                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     MELODY D. CARDER,                               DOCKET NUMBER
                  Appellant,                         DA-0752-14-0620-I-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: April 13, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Charles E. Allenburg, Esquire, Virginia Beach, Virginia, for the appellant.

           Kathy A. Ault, Tinker Air Force Base, Oklahoma, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The agency has filed a petition for review of the initial decision, which
     cancelled the appellant’s 15-day suspension based upon a due process violation.
     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

     1
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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 law to the facts of the case; the 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.        See
     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, and based on the
     following points and authorities, 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).
¶2        At the time relevant to this appeal, the appellant held the position of
     Transportation Clerk.      Compare Initial Appeal File (IAF), Tab 4 at 17
     (August 10, 2014 Standard Form 50, reflecting the Transportation Clerk position),
     with IAF, Tab 1 at 1 (August 25, 2014 appeal, reflecting an Administrative
     Support Clerk position). In March 2014, she notified the agency that she had
     been arrested for possession of marijuana and drug paraphernalia. See IAF, Tab 5
     at 8; see also id. at 9-14 (police reports). The agency proposed the appellant’s
     removal for illegal marijuana use and failure to comply with the drug-free
     workplace program. IAF, Tab 4 at 30-31. The deciding official upheld the illegal
     marijuana use charge and mitigated the removal to a 15-day suspension.            Id.
     at 18-22.
¶3        The appellant appealed her suspension to the Board. IAF, Tab 1. Without
     addressing the merits of the charged misconduct, the administrative judge
     cancelled the suspension.      IAF, Tab 16, Initial Decision (ID) at 2.          The
     administrative judge found that the agency violated the appellant’s right to due
     process by failing to notify her that it would be considering some attendance
     issues as an aggravating factor in determining the appropriate penalty. ID at 2-7.
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     The agency has filed a petition for review. Petition for Review (PFR) File, Tab 1.
     The appellant has filed a response. PFR File, Tab 5.
¶4        When an agency intends to rely on aggravating factors as the basis for the
     imposition of a penalty, such factors should be included in the advance notice of
     adverse action so that the employee will have a fair opportunity to respond to
     those factors before the agency’s deciding official. Lopes v. Department of the
     Navy, 116 M.S.P.R. 470, ¶ 5 (2011). Here, the agency first argues that, contrary
     to the administrative judge’s finding, the deciding official did not consider the
     appellant’s purported attendance issues as an aggravating factor. PFR File, Tab 1
     at 6-7.   Instead, the agency asserts that the deciding official simply cited her
     attendance to establish a nexus between the appellant’s off-duty conduct and the
     efficiency of the service. Id. at 7-8. We disagree.
¶5        Neither the proposal to removal the appellant, nor the subsequent decision
     to suspend her, contained any mention of her being on leave restriction;
     leave-related concerns; or an absence without leave charge.       See IAF, Tab 4
     at 18-20, 30-31.    In terms of past discipline, both letters indicated that the
     appellant had none. Id. at 19, 24. In terms of her past work record, length of
     service, and performance, both simply noted that the appellant had 5 years of
     prior service and her most recent performance rating was “fully successful.” Id.
     Nevertheless, the deciding official expressly testified that he considered her
     attendance in his “Douglas analysis.” See IAF, Tab 18, Hearing Transcript (HT)
     at 72 (referencing Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06
     (1981) (discussing factors that are relevant for consideration in determining the
     appropriateness of a penalty)). He explained that he considered the appellant’s
     attendance in terms of her past discipline as well as her past work record, length
     of service, and performance. HT at 78-79; IAF, Tab 4 at 19. The administrative
     judge asked what the deciding official was thinking as he considered the
     appellant’s attendance in terms of past discipline, to which the deciding official
     indicated that the appellant was on a leave restriction letter.   HT at 79.   The
                                                                                      4

     administrative judge also asked why this was not included in his decision letter if
     it was considered an aggravating factor, to which the deciding official simply
     replied that he did not know. Id. Accordingly, the administrative judge correctly
     found that the appellant’s purported leave issues were used as an aggravating
     factor in the penalty determination. ID at 4, 6.
¶6           The agency next suggests that the deciding official had personal knowledge
     of the appellant’s past attendance issues, and that this somehow distinguishes the
     present case from those where another party introduced new information to the
     deciding official.   See PFR File, Tab 1 at 8-9.     However, the distinction the
     agency is relying on is one that the Board has not accepted.                   See
     Lopes, 116 M.S.P.R. 470, ¶ 10. When a deciding official considers information
     not included in the proposed adverse action, regardless of whether that
     information was personally known to the deciding official or introduced by
     another party, 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. Id.
¶7           Finally, the agency argues that information about the appellant’s purported
     attendance issues did not result in a due process violation because it was neither
     new nor material. The agency asserts that the information about her attendance
     was not new because her absences occurred in the past, prior to the suspension at
     hand.    PFR File, Tab 1 at 9-10.     The agency also suggests that the appellant
     admitted having attendance problems and that there is no reason to believe the
     deciding official would have reached a different result in the absence of this
     information. Id. at 11-16.
¶8           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. Stone v.
     Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376-77 (Fed. Cir.
     1999). The Board will consider the following factors, among others, to determine
                                                                                              5

     whether an ex parte contact is constitutionally impermissible: (1) “whether the ex
     parte    communication      merely   introduces    cumulative     information    or   new
     information;” (2) “whether the employee knew of the error and had a chance to
     respond to it;” and (3) “whether the ex parte communications were of the type
     likely to result in undue pressure upon the deciding official to rule in a particular
     manner.”     Id. at 1377.      Ultimately, the question is whether the 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.” 2 Ward, 634 F.3d at 1279.
¶9           As to the first Stone factor, the fact that the appellant’s purported
     attendance issues occurred at some point in the past, prior to the proposed
     discipline at hand, is not dispositive. The information was still new, regardless of
     the date of occurrence, based upon the lack of notice to the appellant. See, e.g.,
     Lopes, 116 M.S.P.R. 470, ¶¶ 10-11 (finding that the appellant’s prior discipline
     was new because the agency failed to include the information in its notice of
     proposed removal or elsewhere in the case file provided to the appellant). In
     addition, because the attendance issues were unrelated to anything contained in
     the record, it cannot be dismissed as cumulative. Cf. Blank v. Department of the
     Army, 247 F.3d 1225, 1229-30 (Fed. Cir. 2001) (finding that ex parte
     communications did not introduce new and material information in violation of
     due process where it merely confirmed and clarified that which was already
     contained in the record).

     2
       The agency’s reliance on Powers v. Department of the Treasury, 86 M.S.P.R. 256
     (2000), for an alternate standard is m isplaced. See PFR File, Tab 1 at 10-11. Po wers
     did note that the Board considers evidence to be material to a proceeding only where it
     is of sufficient weight to warrant a different outcome. Powers, 86 M.S.P.R. 256, ¶ 12.
     However, Powers also noted that the ultimate inquiry is whether the 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.
     Id. (citing Stone, 179 F.3d at 1377). Subsequent precedent from our reviewing court
     has clearly established that a due process violation is not subject to harmless error. See,
     e.g., Ward v. U.S. Postal Service, 634 F.3d 1274, 1280 (Fed. Cir. 2011).
                                                                                       6

¶10        As to the second Stone factor, the appellant certainly had personal
      knowledge of her own attendance, but she lacked the knowledge that the deciding
      official would be considering it as aggravating.       Her testimony before the
      administrative judge, acknowledging that she had taken a fair amount of leave for
      medical issues, HT at 103, is of no consequence. The relevant inquiry is whether
      the appellant knew of the information and had the opportunity to respond before
      the deciding official considered it. Stone, 179 F.3d at 1377. Because the agency
      failed to provide the appellant notice that her attendance would be considered an
      aggravating factor in its penalty analysis, she was unable to explain her leave to
      the deciding official or otherwise argue that it should not be considered
      aggravating for this unrelated misconduct. See Lopes, 116 M.S.P.R. 470, ¶ 11
      (finding that even though the appellant was clearly aware of his own prior
      suspension, the agency’s failure to advise him that it would be considered in his
      proposed removal deprived him of the opportunity to respond to it).
¶11        As to the third Stone factor, the deciding official’s testimony establishes
      that he considered the appellant’s purported attendance issues as aggravating in
      his penalty analysis. See HT at 79. Ex parte communication is plainly material
      when the deciding official has admitted that the information influenced his
      penalty determination.   Silberman v. Department of Labor, 116 M.S.P.R. 501,
      ¶ 12 (2011). To the extent that the agency implies that the deciding official may
      have imposed the same penalty even in the absence of the new information, PFR
      File, Tab 1 at 13-14, we are not persuaded, see Kolenc v. Department of Health &
      Human Services, 120 M.S.P.R. 101, ¶ 22 (2013) (when the first Stone factor
      “strongly suggests” a due process violation, “any deficiency of the third factor is
      less significant”) (quoting Young v. Department of Housing & Urban
      Development, 706 F.3d 1372, 1377 (Fed. Cir. 2013)).
¶12        Based upon the above, we find no error in the administrative judge’s
      determination that the deciding official’s consideration of the appellant’s
      purported attendance issues rose to the level of a due process violation. That
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violation cannot be excused as harmless. See Lopes, 116 M.S.P.R. 470, ¶ 13.
Instead, the suspension must be reversed and this matter remanded to the agency
to   afford      the    appellant   constitutionally-correct   procedures.      See
Silberman, 116 M.S.P.R. 501, ¶ 14.

                  NOTICE TO THE APPELLANT REGARDING
                     YOUR FURTHER REVIEW RIGHTS
     You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
                            United States Court of Appeals
                                for the Federal Circuit
                              717 Madison Place, N.W.
                               Washington, DC 20439

     The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
     If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States   Code,     at    our   website,   http://www.mspb.gov/appeals/uscode.htm.
Additional information 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, and 11.
                                                                            8

     If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.
