Roger Oneal v. Department of the Air Force ( 2023 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROGER ONEAL, DOCKET NUMBER
Appellant, AT-0752-15-0666-I-1
v.
DEPARTMENT OF THE AIR FORCE, DATE: February 22, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Thomas F. Muther, Jr., Esquire, Denver, Colorado, for the appellant.
Brenda S. Mack, Robins Air Force Base, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan A. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal for marijuana use. Generally, we grant petitions such as this
one only when: 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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judge’s rulings during either 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
¶2 The appellant held an Aircraft Electrician position, WG-2892-10, at Robins
Air Force Base, Georgia. Initial Appeal File (IAF), Tab 4 at 8. The agency
charged him with using marijuana. Id. at 15. He was subsequently removed and
filed this appeal. Id. at 9-11, IAF, Tab 1.
¶3 At the hearing, the appellant testified that he had been a heavy drinker and
decided to quit “cold turkey” without medical assistance. IAF, Tab 17, Initial
Decision (ID) at 2. For 6 or 7 days thereafter, he experienced severe sweats,
shakes, loss of motor functions, and nausea. Id. He testified that he took
Tetrahydrocannabinol (THC) tablets on two occasions in an attempt to manage
his withdrawal symptoms. Id. The second such occasion was on March 4, 2015,
2 days before he underwent routine drug testing. Id. The appellant did not tell
the Medical Review Officer for the drug test that he had ingested THC tablets.
Id.¶4 The appellant also testified that he had received the tablets at an earlier time
from an ex-girlfriend, who had used them to control nausea during medical
treatments. Id. She had offered him the tablets because he had complained of
stomach issues related to his drinking. Id. The appellant testified that he knew
3
that the tablets were THC-based, but he did not believe they would cause him to
test positive for marijuana. Id. He also testified that he had not ingested alcohol
since February 2015, and that he was seeing a Rehabilitation Specialist. Id. He
also acknowledged that he made a mistake when he took the THC. Id.¶5 In an initial decision, the administrative judge sustained the charge based on
the appellant’s testimony. ID at 2. The administrative judge found that the
appellant’s admission, along with the fact he held a Testing Designated Position,
were sufficient to establish nexus, and that the agency had proven that the penalty
imposed was reasonable under the particular circumstances of th e case. ID at 5-7.
¶6 The administrative judge also considered the appellant’s affirmative defense
that the agency violated his right to due process when the deciding official
considered information that he had received from the agency’s Human Resources
(HR) Department regarding penalties imposed on other employees for the same or
similar misconduct, and failed to inform the appellant of his intention to do so.
ID at 2-5. The administrative judge concluded that the information the deciding
official received was cumulative and not new, the appellant had an opportunity to
respond to the information, and the communication was not likely to result in
undue pressure on the deciding official to rule in a particular manner. ID at 4.
Additionally, the appellant asserted that the agency did not inform him that the
deciding official found his explanation for why he tested positive for THC to be
less than credible, nor did it inform him that the deciding official had taken into
account that the appellant was not participating in a drug treatment program. ID
at 3. The administrative judge similarly rejected these arguments. ID at 5. The
administrative judge thus found any ex parte communication the appellant alleged
to be insubstantial or unlikely to cause prejudice and that the agency did not
violate the appellant’s right to due process. ID at 4. She affirmed the agency
action. ID at 7.
4
¶7 On review, the appellant reasserts his affirmative defense that the agency
violated his due process rights. Petition for Review (PFR) File, Tab 3. The
agency has responded to the appellant’s petition for review. PFR File, Tab 5.
ANALYSIS
¶8 A deciding official violates an employee’s due process rights when he relies
upon new and material ex parte information as a basis for his deci sion on the
merits of a proposed charge or the penalty to be imposed. Norris v. Securities
and Exchange Commission, 675 F.3d 1349, 1354 (Fed. Cir. 2012). The Board has
held that an employee’s due process right to notice extends to both ex parte
information provided to a deciding official and information known personally to
that official, if he considered the information in reaching the decision and had not
previously disclosed to the appellant that he would be doing so. Solis v.
Department of Justice, 117 M.S.P.R. 458, ¶ 7 (2012). Not all ex parte
communications, however, rise to the level of a due process violation. Rather,
only ex parte communications that introduce new and material information to the
deciding official amount to a constitutional due process violation. Ward v. U. S.
Postal Service, 634 F.3d 1274, 1279-80 (Fed. Cir. 2011); Stone v. Federal
Deposit Insurance Corporation, 179 F.3d 1368, 1376-77 (Fed. Cir. 1999).
¶9 In Stone, the U.S. Court of Appeals for the Federal Circuit set forth the
following factors to determine if an ex parte communication introduces new and
material evidence and thus violates an appellant’s right to due process :
(1) whether the ex parte information introduced is 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 on the deciding official to rule in a particular manner.
Stone, 179 F.3d at 1377. The court ultimately considers whether the ex parte
communication is so substantial and so likely to cause prejudice that no employee
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can fairly be required to be subjected to a deprivation of proper ty under the
circumstances. Id.¶10 In considering the Stone factors, the administrative judge found that the
agency did not violate the appellant’s right to due process. ID at 3-5. The
administrative judge cited the deciding official’s testimony in which he stated
that he had decided other cases involving employees charged with using illegal
drugs, and he believed his decision to remove the appellant was consistent with
the penalties imposed in those cases. The deciding official testified that he
confirmed his conclusion with HR. ID at 4. The administrative judge explained
that the deciding official’s communication with HR did not introduce any new
information because the agency’s notice of proposed removal stated that the
penalty of removal would be “consistent with actions imposed on other
employees within this Agency for the same or similar offenses.” Id.; IAF, Tab 4
at 15. The administrative judge found such statement gave the appellant
sufficient notice that the agency would consider other factually similar cases. ID
at 4. The administrative judge further found that the information HR
communicated to the deciding official was cumulative, the appellant had an
opportunity to respond, and the communication was not likely to result in undue
pressure on the deciding official to rule in a particular manner. Id. As for the
appellant’s assertion that the deciding official relied on personal observations
regarding the appellant’s credibility and his potential for rehabilitation, the
administrative judge explained that she knew of no authority requiring the agency
to identify every Douglas factor it intended to consider in the notice of proposed
removal, nor had the appellant identified any such authority. Id. The
administrative judge thus determined that the deciding official’s ex parte
communication with HR was neither substantial nor likely to cause prejudice. Id.¶11 On review, the appellant reasserts his argument that the deciding official
relied upon new and material information in two respects: the conversation with
HR regarding the penalties imposed against similarly situated employees, and his
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admitted reliance upon his own experience in deciding other cases involving
drugs. PFR File, Tab 3 at 8-9. The appellant admits that the proposal notice
states that his removal “would be consistent with actions imposed on other
employees within this Agency for the same or similar offenses,” as the
administrative judge noted, but argues that such notice was insufficient to allow
him to understand that the agency had imposed penalties other than removal in
the past. Id.; IAF, Tab 4 at 15; ID at 4. However, the initial decision adequately
addresses these arguments. We specifically note that the statement in the
proposal notice that removal would be consistent with actions imposed on other
employees for the same or similar offenses gave the appellant adequate notice
that the deciding official would consider those matters. IAF, Tab 4 at 15.
Moreover, we agree with the administrative judge that the deciding official’s
communication with HR merely confirmed the accuracy of the information that
had been provided to the appellant in the proposal, and thus, it was not “new”
information. Hearing Compact Disc (HCD), Track 1 at 43:50 (testimony of
deciding official that HR validated the consistency of the penalty with other
employees who had committed similar misconduct); see, e.g., Blank v.
Department of the Army, 247 F.3d 1225, 1229 (Fed. Cir. 2001) (finding that when
a deciding official initiates ex parte communication to confirm or clarify
information already contained in record, there is no due process violation ).
Accordingly, we conclude that this communication was not so likely to cause
prejudice that no employee can fairly be required to be subje cted to a deprivation
of property under such circumstances.
¶12 The appellant also asserts that he learned for the first time at the hearing
that the deciding official relied on personal knowledge 2 and conclusions regarding
2
The appellant argues in his petition for review that the deciding official considered the
penalties he assessed in similar cases in which he had served as deciding official
without notifying the appellant that he would do so. HCD, Track 1 at 42:20. As noted
above, the appellant was on notice that the agency considered removal to be consistent
with actions imposed on other employees for the same or similar offenses , and we find
7
his credibility and rehabilitative potential, and that he did not get an opportunity
to respond to that testimony. PFR File, Tab 1 at 9. The deciding official testified
that, in upholding the removal action, he considered that the appellant had not
credibly explained the circumstances underlying the positive drug test, indicating
he had not accepted responsibility for his actions, and he had not entered a
rehabilitation program. HCD, Track 1 at 38:07 (testimony of the deciding
official). As to the deciding official’s determination that the appellant’s
explanation for the positive drug test was not credible, we note that the
explanation was provided by the appellant in his response to the proposal notice.
IAF, Tab 14 at 4. The appellant has not pointed to any ex parte information
pertaining to his explanation for the positive drug test that had been provided to
the deciding official when he made his decision to uphold the appellant’s
removal. We find that the deciding official did not consider any “new”
information in assessing the credibility of the explanation; rather he drew
conclusions based on the information presented to him. T he Board has held that a
deciding official does not violate an employee’s rights when he considers issues
the employee raised in his response to the proposed action and then rejects those
arguments in reaching a decision. Mathis v. Department of State, 122 M.S.P.R.
507, ¶ 9 (2015). Accordingly, we find that the deciding official’s determination
that the appellant’s explanation for the charged misconduct was not credible did
not amount to a due process violation.
¶13 Similarly, the appellant does not contend that the deciding official
considered any “new” information in concluding that the appellant had not
entered into a treatment program for drug use. From this record, we must
conclude that the deciding official made his assessment based on the absence of
that any failure to provide the appellant with details regarding the individual cases
considered was not a due process violation under these circumstances.
8
any reference to treatment in the record, including in the appellant’s reply to the
proposal notice. 3
¶14 The appellant asserts that, had he been aware that the deciding official
would consider his credibility and rehabilitative potential, he would have offered
evidence during his reply regarding his participation in a drug treatment program
and a statement from his ex-girlfriend substantiating his version of events
regarding his ingesting THC. PFR File, Tab 3 at 11. The appellant, however,
received the opportunity to examine the evidence the deciding official would
consider and to present evidence of his own, including witness statements, and he
failed to present such evidence. IAF, Tab 4 at 16. The fact that the deciding
official drew adverse conclusions when the appellant did not present evidence to
bolster his case for mitigation of the penalty does not support a finding that the
agency violated his due process rights.
¶15 Finally, the appellant argued that he offered into evidence several last
chance agreements (LCAs) the agency had reached with employees at a different
facility. PFR File, Tab 3 at 12; IAF, Tab 11 at 3-5; PFR File, Tab 5 at 5. The
administrative judge considered these documents solely for purposes of due
process analysis. IAF, Tab 12 at 2; HCD, Track 2 at 29:00 (testimony of the
appellant). The appellant argued that these documents should have been
disclosed by HR to the deciding official for the deciding official to consider
offering an LCA to the appellant as an alternative to removal. PFR File, Tab 3
at 12. Here, the appellant is seeking to circumvent the administrative judge’s
evidentiary ruling below and offer the LCAs as evidence of disparate penalties.
The Board, however, has long held that an agency need not explain why it
imposed lesser penalties against other employees whose charges were resolved by
3
In this regard, an October 6, 2014 agency memorandum states that employees using
illegal drugs “will be considered for removal from employment” even in light of a “long
and exemplary record of employment,” but such employees may avoid disciplinary
action by self-reporting their drug use and seeking medical assistance. IAF, Tab 4
at 22.
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settlement agreements. An agency’s decision to enter into a settlement agreement
with another employee generally cannot form the basis for a disparate treatment
claim. Lewin v. Department of Justice, 74 M.S.P.R. 294, 300-01 (1997). To
allow such a claim would have a chilling effect on settlement agreements, which
both the courts and the Board favor. Fowler v. U.S. Postal Service, 77 M.S.P.R.
8, 17 (1997); see also Blake v. Department of Justice, 81 M.S.P.R. 394, ¶ 42
(1999). For these reasons, we affirm the administrative judge’s findings in the
initial decision.
NOTICE OF APPEAL RIGHTS 4
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.
4
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
(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
11
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (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:
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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. 5 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
5
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.
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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.
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: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.