Deon Stewman v. Department of Agriculture

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DEON N. STEWMAN, DOCKET NUMBER
Appellant, AT-0752-16-0647-I-1
v.
DEPARTMENT OF AGRICULTURE, DATE: June 22, 2023
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Joseph D. Ybarra, Esquire, San Antonio, Texas, for the appellant.
Ronnie Hubbard, Jackson, Mississippi, for the appellant.
Stephanye Snowden, Washington, D.C., for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
statute or regulation or the erroneous application of the law to 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).
BACKGROUND
¶2 On May 10, 2016, the agency proposed to remove the appellant from his
GS-8 Consumer Safety Inspector position based on a single charge of
Inappropriate Conduct in the Workplace. Initial Appeal File (IAF), Tab 9
at 25-30. In support of the charge, the agency listed the following two
specifications: (1) engaging in inappropriate conduct of a sexual nature on
March 30, 2016, while in the workplace on official duty; and (2) engaging in
inappropriate conduct during a meeting with his supervisor on April 7, 2016. Id.
at 25-26. The appellant responded to the proposed removal in an in -person oral
conference on June 1, 2016. Id. at 22-24. He did not submit a written reply. On
June 8, 2016, the deciding official affirmed the proposed removal. Id. at 17-21.
The appellant was removed effective June 25, 2016. Id. at 16.
¶3 The appellant timely filed an appeal of his removal with the Board. IAF,
Tab 1. Following a hearing, the administrative judge issued an initial decision
sustaining the removal action. IAF, Tab 24, Initial Decision (ID). The
administrative judge found that the appellant did not establish his affirmative
3
defenses of discrimination based on sex, 2 harmful procedural error, and due
process violations. ID at 19-31.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 On petition for review, the appellant only challenges the administrative
judge’s findings on his due process claims. 3 Petition for Review (PFR) File,
Tab 1. The appellant reiterates his argument that his due process rights were
violated when the agency did not provide him with all of the eight witness
statements that were collected during its investigation of his misconduct. 4 Id.
at 8. As discussed below, the appellant’s arguments do not provide a basis for
review.
The appellant has not established that the agency violated his due process rights
by not providing him with all of the witness statements.
¶6 When a deciding official receives new and material information by means
of ex parte communications, a due process violation has occurred and the former
employee is entitled to a new constitutionally correct removal procedure. Stone
v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377 (Fed. Cir. 1999).
2
Because, as noted below, the appellant does not challenge on review the
administrative judge’s finding that he failed to prove his discrimination claim, we do
not reach the question of whether discrimination was a “but-for” cause of the removal
action. See Pridgen v. Office of Management and Budget, 2022 MSPB 31, ¶¶ 20-22,
29-33.
3
The appellant does not challenge the administrative judge’s findings that the agency
proved its charge of inappropriate conduct, that a nexus exists between the sustained
charge and the efficiency of the service, and that the penalty was rea sonable under the
circumstances. ID at 6-19. In any event, we discern no basis for disturbing these
well-reasoned findings on review.
4
On review, the appellant states that six of eight witness statements were not provided
to him. PFR File, Tab 1 at 8. However, the record reflects that only four witness
statements were not provided to the appellant and are at issue. Hearing Transcript
(HT), Volume 2, at 155:13-16, 179:3-11 (testimony of the appellant).
4
In determining whether to find a due process violation, the Board must consider
the facts and circumstances of each particular case. Id. Not every ex parte
communication rises to the level of a due process violation —only ex parte
communications that introduce new and material information to the deciding
official constitute due process violations. Id. at 1376-77; see Ward v. U.S. Postal
Service, 634 F.3d 1274, 1279 (Fed. Cir. 2011). 5 When an agency official initiates
an ex parte communication “that only confirms or clarifies information already
contained in the record, there is no due process violation.” Blank v. Department
of the Army, 247 F.3d 1225, 1229 (Fed. Cir. 2001).
¶7 The administrative judge addressed the appellant’s argument that the
agency violated his due process rights when it withheld four of eight witness
statements collected during the agency’s investigation. ID at 28 -29. The
administrative judge found the deciding official to be a credible witness who
reasonably exercised her discretion and gave adequate consideration to the
appellant’s oral reply. ID at 19. The administrative judge relied on the deciding
official’s testimony that she was either not provided with, or that she did not
recall being provided with, the four additional witness statements. ID at 29;
Hearing Transcript (HT), Volume 1, at 239:19-40:20 (testimony of the deciding
official). 6 In addition, he noted that the appellant did not introduce evidence to
contradict or otherwise call into question the deciding official’s testimon y on this
issue. ID at 29. The administrative judge found that the appellant did not
establish that the deciding official improperly considered witness statements not
5
In Stone, the U.S. Court of Appeals for the Federal Circuit identified the following
factors to be used to determine if ex parte information is new and material: (1) whether
the ex parte information introduced 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.
6
For consistency with the administrative judge’s initial decision, all citations to the
hearing transcript are to the individual pages within the condensed transcript at the back
of each volume. ID at 2.
5
previously provided to the appellant in making the decision to remove him and
that, accordingly, the appellant failed to establish that a due process violation
occurred. ID at 29-30.
¶8 The appellant has provided no reason for disturbing this finding on review . 7
A deciding official’s knowledge of information only raises due process concerns
when that knowledge is a basis for the deciding official’s determinations on either
the merits of the underlying charges or the penalty to be imposed. Bennett v.
Department of Justice, 119 M.S.P.R. 685, ¶ 10 (2013). Here, the appellant has
failed to produce any evidence either below or on review to contradict the
deciding official’s testimony that she was not provided with, and thus could not
have relied upon, the four additional witness statements at issue. ID at 29; HT,
Vol. 1, at 239:19-40:20 (testimony of the deciding official). Therefore, we find
that he has failed to prove that the agency violated his due process rights by not
providing him with these witness statements.
¶9 Even if the deciding official had received and considered the four additional
witness statements, any such communication would not violate the appellant’s
due process rights because these communications clarified and confirmed
information that was already in the record. See Blank, 247 F.3d at 1229.
Specifically, like the other witness statements, these four additional witness
statements describe seeing the appellant engage in inappropriate misconduct of a
sexual nature. Compare IAF, Tab 9 at 44-48, with IAF, Tab 14 at 15-16, 22-23
(comparing witness statements from the evidence file with the four additional
7
To the extent the appellant argues he was entitled to all eight witness statements
simply because they were collected during the investigation, and not because they were
relied upon by the agency, this argument is without merit. See Martel v. Department of
Transportation, 15 M.S.P.R. 141, 155 (1983) (finding that there was no error when an
agency excluded information from an adverse action proposal file if the information
was not relied upon to reach the adverse action decision), aff’d, 735 F.2d 504 (Fed. Cir.
1984); Porrazzo v. Department of the Air Force, 19 M.S.P.R. 496, 497 n.1 (1984)
(finding that the agency need not provide an entire investigation file to an employee if
the proposal is based on only the portions of the file that were provided to the
employee).
6
witness statements collected during the investigation). Thus, these statements
would not have risen to the level of an ex parte communication that presented
new information to the deciding official because the additional witness statements
contained cumulative information regarding the appellant’s propensity to engage
in inappropriate misconduct of a sexual nature. Further, there is no showing that
additional information regarding the appellant’s inappropriate conduct would
likely result in undue pressure upon the deciding official to rule in a particular
manner. Stone, 179 F.3d at 1377. In fact, the deciding official explicitly testified
that only one instance of such inappropriate misconduct, such as the charged
misconduct that occurred on March 30, 2017, would warrant removal. HT, Vol. I,
at 232:24-233:4 (testimony of the deciding official). Thus, even assuming that an
ex parte communication did occur, the procedural defect was not so substantial
and so likely to cause prejudice that it undermines the due process guarantee of
notice. Stone, 179 F.3d at 1376.
¶10 Although we find no due process violation, we still must determine whether
the agency committed harmful procedural error. See Ward, 634 F.3d at 1282. To
prove harmful procedural error, the appellant must show both that the agency
committed procedural error and that the error was harmful. Rogers v. Department
of Defense, 122 M.S.P.R. 671, ¶ 7 (2015). Harmful error cannot be presumed; an
agency error is harmful only where the record shows that the error was likely to
have caused the agency to reach a conclusion different from the one it would have
reached in the absence of the error. See id. Here, even if the deciding official
had erred in considering the four additional witness statements, such error would
not likely have caused her to reach a different conclusion regarding the
appellant’s removal because the witness statements contained no new information
than that in the evidence file. See Stephen v. Department of the Air Force,
47 M.S.P.R. 672, 681 (1991) (explaining that a procedural error is harmful if it
likely had a harmful effect upon the outcome of the case); see also 5 C.F.R.
§ 1201.4(r).
7
The administrative judge properly found that the appellant’s due process claim
regarding his oral reply conference was untimely.
¶11 On review, the appellant also raises a due process claim regarding his oral
reply conference. PFR File, Tab 1 at 10-14. However, the administrative judge
found that this claim was untimely because the appellant did not raise it before
the prehearing conference pursuant to 5 C.F.R. § 1201.24(b); ID at 30. The
appellant alleges that the agency committed the following due process violations
concerning the oral reply conference: (1) an agency official, not the deciding
official, was present at the oral reply conference; (2) documents that the appellant
submitted at the oral reply were not provided to the deciding official; and
(3) there were typographical errors in the oral reply summary pre pared by the
agency official. ID at 30; PFR File, Tab 1 at 10-14. The administrative judge did
not list these specific due process allegations in the summary of the telephonic
prehearing conference, which stated that additional issues would be precluded.
IAF, Tab 16 at 8-10. The parties were given the opportunity to object to the
summary either in writing prior to the hearing or on the record at the
commencement of the hearing. Id. at 10. The appellant did not object. HT,
Vol. 1, at 6:3-15. Because the appellant failed to object to the administrative
judge’s summary of the prehearing conference, he may not now raise this claim
on review. See Crowe v. Small Business Administration, 53 M.S.P.R. 631, 634-35
(1992) (finding that an issue is not properly before the Board when it is not
included in the administrative judge’s memorandum summarizing the prehearing
conference, which states that no other issues will be considered, unless either
party objects to the exclusion of that issue in the summary). Thus, the Board
need not consider this claim further. 8
8
Even if the appellant had timely raised this due process claim below, he has not
provided a basis for disturbing the administrative judge’s finding that a violation did
not occur. See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding
no reason to disturb the administrative judge’s findings when she considered the
8
NOTICE OF APPEAL RIGHTS 9
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 b elow 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).
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:
evidence as a whole, drew appropriate inferences, and made reasoned conclusions on
issues of credibility); ID at 30.
9
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 i ndicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
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
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
10
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
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
11
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. 10 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
Additional information about the U.S. Court of Appeals for the Feder al
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.
10
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired o n
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.
12
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.