Case Report for June 24, 2011

Note: These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.

BOARD DECISIONS

Appellant: Debra A. Lopes

Agency: Department of the Navy

Decision Number: 2011 MSPB 63

Docket Number: PH-0752-10-0118-I-1

Issuance Date: June 17, 2011

Appeal Type: Adverse Action by Agency

Action Type: Removal

Constitutional Issues – Due Process

The appellant petitioned for review of an initial decision that affirmed her removal on misconduct charges. Although the appellant’s prior 3-day suspension was not discussed in the agency’s notice of proposed removal, the administrative judge found that the deciding official appropriately considered this suspension in imposing the removal penalty.

Holding: The Board reversed the initial decision and the agency’s removal action, finding that the agency violated her constitutional right to due process of law:

1. In Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 2011), the Board’s reviewing court held that, if an employee has not been given “notice of any aggravating factors supporting an enhanced penalty[,]” an ex parte communication with the deciding official regarding such factors may constitute a constitutional due process violation. If a constitutional violation has occurred, it cannot be considered a harmless error and the agency action must be reversed.

2. The record establishes not only that the deciding official considered the 3‑day suspension, the deciding official also considered the appellant’s “checkered” work history, instances of “episodes of erratic timeliness to work and patterns of leave abuse,” as well as “instances of confrontational behavior,” none of which were listed in the notice of proposed removal.

3. Although the deciding official did not learn of these aggravating factors through ex parte communication, this is a distinction without a difference. When a deciding official considers an employee’s past disciplinary record and alleged past instances of misconduct, the employee is no longer on notice of portions of the evidence relied upon by the agency in imposing the penalty, resulting in a potential constitutional violation.

4. Applying the factors identified in Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368 (Fed. Cir. 1999), the Board concluded that the appellant’s prior 3-day suspension and other alleged past instances of misconduct considered by the deciding official constituted new, rather than cumulative information. Even though there was no evidence that this information placed undue pressure on the deciding official to remove the appellant, the deciding official’s consideration of these aggravating factors was “so likely to cause prejudice that no employee can fairly be required to be subjected to a deprivation of property under such circumstances.” Accordingly, the appellant’s removal must be cancelled.

Appellant: Kevin Gray

Agency: Department of Defense

Decision Number: 2011 MSPB 64

Docket Number: CH-0752-10-0624-I-1

Issuance Date: June 17, 2011

Appeal Type: Adverse Action by Agency

Action Type: Removal

Constitutional Issues – Due Process

The appellant petitioned for review of an initial decision that sustained his removal for off-duty criminal misconduct.

Holding: The Board reversed the initial decision and the agency’s removal action, finding that the agency violated his constitutional right to due process of law:

1. The record reflects that the agency’s deciding official considered information that was not included in the agency’s notice of proposed removal. Specifically, the deciding official sought and considered advice as to whether the appellant, as a convicted felon, would be able to maintain his non-critical sensitive position, and was advised that the appellant’s convictions would raise serious security concerns that most likely would be disqualifying, i.e., lead to revocation of the appellant’s eligibility to occupy a sensitive position.

2. As in Lopes, the Board concluded that consideration of this new information, without giving notice to the appellant in the notice of proposed removal, deprived the appellant of his constitutional right to due process of law.

COURT DECISIONS

Non-precedential Decisions

The U.S. Court of Appeals for the Federal Circuit issued non-precedential decisions in the following case:

Johnson v. Department of the Treasury, No. 2011-3058 (June 22, 2011) (MSPB Docket No. CH-0752-09-0691-I-1) (affirming the Board’s decision, which affirmed the agency’s removal action)