Alicia L Ford v. Department of Agriculture ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALICIA LOUISE FORD, DOCKET NUMBER
Appellant, DC-0752-20-0158-I-2
v.
DEPARTMENT OF AGRICULTURE, DATE: September 5, 2024
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Marc J. Smith , Esquire, Rockville, Maryland, for the appellant.
John W. Montgomery , Esquire, Alexandria, Virginia, for the agency.
BEFORE
Cathy A. Harris, Chairman
Raymond A. Limon, Vice Chairman
Henry J. Kerner, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s removal action. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 facts of the case; the administrative 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).
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge correctly found that the appellant failed to demonstrate
a due process violation.
The appellant argues that the agency violated her due process rights when
both the proposing and deciding official considered information not included in
its notice of proposed removal. Petition for Review (PFR) File, Tab 3 at 12-17.
The administrative judge addressed this issue and found that the appellant failed
to prove by preponderant evidence that a due process violation occurred. Refiled
Appeal File (RAF), Tab 8, Initial Decision (ID) at 10-13. We agree with the
administrative judge’s conclusion. 2
2
Although unclear, to the extent the administrative judge applied a harmful error
analysis to the due process question, we find this was erroneous. ID at 13 (finding that
the appellant failed to show how the outcome would have been different in the absence
of the alleged due process violation). The determination as to whether a due process
violation occurred is not subject to a harmful error analysis. Stone v. Federal Deposit
Insurance Corporation, 179 F.3d 1368, 1377 (Fed. Cir. 1999). However, as set forth
below, because we agree with the administrative judge that no due process violation
occurred, any error by the administrative judge was immaterial. See Panter v.
Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (finding that an adjudicatory
error that is not prejudicial to a party’s substantive rights provides no basis for reversal
of an initial decision).
3
The appellant failed to demonstrate that the deciding official
violated her due process rights.
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 not included in the proposal; 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). However, 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. at 1376-77. There is nothing inherently
wrong with a deciding official having background knowledge of an employee’s
prior work history or performance record. Norris v. Securities & Exchange
Commission, 675 F.3d 1349, 1354 (Fed. Cir. 2012). A deciding official’s
knowledge of an employee’s background only raises due process concerns when
that knowledge is a basis for the deciding official’s determinations on either the
merits of the underlying charge or the penalty to be imposed. Id.The appellant argues that the deciding official considered ex parte
information regarding the appellant’s job performance. Initial Appeal File (IAF),
Tab 12 at 9-12; PFR File, Tab 3 at 13. She further argues that the Douglas
factors worksheet attached to her removal decision contained new and material
information not contained in the notice of proposed removal, such as a suggestion
that the appellant’s performance was not satisfactory and that she repeatedly
made disparaging remarks about coworkers and supervisors. PFR File, Tab 3
at 13-14; see Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981)
(setting forth the factors relevant for consideration in determining the
4
appropriateness of a penalty). The administrative judge credited the deciding
official’s testimony that the Douglas factors sheet was an erroneous draft and
that, as reflected in the written removal decision, she considered only the proper
charge and relevant factors. ID at 13. The Board must defer to an administrative
judge’s credibility determinations when they are based, explicitly or implicitly,
on observing the demeanor of witnesses testifying at a hearing; the Board may
overturn such determinations only when it has “sufficiently sound” reasons for
doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002).
The Board must give “special deference” to an administrative judge’s
demeanor-based credibility determinations, “[e]ven if demeanor is not explicitly
discussed.” Purifoy v. Department of Veterans Affairs, 838 F.3d 1367, 1373
(Fed. Cir. 2016).
At the hearing, the deciding official testified that numerous comments and
errors on the Douglas factors worksheet were included by mistake due to
copy-and-paste errors and using a previous Douglas factors worksheet. RAF,
Tab 7, Hearing Recording (HR) 2 at 52:00 (testimony of the deciding official).
She further testified that she had a question as to whether the appellant’s
performance was acceptable, but upon further inquiry, she determined it was
acceptable and considered it a mitigating factor. HR 2 at 1:34:00 (testimony of
the deciding official); IAF, Tab3 at 14. Finally, the deciding official testified that
the Douglas factors worksheet was an unfinished draft and that the decision letter
was a more accurate reflection of the aggravating and mitigating factors she
considered in removing the appellant. HR 2 at 1:45:00 (testimony of the deciding
official). Although the Douglas factors worksheet incorrectly addressed the
appellant’s 28 years of service as aggravating, the decision letter indicates that
5
the deciding official properly considered this as mitigating in the final analysis. 3
IAF, Tab 3 at 8, 13. Similarly, although a question was raised as to whether the
appellant’s performance was aggravating or mitigating, the deciding official
properly considered it as mitigating in the removal decision. Id. at 8, 14.
On review, the appellant argues that a “reasonable inference” can be drawn
that the deciding official’s removal decision was influenced by her perception of
the appellant’s job performance, which was influenced by negative information
from an agency human resources manager. PFR File, Tab 3 at 13, 16. She
further argues that, based on the reference to prior disparaging remarks made by
the appellant on the Douglas factors worksheet, “it is readily apparent” that this
information influenced the deciding official’s removal decision. Id. at 16. The
appellant’s mere suggestion to the contrary, without more, does not demonstrate
sufficiently sound reasons for disturbing the administrative judge’s credibility
determination that the deciding official did not consider any of the erroneous
information contained on the Douglas factors sheet. See Purifoy, 838 F.3d
at 1372-73; Haebe, 288 F.3d at 1301. Accordingly, we find no reason to disturb
the administrative judge’s conclusion, which is based in large part on the removal
decision itself and the deciding official’s credible testimony that the appellant
failed to prove by preponderant evidence that the deciding official impermissibly
considered ex parte information in making her removal determination. 4 ID at 13;
see Norris, 675 F.3d at 1354 (finding that a deciding official’s knowledge of an
employee’s background or performance record only raises due process concerns
when that information is a basis for making a determination on the merits or the
penalty).
3
It is improper for an agency to view an appellant’s lengthy tenure as an aggravating,
rather than mitigating, factor because she “should have known better”; the Board does
not endorse an approach under which the longer a person works, the more likely it is
that a single misstep will be fatal to her career. Shelly v. Department of the Treasury,
75 M.S.P.R. 677, 684 (1997).
4
All mitigating and aggravating factors referenced in the decision letter were
previously set forth in the proposed removal. IAF, Tab 3 at 7-11, 31-35.
6
The appellant failed to demonstrate that the proposing official
violated her due process rights.
The appellant additionally argues on review that the proposing official
received numerous ex parte communications prior to issuing the notice of
proposed removal, including that the appellant was suspected of leaving work
early, had unacceptable performance, had previously sent inappropriate emails,
and had difficulty working with people. PFR File, Tab 3 at 12. The
administrative judge found that the appellant failed to present evidence that this
information obtained by the proposing official was passed on or otherwise
considered by the deciding official. ID at 12.
Typically, impermissible ex parte communications involve a deciding
official learning of, or otherwise knowing, negative information about an
appellant not referenced in a proposal notice. See Ward v. U.S. Postal Service,
634 F.3d 1274, 1278 (Fed. Cir. 2011) (considering the deciding official’s ex parte
communications with three supervisors and one manager during which he learned
of several alleged past instances of misconduct by the appellant); Stone, 179 F.3d
at 1372-73 (considering ex parte memoranda received by the deciding official
from the proposing official and another agency official urging the appellant’s
removal); Lopes v. Department of the Navy, 116 M.S.P.R. 470, ¶ 10 (2011)
(finding a due process violation when the deciding official considered misconduct
not mentioned in the notice of proposed removal but personally known to the
deciding official). Here, the proposing official testified that he received negative
information from other agency employees about the appellant that “of course”
gave him an opinion and became a part of the narrative in determining the
penalty. HR 5 at 27:00 (testimony of the proposing official). He further testified
that he did his best to separate out the facts of this case from others’ opinions of
the appellant but that you cannot “un-know what you know.” HR 5 at 27:30
(testimony of the proposing official). However, there is no evidence that the
information learned by the proposing official was relayed to the deciding official.
7
This case is therefore distinguishable from precedent like Ward, Stone, and Lopes
in that there is no evidence that the impermissible evidence was passed on to or
considered by the deciding official.
Moreover, the appellant has failed to cite, and we have been unable to find,
any case finding a due process violation involving ex parte information solely
obtained and considered by a proposing official. In the absence of evidence that
such information was passed to the deciding official, we find no impermissible
due process violation.
The essential requirements of due process are notice and an opportunity to
respond. Stone, 179 F.3d at 1375 (quoting Cleveland Board of Education v.
Loudermill, 470 U.S. 532, 542-46 (1985)). Indeed, the “Supreme Court expressly
noted that the need for a meaningful opportunity for the public employee to
present his or her side of the case is important in enabling the agency to reach an
accurate result . . . not only to the issue of whether the allegations are true, but
also with regard to whether the level of penalty to be imposed is appropriate.”
Stone, 179 F.3d at 1476 (citing Loudermill, 470 U.S. at 543). The appellant here
was given notice of the charges and factors considered in enacting her removal by
the deciding official, and she was able to respond both about the truth of the
charges and the appropriateness of the penalty. IAF, Tab 3 at 21-29.
Accordingly, the appellant was provided with the essential due process
requirements, and any information obtained by the proposing official prior to
issuing the proposal that was not passed on or considered by the deciding official
did not undermine the objectivity required to protect the fairness of the process.
See Stone, 179 F.3d at 1377 (finding that the ultimate inquiry is whether an 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”). 5
5
Because we agree with the administrative judge’s findings that the deciding official
did not consider ex parte information, we also conclude that the appellant failed to
establish that an error occurred, and thus her arguments also fail under a harmful
8
The appellant’s remaining arguments on review are unpersuasive.
The appellant additionally argues that the administrative judge abused her
discretion when she declined to afford any weight to the deciding official’s
Douglas factors worksheet. PFR File, Tab 3 at 10-12. The appellant’s argument
is effectively a reframing of the argument that the deciding official improperly
applied the Douglas factors in reaching her removal decision. Id. As discussed
above, the administrative judge credited the deciding official’s testimony that,
despite the clear errors in the worksheet, she properly considered the relevant
aggravating and mitigating factors on review. ID at 12-13. Thus, we interpret the
administrative judge as finding that the Douglas factors worksheet was “not
entitled to much weight or consideration.” ID at 13. We note, however, that the
administrative judge also stated that, due to the errors on the worksheet, it was
“not entitled to any weight.” ID at 14. Nonetheless, we find that this distinction
does not provide a sufficiently sound reason to disturb the administrative judge’s
determination that the deciding official properly considered the relevant factors
based in large part on the credibility of the deciding official’s testimony . ID
at 13; see Haebe, 288 F.3d at 1301 (finding that the Board may overturn
credibility determinations only when it has “sufficiently sound” reasons for doing
so). Moreover, as set forth above, we agree with the administrative judge that the
deciding official properly considered the relevant factors in issuing the removal
decision. IAF, Tab 3 at 8-9; ID at 13.
The appellant further asserts that the agency committed harmful procedural
error when it failed to provide all of the materials relied upon in support of its
charge against the appellant. PFR File, Tab 3 at 8-10. Specifically, the appellant
asserts that the agency failed to provide the proposing official’s handwritten notes
from the meeting that led to her removal. Id. The administrative judge addressed
procedural error theory. Cf. Ward, 634 F.3d at 1281-83 (instructing that, when
consideration of ex parte communications has occurred but that consideration does not
rise to the level of a due process violation, the Board still must consider whether the
agency’s procedural error constituted harmful error).
9
this argument and found that the deciding official did not receive or rely on any
handwritten notes in reaching her removal decision. ID at 11. Thus, the notes
were not part of the materials relied upon by the agency in supporting its charge
against the appellant. Moreover, the administrative judge found that the appellant
failed to show how, had she been given the handwritten notes, the agency would
have reached a conclusion different from the one it would have reached absent
any error. ID at 10-11. The appellant’s petition for review merely resubmits
arguments on this issue that she raised with the administrative judge. IAF,
Tab 12 at 6-7; PFR File, Tab 3 at 8-10. The appellant has not identified any error
on the part of the administrative judge; she merely seeks a different outcome on
review. We find her arguments unpersuasive and decline to disturb the
administrative judge’s findings.
NOTICE OF APPEAL RIGHTS 6
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
6
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
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).
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
11
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
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
12
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
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. 7 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
7
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
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: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.