Opinion

Mary S. Heimer v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Mar 24, 2015
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 34.2%

procedural due process guarantees are not met if the employee has notice only of certain charges or portions of the evidence relied upon by the agency

How later courts described this case

procedural due process guarantees are not met if the employee has notice only of certain charges or portions of the evidence relied upon by the agency

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MARY S. HEIMER, DOCKET NUMBER

Appellant, DE-0432-14-0347-I-1

DEPARTMENT OF VETERANS DATE: March 24, 2015

AFFAIRS,

Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL 1

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

Michael L. Gurnee, Esquire, Denver, Colorado, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

sustained her removal. For the reasons discussed below, we GRANT the

A nonprecedential order is one that the Board has determined does not add

sign ificantly 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 Parties may cite nonprecedential orders,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).

appellant’s petition and REVERSE the initial decision. The appellant’s removal

is REVERSED.

BACKGROUND

¶2 On April 17, 2013, during a progress review, the appellant, a GS-7

Voucher Examiner (Spina Bifida), was advised that her performance was

unacceptable in two of her critical elements: critical element 1, Program

Administration, and critical element 2, Organizational Goals. Initial Appeal File

(IAF), Tab 10 at 60, Tab 34 at 26. On May 1, 2013, the appellant’s supervisor

issued her a Notification of Unacceptable Performance/Opportunity to Improve,

affording her 90 days in which to demonstrate acceptable performance in all of

her critical elements. IAF, Tab 10 at 51-52. On September 27, 2013, the

appellant’s second-line supervisor notified her that, during the performance

improvement period (PIP), she had failed to meet the performance standards of

critical elements 1 and 2 and that it was proposing to remove her from her

position. IAF, Tab 7 at 44-45. The appellant responded orally and in writing to

the proposal. Id. at 41-42, 38-39. On January 15, 2014, the agency issued her an

Abeyance of Proposed Removal. Id. at 36. The notice stated that, although the

appellant’s performance did not meet the minimum requirements for her position

and she had failed the assigned PIP, the agency had learned that she had since

completed the Employee Assistance Program (EAP), indicating a potential for

rehabilitation. Therefore, the notice stated, the agency had decided to hold the

appellant’s removal in abeyance for 90 days, and that, if she provided

documentation showing completion of the EAP and no new instances of

misconduct or performance deficiencies during the 90-day period, her removal

The date by the appellant’s supervisor’s signature indicates that the progress review

occurred on April 17, 2012, and because the appellant apparently refused to sign that

the progress review had taken place, the supervisor indicated that fact in the area for the

appellant’s signature and again stated the date as April 17, 2012. IAF, Tab 10 at 60.

From the record, it is clear that the progress review at issue occurred in 2013.

would be rescinded. Id. On April 22, 2014, however, the agency issued the

appellant a notice stating that a decision had been made in accordance with

5 U.S.C. chapter 43 to remove her from federal employment, effective April 28,

2014, because she failed to successfully complete the PIP and because, during the

90-day period of abeyance, she failed to meet the performance standards for

critical elements 1 and 2. IAF, Tab 6 at 18-21.

¶3 On appeal, the appellant challenged the validity of her performance

standards and argued that she was denied a reasonable opportunity to improve.

IAF, Tabs 1, 17. She further alleged that, in taking the action, the agency had

denied her due process or committed harmful error, discriminated against her

based on her age and disability (migraines), and retaliated against her for taking

leave under the Family and Medical Leave Act (FMLA). IAF, Tab 17.

¶4 In an initial decision based on the written record, 3 the administrative judge

affirmed the agency’s action. IAF, Tab 43, Initial Decision (ID) at 1, 24. He

found that the agency proved by substantial evidence that: (1) the Office of

Personnel Management approved its performance appraisal system, ID at 4-5;

(2) the appellant’s performance standards and critical elements were established

and communicated to her, ID at 5; (3) the standards were valid, ID at 6-10; (4) the

agency advised the appellant that her performance was unacceptable and warned

her of her performance inadequacies, ID at 10-11; (5) the agency provided her a

reasonable opportunity to demonstrate acceptable performance, ID at 11-15; and

(6) her performance remained unacceptable in at least one critical element for

which she was provided a reasonable opportunity to demonstrate acceptable

performance. ID at 15-16. In addressing the appellant’s affirmative defenses, the

Although the appellant initially requested a hearing, IAF, Tab 1 at 2, she subsequently

withdrew that request, IAF, Tab 27. The administrative judge issued a close of the

record notice, IAF, Tab 28, but then reopened the record twice to allow the parties to

address certain specific issues, IAF, Tabs 35-36, 38-41. Although some of the

responses were untimely, the administrative judge considered them to the extent he

found them responsive. IAF, Tab 43, Initial Decision at 3.

administrative judge found that she failed to establish her claim of denial of due

process/harmful error in connection with the agency’s abeyance action, ID at

17-19; or her claims of age discrimination, ID at 19-21, disability discrimination,

ID at 21-22, and FMLA retaliation, ID at 22-23.

¶5 The appellant has filed a petition for review, Petition for Review (PFR)

File, Tabs 1-2; the agency has responded in opposition, PFR File, Tab 8; and the

appellant has replied thereto, PFR File, Tab 11

ANALYISIS

The removal cannot be sustained because the agency violated the appellant’s due

process rights. 4

¶6 On review, the appellant challenges the administrative judge’s finding that

the agency did not deny her due process or commit harmful procedural error with

regard to its abeyance action. Specifically, the appellant argues that, based on

that action, the agency removed her, not only because of her performance during

the PIP, but also because of her alleged performance deficiencies from

January 15, 2014, through April 15, 2014, deficiencies to which she was denied

the opportunity to respond. PFR File, Tab 1 at 25-29, Tab 2 at 24-28. In finding

no violation of the appellant’s due process rights, the administrative judge found

that the agency’s action was not an extension of the PIP, but rather a unilateral

last chance, and that, as such, there was no error, no harmful error, and no

violation of the appellant’s due process rights which she had already been

afforded. ID at 17-19.

To the extent that the Board is required by 5 U.S.C. § 7702(a)(1) to render a decision

on the appellant’s affirmative defense of discrim ination based on age and disability, the

petition for review fails to identify any errors in the administrative judge’s thorough

analysis of these issues and we affirm the in itial decision in th is regard. See Crosby v.

U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the

administrative judge’s findings where he considered the evidence as a whole, drew

appropriate references, and made reasoned conclusions); Marchese v. Department of the

Navy, 32 M.S.P.R. 461, 464 (1987) (finding that the Board must make findings on

claims of discrimination). The initial decision, therefore, is the Board’s final decision

on the appellant’s discrimination claims.

¶7 It is undisputed that the agency did not refer to the appellant’s allegedly

poor performance of 2014 in its September 27, 2013 notice of proposed removal,

IAF, Tab 7 at 44-46; indeed, it could not have done so. Nevertheless, in the

April 22, 2014 decision letter, the deciding official stated that it had been

determined to remove the appellant, effective April 28, 2014, “for the following

reasons:” her failure to successfully complete the PIP, and her failure to meet the

performance standards for critical elements 1 and 2 during the period from

January 15, 2014, through April 15, 2014, the period provided for in the abeyance

letter. IAF, Tab 6 at 18. Because the deciding official considered information

that was not included in the notice of proposed removal, we find that she relied

on ex parte information in her decision to remove the appellant. See Howard v.

Department of the Air Force, 118 M.S.P.R. 106, ¶ 4 (2012). 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. Ward v. U.S.

Postal Service, 634 F.3d 1274, 1279 (Fed. Cir. 2011); Stone v. Federal Deposit

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

¶8 To determine if the deciding official’s consideration of this ex parte

information constituted a due process violation, we must inquire whether the

information is so substantial and so likely to cause prejudice that no employee

can fairly be required to be subjected to a deprivation of property under such

circumstances. In making this determination, the Board will consider, among

other factors: (1) whether the ex parte information 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

information was of the type likely to result in undue pressure upon the deciding

official to rule in a particular manner. Ward, 634 F.3d at 1279; Stone, 179 F.3d at

1377.

¶9 Here, we find that information as to the appellant’s performance during the

period of abeyance was not cumulative because, even if similar in nature to the

incidents of poor performance in the agency’s notice of proposed action, it

concerned performance of which the appellant was not given notice and an

opportunity to respond. See Stone, 179 F.3d at 1376 (procedural due process

guarantees are not met if the employee has notice only of certain charges or

portions of the evidence relied upon by the agency). Furthermore, the U.S. Court

of Appeals for the Federal Circuit has noted that ex parte information is plainly

material when the deciding official has admitted that the information influenced

his penalty determination. See Ward, 634 F.3d at 1280 n.2. Although penalty is

not at issue in chapter 43 performance-based actions, see Lisiecki v. Merit

Systems Protection Board, 769 F.2d 1558, 1566-67 (Fed. Cir. 1985), it is clear,

based on the decision letter, that the deciding official in this case considered the

ex parte information, IAF, Tab 6 at 18; see Silberman v. Department of Labor,

116 M.S.P.R. 501, ¶ 12 (2011). It is equally clear that the appellant did not know

of the information and had no opportunity to respond to it. 5 In fact, the agency,

in its decision letter, did not provide any specific incidents of unacceptable

performance, but only stated that, during the period of abeyance, the appellant

failed to meet the performance standards for critical elements 1 and 2. IAF, Tab

6 at 18. Finally, as to the undue pressure factor, the court in Ward clarified that it

is only one of several enumerated factors and is not the ultimate inquiry in the

Stone analysis. See Ward, 634 F.3d at 1280 n.2. The court added that, although

ex parte information of a type likely to result in undue pressure may make it more

likely that an appellant was deprived of due process, the lack of undue pressure

may be less relevant to finding a constitutional violation where, as here, the

deciding official admits that the ex parte information influenced his

determination. Id.

The appellant did not, for example, have the opportunity to explain to the deciding

official why she believed that her performance between January 15, 2014, and April 15,

2014, was not deficient.

¶10 Consequently, even if, as the agency now argues, its intention in holding the

appellant’s removal in abeyance for 90 days was to afford her one last chance to

demonstrate acceptable performance, 6 we find that the deciding official’s

admitted ex parte consideration of the appellant’s performance during the

abeyance period undermined her constitutional due process guarantee of notice

and of the opportunity to respond. 7 The agency’s error cannot be excused as

harmless, and the appellant’s removal must be cancelled. See Ward, 634 F.3d at

1280. The agency may not remove the appellant unless and until she is afforded a

new “constitutionally correct removal procedure.” See Stone, 179 F.3d at 1377;