Darrick Rather v. United States Postal Service

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

DARRICK D. RATHER, DOCKET NUMBER
Appellant, AT-0752-22-0222-I-1

UNITED STATES POSTAL SERVICE, DATE: April 26, 2024
Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Albert Lum , Brooklyn, New York, for the appellant.

Maryl R. Rosen , Esquire, St. Louis, Missouri, for the agency.

BEFORE

Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman

FINAL ORDER

The agency has filed a petition for review of the initial decision, which
reversed the agency’s demotion action on due process grounds. Generally, we
grant petitions such as this one only in the following circumstances: the initial
decision contains erroneous findings of material fact; the initial decision is based
on an erroneous interpretation of statute or regulation or the erroneous application
of the law to the facts of the case; the administrative judge’s rulings during either
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

the course of the appeal or the initial decision were not consistent with required
procedures or involved an abuse of discretion, and the resulting error affected the
outcome of the case; or new and material evidence or legal argument is available
that, despite the petitioner’s due diligence, was not available when the record
closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioner has not established any basis under section 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).

BACKGROUND
The appellant was employed with the agency as an EAS-22 Postmaster at
its Auburn, Alabama Post Office. Initial Appeal File (IAF), Tab 5 at 25. By
letter dated October 15, 2021, the agency proposed his demotion based on a
charge of unsatisfactory performance with 13 underlying specifications. Id.
at 39-46. The appellant responded in writing to the proposal notice. 2 Id.
at 36-38. By letter dated February 8, 2022, the deciding official issued a decision
demoting the appellant from his EAS-22 Postmaster position to an EAS-17
Supervisor, Customer Services position, effective 30 days from the appellant’s
receipt of the decision letter. Id. at 26-32. In the decision, the deciding official
set forth the factors enumerated in Douglas v. Veterans Administration,
5 M.S.P.R. 280, 305-06 (1981), that he considered in reaching his decision. Id.
at 29-30. He acknowledged therein that “[he] considered [the appellant’s] past
discipline record.” Id. at 29.
The appellant filed this appeal to the Board, arguing that the agency
violated his due process rights. IAF, Tab 1. After holding a hearing, the

2
In the appellant’s response to the proposed demotion, he asserted that the agency’s
proposal notice failed to address the factors enumerated in Douglas v. Veterans
Administration, 5 M.S.P.R. 280, 305-06 (1981). IAF, Tab 5 at 37.
3

administrative judge issued an initial decision reversing the agency’s demotion
action on due process grounds. IAF, Tab 22, Initial Decision (ID) at 1, 5. The
administrative judge found that the agency considered ex parte information
without providing the appellant with notice and an opportunity to respond to that
information. ID at 3-5. Specifically, he noted that the deciding official, in his
testimony, identified numerous disciplinary actions that he requested to review
and considered in the penalty analysis that were not articulated in the proposal
notice. Id. Thus, the administrative judge ordered the agency to cancel the
demotion action and retroactively restore the appellant, effective March 13, 2022,
and pay him the appropriate amount of back pay with interest and other
adjustments. ID at 5.
The agency has filed a petition for review in which it argues that the
administrative judge erred in concluding that the agency violated the appellant’s
right to minimum due process. Petition for Review (PFR) File, Tab 1 at 4-16.
The appellant has filed a response in opposition to the petition for review,
arguing that the administrative judge correctly determined that the agency
deprived him of his right to minimum due process. PFR File, Tab 3 at 4-5. The
agency has filed a reply. PFR File, Tab 4 at 4.

DISCUSSION OF ARGUMENTS ON REVIEW
The essential requirements of procedural due process are prior notice of the
charges against the employee and a meaningful opportunity to respond to those
charges. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985);
see 5 U.S.C. § 7513(b). Here, the administrative judge found that the appellant’s
past discipline was not raised in the proposal notice, the appellant did not have a
chance to respond to this new information, and it was material to the deciding
official’s decision to sustain the demotion. ID at 4-5. The administrative judge
therefore concluded that the deciding official’s consideration of such information
without notice to the appellant violated his due process rights. Id.
4

In its petition for review, the agency argues that the administrative judge
erred when he determined that the deciding official violated the appellant’s due
process rights when considering the appellant’s past discipline in setting the
penalty, the appellant should have known that the deciding official would
consider his past discipline because the agency made this information available in
the materials it relied on, and the administrative judge incorrectly applied the rule
on ex parte communications. PFR File, Tab 1 at 4, 11-16.
Procedural due process guarantees are not met if the employee has notice of
only certain charges or portions of the evidence and the deciding official
considers new and material information; therefore, it is constitutionally
impermissible to allow a deciding official to receive additional material
information that may undermine the objectivity required to protect the fairness of
the process. Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368,
1376 (Fed. Cir. 1999). Not every ex parte communication is a procedural defect
so substantial and so likely to cause prejudice that it undermines the due process
guarantee and entitles the claimant to an entirely new administrative proceeding;
rather, only ex parte communications that introduce new and material information
to the deciding official will violate the due process guarantee of notice. Id.
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 introduces 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 upon the deciding official to rule in a particular manner.” Id.
at 1377. Ultimately, the inquiry of the Board 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. Id. The Board has held that this analysis applies to penalty
considerations. Wilson v. Department of Homeland Security, 120 M.S.P.R. 686,
5

¶ 9 (2014), aff’d, 595 F. App’x 995 (Fed. Cir. 2015); see Lopes v. Department of
the Navy, 116 M.S.P.R. 470, ¶ 5 (2011) (observing that when a deciding official
considers either ex parte information provided to him or information personally
already known to him, the employee is no longer on notice of portions of the
evidence relied upon by the agency in imposing the penalty). We agree with the
administrative judge that the agency violated the appellant’s due process rights
for the following reasons.
The agency argues on review that under Alvarado v. Department of the Air
Force, 97 M.S.P.R. 389, ¶ 15 (2004), it satisfied its notice requirement because
“the prior discipline was in fact included in the documents relied on and used to
prepare the discipline and was made available to [the] [a]ppellant to review after
the proposed downgrade was issued.” PFR File, Tab 1 at 4, 11. It also cites
Harding v. U.S. Naval Academy, 567 F. App’x 920, 924-25 (Fed. Cir. 2014), an
unpublished Federal Circuit opinion, to support its argument that it afforded the
appellant minimum due process. PFR File, Tab 1 at 12. In Harding, 567 F.
App’x at 924-25, the court found that informing the appellant of her right to
access the materials the agency relied upon to support its action was sufficient to
satisfy any possible due process concerns when she did not allege that the agency
denied her the opportunity to review those materials or that the document at issue
was not included in them. We have considered the agency’s contention,
nonetheless we are not persuaded.
In the proposal notice, the proposing official identified 13 specifications of
unsatisfactory performance between September 26, 2020, and April 9, 2021. IAF,
Tab 5 at 39-46. The proposal notice did not specifically identify any Douglas
factors nor did it include any prior incidents of discipline. Id. However, as noted
above, the record shows that the deciding official considered the appellant’s past
discipline in determining the penalty. IAF, Tab 20, Hearing Audio (HA)
(testimony of the deciding official), Tab 5 at 29. Notably, as the administrative
judge explained in the initial decision, the deciding official testified that he
6

requested the appellant’s prior disciplinary actions before making the penalty
determination. ID at 4; HA (testimony of the deciding official).
The agency contends on review that the administrative judge incorrectly
inferred that the deciding official “asked to be provided with [the] [a]ppellant’s
prior discipline to review as he weighed the penalty because he did not already
have these records.” PFR File, Tab 1 at 11. This argument is unavailing. Other
than the agency’s mere assertion, it provides no evidence that the appellant’s
prior discipline records were, in fact, provided to the appellant with the proposal.
We are also not persuaded that the agency included the appellant’s past
disciplinary actions with the materials relied on when the proposal notice was
silent as to prior discipline and the deciding official had to request those
documents to review before making his decision. Thus, we agree with the
administrative judge’s finding that the consideration of the appellant’s past
disciplinary record was an ex parte communication. ID at 4.
To the extent the agency argues that the administrative judge incorrectly
applied the rule on ex parte communication, we disagree. Regarding the first
Stone factor, the Board has held that additional, specific instances of misconduct,
although similar in nature to the charged misconduct, cannot be considered
merely cumulative. See Silberman v. Department of Labor, 116 M.S.P.R. 501,
¶ 12 (2011). The agency appears to argue that the appellant’s prior discipline was
cumulative because it was also based on unsatisfactory performance. PFR File,
Tab 1 at 7-9. However, there is little, if any, evidence that the appellant had any
meaningful knowledge that the agency would rely on his prior disciplinary
actions between August 2018 and March 2020 in its decision when the agency did
not mention them in the proposal notice. Thus, we believe the information is new
and meets the first Stone factor. Regarding the second Stone factor, based on the
deciding official’s testimony that he requested the appellant’s past discipline, it
does not appear that the agency gave the appellant notice or an opportunity to
respond to that new information. HA (testimony of the deciding official). We
7

find that this meets the second Stone factor. Regarding the third Stone factor, the
undue pressure factor is only one of several enumerated factors and is not the
ultimate inquiry in the Stone analysis. See Silberman, 116 M.S.P.R. 501, ¶ 13
(citing Ward v. U.S. Postal Service, 634 F.3d 1274, 1280 n.2 (Fed. Cir. 2011)).
Our case law establishes that information is plainly material when the deciding
official admits that the information influenced his penalty determination. See id.,
¶¶ 12-13. Here, the deciding official acknowledged in his decision letter that he
considered “multiple corrective actions that are no longer live in [the appellant’s]
file” and testified to the same. HA (testimony of the deciding official); IAF,
Tab 5 at 29. Therefore, we find that the ex parte information was plainly
material.
Based on the foregoing, we find that the deciding official’s consideration
of new and material information undermined the appellant’s constitutional due
process guarantees of notice and the opportunity to respond. Accordingly, we
affirm the initial decision.

ORDER
We ORDER the agency to cancel the appellant’s demotion and restore him
to the position of EAS-22 Postmaster at the Auburn, Alabama Post Office,
effective March 13, 2022. 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.
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
8

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.
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).
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).
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
9

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 3
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 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).

3
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.
10

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
11

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
12

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. 4 The court of appeals must receive your petition for
review within 60 days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439

4
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
13

Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.
DEFENSE FINANCE AND ACCOUNTING SERVICE
Civilian Pay Operations

DFAS BACK PAY CHECKLIST
The following documentation is required by DFAS Civilian Pay to compute and pay back pay
pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following
checklist to ensure a request for payment of back pay is complete. Missing documentation may
substantially delay the processing of a back pay award. More information may be found at:
https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.

NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
vendor pay, not DFAS Civilian Pay.

☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
specific dates of the back pay period within the ticket comments.

Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
comments as to why the documentation is not applicable:

☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.

☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.

☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
until notified to do so by DFAS Civilian Pay.***

☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
notified to do so by DFAS Civilian Pay.***

☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).

☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
in a job undertaken during the back pay period to replace federal employment.
Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
include record of any unemployment earning statements, workers’ compensation,
CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
or severance pay received by the employee upon separation.

Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment
they may have received. The payroll office must collect the debt from the back pay award. The
annual leave will be restored to the employee. Annual leave that exceeds the annual leave
ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
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-50s (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.