency stated that, instead, the appellant was working from home 3 to 4 days
per week. Id. The agency further stated that the appellant failed to work within
his assigned tour of duty from 7:00 a.m. to 3:30 p.m. Id.
¶4 Under specification (2), the agency specified that the appellant had abused
the telework program. Id. The agency specified that, pursuant to a February 14,
2011 telework agreement that had been signed by the appellant, he only was
allowed to telework every Wednesday. Id. The telework agreement also stated
that the appellant was expected to be present at his official duty station every
Monday, Tuesday, Thursday, and Friday of the work week. Id.
¶5 Under specification (3), the agency stated that the appellant failed to follow
leave procedures and submitted inaccurate time and attendance (T&A) reports
when: from April 15-17, 2013, he reported regular hours on his T&A while he
was not in the office for his full tour of duty; from April 18-23, 2013, he worked
at home without supervisory approval and inaccurately reported his time as
regular time; and from April 1-24, 2013, he only logged onto his onsite computer
on April 13, 2013, at 8:09 a.m. Id. The agency further specified that the
appellant had worked in the office only 4 times in 17 weeks, and that when he did
work in the office, he spent no more than a couple of hours there. Id. The agency
also stated that he had failed to request leave for personal appointments for many
years. Id. at 51 of 56.
¶6 Under specification (4), the agency stated that the appellant had claimed
federal transit benefits in the amount of $1,770.00 per year, or $147.50 per
month, for his commute. Id. The agency stated that the appellant had certified
that he was using his federal government subsidy for his transportation to and
from his duty station, but in fact he was not commuting to his duty station on a
regular and full-time basis. Id. The agency stated that, pursuant to the transit
benefits program, the appellant was required to adjust the cost benefit and only
4
receive benefits for the actual number of days he commuted between his home
and duty station, and his failure to do so constituted a clear violation of this
program. Id.
¶7 After providing the appellant with the opportunity to respond to the notice
of proposed removal, the deciding official issued a decision letter sustaining the
charge and finding that removal was the appropriate penalty. IAF, Tab 6 at 21-26
of 56. The appellant was removed effective September 17, 2013. Id. at 19 of 56.
¶8 The appellant filed an appeal of his removal. IAF, Tab 1. After holding a
hearing, the administrative judge issued an initial decision affirming the agency’s
removal action. IAF, Tab 15, Initial Decision (ID) at 1, 15. The administrative
judge found that the agency proved each of the four specifications underlying its
charge of conduct demonstrating untrustworthiness and sustained the charge. ID
at 5-9. In sustaining the four specifications, the administrative judge noted that
the appellant: (1) admitted to the agency that he worked at home 3 to 4 days per
week and did not work within his assigned tour of duty; (2) claimed he received
higher-level authority in 2005 to work where and when he wanted but continued
to sign telework contracts to the contrary after 2005, demonstrating that he was
aware that he could only work at home on Wednesdays; (3) did not dispute
specification (3); and (4) received transit benefits as if he were commuting 4 days
a week, when in fact he was not. ID at 5-9. The administrative judge further
found that the appellant failed to establish his constitutional due process claim.
ID at 10-12. In addition, the administrative judge found that the agency
established nexus and the penalty of removal was within the parameters of
reasonableness. ID at 9, 12-14.
¶9 The appellant has timely filed a petition for review. Petition for Review
(PFR) File, Tab 1. The agency has filed a response to the petition. PFR File, Tab
3.
5
DISCUSSION OF ARGUMENTS ON REVIEW
¶10 On petition for review, the appellant contends that: (1) his constitutional
due process rights were violated when the deciding official considered a comment
from a stakeholder that the stakeholder had not heard from the appellant in a
while; (2) the agency did not prove nexus because he was fulfilling his job duties
and meeting performance expectations; and (3) the agency-imposed penalty
exceeded the bounds of reasonableness. PFR File, Tab 1 at 2-9. As discussed
below, the appellant’s arguments on review fail to provide a basis for disturbing
the initial decision. 2
The appellant has failed to show that the agency violated his constitutional due
process rights.
¶11 The appellant contends that the agency committed a constitutional due
process violation because the deciding official considered a comment from a
stakeholder that was not included in the notice of proposed removal. PFR File,
Tab 1 at 8-9. Pursuant to the U.S. Court of Appeals for the Federal Circuit’s
decisions in Ward v. U.S. Postal Service, 634 F.3d 1274, 1279-80 (Fed. Cir.
2011), and Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368,
1376-77 (Fed. Cir. 1999), a deciding official violates an employee’s due process
rights when he relies upon new and material ex parte information as a basis for
his decisions on the merits of a proposed charge or the penalty to be imposed.
See Norris v. Securities & Exchange Commission, 675 F.3d 1349, 1353-54 (Fed.
Cir. 2012).
2
The appellant does not contest the administrative judge’s finding that the agency
proved its charge of conduct demonstrating untrustworthiness and each of the four
specifications underlying the charge. In any event, we discern no basis for disturbing
these well-reasoned findings on 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 where
the administrative judge considered the evidence as a whole, drew appropriate
inferences, and made reasoned conclusions); Broughton v. Department of Health &
Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
6
¶12 Not all ex parte communications rise to the level of due process violations;
rather, only ex parte communications which introduce new and material
information to the deciding official are constitutionally infirm. Solis v.
Department of Justice, 117 M.S.P.R. 458, ¶ 8 (2012). The question is whether the
ex parte communication 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.” Ward, 634 F.3d at 1279. The Board will consider the
following factors, among others, to determine if an ex parte contact is
constitutionally impermissible: (1) whether the ex parte communication merely
introduces “cumulative” information or new information; (2) whether the
employee knew of the information and had a chance to respond to it; and
(3) whether the ex parte communication was of the type likely to result in undue
pressure upon the deciding official to rule in a particular manner.
Solis, 117 M.S.P.R. 458, ¶ 8. A due process violation is not subject to the
harmful error test; instead, the employee is automatically entitled to a new
constitutionally-correct removal proceeding. Ward, 634 F.3d at 1279.
¶13 As noted by the administrative judge, the deciding official stated in his
penalty analysis, when discussing the nature and seriousness of the offense, that
key stakeholders had reported that contact with the appellant was infrequent and
they had not seen him in years. ID at 11; IAF, Tab 6 at 22 of 56. In finding that
this information regarding stakeholder reports was not cumulative, the
administrative judge noted that the appellant was aware of it. ID at 11. However,
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, ¶ 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). When an appellant is not aware that information
was considered as an aggravating factor in determining the penalty and the
7
agency did not include the information in its proposal notice, then the information
cannot be considered cumulative. Gray v. Department of Defense, 116 M.S.P.R.
461, ¶ 11 (2011).
¶14 Rather, we find that the deciding official’s consideration of reports from
key stakeholders regarding the appellant’s absence did not deprive the appellant
of due process because the proposal notice and the accompanying administrative
inquiry report did, or should have, put him on notice that such information would
be considered. The specification section of the proposal notice quotes the
appellant as stating that when not in the office, he was out meeting with
stakeholders. IAF, Tab 6 at 50 of 56. The notices goes on to state that the
Gateway offices “provide a local emphasis and a local face to support and help
coordinate with the many private sector and government maritime stakeholders.”
Id. at 51. Citing the appellant’s job level and type of employment as an
aggravating factor, the proposing official noted that the appellant’s position “is
heavily focused on contacts and interactions with the public and maritime
industry and you are often the face and voice of the Agency for these
stakeholders.” Id. at 52. Thus the proposal letter clearly put the appellant on
notice that the lack of frequency of his contacts with stakeholders was at issue,
both in terms of the charges as well as the penalty. In addition, the administrative
inquiry report, which was attached to the notice of proposed removal, explicitly
referenced the stakeholders’ reports when it stated that headquarters had received
reports from stakeholders that the appellant’s calls were infrequent and limited
and that they had not seen him in years. IAF, Tab 6 at 7, 9 of 195, 54 of 56. As
such, by citing the stakeholders’ input as an aggravating factor, the deciding
official did not rely on new information in concluding that removal was
8
reasonable. Accordingly, this case does not present a due process violation. 3 See
Ward, 634 F.3d at 1279.
¶15 Even if an ex parte communication does not rise to the level of a due
process violation, it may still constitute a procedural error. See id. at 1281.
When there is an error in the application of the agency’s procedures, the Board is
required to conduct a harmful error analysis to determine whether the procedural
error requires reversal. See id. Here, the appellant has failed to establish that the
agency committed a procedural error in failing to explicitly reference the
information on stakeholders’ reports in the notice of proposed removal. To the
extent the agency did commit a procedural error by failing to provide the
appellant with such information, any such error was not harmful because it did
not cause the agency to reach a different conclusion regarding the appellant’s
removal. See 5 C.F.R. § 1201.56(c)(3).
3
To the extent the administrative judge found that the information regarding reports
from key stakeholders referenced by the deciding official in the decision letter was not
material, ID at 11, we disagree. In the initial decision, the administrative judge notes
that this information did not result in undue pressure on the deciding official to rule in a
particular manner. ID at 11. However, the Federal Circuit in Ward emphasized that
whether the additional information was of the type likely to result in undue pressure
upon the deciding official is only one of the several enumerated factors and is not the
ultimate inquiry in the Stone analysis. Ward, 634 F.3d at 1280 n.2. The court
recognized that “the lack of such undue pressure may be less relevant to determining
when the ex parte communications deprived the employee of due process where . . . the
[d]eciding [o]fficial admits that the ex parte communications influenced his penalty
determination,” making the “materiality of the ex parte communications . . .
self-evident from the [d]eciding [o]fficial’s admission.” Id.
Therefore, while no clear evidence of undue pressure exists in the record, the deciding
official’s statement on the Douglas factors is evidence of the information’s materiality
regarding stakeholder reports in the deciding official’s decision to remove the
appellant. In any event, any such error on the administrative judge’s part does not
provide a basis for disturbing the initial decision because the administrative judge
properly found that the agency did not deny the appellant constitutional due process.
Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (an adjudicatory
error that is not prejudicial to a party’s substantive rights provides no basis for reversal
of an initial decision).
9
The administrative judge properly found that the agency established nexus and
that the penalty was within the parameters of reasonableness.
¶16 In the absence of certain egregious misconduct that “speaks for itself,” an
agency may establish nexus by showing that the employee’s conduct: (1) affected
the employee’s or his coworkers’ job performance, (2) affected management’s
trust and confidence in the employee’s job performance, or (3) interfered with or
adversely affected the agency’s mission. 4 Doe v. Department of
Justice, 103 M.S.P.R. 135, ¶ 7 (2006). In this case, despite the appellant’s
successful performance, his misconduct caused his supervisors to lose trust and
confidence in his ability to perform his job because he held a position involving a
high degree of trust. IAF, Tab 6 at 22-25 of 56. Accordingly, we agree with the
administrative judge’s finding that the agency established a nexus between the
sustained charge and the efficiency of the service. ID at 9.
¶17 Moreover, the administrative judge correctly found that the penalty of
removal did not exceed the bounds of reasonableness. ID at 12, 14. Where the
Board sustains the charge and underlying specifications, it will defer to an
agency’s penalty decision unless the penalty exceeds the range of allowable
punishment specified by statute or regulation or the penalty is so harsh and
unconscionably disproportionate to the offense that it amounts to an abuse of
discretion. Vaughn v. U.S. Postal Service, 109 M.S.P.R. 469, ¶ 14 (2008), aff’d,
315 F. App’x 305 (Fed. Cir. 2009). That is because the agency has primary
discretion in maintaining employee discipline and efficiency. Id. The Board will
not displace management’s responsibility, but will instead ensure that managerial
judgment has been properly exercised. Id.
4
“A nexus between the conduct and the efficiency of the service may be established by
a preponderance of specific evidence or by a rebuttable presumption where the conduct
is so egregious that it ‘speaks for itself.’” Dominguez v. Department of the Air Force,
803 F.2d 680, 682-83 (Fed. Cir. 1986) (citing Sanders v. U.S. Postal Service, 801 F.2d
1328 (Fed. Cir. 1986)).
10
¶18 The Board has articulated factors to be considered in determining the
propriety of a penalty, such as the nature and seriousness of the offense, the
employee’s past disciplinary record, the supervisor’s confidence in the
employee’s ability to perform his assigned duties, and the consistency of the
penalty with those imposed upon other employees for the same or similar
offenses. Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981).
The Board places primary importance upon the nature and seriousness of the
offense, and its relation to the appellant’s duties, position, and responsibilities.
Vaughn, 109 M.S.P.R. 469, ¶ 15. Mitigation is appropriate only where the agency
failed to weigh the relevant factors or the agency’s judgment clearly exceeded the
limits of reasonableness. Id., ¶ 16.
¶19 In deciding to remove the appellant, the deciding official considered the
nature and seriousness of the appellant’s misconduct, stating that he considered
the misconduct to be intentional, egregious, and deceitful. IAF, Tab 6 at 22 of
56. The deciding official also considered the appellant’s job level and duties as a
Gateway Port and Intermodal Specialist, noting that the appellant was responsible
for interfacing with the local industry and other stakeholders, and essentially
serving as the face of the agency. Id.
¶20 The deciding official explained that, as a result of the appellant’s
misconduct, the agency had lost confidence in his trustworthiness and ability to
carry out his assigned duties. Id. at 23 of 56. The deciding official also
considered the consistency of the penalty with those imposed on other employees
for the same or similar offenses. Id. In this regard, the deciding official stated
that he was aware of only one other incident of a similar scope and nature and
that in that instance the employee also was removed. Id. The deciding official
considered the consistency of the penalty with the agency’s table of penalties and
explained that the penalty for a charge of conduct demonstrating
untrustworthiness ranges from a reprimand to a removal for a first offense. Id.
11
¶21 Next, the deciding official considered the clarity with which the appellant
was on notice of any rules that were violated in committing the offense. Id. The
deciding official stated that the appellant had to be cognizant of the fact that what
he was doing was wrong, as evidenced by his efforts to conceal his failure to
report to his official duty station. Id. The deciding official noted that the
appellant had completed a mandatory transit benefits awareness program, which
put him on notice that the transit benefit was to be used to cover his
transportation to and from work. Id. The deciding official further noted that the
appellant’s official telework agreement documented the expectation that he be
present at his official duty station on all work days except for Wednesday. Id.
¶22 The deciding official considered the appellant’s potential for rehabilitation
and determined that there was no real potential for rehabilitation. Id. at 24 of 56.
The deciding official also considered relevant mitigating factors, such as the
appellant’s 21 years of prior service with the federal government and lack of a
disciplinary record but found that the seriousness of the charge outweighed any of
these factors. Id.
¶23 Based on the foregoing, we find that the deciding official appropriately
considered the relevant Douglas factors. We also find that, under the
circumstances in this case, removal was a reasonable penalty for the sustained
misconduct. As noted by the administrative judge, the agency’s loss of trust and
confidence in the appellant was a significant aggravating factor. See Talavera v.
Agency for International Development, 104 M.S.P.R. 445, ¶ 12 (2007) (sustaining
the appellant’s removal based on the charges of misrepresenting a material fact
and providing false information to a supervisor). The Board has previously
upheld an agency’s removal action where an appellant has falsely claimed
payments. See, e.g., Seibert v. Department of the Treasury, 41 M.S.P.R. 133, 138
(1989) (removal was reasonable for making false claims for emergency salary
payments, even though the employee notified the agency of his wrongdoing on
12
his own volition). Based on the foregoing, we conclude that the administrative
judge properly sustained the agency’s action.
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 the United States Court of Appeals for the Federal Circuit to review this
final decision. You must submit your request to the court at the following
address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
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 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 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.
13
If you are interested in securing pro bono representation for your court
appeal, 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 court. The Merit Systems
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.