U.S. Merit Systems Protection Board
Case Report for April 25, 2014

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Appellant:  Tina M. Wilson  
Agency:  Department of Homeland Security
Decision Number:  2014 MSPB 28
Docket Number:  DC-0752-10-0706-B-1
Issuance Date:  April 18, 2014

Appeal Type:  Adverse Action 
Action Type:  Removal

Due Process Guarantees for Federal Employees Under Loudermill
Loudermill Rational for Meaningful Opportunity to Respond
Due Process
    The appellant was removed from the position of Senior Special Agent following an internal agency investigation into her conduct after the agency received correspondence from the appellant's ex-husband, who alleged that she had misused the agency's internal database for personal gain.  The agency charged the appellant with misuse of the database; (2) failure to declare income; (3) lack of candor; and (4) failure to cooperate.  Although the agency did not allege in the proposal or decision notices that the appellant had shared the information she obtained from the database with her ex-husband, or any other unauthorized individuals, it was later determined that the deciding official had based his penalty determination, in part, on this aggravating factor not cited in the proposal notice.  The AJ sustained all charges, but on PFR the Board vacated the initial decision and remanded the case for further proceedings.  The threshold issue was whether the appellant was denied a meaningful opportunity to respond when the deciding official relied on the aggravating factor in his penalty determination of whether the appellant had shared information she obtained from the database her ex husband.  The AJ convened a supplemental hearing and concluded that the appellant had not been not denied due process because the information on which the deciding official relied was not new and material.      

Holding:   The Board affirmed the remand initial decision as modified and sustained the removal action.   

1.  Under the due process standard set forth in Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538, 546 (1985) the Board has consistently held that when it is determined that a federal employee has a property interest in his continued employment, a federal government agency may not deprive that employee of that property interest without observing the fundamental due process requirements of notice of the charges and an opportunity to respond either in writing or in person.  This includes the right to oral or written notice of the charges, an explanation of the employer's evidence, and an opportunity to present his side of the story.  

2.  There are two reasons why a meaningful opportunity for the employee to present his side of the story is important:   (1) an adverse action may involve factual disputes and consideration of the employee's response may clarify the truth; and (2) even where the facts are clear, the appropriateness or level of the penalty may not be appropriate.  

3.  The analysis of whether a deciding official's consideration of additional material was substantial and so likely to cause prejudice that no employee could fairly be required to be subjected to a deprivation of property absent an opportunity to respond, was set forth in Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376-77.  The court noted that an agency's consideration of an ex parte communication violates due process only where the information introduced was new and material and is weighed by such factors as:  (1) whether the information is cumulative, rather than new; (2) whether the employee knew of the error and had a chance to respond to it; and (3) whether the communication was of a type likely to result in undue pressure upon the deciding official to rule in a particular manner.  

4.  The Board has extended the Stone ex parte communication analysis to situations where the deciding official personally knew and considered information not included in the notice of proposed removal to the employee and the deciding official relied on that information as an aggravating factor in imposing a penalty.  Lopes v. Department of the Navy, 116 MSPR 470 (2011) and Solis v. Department of Justice, 117 MSPR 458 (2012).  Here, the Board determined that although the deciding official based his penalty determination, in part, on an aggravating factor not cited in the proposal notice -- the appellant's alleged unauthorized disclosure of TECS information to her ex husband -- consideration of this information did not otherwise undermine her right to due process.  Other record evidence showed that the appellant had the opportunity for specific and significant response to this allegation of unauthorized disclosure and, in any case, the deciding official otherwise credibly testified that his consideration of this information would not have changed his penalty determination, because he would have removed the appellant based on the other sustained charges standing alone.   

Appellant:  Gerald Palermo, Jr. 
Agency:  Department of the Navy
Decision Number:  2014 MSPB 29
Docket Number:  SF-0752-13-1979-I-1
Issuance Date:  April 25, 2014

Appeal Type:  Adverse Action 
Action Type:  Untimely Petition for Review

Timeliness for Filing Petition for Review
Board Procedure in Determining Timeliness of E-File Pleadings
Requirement to File Motion for Untimely Filing

The appellant filed an appeal contesting his indefinite suspension following the suspension of his security clearance based on the charge of failure to meet a condition of employment.   The AJ affirmed the indefinite suspension and the appellant filed a PFR untimely by 7 days.  The appellant's representative stated that the untimeliness was due to his error in saving the petition for review in the Board's e-Appeal system as a draft instead of submitting it.  

Holding:  The appellant's petition for review was dismissed as untimely filed without a showing of good cause.  

1.  The party who submits an untimely petition for review has the burden of establishing good cause for the untimely filing by showing that he exercised due diligence or ordinary prudence under the particular circumstances of the case. To determine whether a party has shown good cause, the Board will consider the length of the delay, the reasonableness of his excuse and the party's showing of due diligence, whether he is proceeding pro se, and whether he has presented evidence of the existence of circumstances beyond his control that affected the ability to  comply with the time limits, or of unavoidable casualty or misfortune which similarly shows a causal relationship to his inability to timely file his petition.  

2.  The Board's e-Appeal filing system is designed to automatically generate an email to a filer within minutes to the filer, advising him of the new pleading.  In instances where the filer saves a draft petition for review in the e-Appeal system, the system automatically generates an email to the party warning that the pleading has not yet been submitted.  Each contact that a party has with the e-Appeal system is recorded in the Board's e-Appeal logs.  Under limited circumstances, the Board, relying on Salazar v. Department of the Army, 115 MSPR 296 (2010), Lamb v. Office of Personnel Management, 110 MSPR 415 (2009), and Livingston v. Office of Personnel Management, 105 MSPR 314 (2007), will excuse delays in filing caused by difficulties encountered with the e-Appeal system if it is shown that the appellant had, in fact, accessed the system prior to the date his petition was due, and exited the website without receiving a clear warning from the Board that his appeal was not filed.    

3.  Given the appellant's familiarity with the e-Appeal system as evidenced by numerous prior timely filed pleadings, due diligence and ordinary prudence required that the appellant follow up to determine the status of the petition for review when he did not receive an email from the Board warning him that his draft petition for review was not yet submitted.  

4.  Inasmuch as the appellant's petition was not accompanied by a motion that showed good cause for the untimely filing, an untimely petition for review must be accompanied by such a motion, which must include an affidavit or sworn statement that sets forth the reasons for failing to request an extension of time before the deadline for the submission, and a specific and detailed description of the circumstances causing the late filing, accompanied by supporting documentation or other evidence.   Here, the Board advised the appellant that his petition was untimely, and the appellant's response did not provide a sufficient explanation for the untimeliness.    
Appellant:  Randy McHenry  
Agency:  United States Postal Service
Decision Number:  2014 MSPB 30
Docket Number:  CH-0752-13-0615-I-1
Issuance Date:  April 25, 2014

Appeal Type:  Adverse Action 
Action Type:  Suspension

Difference Between Suspension and Constructive Suspension

The appellant filed an appeal asserting that the agency's decision to convert his status from sick leave to leave without pay (LWOP) amounted to a constructive suspension.   The appellant initially requested and was granted sick leave under the Family and Medical Leave Act and the agency later responded that he was being placed on emergency leave pending an ongoing investigation into alleged misconduct.  The agency then retroactively changed the appellant's sick leave to LWOP.  The AJ dismissed the appeal for lack of jurisdiction, finding that the appellant initiated the absence and was not ready, willing, and able to return to work.  The AJ found further that because the agency later returned the appellant to paid status, the appellant did not suffer an appealable suspension of more than 14 days.  

Holding:  The Board granted the PFR, reversed the initial decision, and did not sustain the appellant's suspension.

1.  The Board concluded that the law governing constructive suspensions is inapplicable here in that the subject matter of this appeal pertains to an actual suspension rather than a constructive suspension because the agency completely and retroactively rescinded the appellant's sick leave and changed the nature of his leave status to LWOP before he filed an appeal.  The appellant then never received the sick leave he requested and was thus never in a sick leave status for purposes of determining jurisdiction.  A constructive suspension may arise when an agency places an employee on enforced leave pending an inquiry into that employee's ability to perform the job, or when an employee absent from work for medical reasons requests to return to work with alerted duties and the agency denies the request.  

2.  Here, because the appellant was suspended when the agency retroactively rescinded his sick leave and notified him that he was under investigation for alleged misconduct, directed him not to return to work, and placed him an an LWOP status for more than 14 days, the nature of the action was a suspension over which the Board has jurisdiction.

The U.S. Court of Appeals for the Federal Circuit did not issue and precedential or  nonprecedential decisions prior to issuance of this weeks summary.

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