finding that a deciding official did not violate an employee’s right to due process by conducting interviews “merely to confirm and clarify information that was already contained in the record.”
How later courts described this case
- finding that a deciding official did not violate an employee’s right to due process by conducting interviews “merely to confirm and clarify information that was already contained in the record.”
Written by the judges who cited it.
The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JENNIFER HAYES, DOCKET NUMBER
Appellant, DC-0752-21-0532-I-1
v.
SELECTIVE SERVICE SYSTEM, DATE: August 9, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Jennifer D. Isaacs, Esquire, Atlanta, Georgia, for the appellant.
Christopher J. Keeven, Esquire, and Conor D. Dirks, Esquire, Washington,
D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained the appellant’s removal. On petition for review, the appellant raises
new arguments concerning discovery and the merits of her appeal and states that
she waived her hearing request because she could no longer afford to pay her
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
attorney. Generally, we grant petitions such as this one only in the following
circumstances: 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 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. 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 pe titioner 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 to
address the appellant’s new arguments on review and to correct harmless error
concerning the analysis of the appellant’s affirmative defenses , we AFFIRM the
initial decision.
¶2 The appellant argued below and on review that she was removed due to her
race and sex because unidentified agency executives (who were all white and all
male except for one) had also been through audits that identified problems, but
they were permitted to correct errors, whereas the appellant was removed. Initial
Appeal File (IAF), Tab 22 at 27; Petition for Review (PFR) File, Tab 1 at 5, 13.
The administrative judge found that the appellant failed to prove that the removal
was based on prohibited considerations. IAF, Tab 23, Initial Decision (ID)
at 12-13. The Board recently clarified that the methods by which an appellant
may prove a claim of discrimination under Title VII are: (1) direct evidence;
(2) circumstantial evidence, which may include (a) evidence of “suspicious
timing, ambiguous statements oral or written, behavior toward or comments
directed at other employees in the protected group, and other bits and pieces from
which an inference of discriminatory intent might be drawn, ” also known as
3
“convincing mosaic”; (b) comparator evidence, consisting of “evidence, whether
or not rigorously statistical, that employees similarly situated to the plaintiff
other than in the characteristic . . . on which an employer is forbidden to base a
difference in treatment received systematically better treatment”; (c) evidence
that the agency’s stated reason for its action is “unworthy of belief, a mere
pretext for discrimination” (i.e., the burden-shifting standard under McDonnell
Douglas Corporation v. Green, 411 U.S. 792, 802-04 (1973)); and (3) some
combination of direct and indirect evidence. Pridgen v. Office of Management
and Budget, 2022 MSPB 31, ¶ 24 (citations omitted). This clarification of the
legal standard does not change the result in this case because the administrative
judge correctly determined that the appellant failed to proffer any comparator
evidence or motive evidence, and therefore, she failed to establish that the
removal was motivated by prohibited discrimination . ID at 13. Therefore, we
agree with the administrative judge’s conclusion that the appellant has failed to
meet her burden to establish this affirmative defense.
¶3 The appellant alleged below that the deciding official violated her due
process rights when he considered the following charges from t he agency’s table
of penalties in determining that removal was appropriate: falsification, disregard
of directive, intentional failure to observe a written order, and car eless or
negligent failure to observe a written regulation. IAF, Tab 22 at 28 -29. The
administrative judge found that although the charges were not identical, the
information in the proposal notice alerted the appellant to facts suggesting her
underlying conduct could fall within these categories and the appellant was
notified and responded to the allegations underlying the charges. ID at 14-15.
The administrative judge’s brief analysis of this issue did not sufficiently
describe why the appellant’s argument fails. However, for the reasons discussed
below, that error was harmless.
¶4 In Jenkins v. Environmental Protection Agency, the Board reversed the
appellant’s removal on due process grounds because the deciding official relied
4
on a recommendation in the table of penalties for an offense with which the
appellant was not actually charged. 118 M.S.P.R. 161, ¶¶ 9-12 (2012). The
instant appeal is similar to Jenkins to the extent that the deciding official
considered a recommendation in the table of penalties of which the appellant was
not on notice. This amounted to an ex parte communication. See id., ¶¶ 10-12.
¶5 However, not every ex parte communication is a proc edural defect so
substantial and so likely to cause prejudice that it undermines the due process
guarantees and entitles the claimant to an entirely new administrative proceeding;
rather, only ex parte communications that introduce new and material informa tion
to the deciding official will violate the due process guarantee of notice. 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
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. Jenkins, 118 M.S.P.R. 161, ¶ 11.
¶6 Here, we find that the information at issue was cumulative of that presented
to the appellant in the notice of proposed removal. The proposed notice
identified the charges as poor judgment, lack of candor, and negligent
performance of duties for conduct the proposing official said was “cause for great
concern” and for which only removal would promote the efficiency of the service.
IAF, Tab 12 at 52-54. As the administrative judge reasoned, misrepresentation is
an element of lack of candor, and the table of penalties listed the penalty for
falsification or misrepresentation. ID at 14; IAF, Tab 12 at 103. The
recommended range of penalties for a first offense of
“falsification/misrepresentation” is also written reprimand to removal. IAF,
Tab 12 at 103. Thus, the deciding official’s error did not alter the range of
5
penalties that the appellant already knew that she was facing. Id.; see Blank v.
Department of the Army, 247 F.3d 1225, 1229-30 (Fed. Cir. 2001) (finding that a
deciding official did not violate an employee’s right to due process by conducting
interviews “merely to confirm and clarify information that was already contained
in the record.”). Moreover, the notice itself reflected that the agency viewed the
appellant as concealing material facts. Compare, IAF, Tab 12 at 55-56
(indicating, in pertinent part, that the appellant made misrepresentations and
omitted “material facts” from her statement), with Jenkins, 118 M.S.P.R. 161
¶¶ 9, 12 (finding that the deciding official violated an appellant’s due process
rights when the charge listed on the proposal notice was identical to one in the
table of penalties, but the deciding official relied on a different charge listed in
the table because she felt it was comparable in gravity to the appellant’s
misconduct and allowed for a higher penalty). Considering the totality of the
circumstances, we find that the deciding official’s error 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.
¶7 The appellant states on review that she waived her hearing request because
she could no longer afford to pay her attorney. PFR File, Tab 1 at 5. An
appellant has the right to be represented by an attor ney or another representative.
5 U.S.C. § 7701(a)(2). However, it is well settled that the right of appeal is
personal to the appellant, whether or not she is re presented, and she remains
responsible for prosecuting and developing her appeal. Mashack v. U.S. Postal
Service, 96 M.S.P.R. 174, ¶ 8 (2004); see Brum v. Department of Veterans
Affairs, 109 M.S.P.R. 129, ¶ 5 (2008). The appeal form completed by the
appellant notified her of her right to request a hearing, as did the administrative
judge’s Acknowledgment Order. IAF, Tabs 1, 2. To the extent the appellant
regrets waiving her right to a hearing, she must accept the consequences of that
decision. See Brum, 109 M.S.P.R. 129, ¶ 5.
6
¶8 The appellant presents new arguments on review that the agency did not
give her access to her emails, which she contends would provide important
evidence, and that the agency did not use progressive discipline in violation of
Executive Order No. 14,003. PFR File, Tab 1 at 5-6. Under 5 C.F.R. § 1201.115,
the Board generally will not consider evidence or argument submitted for the first
time with a petition for review absent a showing that it was unavailable b efore the
record was closed before the administrative judge despite the party’s due
diligence. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 213-14 (1980).
We are not persuaded that the appellant’s argument that the agency violated
Executive Order No. 14,003 is based on previously unavailable information given
that it was publicly issued 6 months before the appellant filed her appeal. Exec.
Order No. 14,003, 86 Fed. Reg. 7231 (Jan. 22, 2021); IAF, Tab 1. As to the
emails, the appellant had the opportunity to conduct discovery and does not
dispute that she issued discovery requests, including requests for the production
of documents, or that the agency responded and supplemented its responses to
those requests. 5 C.F.R. § 1201.73(a); PFR File, Tab 3 at 12, 16. To the extent
she believed the agency’s responses were deficient, the appropriate course of
action would have been to file a motion to compel, which the appellant did not
do. 5 C.F.R. § 1201.73(c)(1); PFR File, Tab 3 at 12. Therefore, we are not
persuaded that she exercised due diligence with regard to the emails. See Walton
v. Tennessee Valley Authority, 48 M.S.P.R. 462, 468-69 (1991) (stating that an
appellant is responsible for the absence of evidence to support her claims if she
fails to exercise due diligence in pursuing discovery). Accordingly, we will not
consider these arguments raised for the first time on review. See Avansino,
3 M.S.P.R. at 214.
7
NOTICE OF APPEAL RIGHTS 2
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 app ropriate 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).
2
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.
8
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. 420 (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 discrimination based on
9
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
10
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. 3 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 websi te at
http://www.mspb.gov/probono for information regarding pro bono representation
3
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.
11
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.
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.