UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DWIGHT V. LUNDY, DOCKET NUMBER
Appellant, DA-0752-13-4522-I-1
v.
DEPARTMENT OF HOMELAND DATE: February 19, 2015
SECURITY,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Robert Autrey, Washington, D.C., for the appellant.
Olamide Famuyiwa, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The agency has filed a petition for review of the initial decision, which
mitigated the appellant’s removal to a 45-day suspension. For the reasons
discussed below, we DENY the petition for review, VACATE the initial decision,
and ORDER the agency to cancel the appellant’s removal.
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
¶2 The appellant worked as a Materials Handler Leader for the agency’s
Federal Emergency Management Agency (FEMA) at a distribution center in Fort
Worth, Texas. Initial Appeal File (IAF), Tab 17 at 109. In May 2010, the
agency’s Office of Inspector General (OIG) began an investigation into
allegations that another employee was stealing items from the distribution center
for his personal use. Id. at 78. During the investigation, the employee informed
the OIG that the appellant gave him permission to take items home from the
distribution center for personal use including large plastic bags filled with rolls of
toilet paper. Id. The OIG interviewed the appellant who provided a written
sworn statement admitting to removing items. Id. at 28-29, 31-34. The appellant
allowed a search of his residence and the OIG discovered evidence, including
tissue, soap, hand sanitizer, toilet paper and paper towels. Id. at 30, 35. The OIG
completed its investigation in 2011, and provided its findings to FEMA. Id.
at 83.
¶3 Also in 2010, an anonymous note was left under a door of the information
technology server room alleging that two employees of the center, including the
appellant, were accessing explicit web sites from their work computers. Id.
at 18-19. The agency conducted an investigation into this allegation during 2010
and 2011. Id. at 6-16.
¶4 In March 2012, the agency placed the appellant on administrative leave.
IAF, Tab 16 at 107. On April 1, 2013, the agency proposed to remove the
appellant based on three charges: (1) unauthorized removal of government
property—ten specifications; (2) unauthorized possession of government
property—nine specifications; and (3) misuse of government computer—two
specifications. IAF, Tab 16 at 109-11. Accompanying the notice of proposed
removal was the proposing official’s Douglas factors worksheet which identified
three aggravating factors for penalty consideration: the nature and seriousness of
the offense, the effect of the offense on the supervisor’s confidence in the
appellant’s ability to perform assigned duties, and whether the appellant was on
3
notice of the rules that were violated. Id. at 115-18. The appellant’s union
submitted a written reply on his behalf. Id. at 34-105. The deciding official
sustained seven specifications for charge one, five specifications for charge two,
and both specifications for charge three. Id. at 23. He reviewed the Douglas
factors in an accompanying worksheet and identified seven of them to be
aggravating factors in his decision. Id. at 23, 27-31. He directed the appellant’s
removal effective August 8, 2013, and advised him of his Board appeal rights. Id.
at 23-24.
¶5 The appellant initiated a Board appeal challenging his removal. IAF, Tab 1
at 4. The administrative judge conducted a hearing and issued an initial decision
that mitigated the appellant’s removal to a 45-day suspension. IAF, Tab 24,
Initial Decision (ID) at 1. The administrative judge found the agency proved the
seven specifications of unauthorized removal of government property and the five
specifications of unauthorized possession of government property. ID at 6-7.
She found the agency proved the appellant authorized a coworker to remove
plastic bags filled with 25 rolls of toilet paper on four occasions, and that the
appellant removed similar bags filled with toilet paper on three occasions. ID
at 4. The administrative judge also found that the appellant possessed in his
home 83 hand sanitizer bottles, 68 soap bars, and 54 toilet paper rolls that
belonged to FEMA. ID at 6-7. She also found that the agency proved one
specification of misuse of a government computer. ID at 8, 10. The
administrative judge found the appellant failed to prove his due process claim
because he did not produce any evidence that either the proposing or deciding
official in the decision-making process considered or relied upon the anonymous
note (a copy of which the appellant claimed he was not provided with), referenced
in the proposal letter. ID at 10. In reviewing the agency’s penalty determination,
the administrative judge found that the deciding official did not give serious
consideration to a lesser penalty than removal, the appellant’s rehabilitative
potential, or the fact that the appellant’s prior supervisor had approved removing
4
and possessing government property. ID at 12-13. The administrative judge
noted that the record did not support the agency’s argument that the appellant
could not continue to provide efficient service to the government, and so the
penalty of removal exceeded the tolerable limits of reasonableness. ID at 13.
¶6 The agency has filed a timely petition for review of the initial decision,
arguing that the Board should defer to its determination that removal was the
appropriate penalty. Petition for Review (PFR) File, Tab 1. The appellant has
filed an untimely document that he states is a cross petition for review, however,
he alleges no error and argues that the initial decision should be sustained. PFR
File, Tab 3 at 1, 3, 7. Because the appellant has not alleged any error in the
initial decision, we construe his untimely submission as a response to the
agency’s petition for review and not a cross petition for review under the Board’s
regulations. See 5 C.F.R. § 1201.114(a). Because we find that the deciding
official considered aggravating factors not listed in the proposal notice, we do not
reach the parties’ arguments on petition for review. Instead, we reverse the
appellant’s removal on due process grounds.
¶7 When an agency intends to rely on aggravating factors as the basis for the
imposition of a penalty, such factors should be included in the advance notice of
adverse action so that the employee will have a fair opportunity to respond to
those factors before the agency’s deciding official. Lopes v. Department of the
Navy, 116 M.S.P.R. 470, ¶ 5 (2011). When a deciding official relies on
information, which the appellant is not on notice may be considered, the
information is referred to as an ex parte communication. See Stone v. Federal
Deposit Insurance Corporation, 179 F.3d 1368, 1376-77 (Fed. Cir. 1999)
(discussing when ex parte concerns arise in connection with an adverse action);
see also Black’s Law Dictionary 316 (9th ed. 2009) (defining an ex parte
communication as one “between counsel and the court when opposing counsel is
not present,” and noting that “such communications are ordinarily prohibited”).
Our reviewing court has explained that, if an employee has not been given notice
5
of aggravating factors contributing to an enhanced penalty, the ex parte
communication with the deciding official may constitute a constitutional due
process violation because it potentially deprives the employee of notice of all the
evidence being used against him and the opportunity to respond to it. Ward v.
U.S. Postal Service, 634 F.3d 1274, 1280 (2011). However, “[o]nly ex parte
communications that introduce new and material information to the deciding
official” constitute due process violations. Stone, 179 F.3d at 1377. The
“ultimate inquiry” is whether the ex parte communication is “so substantial and
so likely to cause prejudice that no employee can fairly be required to be
subjected to a deprivation of property under such circumstances.” Ward,
634 F.3d at 1279.
¶8 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 information 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. Bennett v. Department of Justice, 119 M.S.P.R. 685, ¶ 8 (2013). A due
process violation is not subject to the harmless error test; instead, the employee is
automatically entitled to a new, constitutionally-correct removal proceeding.
Ward, 634 F.3d at 1279. The Board has determined that this analysis applies not
only to ex parte communications introducing information that was previously
unknown to the deciding official, but also to information personally known and
considered by the deciding official, if that information was not included in the
notice of proposed removal to the appellant. Wilson v. Department of Homeland
Security, 120 M.S.P.R. 686, ¶ 9 (2014).
¶9 The deciding official stated in his decision letter that he considered the
Douglas factors indicated on the worksheet attached to his letter. IAF, Tab 16
at 23. On the attached worksheet, the deciding official indicated the three
6
aggravating factors considered by the proposing official, and added an additional
four factors as aggravating. IAF, Tab 16 at 27-31, 115-18; see PFR File, Tab 3
at 31 (table comparing Douglas factors between deciding and proposing officials).
Those factors were: the employee’s job level and type of employment, the
notoriety of the offense or its impact on the agency’s reputation, the potential for
the employee’s rehabilitation, and the adequacy and effectiveness of alternative
sanctions to deter such conduct in the future. IAF, Tab 16 at 28-31. Regarding
the appellant’s job level, the deciding official explained that the appellant was to
set an example for new hires at the agency’s biggest distribution center. Id. at 28.
For the notoriety factor, the deciding official explained that if the misconduct
were to become public, it would damage the agency’s reputation and potentially
result in a loss of trust and confidence in the agency. Id. at 30. However, the
record does not indicate that the appellant’s conduct garnered any public
attention. For the rehabilitation factor, the deciding official determined that there
were repeated incidents of the same offenses, suggesting that the appellant could
not be rehabilitated. Id. Similarly for the alternative sanctions factor, the
deciding official also considered the repeated incidents, along with the
seriousness of the conduct, and the potential impact on the agency. Id. at 31.
¶10 Here, the Douglas factor analysis introduced new information because the
deciding official considered additional factors to be aggravating. The notice of
proposed removal contained none of the information detailed by the deciding
official regarding the four additional aggravating factors. Id. at 109-18. The
proposing official’s Douglas factors worksheet reflects each of the four factors as
being either neutral or not applicable. Id. 115-18. The proposing official also
noted that the appellant had the potential to be rehabilitated, contrary to the
conclusion of the deciding official. Id. at 117. There is no evidence in the record
to suggest that the deciding official shared any of the information regarding the
additional aggravating factors with the appellant prior to his issuance of the
7
decision letter. 2 Therefore, we find that the deciding official’s consideration of
four additional Douglas factors was new information not included in the agency’s
proposal notice.
¶11 To find a violation of the appellant’s due process rights, not only must the
ex parte communication considered by the deciding official be new, but the
communication also must be material. See Ward, 634 F.3d at 1279. An ex parte
communication is material when it influences the deciding official’s penalty
determination. Seeler v. Department of the Interior, 118 M.S.P.R. 192, ¶ 9
(2012). The deciding official stated in his decision letter that he took into
consideration all of the Douglas factors and referenced his worksheet. IAF,
Tab 16 at 23. Further, his testimony reflected consideration of the new factors as
part of the penalty determination. Hearing Transcript at 134-41. Although the
deciding official did not explicitly state that he was influenced by the additional
aggravating factors, we find that his specific identification of them in the decision
letter shows that the determination was material to his decision in this case. See
Silberman v. Department of Labor, 116 M.S.P.R. 501, ¶ 12 (2011) (specific
identification of supervisory memoranda of unprofessional conduct as factors in
the agency’s suspension decision showed that they were material to the case).
¶12 As to the second Stone factor, there is no evidence in the record that the
appellant knew of the deciding official’s consideration of additional Douglas
factors. The appellant did not present an oral reply and presented only a written
reply to the deciding official. IAF, Tab 16 at 23, 37-105. We find no evidence
that the appellant had the opportunity to respond to the additional aggravating
factors.
2
For example, the appellant did not file a grievance regard ing h is removal, wh ich might
have led to the sharing of this information. IAF, Tab 1 at 5; see Henton v. U.S. Postal
Service, 102 M.S.P.R. 572, ¶¶ 11-13 (2006) (find ing the requirements of due process
met notwithstanding the absence of a proposal notice where the appellant had notice
and an opportunity to respond in the grievance process).
8
¶13 In Ward, our reviewing court clarified that the third Stone factor of undue
pressure is only one of several enumerated factors and is not the ultimate inquiry
in the Stone analysis. See Ward, 634 F.3d at 1280 n.2. The court added that,
although ex parte communications of this type may “make it more likely that an
appellant was deprived of due process,” the lack of undue pressure may be less
relevant to finding a constitutional violation where the deciding official “admits
that the ex parte communication influenced his penalty determination.” Id. Here,
we find that the additional aggravating factors in the decision letter’s Douglas
factors worksheet, along with the manner in which the information was used in
the penalty determination, establishes that the appellant’s right to due process
was violated by the deciding official’s ex parte communication, and that the third
factor is thus less relevant. Therefore, we conclude that the agency may not
remove the appellant unless and until he is afforded a new constitutionally-correct
removal procedure. See Lopes, 116 M.S.P.R. 470, ¶ 13. Accordingly, we
VACATE the initial decision and do not sustain the removal action.
ORDER
¶14 We ORDER the agency to cancel the removal action dated August 8, 2013.
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,
9
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
took 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 out 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
10
WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. You
must file your attorney fees motion with the office that issued the initial decision
on your appeal.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request the United States Court of Appeals for the
Federal Circuit to review this final decision. You must submit your request to the
court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
11
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
DFAS CHECKLIST
INFORMATION REQUIRED BY DFAS IN
ORDER TO PROCESS PAYMENTS AGREED
UPON IN SETTLEMENT CASES OR AS
ORDERED BY THE MERIT SYSTEMS
PROTECTION BOARD
AS CHECKLIST: INFORMATION REQUIRED B Y IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT
CASES
CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL
OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:
1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
and POC to send.
2. Statement that employee was counseled concerning Health Benefits and TSP and the
election forms if necessary.
3. Statement concerning entitlement to overtime, night differential, shift premium,
Sunday Premium, etc, with number of hours and dates for each entitlement.
4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
System), a statement certifying any lump sum payment with number of hours and
amount paid and/or any severance pay that was paid with dollar amount.
5. Statement if interest is payable with beginning date of accrual.
6. Corrected Time and Attendance if applicable.
ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:
1. Copy of Settlement Agreement and/or the MSPB Order.
2. Corrected or cancelled SF 50's.
3. Election forms for Health Benefits and/or TSP if app licable.
4. Statement certified to be accurate by the employee which includes:
a. Outside earnings with copies of W2's or statement from employer.
b. Statement that employee was ready, willing and able to work durin g the period.
c. Statement of erroneous payments employee received such as; lump sum leave, severance
pay, VERA/VSIP, retirement annuity payments (if applicab le) and if employee withdrew
Retirement Funds.
5. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise
information describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
a. Employee name and social security number.
b. Detailed explanation of request.
c. Valid agency accounting.
d. Authorized signature (Table 63)
e. If interest is to be included.
f. Check mailing address.
g. Indicate if case is prior to conversion. Computations must be attached.
h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to
be collected. (if applicable)
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement. (if applicable)
2. Copies of SF-50's (Personnel Actions) or list of salary adjustments/changes and
amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
a. Must provide same data as in 2, a-g above.
b. Prior to conversion computation must be provided.
c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.