# Lisa J. Steg v. Department of Defense

> Merit Systems Protection Board · March 7, 2016

URL: https://www.frixlaw.com/law-library/cases/3183114

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** March 7, 2016
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

LISA J. STEG, DOCKET NUMBER
Appellant, SF-0752-15-0185-I-1

v.

DEPARTMENT OF DEFENSE, DATE: March 7, 2016
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Bobby Devadoss, Esquire, and Stephanie Bernstein, Esquire, Dallas, Texas,
for the appellant.

Susan D. Hooks, Esquire, St. Louis, Missouri, 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 the agency’s demotion 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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

regulation or the erroneous application of the law to the facts of the case; the
administrative 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, 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 On review, the appellant first contends that the administrative judge
incorrectly attributed statements to certain agency witnesses. Petition for Review
(PFR) File, Tab 1 at 4-5. She asserts that, contrary to the administrative judge’s
findings: (1) witness C.T. did not state that she was able to see the appellant’s
office from her desk; and (2) witness E.N. did not report that the appellant asked
her if she had Attention Deficit Hyperactivity Disorder (ADHD). Id.; see Initial
Appeal File (IAF), Tab 29, Initial Decision (ID) at 11, 20. The appellant is
mistaken on both points. C.T. did state in her July 16, 2013 declaration that her
office “was across the hall from [the appellant’s] so I was in a position to observe
when she arrived and departed for the day.” IAF, Tab 17, Subtab 6, ¶ 3. 2 Also,
E.N. did report in her July 22, 2015 declaration that the appellant “asked me . . .

2
The appellant appears to dispute that C.T. was able to see her desk, but in the absence
of any contradictory evidence, or any indication of bias on C.T’s part, we find the
administrative judge properly credited C.T.’s statement, made under penalty of perjury,
that she was able to visually observe the appellant’s comings and goings. See
Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 87 (1981).
3

to my face if I had ADHD,” and that the appellant “seemed to think it was
humorous.” Id., Subtab 12, ¶¶ 5-6. 3
¶3 The appellant next argues that the administrative judge improperly
discounted documentary evidence that purportedly accounts for the discrepancy
between the work hours she reported on the Performance Labor Accounting
System (PLAS), and the entry and exit times evidenced by security card scans
(recorded on the Recall Access Log) and coworkers’ visual observations. PFR
File, Tab 1 at 6-7. She refers specifically to her July 23, 2015 affidavit and
October 22, 2014 response to the proposal notice, in which she explained:
(1) that her duties regularly required her to “meet with folks and look for
employees” outside of the building; and (2) that it is possible to enter the building
without a badge scan, that there is no policy requiring employees to use their
badges, and that this could be confirmed by “even a cursory review” of the times
recorded for other employees on the Recall Access Log and in PLAS. Id.; see
IAF, Tab 19, Tab 4 at 22-23.
¶4 We find that the administrative judge gave due consideration to the
appellant’s explanations. Concerning the appellant’s claim that her duties
routinely required her to work outside the building, the administrative judge
noted that this claim was uncorroborated by other evidence, and contradicted by
the agency’s contention that the appellant was not authorized to allocate duty
hours to look for employees outside the building. ID at 14-15; see IAF, Tab 4
at 16. The administrative judge further noted that it was inherently unlikely that

3
In any event, the specification at issue concerns a separate incident in which the
appellant told E.N. that she was a “case of ADHD gone bad.” IAF, Tab 4 at 34
(Charge 2, Specification 2.a). E.N. reported that incident in both her May 12, 2015
signed statement (incorrectly labeled as a “declaration”) and her July 22, 2015
declaration. IAF, Tab 17, Exhibit 13 at 1 & Subtab 12, ¶ 5. The appellant has not
identified any error in the administrative judge’s decision to credit E.N.’s version of
events. See Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133-34 (1980)
(explaining that mere disagreement with the administrative judge’s findings and
credibility determinations does not warrant full review of the record by the Board).
4

the appellant routinely looked for employees outside the building, given that she
was responsible for managing an office of professionals. ID at 14-15. Under
these circumstances, the administrative judge did not err in declining to credit the
appellant’s claim. See Hillen v. Department of the Army, 35 M.S.P.R. 453,
460-61 (1987) (finding that consistency with other evidence and inherent
improbability are factors in assessing credibility). The record also contains no
evidence to corroborate the appellant’s claim that it was unnecessary to use her
badge to enter the building, and in any case, the agency did not rely exclusively
on the badge scans recorded on the Recall Access Log, but also provided
statements and contemporaneous notes by agency witnesses who observed that the
appellant did not appear to be working full hours. IAF, Tab 17, Subtabs 1, 5-6,
Tab 24. In sum, we discern no error in the administrative judge’s finding that the
appellant did not work the hours she recorded in PLAS. 4
¶5 The appellant next argues that the administrative judge should have found,
without reopening the record, that the agency violated her due process rights
because the deciding official considered ex parte information in making his
decision. PFR File, Tab 1 at 7-9. An employee’s constitutional due process
rights may be violated if a deciding official considers new and material
information, whether in assessing the charges or deciding on a penalty. Ward v.
U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 2011). In determining whether to
find a due process violation occurred, the Board must consider the facts and
circumstances of each particular case. Stone v. Federal Deposit Insurance
Corporation, 179 F.3d 1368, 1377 (Fed. Cir. 1999). Among the factors to be
considered are whether: (1) the additional material merely introduced

4
Nor do we discern any error in the administrative judge’s finding that the appellant
knowingly supplied wrong information with the intent of defrauding the agency for her
own private gain, i.e., to receive pay for hours she did not work. ID at 16. We find
that, because the agency established the elements of a falsification charge, see Boo v.
Department of Homeland Security, 122 M.S.P.R. 100, ¶¶ 10-12 (2014), the
administrative judge correctly sustained the charge of Falsification of Time Sheets.
5

“cumulative” information or new information; (2) the employee knew of the error
and had a chance to respond to it; and (3) the information was of the type likely
to result in undue pressure upon the deciding official to rule in a particular
manner. Id. Ultimately, the inquiry is whether the deciding official’s
consideration of the additional material was substantial and so likely to cause
prejudice that no employee can fairly be required to be subjected to a deprivation
of property absent an opportunity to respond. Id. In determining whether a due
process violation occurred, there is no basis for distinguishing between
information provided to the deciding official by another source and information
personally known by the deciding official. Lopes v. Department of the Navy,
116 M.S.P.R. 470, ¶¶ 10-13 (2011).
¶6 In his July 21, 2015 declaration, included in the agency’s close of record
submission, the deciding official devoted several paragraphs to discussing his
experience of the appellant’s performance and conduct in her previous position as
an Administrative Contracting Officer (ACO). IAF, Tab 17, Subtab 2 at 2-3. In
particular, he recalled that after a claims dispute had arisen with a contractor, the
appellant had been uncooperative and nonchalant about helping others who were
trying to support her actions. Id. He explained that he raised the issue because it
“colored [his] perception of her professionalism.” Id. at 3. He also recounted
that when the appellant had transferred to the Los Angeles office through a
hardship request, two of his subordinate employees informed him that they had
“encountered some difficulty with [the appellant’s] cooperativeness and
experienced some untruthfulness on her part” when she was an ACO. Id.
¶7 Although the deciding official did not explicitly refer to the appellant’s
prior service as an ACO in the decision letter, or otherwise admit to considering it
in his decision, the record indicates he did consider the appellant’s credibility,
trustworthiness, and professionalism in making his decision. For example, in
assessing the agency’s second charge, he considered the appellant’s credibility
and trustworthiness in finding that her various explanations were unworthy of
6

credence. IAF, Tab 4 at 9-10. Additionally, in assessing the Douglas penalty
factors the deciding official referenced the appellant’s professionalism, trust, and
integrity. Id. at 10-20. Given the evidence that was available before the record
was reopened, there was an open question as to whether the deciding official
considered the appellant’s performance and conduct as an ACO in making
his decision.
¶8 By contrast, the proposal notice made no mention of the appellant’s prior
service as an ACO. IAF, Tab 4 at 32-38. Hence, as the administrative judge
stated in his order reopening the record, “[i]t does not appear that the proposal
notice put the appellant on notice that the deciding official’s assessment of her
conduct and performance as an ACO . . . might be something he would consider
in deciding the proposed demotion if, indeed, he did.” IAF, Tab 25 at 4
(emphasis added). Under these circumstances, it was appropriate for the
administrative judge to reopen the record sua sponte to permit the parties to
submit additional evidence and argument on the due process issue. See Powers v.
Department of the Treasury, 86 M.S.P.R. 256, ¶¶ 8, 10 n.3 (2000) (approving an
administrative judge’s adjudication of a due process violation sua sponte).
¶9 The appellant suffered no harm as a result of the administrative judge’s
decision to reopen the record. To the contrary, he provided her an opportunity
she would not have otherwise had to meet her burden of proving the affirmative
defense by preponderant evidence. See 5 C.F.R. § 1201.56(a)(2)(iii). However,
we discern no error in the administrative judge’s decision to credit the deciding
official’s supplemental declaration, in which he stated under penalty of perjury
that he had mentioned the appellant’s conduct and performance as an ACO only
as background information, and did not consider it in assessing her credibility as
to the charges or in determining an appropriate penalty. IAF, Tab 27; see
Norris v. Securities & Exchange Commission, 675 F.3d 1349, 1354 (Fed. Cir.
2012) (“A deciding official’s knowledge of an employee’s background only raises
due process . . . concerns where that knowledge is a basis for the deciding
7

official’s determinations on either the merits of the underlying charge or the
penalty to be imposed.”).
¶10 Finally, the appellant argues that the agency committed harmful procedural
error, as opposed to a constitutional due process violation, by failing to comply
with the requirements of 5 C.F.R. § 752.404(b)(1). PFR File, Tab 1 at 8-9. The
appellant did not raise this affirmative defense below, and she has not shown that
it is based on new and material evidence that was not previously available despite
her due diligence. Accordingly, we give it no further consideration. See Banks v.
Department of the Air Force, 4 M.S.P.R. 268, 271 (1980).

NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
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 U.S. 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 U.S. Code, at our
website, http://www.mspb.gov/appeals/uscode.htm. Additional information is
8

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 an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3183114. Public record. Not legal advice.