Christopher McCook v. Department of Housing and Urban Development

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHRISTOPHER MCCOOK, DOCKET NUMBER

Appellant, SF-0752-14-0389-I-1

v.

DEPARTMENT OF HOUSING AND DATE: August 3, 2015

URBAN DEVELOPMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Christopher McCook, Fontana, California, pro se.

Eric D. Batcho, Eric D. Levin, and Kimberly J. Lenoci, Boston,

Massachusetts, 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

affirmed the agency’s decision to remove him 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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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. Except as expressly MODIFIED by this Final

Order to amend the due process analysis, we 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 agency removed the appellant from his position as an Underwriter,

GS-1101-12, based on his guilty pleas and agreement with the District Attorney

of San Bernardino, California. Initial Appeal File (IAF), Tab 12 at 155-61. The

appellant pled guilty to three felony counts of stalking, two felony counts of

making criminal threats, and one felony count of computer access fraud. Id.

at 121-23. The appellant appealed his removal and waived his right to a hearing.

IAF, Tabs 1, 16. The administrative judge issued an initial decision affirming

the agency’s removal action. IAF, Tab 22, Initial Decision (ID).

¶3 The appellant has filed a petition for review alleging that he was denied due

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

in opposition. PFR File, Tab 3.

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The appellant was provided with due process.

¶4 The appellant does not dispute that he pled guilty to numerous felony

charges. 2 PFR File, Tab 1 at 5. The appellant raises a single issue on review:

whether the agency violated his right to due process when the deciding official

considered the factors enumerated in Douglas v. Veterans Administration,

5 M.S.P.R. 280 (1981), in determining the appropriate penalty without giving

him advance notice. PFR File, Tab 1 at 6. The appellant argues that the notice

of proposed removal does not mention any of the Douglas factors that the agency

considered in rendering its decision. Id. at 7. The administrative judge found

that, although there is no explicit reference to the Douglas factors in the proposal

notice, the substance of several of the Douglas factors was included in the

proposal notice’s narrative, and therefore consideration of these Douglas factors

in the decision did not violate the appellant’s right to due process. ID at 5-6.

The administrative judge found that the Douglas factors not substantively

discussed in the proposal notice constituted ex parte information, but because the

information was not likely to cause prejudice, the appellant was afforded due

process. ID at 6-10.

¶5 The essential requirements of constitutional due process for a tenured public

employee are notice of the charges against him, with an explanation of the

evidence, and an opportunity for the employee to present his account of events.

Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985). To

require more prior to a termination, “would intrude to an unwarranted extent on

the government’s interest in quickly removing an unsatisfactory employee.” Id.

When an agency intends to rely on aggravating factors as the basis for imposing

a penalty, such factors should be included in the advance notice of the adverse

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The appellant does not challenge, and we discern no reason to disturb, the

administrative judge’s findings that the agency met its burden of proving the charge and

that the appellant failed to establish his claim of retaliation for protected equal

employment opportunity activity. ID at 2-4.

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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). 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 of notice of

all the evidence being used against him and the opportunity to respond to it.

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

we must determine 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. Stone v. Federal Deposit

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

Douglas factors 1, 2, and 5

¶6 Considering Douglas factors that were not included in the proposal in

reaching a decision can evidence ex parte communications when information in

addition to what was included in the proposal notice is used in analyzing those

factors. See, e.g., Lopes, 116 M.S.P.R. 470, ¶¶ 8-10. Regarding Douglas

factor 1 (the nature and seriousness of the offense, and its relation to the

employee’s duties, position, and responsibilities, including whether the offense

was intentional or technical or inadvertent, or was committed maliciously or for

gain, or was frequently repeated, Douglas, 5 M.S.P.R. at 305), Douglas factor 2

(the employee’s job level and type of employment, including supervisory or

fiduciary role, contacts with the public, and prominence of the position, id.), and

Douglas factor 5 (the effect of the offense upon the employee’s ability to

perform at a satisfactory level and its effect upon the supervisors’ confidence in

the employee’s ability to perform assigned duties, id.), there is no evidence that

the deciding official considered anything other than the proposal notice and the

documents attached to it. The appellant relies on Ward and Stone to support his

argument that he was denied due process, but in those cases the deciding

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officials admitted to relying on information that was not contained in the

proposal notice. There is no similar admission in this case and no evidence from

which we can otherwise conclude that the deciding official relied on information

not provided to the appellant in the notice of proposed removal and its

attachments. We agree with the administrative judge’s finding that the appellant

was given adequate notice in the notice of proposed removal that the agency

would consider Douglas factors 1, 2, and 5 as aggravating to provide him with

due process. ID at 5-6.

Douglas factors 7 and 8

¶7 Next, the appellant argues that the administrative judge erroneously

concluded that the deciding official did not violate his right to due process by

considering two other Douglas factors: Douglas factor 7 (the consistency of the

penalty with the agency’s table of penalties, Douglas, 5 M.S.P.R. at 305) and

Douglas factor 8 (the notoriety of the offense or its impact upon the reputation of

the agency, id.). ID at 6-11. The administrative judge found that, in weighing

these factors, the deciding official considered “ex parte” information that was

not mentioned in the notice of proposed removal but no due process violation

occurred because the information was not “new and material” under the Stone

factors. ID at 6-7, 9-10; see Stone, 179 F.3d at 1377. We agree with the

administrative judge’s conclusion that no due process violation occurred, but for

a different reason. We find that the record establishes that, in addressing these

two Douglas factors, the deciding official did not consider any ex parte

information or “aggravating factors” that were not adequately identified in the

notice of proposed removal. Thus, no due process violation occurred.

¶8 The notice of proposed removal stated that the removal was being proposed

in accordance with the agency’s Adverse Actions Handbook, which describes in

general terms how each of the Douglas factors is used in determining a

reasonable penalty and includes the agency’s table of offenses and penalties.

IAF, Tab 12 at 89, 187, 197-207. Further, the deciding official did not consider

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“consistency” with the table of penalties as an “aggravating” factor. Cf. Harding

v. U.S. Naval Academy, 567 F. App’x 920, 925 (Fed. Cir. 2014) (holding that

“the fact of consistency with other decisions was not used as an aggravating

factor, and thus due process would not require that the employee be given

advance notice of the deciding official’s intent to consider the penalties imposed

on others”). Rather, the deciding official indicated that removal was within the

recommended range of penalties for criminal conduct and that removal was

warranted because the appellant’s actions and guilty pleas “constituted an

egregious situation and have a direct nexus to [his] position.” IAF, Tab 12

at 157. The deciding official’s conclusion was thus based on the nature of the

appellant’s conduct and its nexus to his position, as charged in the notice of

proposed removal, and not on any new information unknown to the appellant.

¶9 Regarding Douglas factor 8, the deciding official wrote as follows:

Allowing you to remain at HUD would have a severe adverse impact

on the reputation of the agency. Your actions and guilty plea are

common knowledge amongst your co-workers with Criminal

Protective Orders against you and other HUD employees. The

notoriety of your offense undermines the trust and confidence that

HUD employees and the public generally have for the agency. This

is an aggravating factor.

Id. The administrative judge found that because the notoriety of the offense was

not overtly discussed in the notice of proposed removal this constituted an ex

parte communication. ID at 6-7. The administrative judge found, though, that

this ex parte information did not violate the appellant’s right to due process

because the notoriety of the offense was discussed in the decision to indefinitely

suspend the appellant that was attached to the notice of proposed removal. ID

at 7-9. The appellant argues that the differences between the Douglas factor

analysis in the indefinite suspension and the removal are “too great” for the

indefinite suspension to have provided him with notice of the aggravating factors

the deciding official considered in the removal. PFR File, Tab 1 at 8-12.

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¶10 We find that the proposal letter provided the appellant with adequate notice

of the facts the deciding official considered concerning the notoriety of the

offense. Specifically, the notice of proposed removal noted “considerable

concerns” regarding the appellant’s ability to perform in his “important position”

in which he would be in contact with at least one of the victims he pled guilty to

stalking and would have access to a computer program containing very sensitive

personal data. IAF, Tab 12 at 90. The proposing official further noted that the

appellant had been issued Criminal Protective Orders to remain 100 yards from

four agency employees. Id. Although the notice letter did not expressly discuss

these facts in terms of the notoriety of the offense or its impact upon the

agency’s reputation, the appellant was not deprived of due process by not being

advised that the deciding official might draw such an inference from the nature

of the information in the notice of proposed removal. See Harding, 567 F. App’x

at 925-26 (finding no due process violation because the deciding official was

merely drawing a conclusion that flowed naturally from the nature of the charged

conduct); see also Grimes v. Department of Justice, 122 M.S.P.R. 36, ¶ 13

(2014) (determining that due process does not require that an employee be

informed in advance of the particular weight a deciding official will give to

arguments made in response to the reasons specified in the proposal letter).

¶11 We find that the appellant was on fair notice of the relevance of Douglas

factors 7 and 8 and the facts the deciding official weighed in assessing these

factors. Thus, the agency’s failure to discuss these factors with more specificity

in its proposal notice was not “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.” Stone, 179 F.3d at 1377.

Douglas factors 3, 4, 6, 9, 10, 11, and 12

¶12 The appellant argues for the first time on review that his due process rights

also were violated when the agency failed to give him advance notice that the

remaining Douglas factors would be considered in deciding whether to remove

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him from Federal service. PFR, File Tab 1 at 6. The Board generally will not

consider an argument raised for the first time in the petition for review, absent a

showing that it is based on new and material evidence which despite due

diligence was not available prior to the closing of the record. Banks v.

Department of the Air Force, 4 M.S.P.R. 268, 271 (1980); 5 C.F.R. § 1201.115.

The administrative judge conducted a close of record conference with the parties

and provided them with an opportunity to file additional evidence and arguments

prior to closing the record. IAF, Tab 19. Both parties filed closing briefs. IAF,

Tabs 20-21. The appellant did not allege then that the agency violated his right

to due process in connection with these Douglas factors in his closing brief and

he has not made a showing now that these arguments are based on new and

material evidence. Therefore, we will not consider his new arguments on review.

The agency did not commit harmful procedural error.

¶13 Although we have found no constitutional violation, we still must consider

whether the agency committed harmful procedural error. See Stone, 179 F.3d

at 1377-78 (stating that, in addition to the protections afforded by the

Constitution, public employees also are entitled to whatever other procedural

protections are afforded them by statute, regulation, or agency procedure). In

arriving at its decision, an agency must only consider the reasons specified in the

notice of proposed action and any answer the employee or his representative

made. 5 C.F.R. § 752.404(g). Although an agency is required to state the

reasons for a proposed adverse action in sufficient detail to allow the employee

to make an informed reply, the charge must be viewed in light of the

accompanying specifications and circumstances, and should not be technically

construed. Spearman v. U.S. Postal Service, 44 M.S.P.R. 135, 139 (1990). Here,

as discussed above, the notice of proposed removal provided sufficient details

regarding the charges and aggravating factors for the appellant to have made an

informed reply in light of the surrounding circumstances.

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¶14 Further, even assuming the agency erred by not providing additional

information regarding its Douglas factor analysis in the notice of proposed

removal, the appellant has failed to demonstrate that such an error was harmful.

Harmful error cannot be presumed; an agency error is harmful only where the

record shows that the procedural error 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. Tom v. Department of the Interior, 97 M.S.P.R. 395,

¶ 43 (2004). Here, the appellant has not shown harmful error. He did not

respond to the notice of proposed removal, IAF, Tab 20 at 14, and has not

established that the agency would have reached a different conclusion if he had

been provided additional information in the notice of proposed removal.

Consequently, we find that the agency did not commit harmful procedural error

by not including more information regarding its analysis of the Douglas factors

in the notice of proposed removal.

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 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

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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

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

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prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and

29 U.S.C. § 794a.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.