Melody D. Carder v. Department of Defense

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

MELODY D. CARDER, DOCKET NUMBER

Appellant, DA-0752-14-0620-I-1

v.

DEPARTMENT OF DEFENSE, DATE: April 13, 2015

Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL 1

Charles E. Allenburg, Esquire, Virginia Beach, Virginia, for the appellant.

Kathy A. Ault, Tinker Air Force Base, Oklahoma, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

cancelled the appellant’s 15-day suspension based upon a due process violation.

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 or the erroneous application of

1

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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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).

¶2 At the time relevant to this appeal, the appellant held the position of

Transportation Clerk. Compare Initial Appeal File (IAF), Tab 4 at 17

(August 10, 2014 Standard Form 50, reflecting the Transportation Clerk position),

with IAF, Tab 1 at 1 (August 25, 2014 appeal, reflecting an Administrative

Support Clerk position). In March 2014, she notified the agency that she had

been arrested for possession of marijuana and drug paraphernalia. See IAF, Tab 5

at 8; see also id. at 9-14 (police reports). The agency proposed the appellant’s

removal for illegal marijuana use and failure to comply with the drug-free

workplace program. IAF, Tab 4 at 30-31. The deciding official upheld the illegal

marijuana use charge and mitigated the removal to a 15-day suspension. Id.

at 18-22.

¶3 The appellant appealed her suspension to the Board. IAF, Tab 1. Without

addressing the merits of the charged misconduct, the administrative judge

cancelled the suspension. IAF, Tab 16, Initial Decision (ID) at 2. The

administrative judge found that the agency violated the appellant’s right to due

process by failing to notify her that it would be considering some attendance

issues as an aggravating factor in determining the appropriate penalty. ID at 2-7.

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The agency has filed a petition for review. Petition for Review (PFR) File, Tab 1.

The appellant has filed a response. PFR File, Tab 5.

¶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 to

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

Navy, 116 M.S.P.R. 470, ¶ 5 (2011). Here, the agency first argues that, contrary

to the administrative judge’s finding, the deciding official did not consider the

appellant’s purported attendance issues as an aggravating factor. PFR File, Tab 1

at 6-7. Instead, the agency asserts that the deciding official simply cited her

attendance to establish a nexus between the appellant’s off-duty conduct and the

efficiency of the service. Id. at 7-8. We disagree.

¶5 Neither the proposal to removal the appellant, nor the subsequent decision

to suspend her, contained any mention of her being on leave restriction;

leave-related concerns; or an absence without leave charge. See IAF, Tab 4

at 18-20, 30-31. In terms of past discipline, both letters indicated that the

appellant had none. Id. at 19, 24. In terms of her past work record, length of

service, and performance, both simply noted that the appellant had 5 years of

prior service and her most recent performance rating was “fully successful.” Id.

Nevertheless, the deciding official expressly testified that he considered her

attendance in his “Douglas analysis.” See IAF, Tab 18, Hearing Transcript (HT)

at 72 (referencing Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06

(1981) (discussing factors that are relevant for consideration in determining the

appropriateness of a penalty)). He explained that he considered the appellant’s

attendance in terms of her past discipline as well as her past work record, length

of service, and performance. HT at 78-79; IAF, Tab 4 at 19. The administrative

judge asked what the deciding official was thinking as he considered the

appellant’s attendance in terms of past discipline, to which the deciding official

indicated that the appellant was on a leave restriction letter. HT at 79. The

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administrative judge also asked why this was not included in his decision letter if

it was considered an aggravating factor, to which the deciding official simply

replied that he did not know. Id. Accordingly, the administrative judge correctly

found that the appellant’s purported leave issues were used as an aggravating

factor in the penalty determination. ID at 4, 6.

¶6 The agency next suggests that the deciding official had personal knowledge

of the appellant’s past attendance issues, and that this somehow distinguishes the

present case from those where another party introduced new information to the

deciding official. See PFR File, Tab 1 at 8-9. However, the distinction the

agency is relying on is one that the Board has not accepted. See

Lopes, 116 M.S.P.R. 470, ¶ 10. When a deciding official considers information

not included in the proposed adverse action, regardless of whether that

information was personally known to the deciding official or introduced by

another party, the employee is no longer on notice of portions of the evidence

relied upon by the agency in imposing the penalty, resulting in a potential

constitutional violation. Id.

¶7 Finally, the agency argues that information about the appellant’s purported

attendance issues did not result in a due process violation because it was neither

new nor material. The agency asserts that the information about her attendance

was not new because her absences occurred in the past, prior to the suspension at

hand. PFR File, Tab 1 at 9-10. The agency also suggests that the appellant

admitted having attendance problems and that there is no reason to believe the

deciding official would have reached a different result in the absence of this

information. Id. at 11-16.

¶8 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 Board will consider the following factors, among others, to determine

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whether 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 error and had a chance to

respond to it;” and (3) “whether the ex parte communications were of the type

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

manner.” Id. at 1377. Ultimately, 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.” 2 Ward, 634 F.3d at 1279.

¶9 As to the first Stone factor, the fact that the appellant’s purported

attendance issues occurred at some point in the past, prior to the proposed

discipline at hand, is not dispositive. The information was still new, regardless of

the date of occurrence, based upon the lack of notice to the appellant. See, e.g.,

Lopes, 116 M.S.P.R. 470, ¶¶ 10-11 (finding that the appellant’s prior discipline

was new because the agency failed to include the information in its notice of

proposed removal or elsewhere in the case file provided to the appellant). In

addition, because the attendance issues were unrelated to anything contained in

the record, it cannot be dismissed as cumulative. Cf. Blank v. Department of the

Army, 247 F.3d 1225, 1229-30 (Fed. Cir. 2001) (finding that ex parte

communications did not introduce new and material information in violation of

due process where it merely confirmed and clarified that which was already

contained in the record).

2

The agency’s reliance on Powers v. Department of the Treasury, 86 M.S.P.R. 256

(2000), for an alternate standard is m isplaced. See PFR File, Tab 1 at 10-11. Po wers

did note that the Board considers evidence to be material to a proceeding only where it

is of sufficient weight to warrant a different outcome. Powers, 86 M.S.P.R. 256, ¶ 12.

However, Powers also noted that the ultimate inquiry 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.

Id. (citing Stone, 179 F.3d at 1377). Subsequent precedent from our reviewing court

has clearly established that a due process violation is not subject to harmless error. See,

e.g., Ward v. U.S. Postal Service, 634 F.3d 1274, 1280 (Fed. Cir. 2011).

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¶10 As to the second Stone factor, the appellant certainly had personal

knowledge of her own attendance, but she lacked the knowledge that the deciding

official would be considering it as aggravating. Her testimony before the

administrative judge, acknowledging that she had taken a fair amount of leave for

medical issues, HT at 103, is of no consequence. The relevant inquiry is whether

the appellant knew of the information and had the opportunity to respond before

the deciding official considered it. Stone, 179 F.3d at 1377. Because the agency

failed to provide the appellant notice that her attendance would be considered an

aggravating factor in its penalty analysis, she was unable to explain her leave to

the deciding official or otherwise argue that it should not be considered

aggravating for this unrelated misconduct. See Lopes, 116 M.S.P.R. 470, ¶ 11

(finding that even though the appellant was clearly aware of his own prior

suspension, the agency’s failure to advise him that it would be considered in his

proposed removal deprived him of the opportunity to respond to it).

¶11 As to the third Stone factor, the deciding official’s testimony establishes

that he considered the appellant’s purported attendance issues as aggravating in

his penalty analysis. See HT at 79. Ex parte communication is plainly material

when the deciding official has admitted that the information influenced his

penalty determination. Silberman v. Department of Labor, 116 M.S.P.R. 501,

¶ 12 (2011). To the extent that the agency implies that the deciding official may

have imposed the same penalty even in the absence of the new information, PFR

File, Tab 1 at 13-14, we are not persuaded, see Kolenc v. Department of Health &

Human Services, 120 M.S.P.R. 101, ¶ 22 (2013) (when the first Stone factor

“strongly suggests” a due process violation, “any deficiency of the third factor is

less significant”) (quoting Young v. Department of Housing & Urban

Development, 706 F.3d 1372, 1377 (Fed. Cir. 2013)).

¶12 Based upon the above, we find no error in the administrative judge’s

determination that the deciding official’s consideration of the appellant’s

purported attendance issues rose to the level of a due process violation. That

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violation cannot be excused as harmless. See Lopes, 116 M.S.P.R. 470, ¶ 13.

Instead, the suspension must be reversed and this matter remanded to the agency

to afford the appellant constitutionally-correct procedures. See

Silberman, 116 M.S.P.R. 501, ¶ 14.

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:

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.

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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.