Tredith Knowlin v. Department of Veterans Affairs

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TREDITH H. KNOWLIN, DOCKET NUMBER

Appellant, DC-0752-17-0703-I-1

v.

DEPARTMENT OF VETERANS DATE: February 15, 2023

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Allison B. Eddy, Esquire, Virginia Beach, Virginia, for the appellant.

Amanda E. Shaw, Esquire, Roanoke, Virginia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

Member Leavitt issues a separate dissenting opinion.

FINAL ORDER

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

sustained her removal and found that she failed to prove her affirmative defenses.

For the reasons discussed below, we GRANT the appellant’s petition for review,

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

REVERSE the initial decision in part to find that the agency violated her due

process rights, AFFIRM the portion of the initial decision that found that she

failed to prove her equal employment opportunity (EEO) retaliation claim, and

DO NOT SUSTAIN the appellant’s removal.

BACKGROUND

¶2 The appellant was employed as a GS-11 Military Services Coordinator

(MSC) at the Veterans Service Center of the Veterans Benefits Administration

Roanoke Regional Office and worked at the Portsmouth Naval Hospital. Initial

Appeal File (IAF), Tab 4 at 9. According to the appellant, on March 16, 2017, a

coworker recounted an incident to her in which he interacted with a female

service member when he was enlisted in the U.S. Navy. IAF, Tab 21 at 53. In

describing this incident to the appellant, he referred to the female service

member’s sexual orientation in derogatory terms and demonstrated her behavior

“by grabbing himself twice.” Id. The agency credited the appellant’s statements,

and the appellant’s supervisor issued the coworker a letter of reprimand for

sexual harassment on May 12, 2017. Id. at 42, 50-52.

¶3 As an MSC, the appellant was responsible for assisting service members

being separated for medical reasons. IAF, Tab 4 at 54-55. Between March 7 and

23, 2017, she met with at least three service members regarding their medical

separations. Id. at 95-96. All three reported that their interactions with her were

brusque, hostile, and disrespectful. Id. at 98, 100, 102-103, 117-121, 125-126.

On June 12, 2017, the agency proposed the appellant’s removal for “disrespectful,

insulting, abusive, insolent, or obscene language or conduct to or about . . . other

employees, patients, or visitors” based on these events. Id. at 95-97. The

proposal notice indicated that the evidence file supporting the proposal was

available for the appellant’s review if she desired. Id. at 96. The notice did not

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include a discussion of the Douglas 2 factors. Id. at 95-97. After the appellant

submitted her written reply, id. at 13-94, the deciding official issued a final

decision sustaining the charge and removing her from Federal service, effective

July 22, 2017, id. at 10-12. In the decision, the deciding official expressly stated

that the decision “takes into consideration the aggravating factors considered by

the proposing official in determining an appropriate penalty.” Id. at 10.

¶4 On August 1, 2017, the appellant filed the instant appeal with the Board.

IAF, Tab 1. In her appeal, she denied the charge and specifications, alleged that

the removal was in retaliation for her complaint to her supervisor that her

coworker sexually harassed her, claimed that the agency violated her due process

rights when the deciding official considered the proposing official’s Douglas

factors analysis without informing her and by failing to provide sufficient detail

for one of the specifications, and asserted that she received a disparate penalty.

IAF, Tab 20 at 18.

¶5 After holding the requested hearing, the administrative judge issued an

initial decision finding that the agency proved the charge by preponderant

evidence, that the appellant failed to prove her affirmative defenses of EEO

retaliation and due process violations, and that there was no evidence that she was

subjected to a disparate penalty. IAF, Tab 48, Initial Decision (ID) at 3-15. The

appellant has filed a petition for review, and the agency has responded. Petition

for Review (PFR) File, Tabs 1, 3.

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 In the appellant’s petition for review, she challenges the administrative

judge’s credibility findings regarding the agency’s witnesses. PFR File, Tab 1

at 18-27. She argues that the administrative judge erred in finding that she failed

to prove that her removal was issued in retaliation for her protected EEO activity

2

See Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981) (providing a

nonexhaustive list of factors relevant to a determination of a reasonable penalty).

4

of reporting sexual harassment and that the agency violated her due process

rights. Id. at 4, 11-18. She also renews her claim that she received a disparate

penalty from other employees who engaged in similar misconduct. Id. at 27-29.

As discussed below, we find that the agency violated the appellant’s due process

rights. Because we reverse her removal on due process grounds, we decline to

address her arguments concerning the charges except as necessary to address her

EEO retaliation affirmative defense. We also do not address her disparate penalty

claim. We agree with the administrative judge that the appellant did not meet her

burden to prove her EEO claim.

The agency’s removal process violated the appellant’s due process rights.

¶7 The essential requirements of procedural due process are prior notice of the

charges against the employee and a meaningful opportunity to respond to those

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

The appellant argued below and reasserts on review that the agency violated her

due process rights when it failed to provide sufficient detail of the allegations set

forth in one of the specifications and when the deciding official considered the

proposing official’s Douglas factors analysis and discussion of relevant

aggravating factors. IAF, Tab 20 at 18; PFR File, Tab 1 at 4, 11-16. The

administrative judge did not address these due process arguments. We agree with

the appellant that the deciding official considered an aggravating factor of which

the appellant did not have notice and an opportunity to respond.

¶8 The same day that the proposed removal was issued, the proposing official

completed a Douglas factors worksheet. IAF, Tab 5 at 6-12. In the worksheet,

under the “notoriety of the offense or its impact upon the reputation of the

[a]gency,” she wrote that the appellant’s behavior “could have a negative impact”

on the agency and those stationed at the appellant’s location. Id. at 8-9. She

further stated that if the behavior continued, “it could also be chronicled in the

local media which would lead to additional scrutiny on the agency.” Id. at 9. It

appears undisputed that the agency did not provide the appellant with the

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proposing official’s Douglas factors analysis and that the deciding official

considered the analysis, although it is not clear from the record how he received

the worksheet. IAF, Tab 4 at 10; Tab 46, Hearing Compact Disc, Day 1 (HCD 1)

(testimony of the deciding official); Tab 47, Hearing Compact Disc, Day 2

(HCD 2) (testimony of the appellant). It is also undisputed that the deciding

official considered the notoriety of the offense and the possibility that it could

produce negative publicity for the agency as an aggravating factor in his decision

to remove the appellant. HCD 1 (testimony of the deciding official).

¶9 We find that the consideration of the potential notoriety of the offense was

an improper ex parte communication. Regardless of whether the deciding official

relied on the proposing official’s analysis of the notoriety factor or he considered

it separately on his own prior to issuing the decision, the agency was required to

inform the appellant that it was considering the notoriety factor as an aggravating

one before it imposed the removal. See Jenkins v. Environmental Protection

Agency, 118 M.S.P.R. 161, ¶ 10 (2012) (stating that when determining whether a

due process violation has occurred, there is no basis for distinguishing between

ex parte information provided to the deciding official and information personally

known by the deciding official if the information was considered in reaching the

decision and not previously disclosed to the appellant); Lopes v. Department of

the Navy, 116 M.S.P.R. 470, ¶ 10 (2011) (observing that when a deciding official

considers either ex parte information provided to him or information personally

already known to him, the employee is no longer on notice of portions of the

evidence relied upon by the agency in imposing the penalty).

¶10 When an employee has not been given notice of an aggravating factor

supporting an enhanced penalty, as was the case here, an ex parte communication

with the deciding official regarding such factors may constitute a constitutional

due process violation. Ward v. U.S. Postal Service, 634 F.3d 1274, 1280 (Fed.

Cir. 2011). However, “not every ex parte communication” rises to the level of a

due process violation; “[o]nly [those] that introduce new and material

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information” do. Stone v. Federal Deposit Insurance Corporation, 179 F.3d

1368, 1376-77 (Fed. Cir. 1999). In deciding whether new and material

information has been introduced by means of ex parte communications, the Board

should consider factors such as “whether the ex parte communication merely

introduces ‘cumulative’ information or new information; whether the employee

knew of the information and had a chance to respond to it; and 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; see Ward,

634 F.3d at 1280 (instructing the Board to apply Stone to determine if “new and

material information” was introduced by the deciding official to enhance the

penalty). The main concern is that an appellant have notice and an opportunity to

respond to information “so substantial and so likely to cause prejudice” that the

failure to provide it amounts to a deprivation of her property interest in continued

employment. Stone, 179 F.3d at 1374-75, 77.

¶11 Regarding the first factor, the agency argues that the notoriety of the

offense is not new information because it “flowed naturally from the [c]harge”

and did not provide any additional information that was not already apparent from

the proposal and evidence file. PFR File, Tab 3 at 11. We disagree. The

deciding official’s consideration that the appellant’s misconduct “could” have a

negative impact and lead to additional scrutiny on the agency was purely

speculative. Nearly any misconduct by an employee has the potential for

notoriety. In the absence of actual notoriety in the media or in the community,

there was no reason to think that this counterfactual scenario should have been of

special concern to the agency in this case. As such, the appellant could not have

known that the agency would rely on the notoriety of the offense as an

aggravating factor or that the deciding official would construe the factor in such a

way. See Jenkins, 118 M.S.P.R. 161, ¶ 12 (finding the deciding official’s reliance

on the recommended penalties from the agency’s table of penalties for a charge

other than those set forth in the proposal notice constituted new information

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because the appellant was not aware that the proposed penalty would be

considered that way). Therefore, the deciding official’s reliance on the notoriety

factor cannot fairly be deemed cumulative or immaterial to the final decision.

See id.

¶12 Regarding the second Stone factor, it is undisputed that the appellant did

not have an opportunity to respond to the agency’s reliance on the notoriety

factor. In fact, it is unclear from the record when she even became aware of

which factors the agency was relying upon for an aggravated penalty. Although

the proposing official informed the appellant that the agency was concerned about

an internal complaint lodged by one of the affected service members, IAF, Tab 4

at 96, this is not the same thing as the agency’s fear of possible future media

attention. Regarding the third Stone factor, it is also undisputed that the deciding

official considered the notoriety factor. He testified that the notoriety of the

appellant’s misconduct was an important factor in his decision and that the

proposing official’s analysis of that factor “did not go far enough.” 3 HCD 1

(testimony of the deciding official). However, there is no evidence in the record

that the information resulted in undue pressure on him to remove the appellant.

Nonetheless, our reviewing court has emphasized that whether the additional

information was of the type likely to result in undue pressure is only one factor

and is not the ultimate inquiry. Ward, 634 F.3d at 1280 n.2. Specifically, the

court recognized that “the lack of such undue pressure may be less relevant to

determining when the ex parte communications deprived the employee of due

process where . . . the [d]eciding [o]fficial admits that the ex parte

communications influenced his penalty determination.” Id. Therefore, while no

3

Even if the dissent is correct that the deciding official considered the notoriety of the

offense independently of the proposing official’s analysis, the due process problem

would remain. A deciding official is not permitted to consider aggravating factors that

the employee was not warned about in advance, regardless of whether any ex parte

communication was involved. See Richardson v. Department of Veterans Affairs,

2023 MSPB 1, ¶ 32.

8

clear evidence of undue pressure exists, the deciding official’s testimony is clear

evidence of the materiality of the notoriety of the offense in his decision to

remove the appellant.

¶13 Based on the foregoing, we find that the deciding official’s consideration of

the notoriety factor was so substantial and likely to cause prejudice that the

agency’s failure to notify the appellant in advance violated her right to due

process. See Gray v. Department of Defense, 116 M.S.P.R. 461, ¶¶ 9-13 (2011)

(finding a due process violation when the deciding official considered the

appellant’s likely loss of eligibility for a sensitive position as an aggravating

factor without notifying the appellant). Accordingly, we reverse the initial

decision in this regard and do not sustain the appellant’s removal. The agency

may not remove the appellant unless and until she is afforded due process. Id.,

¶ 12. In light of our findings here, we find it unnecessary to reach the appellant’s

additional due process claim that one of the agency’s specifications was vague.

The appellant failed to show that her EEO activity was a motivating factor in her

removal.

¶14 Even though we reverse the agency’s removal action on due process

grounds, we must still address the appellant’s EEO retaliation claim because of

the potential for damages. IAF, Tab 6 at 4-5; see Hess v. U.S. Postal Service,

124 M.S.P.R. 40, ¶¶ 8, 18-20 (2016) (finding that when the appellant has been

returned to the status quo ante and still has an outstanding claim of discrimination

for which she has requested compensatory damages, her appeal is not moot and

the Board must adjudicate the affirmative defense).

¶15 The appellant claims that her removal was in retaliation for complaining of

her coworker’s March 16, 2017 sexual harassment. PFR File, Tab 1 at 16-18;

IAF, Tab 1 at 6, Tab 20 at 18. When an appellant asserts an affirmative defense

of discrimination or retaliation for EEO activity protected by Title VII, she bears

the burden to prove by preponderant evidence that the prohibited consideration

was a motivating factor in the contested personnel action. Savage v. Department

9

of the Army, 122 M.S.P.R. 612, ¶ 51 (2015), overruled in part by Pridgen v.

Office of Management and Budget, 2022 MSPB 31, ¶¶ 23-25. If the appellant

meets her burden, the burden then shifts to the agency to prove by preponderant

evidence that it would have taken the personnel action regardless of the

discriminatory or retaliatory motive. Id., ¶¶ 48-49, 51. The Board has clarified

that evidence of discrimination or retaliation should not be sorted into piles of

“direct” and “indirect” evidence, and emphasized that the evidence should be

considered as a whole in determining if an appellant satisfied her burden.

Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647, ¶¶ 28-31 (2016),

clarified by Pridgen, 2022 MSPB 31, ¶¶ 23-24.

¶16 Here, the administrative judge found that the appellant failed to explain how

her complaint had any connection to her discipline. ID at 13. Although the

administrative judge informed the appellant of the “motivating factor” causation

standard in the order and summary of the prehearing conference, IAF, Tab 45

at 2-4, she did not apply that standard in her analysis in the initial decision,

finding only that the appellant failed to show a “causal connection,” ID at 13. To

clarify, as explained below, we find that the appellant failed to show that her EEO

activity was a motivating factor in the agency’s decision to remove her.

¶17 The record shows that on March 20, 2017, the appellant reported alleged

sexual harassment by a coworker on March 16, 2017. IAF, Tab 20 at 50-52. It is

undisputed that the coworker was one of the agency employees named as a

witness in specifications B and D, which both concern the appellant’s behavior

while interacting with a service member on March 15, 2017. IAF, Tab 4 at 95-96;

PFR File, Tab 1 at 16-17; HCD 2 (testimony of the coworker). The appellant

claims that no agency employee, including the coworker, reported or submitted

any statements regarding her alleged behavior during the March 15, 2017

interaction with the service member until after she filed the sexual harassment

complaint against the coworker on March 20, 2017. PFR File, Tab 1 at 17. She

10

claims that, due to the timing of the sexual harassment complaint, the coworker

and other agency witnesses had motive to lie. Id. at 22-23.

¶18 The administrative judge considered this argument but ultimately credited

the service member’s and agency witnesses’ testimony, which was largely

consistent with the allegations in the specifications, thereby discounting the

appellant’s assertion that her coworker was lying about the incident because she

had filed a sexual harassment complaint against him. ID at 13. Specifically, she

found that the witnesses to the March 15, 2017 incident all testified in a clear and

straightforward manner, that they had no motive to lie or exaggerate, that their

statements were corroborated by other witnesses, and that their testimony

matched prior statements they had made. ID at 4-9. Because these credibility

determinations were explicitly based on the demeanor of witnesses testifying at

the hearing, as well as other appropriate credibility considerations, we defer to

them. See Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002)

(providing that the Board must give deference to an administrative judge’s

credibility determinations when they are based explicitly or implicitly on the

observations of witnesses testifying at hearing and may overturn such

determinations only when it has “sufficiently sound” reasons for doing so); Hillen

v. Department of the Army, 35 M.S.P.R. 453, 458 (1987) (providing factors

relevant to credibility findings).

¶19 Further, although the deciding official testified that he was aware of the

sexual harassment complaint and effectuated the removal within 4 months, he

testified that his knowledge of the complaint did not affect his impressions of the

evidence in the appellant’s case or his decision to remove her. HCD 1 (testimony

of the deciding official). Specifically, he stated that he had “no desire” to protect

the subject of the sexual harassment complaint, that he would have removed the

appellant “irrespective” of the complaint, and that it had “nothing to do with” the

removal. Id. The administrative judge found the deciding official to be a

“credible, persuasive witness,” ID at 15, and we defer to that finding, see Haebe,

11

288 F.3d at 1301. Aside from temporal proximity, the appellant has not pointed

to any evidence suggesting that the deciding official had a motive to retaliate

against her. Accordingly, we find that the appellant failed to prove that her EEO

activity was a motivating factor in her removal. 4

¶20 Based on the foregoing, we grant the appellant’s petition for review and

reverse the initial decision. Because we reverse the initial decision on due

process grounds, we do not address her remaining arguments on review. See

Solis v. Department of Justice, 117 M.S.P.R. 458, ¶ 10 (2012) (declining to

consider any of the appellant’s other arguments after reversing an agency removal

action on due process grounds); Lopes, 116 M.S.P.R. 470, ¶ 14 n.4 (making no

findings with respect to the merits of the agency’s charges after reversing the

appellant’s removal based on a due process violation).

ORDER

¶21 We ORDER the agency to CANCEL the appellant’s removal and to restore

her effective July 22, 2017. See Kerr v. National Endowment for the Arts,

726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later

than 20 days after the date of this decision.

¶22 We also ORDER the agency to pay the appellant the correct amount of back

pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in good faith in the agency’s

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, interest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision.

4

Because the appellant here failed to prove her initial burden that a prohibited factor

played any part in the agency’s decision, we do not reach the question of whether

retaliation was a but-for cause of that decision.

12

¶23 We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

the agency about its progress. See 5 C.F.R. § 1201.181(b).

¶24 No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision on this appeal if the appellant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

¶25 For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Defense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60-day period set forth above.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at Title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

13

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 5

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 may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

5

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

14

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court (not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. If the action involves a claim of

15

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 prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC 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

If you submit a request for review to the EEOC 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, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

16

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 6 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit 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, 10, 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

6

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

17

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.

DEFENSE FINANCE AND ACCOUNTING SERVICE

Civilian Pay Operations

DFAS BACK PAY CHECKLIST

The following documentation is required by DFAS Civilian Pay to compute and pay back pay

pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following

checklist to ensure a request for payment of back pay is complete. Missing documentation may

substantially delay the processing of a back pay award. More information may be found at:

https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.

NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by

vendor pay, not DFAS Civilian Pay.

☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the

specific dates of the back pay period within the ticket comments.

Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket

comments as to why the documentation is not applicable:

☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.

☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.

☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s

until notified to do so by DFAS Civilian Pay.***

☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until

notified to do so by DFAS Civilian Pay.***

☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).

☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee

in a job undertaken during the back pay period to replace federal employment.

Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,

include record of any unemployment earning statements, workers’ compensation,

CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,

or severance pay received by the employee upon separation.

Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority

under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment

they may have received. The payroll office must collect the debt from the back pay award. The

annual leave will be restored to the employee. Annual leave that exceeds the annual leave

ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).

2

NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES

Below is the information/documentation required by National Finance Center to process

payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by

the Merit Systems Protection Board, EEOC, and courts.

1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information

describing what to do in accordance with decision.

2. The following information must be included on AD-343 for Restoration:

a. Employee name and social security number.

b. Detailed explanation of request.

c. Valid agency accounting.

d. Authorized signature (Table 63).

e. If interest is to be included.

f. Check mailing address.

g. Indicate if case is prior to conversion. Computations must be attached.

h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be

collected (if applicable).

Attachments to AD-343

1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday

Premium, etc. with number of hours and dates for each entitlement (if applicable).

2. Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.

3. Outside earnings documentation statement from agency.

4. If employee received retirement annuity or unemployment, provide amount and address to

return monies.

5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)

6. If employee was unable to work during any or part of the period involved, certification of the

type of leave to be charged and number of hours.

7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave

to be paid.

NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and

required data in 1-7 above.

The following information must be included on AD-343 for Settlement Cases: (Lump Sum

Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)

a. Must provide same data as in 2, a-g above.

b. Prior to conversion computation must be provided.

c. Lump Sum amount of Settlement, and if taxable or non-taxable.

If you have any questions or require clarification on the above, please contact NFC’s

Payroll/Personnel Operations at 504-255-4630.

DISSENTING OPINION OF TRISTAN L. LEAVITT

in

Tredith H. Knowlin v. Department of Veterans Affairs

MSPB Docket No. DC-0752-17-0703-I-1

¶1 For the reasons explained below, I respectfully dissent from the majority

opinion in this case.

¶2 The deciding official in this case received ex parte information from the

proposing official, a Douglas factors worksheet that was not provided to the

appellant. The majority opinion finds that the ex parte information violated the

appellant’s constitutional due process rights. The opinion focuses exclusively on

a section of the worksheet dealing with the “notoriety of the offense or its impact

upon the reputation of the [a]gency.” The proposing official wrote on

the worksheet:

This type of behavior could have a negative impact on the

Department of Veterans Affairs and the employees stationed at the

Naval Medical Center Portsmouth. We are located there in a

collaborative program with the Department of the Navy as part of the

Integrated Disability Evaluation System program. If this behavior

continued it could also be chronicled in the local media[,] which

would lead to additional scrutiny on the agency. The behavior

exhibited is not acceptable as this is a customer service

oriented position.

Initial Appeal File (IAF), Tab 5 at 8-9.

¶3 As the majority opinion notes, the U.S. Court of Appeals for the Federal

Circuit reasoned in Stone v. Federal Deposit Insurance Corporation, 179 F.3d

1368 (Fed. Cir. 1999): “[N]ot every ex parte communication is a procedural

defect so substantial and so likely to cause prejudice that it undermines the due

process guarantee and entitles the claimant to an entirely new administrative

proceeding.” Id. at 1376-77. Rather, the standard the Federal Circuit articulated

is whether ex parte communications “introduce new and material information to

2

the deciding official[.]” Id. at 1377. This applies equally to ex parte

determinations relating to the charge itself and ex parte communications relating

to the penalty. Ward v. U.S. Postal Service, 634 F.3d 1274, 1280 (Fed. Cir.

2011). To determine whether information is “new and material,” the court stated

in Stone:

Among the factors that will be useful for the Board to weigh are:

whether the ex parte communication merely introduces “cumulative”

information or new information; whether the employee knew of the

error and had a chance to respond to it; and 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.

Stone, 179 F.3d at 1377.

¶4 Regarding the first of these factors here, I agree with the agency that the

proposing official’s four sentences about the notoriety of the offense introduced

only cumulative information because they “flowed naturally from the [c]harge”

and did not provide any additional information that was not already apparent from

the proposal and evidence file. Petition for Review File, Tab 3 at 11. The

majority opinion declares, “The deciding official’s consideration that an

appellant’s misconduct ‘could’ have a negative impact and lead to additional

scrutiny on the agency was purely speculative.” Supra. Yet this conclusion

required no leap of logic for either the appellant or the deciding official, given

that the notice of proposed removal itself highlighted negative attention the

agency had already experienced because of the appellant’s actions: “As a result

of your treatment of [a Navy SEAL who deployed twice to a combat zone], a

complaint was made to the Office of the Secretary of the VA about your behavior,

and your supervisors had to respond.” IAF, Tab 1 at 10. A second service

member’s fears of retaliation, as recounted in the notice of proposed removal,

practically beg for scrutiny of the agency: “The service member stated he fears

his claims for disability will have retribution in the VA process now because of

the treatment he received.” Id. at 9. While anticipating future consequences is

3

always speculative, that continued mistreatment of suffering service members

could attract further negative attention—including in the media—seems obvious.

¶5 The second factor the court in Stone directed the Board to consider was

whether the employee knew of the error and had a chance to respond to it.

Acknowledging that the appellant did not learn the proposing official conducted a

Douglas factors analysis until she received the notice of removal, the appellant

clearly had the opportunity to respond to the charge that her actions reflected

negatively on the Department of Veterans Affairs and employees stationed at

Naval Medical Center Portsmouth. As the notice of proposed removal stated, “As

a Military Services Coordinator, your performance standards require you to

communicate in a courteous manner with Veteran/service member customers

during the personal or telephone interview process. This conduct toward a

service member cannot be tolerated[.]” IAF, Tab 1 at 9-10. I do not see how the

appellant could have further responded regarding the notoriety of the offense

beyond the response she provided.

¶6 Even if new, ex parte information may or may not be material. While Stone

was not exhaustive regarding the factors the Board might consider, the third and

final factor goes to the materiality of the ex parte information: were the ex parte

communications of the type likely to result in undue pressure upon the deciding

official to rule in a particular manner? Stone, 179 F.3d at 1377. The majority

opinion acknowledges there is no such evidence in the record. Supra. Instead,

the opinion pivots to Ward, where the court stated: “[T]he lack of such undue

pressure may be less relevant to determining when the ex parte communications

deprived the employee of due process where . . . the [d]eciding [o]fficial admits

that the ex parte communications influenced his penalty determination.” Ward,

634 F.3d at 1280 n.2. The court in Ward continued: “Under these circumstances,

the materiality of the ex parte communications appears to be self-evident from the

Deciding Official’s admission.” Id.

4

¶7 Here, the appellant’s strongest argument is that the removal notice states:

“This decision . . . takes into consideration the aggravating factors considered by

the proposing official in determining an appropriate penalty.” IAF, Tab 1 at 12.

While this is a close call given the inclusion of this language in the removal

notice, it appears to have been pro forma. In the hearing before the

administrative judge, the deciding official explicitly testified that the proposing

official’s analysis of the Douglas factors did not influence his own analysis, and

that instead he believed the proposing official’s analysis of the notoriety Douglas

factor “did not go far enough.” Hearing Compact Disc, Day 1 (HCD 1)

(testimony of the deciding official). The Board must defer to an administrative

judge’s credibility determinations when they are based, explicitly or implicitly,

on observing the demeanor of witnesses testifying at a hearing; the Board may

overturn such determinations only when it has “sufficiently sound” reasons for

doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) .

It may not overturn an administrative judge’s demeanor-based credibility findings

merely because it disagrees with those findings. Purifoy v. Department of

Veterans Affairs, 838 F.3d 1367, 1372 (Fed. Cir. 2016) (quoting Haebe, 288 F.3d

at 1299). The administrative judge “found [the deciding official] a credible,

persuasive witness,” Initial Decision (ID) at 15, and I believe we must defer to

her credibility finding on this issue.

¶8 The majority opinion declares that “[i]t is . . . undisputed that the deciding

official considered the notoriety of the offense and the possibility that it could

produce negative publicity for the agency as an aggravating factor in his decision

to remove the appellant,” and “the deciding official’s testimony is clear evidence

of the materiality of the notoriety of the offense in his decision to remove the

appellant.” Yet the relevant question is not whether the deciding official

considered the notoriety Douglas factor. (Indeed, the whole point of Douglas v.

Veterans Administration is that agencies should consider all relevant factors.

5 M.S.P.R. 280, 303-08 (1981)). It is not even whether that factor was material to

5

his overall decision. The relevant question is whether the ex parte information

was material to the deciding official’s decision, which, as noted above, the

deciding official testified it was not (and the administrative judge found this

testimony credible).

¶9 The deciding official testified that he in fact learned no new information

from the proposing official’s Douglas factors worksheet, and that he conducted

his own analysis of the Douglas factors. HCD 1 (testimony of the deciding

official). He thoroughly explained his Douglas factors analysis at the hearing,

including several mitigating factors in the appellant’s favor. Id. The initial

decision noted that the deciding official “testified at length as to why he regarded

the appellant’s misconduct as extremely serious.” ID at 14. Among other things,

the deciding official testified, “This position is one of the most critical positions

that [the Department of Veterans Affairs] has. We are dealing directly with

service members who are separating because of medical reasons.” HCD 1

(testimony of the deciding official). According to the initial decision, the

deciding official further testified that the appellant’s “misconduct disrupted

operations and other employees and clients at the hospital, given the loud and

disruptive disturbance she caused[.]” ID at 14. Overall, the administrative judge

found that the deciding official “credibly testified as to his reasoned

consideration of the relevant factors.” ID at 15. Thus, that “it is . . . undisputed

that the deciding official considered the notoriety factor,” as the majority opinion

notes, supra, speaks not to the materiality of the ex parte information but rather to

the reality that the notoriety Douglas factor would be significant to anyone who

considered the case—even without the proposing official’s Douglas factors

worksheet. This significantly diminishes the materiality of the worksheet, and I

believe the third Stone factor weighs in favor of the agency.

¶10 As the majority opinion acknowledged, the court in Ward noted that Stone

factor three “is only one of several enumerated factors and is not the ultimate

inquiry[.]” Ward, 634 F.3d at 1280 n.2. Indeed, the court in Stone rephrased

6

precisely the ultimate inquiry: “Ultimately, the inquiry of the Board 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.” Stone, 179 F.3d at 1377. Given the foregoing, it

seems quite clear to me that this case does not demonstrate such a set of facts. I

thus would find that the ex parte information was not “new and

material” information.

¶11 The majority opinion cites two earlier Board cases for the proposition that

an agency is required to inform an appellant that it is considering a factor as an

aggravating one before it imposes a removal, regardless of whether a deciding

official relies on a proposing official’s analysis or considers the factor separately

on his own prior to issuing the decision. Supra; Jenkins v. Environmental

Protection Agency, 118 M.S.P.R. 161, ¶ 10 (2012); Lopes v. Department of the

Navy, 116 M.S.P.R. 470, ¶ 10 (2011). Yet I believe both of those cases are

distinguishable from the case at hand. Lopes involved past misconduct and prior

discipline, which the deciding official considered despite their not being included

in the notice of proposed removal. 116 M.S.P.R. 470, ¶ 9-10. The Board applied

the Stone analysis to conclude that these “portions of evidence relied upon by the

agency in imposing the penalty” were material. Id. at ¶ 10-12 (emphasis added).

Here, no new evidence was considered, and the reformulation of existing facts in

the record was not material for the reasons discussed above. In Jenkins, the

deciding official relied on an offense from the agency’s table of penalties

different from the offenses charged in the notice of proposed removal.

118 M.S.P.R. 161, ¶ 9. While this did not introduce new evidence, it did

introduce a new charge, apparently central to the deciding official’s decision, that

the appellant was not on notice of. Id. at ¶ 12. In both Lopes and Jenkins, the

aggravating factor stemmed from information not provided to the appellant.

Here, by contrast, the proposal letter put the appellant on notice of both the

charges and of what made her conduct particularly problematic. That the

7

problematic nature of the conduct would constitute an aggravating factor was

implicit in the notice.

¶12 Even if the ex parte communication is not sufficiently substantial to rise to

the level of a due process violation, then “the Board [is] required to run a

harm[ful] error analysis to determine whether the procedural error require[s]

reversal.” Ward, 634 F.3d at 1281; see 5 U.S.C. § 7701(c)(2)(A). Harmful error

is an error 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. Ward, 634 F.3d at 1281; 5 C.F.R.

§ 1201.56(c)(3).

¶13 Here, the fact that the proposing official’s Douglas analysis was provided to

the deciding official and not the appellant was clearly an error. As the Federal

Circuit noted in Ward: “[I]t is a procedural error, in violation of 5 C.F.R.

§ 752.404(f), for ‘an agency to rely on matters affecting the penalty it imposes

without including those matters in the proposal notice’” (citations omitted).

Ward, 634 F.3d at 1281. That the deciding official cited in his decision letter

“the aggravating factors considered by the proposing official in determining an

appropriate penalty”—information not provided to the appellant—makes clear the

error. IAF, Tab 1 at 12, Tab 5 at 6-12. However, I believe such error was

harmless given that the ex parte worksheet contained no new and material

information, the appellant was still on notice to answer all relevant charges

against her, and the outcome would have been the same even without the

ex parte communication.

¶14 Thus, I would affirm as modified the initial decision of the administrative

judge, and uphold the appellant’s removal.

/s/

Tristan L. Leavitt

Member