Opinion

Darren Amos v. Department of the Army

Court: Merit Systems Protection Board
Filed: Feb 2, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.0%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DARREN N. AMOS, DOCKET NUMBER

Appellant, SF-0752-16-0434-I-1

DEPARTMENT OF THE ARMY, DATE: February 2, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Darren N. Amos , Mountain Home, Idaho, pro se.

Randy Choiniere , Rock Island, Illinois, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

petition for review of the initial decision, which mitigated the removal action to a

demotion and found that the appellant failed to prove his affirmative defenses.

For the reasons discussed below, we GRANT the petition for review, DENY the

cross petition for review, REVERSE the initial decision, and DO NOT SUSTAIN

the agency’s removal action.

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

BACKGROUND

¶2 The agency proposed the appellant’s removal from his Supervisory Fire

Protection Specialist position based upon the following charges: (1) receipt of

pay for time not worked; (2) unauthorized use of Government-owned property;

(3) unauthorized possession of Government-owned property; and (4) conduct

unbecoming a Federal supervisor, which was supported initially by two

specifications. Initial Appeal File (IAF), Tab 1 at 13-16. In the first specification

of conduct unbecoming a Federal supervisor, the agency charged that the

appellant engaged in inappropriate discussions with a subordinate employee about

her medical procedure in the presence of other employees, and in the second

specification, the agency charged that the appellant used his Federal position to

solicit discounts on personal purchases. Id. at 13-14. The appellant provided a

written reply to the proposed removal in which he submitted documentation

concerning the subordinate’s medical care, which he had received in his capacity

as her supervisor. IAF, Tab 11 at 137. In response, the proposing official

amended the proposal to add a third specification of conduct unbecoming a

Federal supervisor based upon the appellant’s improper use of the medical

documentation. IAF, Tab 1 at 17-18. The appellant responded orally and in

writing to the amended proposal. IAF, Tab 11 at 177-252.

¶3 The deciding official sustained the first and third charges and specifications

1 and 3 of the fourth charge, found that each of the charges was sufficient by

itself to warrant the penalty of removal, and imposed the appellant’s removal.

IAF, Tab 1 at 19-21. The appellant filed the instant appeal challenging the

removal and asserting multiple affirmative defenses. Id. at 5. After holding the

appellant’s requested hearing, IAF, Tab 61, Hearing Compact Disc (HCD), the

administrative judge issued an initial decision that found the following: the

agency proved only the first charge regarding receiving pay for time not worked

and the third specification of the fourth charge regarding the improper use of the

subordinate employee’s medical documentation; the agency provided the

appellant with due process; the appellant failed to prove harmful procedural error,

that the agency’s actions were not in accordance with law, prohibited personnel

practices under 5 U.S.C. § 2302(b)(12), his disability discrimination claim, and

retaliation for protected whistleblower activity; the agency established nexus; and

that it was necessary to mitigate the removal to a demotion to the position of a

nonsupervisory Firefighter or Fire Inspector with the least reduction in grade and

pay, IAF, Tab 63, Initial Decision (ID).

¶4 The appellant has filed a petition for review, the agency has filed a cross

petition for review, and the appellant has responded. 2 Petition for Review (PFR)

File, Tabs 1, 3, 5.

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 The appellant challenges the administrative judge’s conclusion that the

agency provided him due process because he asserts that the deciding official and

the proposing official engaged in ex parte communications before the agency

made its final decision to remove him. PFR File, Tab 1 at 22 –25. The U.S. Court

of Appeals for the Federal Circuit has held that, if a deciding official receives

new and material information through an ex parte communication, “then a due

process violation has occurred and the former employee is entitled to a new

constitutionally correct removal procedure.” Stone v. Federal Deposit Insurance

Corporation, 179 F.3d 1368, 1377 (Fed. Cir. 1999). Whether the ex parte

communication conveyed new and material information, however, depends on the

following factors: (1) whether the information was new rather than cumulative;

(2) whether the employee knew of the information and had a chance to respond to

it; and (3) whether the information was of a type likely to result in undue pressure

upon the deciding official to rule in a particular manner. Id. The ultimate inquiry

The agency asserts in its cross petition for review that the administrative judge erred

in mitigating the penalty of removal. Petition for Review File, Tab 3 at 5-11. Given

our determination that the appellant has proven a due process violation that warrants

reversal of the removal action, we deny the agency’s cross petition for review.

is whether the 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.” Id.

¶6 The proposing official testified that, after issuing the proposal notice, he

had at least two conversations with the deciding official in which they discussed

that the appellant was becoming a “disruption” in the fire department. HCD

(testimony of the proposing official). He testified that he informed the deciding

official that he received a telephone call from the equal employment opportunity

(EEO) office regarding informal anonymous complaints about the appellant from

employees. Id. He further testified that he told the deciding official that the

employees’ complaints included the fact that the appellant had not been

reassigned during the pendency of the removal action. Id. He also told the

deciding official that he had received some complaints from employees directly.

Id. Additionally, the proposing official testified that he explained to the deciding

official that he tried to find a placement for the appellant during the pendency of

the removal action but could not find one. Id. He further testified that he

recommended to the deciding official that the appellant should not remain in the

fire department under these circumstances. Id.

¶7 The deciding official’s recollection about this portion of their conversations

is less detailed. He recalled having two conversations with the proposing official

during this time period regarding possible alternative positions for the appellant

and the performance of his duties. HCD (testimony of the deciding official). He

did not testify about the discussions regarding the EEO matters or complaints

from employees. Id. However, he was not asked about these matters at the

hearing or during his deposition, and his testimony does not contradict that of the

proposing official. Id.; IAF, Tab 75.

¶8 The administrative judge found that the agency had not committed a due

process violation. ID at 19-20. She found that the information that the proposing

official provided to the deciding official was consistent with and arguably

cumulative of the proposal notice in that the proposing official deemed the

appellant’s misconduct as serious enough to justify removal instead of

reassignment, and thus, he already had conveyed the information contained in the

communications at issue. Id. For the reasons discussed below, we disagree.

¶9 The ex parte communications essentially address the following issues: the

proposing official’s opinion that the appellant should no longer work in the fire

department because of his disruptive nature and the unavailability of suitable

alternative positions for him; and complaints from employees, including

anonymous complaints sent to the EEO office and other complaints made directly

to the proposing official, that the appellant had not been reassigned during the

pendency of the removal action. HCD (testimony of the proposing official and

the deciding official). It is possible that the proposing official’s opinions

regarding potential reassignment are cumulative of the proposal in that it is

implicit in his recommendation to remove the appellant that he did not find the

appellant was suitable for reassignment. However, because we find that the

portion of the communication regarding employee complaints constitutes new and

material evidence, we need not address this issue.

¶10 We find that the portion of the ex parte communications regarding

employees’ anonymous complaints to the EEO office and direct complaints to the

proposing official that the appellant had not been reassigned during the pendency

of the removal action is new because it concerns events that occurred after the

issuance of the proposal notice. We also find that the appellant would have had

no way of knowing about the employees’ specific complaints, particularly

anonymous complaints to the EEO office. There is also no evidence that he had

an opportunity to respond to this new information.

¶11 We further find that this is the type of information likely to result in undue

pressure upon the deciding official to rule in a particular manner. For example,

the information likely influenced the deciding official to conclude that the

appellant would not be able to perform in any position at the agency without

complaints from other employees or that his continued employment could result

in further EEO complaints. See Seeler v. Department of the Interior,

118 M.S.P.R. 192, ¶¶ 9-10 (2012) (finding that an ex parte communication was

material when the deciding official relied upon it to conclude that the employee

lacked integrity and could not to be trusted to perform in another position).

Likewise, that the EEO office, which was not directly involved in the adverse

action and has a mission of preventing workplace discrimination, contacted the

proposing official to inform him of employee complaints, could influence the

deciding official to agree with the proposing official that the appellant was not

suitable for continued employment at the agency. See generally Amar v.

Department of the Treasury, 89 M.S.P.R. 505, ¶ 20 (2001) (stating that a

communication likely resulted in undue pressure on the deciding official because

it was from “a trusted source”).

¶12 The proposing official testified that he provided information to the deciding

official regarding anonymous complaints about the appellant. HCD. The

deciding official did not contradict that testimony. Moreover, the deciding

official testified that he was required to take in all of the information that was

presented during the case from everyone, including the appellant and the

“referring” or proposing official, and make a decision. Id. He further testified

that he considered what was provided to him by the “referring” official and the

“evidence as a whole” and that he compiled “everything provided to me by the

referring official.” Id. Although the record could have been more fully

developed, we find it more likely than not that the deciding official received and

considered the ex parte information regarding the anonymous complaints about

the appellant in making his decision. We further find that the deciding official’s

receipt and consideration of the ex parte communication undermined the

appellant’s constitutional due process guarantee of notice and the opportunity to

respond. 3 See Howard v. Department of the Air Force, 118 M.S.P.R. 106, ¶ 6

(2012) (finding a due process violation when the deciding official considered the

appellant’s poor performance, including his poor audit production, in comparison

to other journeymen and as measured by the agency’s production goal as an

aggravating factor without providing him with notice or an opportunity to respond

to the information); Silberman v. Department of Labor, 116 M.S.P.R. 501, ¶ 14

(2011) (finding a due process violation when the deciding official considered five

memoranda that documented instances of the appellant’s similar prior misconduct

without prior notice). Consequently, we find that the removal must be reversed,

and this matter must be remanded to the agency to afford the appellant

constitutionally correct procedures.

¶13 When the Board reverses an action on due process grounds and orders status

quo ante relief, it must nevertheless adjudicate any outstanding affirmative

defenses for which the appellant could obtain additional relief, such as

compensatory damages. See Edwards v. U.S. Postal Service, 112 M.S.P.R. 196,

¶¶ 15-16 (2009). Here, the appellant could be entitled to compensatory damages

if he proved his claim of disability discrimination. See Hess v. U.S. Postal

Service, 124 M.S.P.R. 40, ¶¶ 9-19 (2016). The appellant also could be entitled to

compensatory damages if he proved his claim of reprisal for protected disclosures

and/or protected activities under 5 U.S.C. § 2302(b)(8) or (b)(9). 5 U.S.C.

§ 1221(g)(1)(A)(ii); see King v. Department of the Air Force, 119 M.S.P.R. 663,

¶ 15 (2013). The administrative judge found that the appellant failed to prove his

The administrative judge found that, even if the information that the proposing official

conveyed to the deciding official constituted new and material evidence to which the

appellant did not have an opportunity to respond, it did not result in a due process

violation because there was insufficient evidence that the deciding official actually

relied upon the statements when imposing the removal. ID at 20. Specifically, she

found that the deciding official did not even remember the contents of the statements at

the time of the hearing and cited his even-tempered personality. Id. The fact that the

ex parte communication did not actually affect the decision is a procedural error

analysis. Mathis v. Department of State, 122 M.S.P.R. 507, ¶ 15 n.3 (2015). However,

because we reverse the appellant’s removal based upon due process, we need not

address this finding.

discrimination and retaliation claims. ID at 28-41. We see no reason to disturb

the administrative judge’s findings as to those claims. 4

ORDER

¶14 We ORDER the agency to cancel the appellant’s removal and to restore the

appellant effective April 8, 2016. 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 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.

¶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

Because we affirm the administrative judge’s finding that the appellant failed to show

that any prohibited consideration was a motivating factor in the agency's action, we

need not resolve the issue of whether discrimination or retaliation was a "but-for" cause

of the agency's decision. See Pridgen v. Office of Management and Budget, 2022 MSPB

31, ¶¶ 20-22, 29-33.

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

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

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.

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).

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 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

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.

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

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