Opinion

L. Joseph v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Sep 5, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 12.5%

explaining that an improper ex parte communication that rises to the level of a due process violation voids the entire proceeding and renders the adverse action a nullity

How later courts described this case

explaining that an improper ex parte communication that rises to the level of a due process violation voids the entire proceeding and renders the adverse action a nullity

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

L. GENISE JOSEPH, DOCKET NUMBER

Appellant, PH-0752-21-0216-I-1

UNITED STATES POSTAL SERVICE, DATE: September 5, 2023

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Hartley D. Alley, Esquire, San Antonio, Texas, for the appellant.

Krista M. Irons, Esquire, New York, New York, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

¶1 The agency has filed a petition for review, and the appellant has filed a

cross petition for review of the initial decision, which reversed the appellant’s

removal on due process grounds. Generally, we grant petitions such as these only

in the following circumstances: the initial decision contains erroneous findings

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 neither party has

established any basis under section 1201.115 for granting the petition or cross

petition for review. Therefore, we DENY the petition for review and the cross

petition for review. Except as expressly MODIFIED to VACATE the

administrative judge’s findings regarding the agency’s use of audio recordings in

its removal proceedings, we AFFIRM the initial decision, which is now the

Board’s final decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

¶2 The appellant was employed as a Postmaster, EAS-18, with the agency in

Port Reading, New Jersey. Initial Appeal File (IAF), Tab 6 at 4. Following an

incident in which the appellant allegedly engaged in a physical and verbal

outburst wherein she threatened other employees and caused physical damage to

her office space, the agency removed her from Federal service on April 23, 2021,

based on the charge of unacceptable conduct (two specifications). Id. at 7-10,

12-16. Thereafter, the appellant filed an appeal with the Board, challenging the

removal and raising several affirmative defenses. IAF, Tabs 1, 19, 24.

Specifically, she argued that the agency violated her due proce ss rights when the

deciding official considered her to be guilty of violating an agency policy

regarding workplace violence with which she was not charged and committed

harmful error by failing to conduct a pre-disciplinary interview with her. IAF,

Tab 1 at 6, Tab 24 at 7-14. She also argued that the agency improperly relied on

audio recordings of the incident made by her subordinates because such

recordings are in violation of New Jersey law. IAF, Tab 24 at 15-16.

Additionally, during the adjudication of the appeal, the appellant discovered that

the proposing official had provided the deciding official with an Action Request

Form without also providing it to the appellant prior to the deciding official’s

issuance of the decision notice. Id. at 5-6, 12. Thus, the appellant argued that the

agency also violated her due process rights by engaging in ex parte

communications. Id.

¶3 After the appellant withdrew her request for a hearing, IAF, Tab 21, the

administrative judge issued an initial decision on the written record. IAF,

Tab 51, Initial Decision (ID). Regarding the appellant’s claim that the deciding

official inappropriately considered her guilty of violating a policy with which she

was not charged, the administrative judge found this argument witho ut merit

because the decision notice did not include a finding that the appellant violated a

policy, and the deciding official stated under the penalty of perjury that he did not

rely on the policy in making his decision. ID at 5. The administrative judg e also

found that the appellant failed to prove that the agency committed harmful error

by not conducting a pre-disciplinary interview. ID at 8-9. Additionally, the

administrative judge found that, although the audio recordings of the incident

appeared to be in violation of New Jersey law, there was no evidence that the

agency officials involved in the removal action caused or encouraged the secret

taping. ID at 10. Regarding the appellant’s due process claim concerning the ex

parte communication, however, the administrative judge found that the agency

violated the appellant’s due process rights, and, accordingly, she reversed the

removal action. ID at 7-8, 11.

¶4 The agency has filed a petition for review of the initial decision arguing that

the administrative judge erred in finding that it engaged in improper ex parte

communications resulting in a due process violation. Petition for Review (PFR)

File, Tab 1 at 12-26. Specifically, the agency argues that the evidence establishes

that the deciding official did not recall seeing the Action Request Form and did

not consider it, and, in any event, the information contained therein was

cumulative of other information properly provided to the appellant. Id. at 14, 16,

18-22. The appellant has filed a response to the agency’s petition for review, to

which the agency has replied. PFR File, Tabs 3-4. The appellant has also filed a

cross petition for review arguing that the administrative judge erred in her

findings regarding the agency’s reliance on the improper audio recording of the

underlying incident. PFR File, Tab 5. The agency has responded to the

appellant’s cross petition for review. 2 PFR File, Tab 6.

DISCUSSION OF ARGUMENTS ON REVIEW

We discern no reason to disturb the administrative judge’s findin g that the agency

violated the appellant’s due process rights, and we deny the agency’s petition for

review.

¶5 As briefly set forth above, the appellant argued below that the proposing

official provided the deciding official with an Action Request Form —a form

apparently used by the agency’s human resources department to initiate

disciplinary proceedings—prior to the issuance of the removal notice, but that the

form was not similarly provided to the appellant prior to her removal. IAF,

Tab 24 at 5-6. In the form, the proposing official explained that the appellant

“has shown prior angry outbursts in the presence of her employees as noted by

their statements,” and that the appellant “should not be allowed back in the

workforce as she is a danger to [her]self or others and has exhibited workplace

violence placing her employees in a volatile and dangerous environment for

Neither party has challenged the administrative judge’s findings that the deciding

official did not conclude that the appellant violated a workplace policy with which she

was not charged and that the appellant failed to prove that the agency committed

harmful error by not conducting a pre-disciplinary interview of the appellant. PFR File,

Tabs 1, 5. We have reviewed the record, and we discern no reason to disturb the

administrative judge’s findings.

which there is zero tolerance.” IAF, Tab 24 at 31-34. The appellant argued

below that this information was newly introduced via an ex parte communication

and that she was not given an opportunity to respond to it . IAF, Tab 47 at 8-10.

¶6 It is well settled that an employee’s due process right to notice extends to

ex parte information provided to a deciding official if the information not

previously disclosed to the appellant introduces new and material information. 3

See Ward v. U.S. Postal Service, 634 F.3d 1274, 1279-80 (Fed. Cir. 2011); Stone

v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376-77 (Fed. Cir.

1999); Singh v. U.S. Postal Service, 2022 MSPB 15, ¶ 23. In deciding whether

new and material information has been introduced by means of ex parte

communications, the Board should consider the facts and circumstances of each

particular case. Stone, 179 F.3d at 1377. Among the factors that will be useful

for the Board to weigh are: (1) whether the ex parte communication merely

introduces cumulative information or new information; (2) whether the employee

knew of the error and had a chance to respond to it; and (3) whether the ex parte

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

deciding official to rule in a particular manner. Id.; Singh, 2022 MSPB 15, ¶ 24.

¶7 In the initial decision, the administrative judge considered the deciding

official’s statements that he did not “recall” the Action Request Form and that he

did not consider it in making his decision to sustain the charge or uphold the

proposed penalty of removal. ID at 6-7; IAF, Tab 34 at 10-11. Nonetheless, she

found that such statements did not conflict with record evidence establishing that

the deciding official received the form. ID at 7. She further found that the

The U.S. Court of Appeals for the Federal Circuit’s reasoning rests on the decision of

the U.S. Supreme Court in Cleveland Board of Education v. Loudermill, 470 U.S. 532,

538-39, 546-48 (1985), which held that a tenured public employee has a constitutionally

protected property interest in ongoing public employment and that an agency may not

deprive such an employee of his property interest without providing him with due

process of law, including the right to advance notice of the charges against him, an

explanation of the agency’s evidence, and an opportunity to respond.

form’s suggestion that the appellant is “a repeat, violent offender was a

significant departure from the rest of the evidence relied upon.” ID at 7 -8. After

also finding that the Action Request Form was of a type that affected the deciding

official’s decision to remove the appellant and that the deciding official’s

“conclusion that the appellant was dangerous” was based on the form, the

administrative judge concluded that the ex parte communication deprived the

appellant of due process. Id.

¶8 On review, the agency does not dispute that the deciding official received

the Action Request Form and that it pertains to the alleged misconduct. PFR File,

Tab 1 at 12. However, as briefly explained above, the agency challenges the

administrative judge’s finding that the Action Request Form was not cumulative,

and that the deciding official considered the form. Id. at 14, 16, 18-22.

¶9 Regarding the question of whether the Action Request Form contains

information that is merely cumulative, the agency argues that statements from the

appellant’s subordinates who witnessed the appellant’s alleged misconduct were

also provided to the deciding official and similarly suggest that the appellant’s

general workplace behavior created an ongoing hostile work environ ment. 4

Although the agency is correct that the subordinates’ statements regarding the

appellant’s workplace conduct show that the appellant was difficult to work with,

the comments contained in those statements do not rise to the level of the

information contained in the Action Request Form suggesting that she was an

ongoing, violent threat. IAF, Tab 6 at 25-28. Specifically, one of the coworker’s

statements explains that the appellant’s “attitude is completely unpredictable” at

any moment due to her “mood changes,” and that it makes for a “very [awkward]

and hostile environment to work in.” Id. at 28. The second coworker explains

that the incident in question “isn’t the first time I’ve seen or heard [the appellant]

There is no dispute that these statements were also provided to the appellant prior to

her removal.

upset,” and that the work environment gives her “anxiety and stress.” Id. at 26.

In contrast, as set forth above, the Action Request Form suggests that that the

appellant has a pattern of engaging in workplace violence and is generally a

danger to herself and others. IAF, Tab 24 at 31-34. In other words, the general

tone of the appellant’s subordinates’ statements suggests that the appellant was

difficult to work with because of an unpredictable attitude or mood, whereas the

Action Request Form suggests that she is difficult to work with b ecause she is

regularly violent and poses a violent threat to those in the workplace with her.

Although both can reasonably be considered difficult environments in which to

work, they are, nonetheless, different in nature and in degree. Accordingly, we

discern no error in the administrative judge’s finding that the Action Request

Form represented a “significant departure” from other evidence in the record, and

thus, that the form contained new and material information. See Mathis v.

Department of State, 122 M.S.P.R. 507, ¶ 11 (2015), (explaining that information

may be considered new and material if it constitutes a significant depar ture from

evidence already in the record). The agency’s arguments on review to the

contrary do not persuade us otherwise.

¶10 As noted, the agency also argues on review that there is no evidence that the

deciding official considered the Action Request Form in deciding to sustain the

charge and uphold the penalty of removal and that the administrative judge erred

in finding otherwise. PFR File, Tab 1 at 16, 18-22. The agency again points to

the deciding official’s declaration, wherein he stated that he did “not recall” the

form, and that he “did not consider it in making [ his] decision” to remove the

appellant. IAF, Tab 34 at 10-11. Like the administrative judge, we acknowledge

the deciding official’s statements. However, the record also contains statements

from the deciding official that he considered all the information that was sent to

him prior to making his decision. IAF, Tab 27 at 25. Additionally, he stated in

the decision notice that he “based [his] decision solely on the evidence of record

to which [he has] given full consideration.” IAF, Tab 6 at 7. Thus, th e record

contains conflicting statements from the deciding official on this material point.

Given that the agency does not dispute that the deciding official received the form

and the deciding official’s own statement that he considered all the record

evidence and information provided to him, we find his assertion that he did not

consider the form to be internally inconsistent with other prior statements

included in the record and otherwise implausible. See Hillen v. Department of the

Army, 35 M.S.P.R. 453, 458 (1987); Borninkhof v. Department of Justice,

5 M.S.P.R. 77, 87 (1981). As such, the agency’s arguments on review do not

provide a basis to disturb the initial decision.

¶11 Based on the foregoing, we agree with the administrative judge’s

conclusion that the Action Request Form introduced new and material

information regarding the appellant’s workplace behavior that was not merely

cumulative, that the appellant did not have a chance to respond to the information

contained in the form, and that the information was of the type likely to result in

undue pressure upon the deciding official. See Stone, 179 F.3d at 1377; Singh,

2022 MSPB 15, ¶ 24. As such, we agree with the administrative judge that the

agency violated the appellant’s due process rights, and that such a finding

requires reversal of the appellant’s removal. ID at 6-8. The appellant is entitled

to a new constitutionally correct removal procedure. See Amar v. Department of

the Treasury, 89 M.S.P.R. 505, ¶¶ 11-25 (2001). The agency’s petition for

review is denied.

We decline to consider the appellant’s arguments regarding the agency’s use of

the audio recordings, vacate the administrative judge’s findings in that regard,

and deny the appellant’s cross petition for review.

¶12 As briefly set forth above, the appellant has filed a cross petition for review

challenging the administrative judge’s findings regarding the agency’s use of the

audio recordings of the alleged incident that gave rise to the appellant’s removal.

PFR File, Tab 5 at 5-14. By way of brief background, it appears that at least one

of the appellant’s subordinates recorded audio of the appellant’s conduct during

the incident that formed the basis of the appellant’s removal. IAF, Tab 29 at 17,

38. The appellant asserted below that the recordings violate New Jersey law.

IAF, Tab 24 at 15-16. Additionally, it is undisputed that the agency relied, in

part, on these recordings when it proposed her removal. IAF, Tab 37 at 5, 10. As

briefly set forth above, in the initial decision, the administrative judge concluded

that it was “clear that the employees’ violated New Jersey law ” in making the

recordings, and that the recordings “constituted misconduct by those employees.”

ID at 10. However, the administrative judge observed that the appellant failed to

proffer arguments that the agency’s use of the recordings under the circumstances

similarly violated the law. Id. Ultimately, the administrative judge found that

there was no evidence that the agency “caused or encouraged the secret taping.”

Id. As such, she rejected the appellant’s affirmative defense. On review, the

appellant reiterates the argument that the recordings violated the law and internal

agency regulations. PFR File, Tab 5 at 8.

¶13 We decline to consider the appellant’s argument here. Because we agree

with the administrative judge that the agency violated the appellant’s due process

rights, the removal decision is a nullity. See Sullivan v. Department of the Navy,

720 F.2d 1266, 1274 (Fed. Cir. 1983) (explaining that an improper ex parte

communication that rises to the level of a due process violation voids the entire

proceeding and renders the adverse action a nullity); Blake v. Department of

Justice, 81 M.S.P.R. 394, ¶ 35 (1999) (same). Because the removal action is

void, we need not address the appellant’s argument regarding the agency’s use of

the audio recordings. See 5 U.S.C. § 1201(h) (prohibiting the Board from issuing

advisory opinions); Solis v. Department of Justice, 117 M.S.P.R. 458, ¶ 10 (2012)

(declining to consider an appellant’s arguments unrelated to a due process claim

when the Board disposes of an appeal by finding a due process violation).

Accordingly, we deny the appellant’s cross petition for review. For these same

reasons, we vacate the administrative judge’s findings regarding the agency’s use

of the audio recordings.

ORDER

¶14 We ORDER the agency to cancel the removal and to retroactively restore

the appellant effective April 23, 2021. 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.

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

pay, interest on back pay, and other benefits under the Back Pay Act and/or Postal

Service regulations, as appropriate, 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.

¶16 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).

¶17 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).

¶18 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.

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

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.

this final decision, you should immediately review th e 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).

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

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 secur ity. 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

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

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.

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