The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LAWRENCE MCDONALD, DOCKET NUMBER
Appellant, DC-0752-17-0619-I-1
v.
DEPARTMENT OF DEFENSE, DATE: December 14, 2023
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Kevin Curtis Crayon Jr. , Esquire, Kennesaw, Georgia, for the appellant.
David R. Daniels , Esquire, and Kelly Wilkinson , Alexandria, Virginia, for
the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND 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.
For the reasons discussed below, we GRANT the petition for review, VACATE
the administrative judge’s finding that the agency failed to afford the appellant
due process, AFFIRM her finding that the appellant failed to prove discrimination
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
or retaliation for prior equal employment opportunity (EEO) activity, DENY the
cross petition for review, and REMAND the case to the Washington Regional
Office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The agency proposed to remove the appellant from his GS-12 Program
Support Specialist position based on three charges: (1) insubordination;
(2) failure to request leave in accordance with established procedures; and
(3) failure to carry out assigned duties. Initial Appeal File (IAF), Tab 1 at 15-16.
In selecting the removal penalty, the proposal relied on the appellant’s prior
misconduct, a 14-day suspension. Id. at 16. The appellant responded to the
proposal, and the deciding official sustained the removal action, finding that the
appellant engaged in the charged misconduct and that the removal penalty was
reasonable. Id. at 10-14.
¶3 The appellant filed an EEO complaint alleging discrimination and reprisal
for prior EEO activity. IAF, Tab 11. The agency issued a final agency decision
finding no discrimination or retaliation, id. at 6-22, and the appellant filed a
timely Board appeal, IAF, Tab 1. He requested a hearing, id. at 2, that was held
on December 5, 2017, IAF, Tab 36.
¶4 The administrative judge issued an initial decision reversing the removal
action. IAF, Tab 38, Initial Decision (ID). Specifically, she found that the
agency violated the appellant’s due process rights when, in considering the
Douglas factors, 2 the deciding official considered that there was an “environment
of fear” linked to the appellant’s presence and that his colleagues were allegedly
afraid of him. ID at 4-12. The administrative judge considered the deciding
official’s testimony that statements from the appellant’s coworkers showed that
2
In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981), the Board set
forth a list of factors appropriate for consideration in determining the appropriate
penalty with respect to an adverse action taken under 5 U.S.C. chapter 75. These
factors are often referred to as the Douglas factors.
3
they were fearful of him. ID at 8. However, the administrative judge found that
the record does not reflect that any such statements were part of the evidence
package that the deciding official received and reviewed. ID at 8. The
administrative judge also found that the notice of proposed removal and the
decision letter did not put the appellant on notice that the agency intended to rely
upon the fearfulness of his colleagues as an aggravating factor in his removal
action. ID at 10. Therefore, she determined that the deciding official relied on ex
parte evidence that was not cumulative to sustain the removal. ID at 11. She also
found that the ex parte information was material, and, accordingly, she reversed
the agency’s action.
¶5 In light of the reversal of the agency’s action on the basis of a due process
violation, the administrative judge found that she need not reach the merits of the
appeal or determine whether the appellant proved his additional claims alleging
violations of due process. ID at 12. Nevertheless, she found that the appellant’s
allegations of discrimination and reprisal must be adjudicated. ID at 12-13. She
found that the appellant failed to prove discrimination or reprisal for EEO
activity. ID at 13-21.
¶6 In its petition for review, the agency contends that the administrative judge
erred in finding that the deciding official relied on ex parte evidence. It argues
that the appellant’s coworkers’ statements that the deciding official relied upon
were made available to the appellant and were entered into the record of the
appeal. Petition for Review (PFR) File, Tab 1 at 5. 3
¶7 The appellant has responded in opposition to the agency’s petition and filed
a cross petition for review. PFR File, Tab 3. In his cross petition, the appellant
contends that the administrative judge erred in finding that he failed to show that
the removal action was taken in reprisal for his EEO activity. Id. at 6. The
3
In the initial decision, the administrative judge ordered interim relief. Attached to the
agency’s petition for review is a certificate that it has complied with the administrative
judge’s interim relief order. PFR File, Tab 1 at 6, 8.
4
agency has responded in opposition to the appellant’s cross petition. PFR File,
Tab 5.
ANALYSIS
The agency’s petition for review is persuasive.
¶8 Our reviewing court has held that a deciding official violates an employee’s
due process rights when he or she relies upon new and material ex parte
information as a basis for a decision on the merits of a proposed charge or the
penalty to be imposed. 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). Furthermore, the Board has held that an
employee’s due process right to notice extends to both ex parte information
provided to a deciding official and information known personally to the deciding
official if the information was considered in reaching the decision and not
previously disclosed to the appellant. Solis v. Department of Justice,
117 M.S.P.R. 458, ¶ 7 (2012). In Stone, the U.S. Court of Appeals for the Federal
Circuit identified the following factors to be used to determine if ex parte
information is new and material: (1) whether the ex parte information introduced
cumulative, as opposed to new, information; (2) whether the employee knew of
the information and had an opportunity to respond; and (3) whether the
communication was of the type likely to result in undue pressure on the deciding
official to rule in a particular manner. Stone, 179 F.3d at 1377.
¶9 Here, the administrative judge determined that the deciding official relied
on new and material ex parte information in determining the penalty—
specifically, that there was an “environment of fear” linked to the appellant’s
presence. The deciding official testified that she considered statements from the
appellant’s coworkers indicating that they were fearful of him and that these
statements were included in the evidentiary package in the removal action
submitted to her and made available to the appellant. However, the
5
administrative judge found that, apart from an unsworn statement written by a
colleague of the appellant, no such statements were in the record. ID at 8. In
addition, the administrative judge found that neither the agency nor the appellant
indicated that this unsworn statement was part of the evidence package
concerning the proposed removal. Id.
¶10 We agree with the agency’s contention in its petition for review that the
administrative judge’s finding that no such statements existed in the record
constituted factual error. The agency submitted below statements made by
coworkers of the appellant stating that they were fearful of him. IAF, Tab 7 at 3,
6-8. These statements are reflected in the deciding official’s testimony regarding
her specific rationale for upholding the removal penalty. Hearing Transcript (HT)
at 15, 21. She testified that she considered the impact the appellant had on his
coworkers and the fact they were fearful of him. Id. She further stated that there
was an “environment of fear” when the appellant was present and explained that
some employees were afraid to ride the elevator with him. HT at 15. Consistent
with the deciding official’s testimony, each statement indicates that an element of
fear existed in the work area where the appellant was assigned. One employee
stated, apparently referencing the appellant, that “[n]o employee or supervisor
should have to work in that type of environment of being fearful of what that
employee might do.” IAF, Tab 7 at 6. Another stated that “[k]nowing that [the
appellant] was in the building made me very uncomfortable, as we left out of
office we heard the elevator door opened, immediately we ran down the steps.”
Id. at 7. Yet another of the appellant’s coworkers stated that the appellant’s
presence caused him anxiety, and he requested leave for the remainder of the day
when he learned that, although the appellant was supposed to be on leave, he had
come to the workplace. Id. at 8.
¶11 Thus, the administrative judge erred in determining that the record did not
contain coworker statements which could have been part of the evidence package
that the deciding official reviewed. We therefore vacate the administrative
6
judge’s findings that the agency violated the appellant’s due process rights by
considering information regarding the potential impact of the appellant’s
continued presence in the office. However, the Board cannot make a
determination on this due process issue absent further development of the record.
First, the administrative judge did not determine the credibility of the deciding
official’s testimony that the employee statements were part of the package that
she reviewed. Second, the record does not show whether these statements were
made available for the appellant’s review. 4
¶12 In sum, absent findings regarding whether the coworker statements were
part of the package that the deciding official used to decide the proposed action
and whether they were available to the appellant to review, the Board cannot
determine whether the deciding official violated the appellant’s due process rights
by considering information regarding the potential impact of the appellant’s
continued presence in the office. See Ward, 634 F.3d at 1279-80; Stone, 179 F.3d
at 1376-77. Accordingly, we remand the appeal for further development of the
record and adjudication on this issue. If the administrative judge determines that
the deciding official properly considered this information, she shall adjudicate the
merits of the removal action and determine whether the appellant proved his
additional claims alleging violations of due process.
The appellant’s assertions on cross petition for review are unavailing.
¶13 After the initial decision was issued, the Board clarified its analytical
framework for age and Title VII discrimination claims in Pridgen v. Office of
Management and Budget, 2022 MSPB 31, ¶¶ 20-25, and we apply that framework
4
We note that the notice of proposed removal informed the appellant that the package
that the deciding official would rely on was available for his review. See Pumphrey v.
Department of Defense, 122 M.S.P.R. 186, ¶ 7 (2015) (determining that the appellant
received a pre-decisional opportunity to respond to the proposed furlough action when,
among other things, the proposal notice stated that supporting materials could be found
on the agency website or in designated areas). However, the record does not show
whether the agency provided him with a reasonable opportunity to review these
statements.
7
here. The appellant previously filed EEO complaints opposing discrimination
based on race, sex, and age. IAF, Tab 26 at 48-49. To establish a claim of
discrimination based on race, sex, and age, an appellant must prove by
preponderant evidence that his membership in a protected class was a motivating
factor in the contested personnel action, even if it was not the only reason.
Pridgen, 2022 MSPB 31, ¶¶ 23-25. Claims of retaliation for opposing
discrimination in violation of Title VII and the Age Discrimination in
Employment Act are analyzed under the same framework used for Title VII
discrimination claims. Desjardin v. U.S. Postal Service, 2023 MSPB 6, ¶ 32;
Pridgen, 2022 MSPB 31, ¶ 30.
¶14 The administrative judge found that the appellant failed to show that his
prior EEO activity was a motivating factor in the agency’s removal. ID at 21. In
his cross petition for review, the appellant appears to argue that an email sent by
his second-level supervisor to the deciding official—in which she expressed her
concern regarding the absence of a “workplace violence/safety threat analysis”
which would focus on “the potential threat posed by [the appellant]”—was sent in
retaliation for his EEO activity. IAF, Tab 31 at 20; PFR File, Tab 3 at 6. The
administrative judge did not address this assertion in the initial decision, but the
appellant’s counsel apparently raised such a claim, at least inferentially, during
the hearing. HT at 107-09 (questions by the appellant’s counsel). The
second-level supervisor sent the email on April 28, 2015, prior to the incidents of
June 2016 that gave rise to the charges that resulted in the appellant’s removal.
IAF, Tab 1. However, there is no evidence that the appellant’s EEO activity was
a motivating factor in the agency’s removal decision. The deciding official
testified that such activity was not a factor in the removal action. HT at 30
(testimony of the deciding official). Thus, the appellant failed to show that the
email constituted a retaliatory motivating factor in his removal. Because we find
that the appellant failed to show that discrimination or retaliation was a
8
motivating factor in the removal action, we need not reach the question of
whether it was a “but-for” cause. See Pridgen, 2022 MSPB 31.
¶15 The appellant asserts that he established that the proposing official had
animus toward his EEO activity by showing that his supervisors gave
contradictory testimony about whether they allowed him time and access to work
on matters relating to his EEO complaint. PFR File, Tab 3 at 7-8. This is another
argument that the administrative judge did not address explicitly. It seems,
however, that the appellant’s counsel at least inferentially raised the argument
during the hearing. HT at 179-83 (questions by appellant’s counsel). The
proposing official’s testimony shows that he denied the appellant time to work on
his EEO complaint while he was serving his 14-day suspension. HT at 179-80
(testimony of the proposing official). However, subsequently, the proposing
official allowed the appellant time, to be reported in 15-minute intervals, to work
on his EEO complaint when the appellant provided appropriate documentation
that he was working on EEO matters. HT at 180-83. Under these circumstances,
the appellant failed to show that the proposing official’s actions regarding the
appellant’s requests for time to work on his EEO complaint evidenced a
retaliatory motivating factor in the removal action.
¶16 The appellant does not allege error in any other of the administrative
judge’s findings regarding his allegation that the removal action constituted
retaliation for his EEO activity, and we find none. The administrative judge
properly considered the evidence as whole in finding that the appellant failed to
prove his affirmative defense of retaliation for EEO activity. She thoroughly
considered the documentary evidence and the witnesses’ testimony and properly
determined that prohibited retaliation was not a motivating factor in the
appellant’s removal. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 106
(1997) (finding no reason to disturb the administrative judge’s findings when she
considered the evidence as a whole, drew appropriate inferences, and made
reasoned conclusions); Broughton v. Department of Health and Human Services ,
9
33 M.S.P.R. 357, 359 (1987) (same). Thus, the administrative judge properly
found that the appellant failed to meet his burden to show by preponderant
evidence that his prior EEO activity was a motivating factor in the agency’s
decision to remove him. Subsequent changes to our discrimination and retaliation
case law do not, therefore, affect the result in this case.
ORDER
¶17 For the reasons discussed above, we remand this case to the Washington
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.