The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GERTHEL Y. WOLFE, DOCKET NUMBER
Appellant, DC-0752-13-0456-I-1
v.
DEPARTMENT OF LABOR, DATE: January 22, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Allison B. Eddy, Esquire, Virginia Beach, Virginia, for the appellant.
Karen Modesta Barefield, Arlington, Virginia, 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 decision to remove her from federal service. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 and AFFIRM the initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113(b).
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The appellant raises a single issue on review: whether the agency denied
her due process when the deciding official relied on information not contained in
the notice of proposed removal in determining that removal was the appropriate
penalty. 2 Petition for Review (PFR) File, Tab 1 at 4. 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. Lopes v. Department of the
Navy, 116 M.S.P.R. 470, ¶ 5 (2011). If an employee has not been 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
2
The appellant does not challenge, and we discern no reason to disturb, the
administrative judge’s finding that the agency met its burden of proof regarding the
charge of unacceptable conduct, specifically, engaging in a physical altercation with a
coworker in their shared office space on October 16, 2012. Initial Appeal File (IAF),
Tab 26, Initial Decision (ID) at 1-2.
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of notice of all the evidence being used against her and the opportunity to respond
to it. Ward v. U.S. Postal Service, 634 F.3d 1274, 1280 (Fed. Cir. 2011).
¶3 However, not every ex parte communication rises to the level of a due
process violation; only ex parte communications that introduce new and material
information to the deciding official constitute due process violations. Stone v.
Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376-77 (Fed. Cir.
1999). 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, whether:
(1) the ex parte communication merely introduces cumulative information or new
information; (2) the employee knew of the information and had a chance to
respond to it; and (3) the ex parte communications were of the type likely to
result in undue pressure upon the deciding official to rule in a particular manner.
Bennett v. Department of Justice, 119 M.S.P.R. 685, ¶ 8 (2013) (quoting Stone,
179 F.3d at 1377).
¶4 The appellant argues that the deciding official relied on the proposal
notice’s descriptions of her as aggressive, demonstrating a poor attitude,
projecting disrespect and hostility, and creating tensions, which were based in
large part on an incident that occurred on August 28, 2012, 3 without giving her
notice of the facts underlying those descriptions, which deprived her of a
meaningful opportunity to respond. PFR File, Tab 1 at 12-17. The appellant
relies on Ward, Lopes, and an administrative judge’s initial decision in North v.
Department of Homeland Security, MSPB Docket No. DC-0752-12-0771-I-1,
3
On August 28, 2012, the appellant and her coworker had a verbal confrontation over a
phone call. IAF, Tab 19 at 67-68, 135 of 198.
4
Initial Decision (Dec. 19, 2012) (IAF, Tab 20 at 57-63), 4 to support her claim that
she was denied due process. These cases are inapposite because the deciding
officials in each admitted to relying on information that was not contained in the
proposal notice. Here, the descriptions of the appellant as aggressive,
demonstrating a poor attitude, projecting disrespect and hostility, and creating
tensions are expressly in the proposal notice, and the deciding official has not
admitted to relying on any information that is not also contained in the notice of
proposed removal. IAF, Tab 5 at 35.
¶5 In Ward, the deciding official testified to having conversations with three
supervisors and a manager who disclosed prior incidents of misconduct by the
appellant that were not mentioned in the proposal notice but affected his analysis
of two Douglas factors. Ward, 634 F.3d at 1276; see Douglas v. Veterans
Administration, 5 M.S.P.R. 280 (1981). In Lopes, the deciding official testified
to relying on a prior suspension and allegations of other past misconduct not
referenced in the proposal notice in determining the appropriate penalty.
Lopes, 116 M.S.P.R. 470, ¶ 9. North has no precedential effect, but we note it is
also distinguishable. In North, the deciding official testified to relying on the
appellant’s past counseling record, and the deciding official’s personal knowledge
of the appellant’s past uncharged misconduct, as aggravating factors. IAF,
Tab 20 at 58-61.
¶6 Unlike Ward, Lopes, and North, the deciding official in this appeal did not
admit to considering information that was not included in the notice of proposed
removal. The deciding official testified at his deposition that he was made aware
of the appellant’s creating tensions in the workplace from reading the proposal
notice. IAF, Tab 19 at 15 of 72. When asked if he had any conversation with the
proposing official about the tensions in the office, he testified that he had not. Id.
4
An initial decision issued by a Board administrative judge has no precedential effect.
5 C.F.R. § 1201.113; see, e.g., Horton v. Department of the Navy, 105 M.S.P.R. 332,
¶ 8 n.2 (2007).
5
He also testified that he did not know any specifics regarding the “tensions” and
did not have any ex parte discussions with the proposing official concerning any
specifics. Id. at 16-17.
¶7 We do not agree with the appellant that the “only incident” that would
“connote any form of ‘aggressive’ or ‘hostile’ behavior or any behavior that
would in any way create ‘tension’” was the August 28, 2012 incident or that these
descriptions must have been “gleaned in large part” from the August 28, 2012
incident. PFR File, Tab 1 at 6, 14. On the contrary, the Douglas factor
worksheet attached to the proposal notice states that the proposing official was
told that the appellant “verbally harassed” an Internal Revenue Service employee
one morning when the two entered the building and continued to “verbally
harass” this individual while they rode together in the elevator. IAF, Tab 5 at 42.
The proposing official’s Douglas factor worksheet also describes an incident
where the appellant worked in a coworker’s office to avoid working in her own
office as having created “so much tension here, that it can be cut with a knife.”
Id. at 43. Therefore, we do not agree that the descriptions of the appellant as
aggressive and creating tensions in the workplace must have come from the
incident on August 28, 2012.
¶8 We also do not agree with the appellant that the proposing official
“affirmed” during his deposition testimony that he had an ex parte conversation
with the deciding official during which he conveyed new and material
information. PFR File, Tab 1 at 9. The proposing official testified that he had
“[v]ery brief conversations” with the deciding official “to keep him apprised” of
his investigation into the underlying misconduct and to tell him what he was
considering as a proposed penalty. IAF, Tab 19 at 189-90 of 198. At no point
during their depositions do the proposing and deciding officials admit to having
an ex parte conversation that conveyed information that was not also contained in
the notice of proposed removal. A deciding official’s knowledge about a
pre-removal investigation does not violate an appellant’s due process rights in the
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absence of evidence that the deciding official relied on information gained from
that investigation but not disclosed to the appellant. See, e.g., Lange v.
Department of Justice, 119 M.S.P.R. 625, ¶¶ 11-12 (2013).
¶9 The appellant also claims that deciding official’s decision letter references
an ex parte communication. PFR File, Tab 1 at 11, 17. Specifically, she argues
that, because the decision letter states that personnel expressed concerns about
her returning to the office, which was not explicitly stated in the proposal notice,
the deciding official must have learned about those concerns through an ex parte
communication. Id. at 17-19. We do not agree. We have thoroughly reviewed
the decision letter and find no reference to an ex parte communication contained
therein. Although we agree with the appellant that the decision includes a
statement from the deciding official that personnel have expressed concerns about
her returning to the office, IAF, Tab 5 at 4, we do not agree that this is “new
information” or that the deciding official could only learn about this information
through an ex parte communication.
¶10 The deciding official was asked during his deposition which employees
expressed concern about the appellant’s returning to the office, and he testified
that it was the proposing official and the manager who had been acting on the
proposing official’s behalf when the misconduct took place. 5 IAF, Tab 19
at 41-42 of 72. The deciding official testified that he learned about their concerns
5
The appellant interprets the administrative judge’s initial decision as “discounting”
the deposition testimony of the proposing and deciding officials and “scolding” the
appellant for withdrawing her hearing request. PFR File, Tab 1 at 12-13. An appellant
before the Board has the right to withdraw her request for a hearing. Graves v. U.S.
Postal Service, 106 M.S.P.R. 224, ¶ 4 (2007). Even if the administrative judge erred by
discounting the deposition testimony because it was not subject to examination at a
hearing, this error would not have prejudiced the appellant because the deposition
testimony does not support the appellant’s allegation that there were ex parte
communications between the proposing and deciding officials or her contention that the
notice of proposed removal lacked sufficient specificity. See 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).
7
by “reading the information that was in the proposal.” Id. While the deciding
official also testified that he may have had a conversation with the proposing
official, he testified that he could not specifically recall having that conversation.
Id. When asked if the proposing official told him about anyone in particular
expressing concerns, the deciding official testified that it was the proposing
official’s concerns that he factored into the decision. Id.
¶11 As noted in the initial decision, the notice of proposed removal contains
multiple references to the proposing official’s concerns about the appellant’s
returning to the office. ID at 4-5. Accordingly, the administrative judge properly
found that the notice of proposed removal provided the appellant with notice that
the proposing official was concerned about her returning to the office. ID at 8.
Because the deciding official testified that it was the proposing official’s
concerns that he factored into the decision, and he learned about those concerns
from reading the proposal notice, even if an ex parte communication between the
proposing and deciding officials occurred, the information would have been
cumulative and would not have violated the appellant’s right to due process.
Accordingly, the administrative judge properly found that the notice of proposed
removal provided the appellant with the requisite notice of the concerns personnel
had about her returning to the office. ID at 5-6.
¶12 The appellant relies on the Board’s decision in Mason v. Department of the
Navy, 70 M.S.P.R. 584 (1996), to support her argument that the deciding official
relied on the proposing official’s description of her causing “tensions” as part of
his penalty determination, which was so lacking in specificity she could not
provide a meaningful response and resulted in a due process violation. PFR File,
Tab 1 at 16. Due process mandates that a proposal notice be sufficiently detailed
to provide a meaningful opportunity to respond. Lamour v. Department of
Justice, 106 M.S.P.R. 366, ¶ 9 (2007). But an agency is not required to provide
notice of all circumstances that could conceivably be relevant to the penalty.
Douglas, 5 M.S.P.R. at 304 n.65. In Mason, the notice of proposed adverse
8
action identified the type of misconduct charged but did not give any details as to
when or where the misconduct occurred. Mason, 70 M.S.P.R. at 587. The
appellant in Mason tried to obtain more specific information regarding the
charged misconduct through discovery but was told by the agency that it had no
such information. Id. Then at the hearing the agency’s witnesses surprised the
appellant by testifying about the same information he had been denied during the
discovery process. Id. Unlike the proposal notice in Mason, the appellant was
given detailed information regarding the charged misconduct and the aggravating
Douglas factors. The proposal notice provided sufficient details regarding both
the charges and the aggravating Douglas factors to provide the appellant with a
meaningful opportunity to respond. After considering all of the arguments raised
by the appellant, we conclude that she was not denied due process by the agency.
¶13 We also have considered whether the agency committed harmful procedural
error. See Ward, 634 F.3d at 1281. Harmful error is defined as “[e]rror by the
agency in the application of its procedures that is 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.” 5 C.F.R. § 1201.56(c)(3). For the reasons stated above, the
notice of proposed removal met the requirements of 5 C.F.R. § 752.404(b).
Accordingly, we find that the appellant has not shown that the agency committed
a procedural error. Further, even assuming that the agency made errors as the
appellant has alleged, we find no evidence that the deciding official would have
reached a different conclusion absent those alleged errors, and thus we find that
the agency did not commit harmful error.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
9
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.
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
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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.