                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     BRENDA D. HICKS,                                DOCKET NUMBER
                   Appellant,                        AT-0752-16-0105-I-1

                  v.

     DEPARTMENT OF AGRICULTURE,                      DATE: September 22, 2016
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Ronnie Hubbard, Jackson, Mississippi, for the appellant.

           Joshua N. Rose, Esquire, and Hyacinth Michelle Clarke, Washington, D.C.,
             for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The agency has filed a petition for review of the initial decision, which
     reversed the appellant’s removal on due process grounds.             For the reasons
     discussed below, we GRANT the agency’s petition for review, VACATE the



     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     initial decision, and REMAND the case to the regional office for further
     adjudication in accordance with this Order.

                                       BACKGROUND
¶2         Effective October 29, 2015, the agency removed the appellant from her
     position as a Food Inspector based on a single charge of conduct prejudicial to the
     best interests of the service supported by two specifications. 2 Initial Appeal File
     (IAF), Tab 7 at 14‑19, 25‑26. In specification one, the agency alleged that, on
     April 30, 2014, after the appellant’s supervisor, Dr. R.L., informed her that he
     had denied her leave request, the appellant called Dr. R.L. over to her vehicle at
     the end of her shift, pulled what appeared to be a gun from under the seat of the
     car, and showed it to him. Id. at 25. In specification two, the agency alleged
     that, on May 6, 2014, the appellant came to the door of an agency office, asked
     for Dr. R.L., and then pointed her finger at him and made a noise as if she were
     firing a gun. Id.
¶3         The appellant filed a Board appeal challenging her removal and raised
     affirmative defenses of a denial of due process in connection with an agency
     investigation of the charges, harmful procedural error, and discrimination based
     on race. IAF, Tab 1 at 2, Tab 13 at 4, Tab 15 at 7‑8, Tab 20 at 2‑7. After
     holding the requested hearing, the administrative judge issued an initial decision
     reversing the appellant’s removal on due process grounds not raised by the
     appellant,   without   addressing    whether    the   agency    proved    the   charge.
     IAF, Tab 22, Initial Decision (ID). Based on the deciding official’s testimony, he
     found that the deciding official considered the appellant’s misconduct as
     “threats,” an offense different from and more serious than the charged offense of


     2
      In the proposal notice, the agency also proposed the appellant’s removal based on an
     additional charge of failure to complete training as a condition of employment. Initial
     Appeal File, Tab 7 at 24‑25. However, the deciding official did not sustain that charge,
     and it is not at issue in this appeal. Id. at 15.
                                                                                        3

     conduct prejudicial to the best interests of the service. ID at 4‑5. He further
     found that the deciding official’s consideration of the appellant’s conduct as
     threats constituted an ex parte communication that introduced new and material
     information to which the appellant was not afforded an opportunity to respond.
     ID at 5‑7.
¶4         The administrative judge declined to address the appellant’s affirmative
     defense of harmful procedural error, having reversed her removal on due process
     grounds, but found that she failed to prove her affirmative defense of
     discrimination based on race. ID at 8‑9. He ordered the agency to cancel the
     appellant’s removal, restore her to duty, provide her with back pay, and provide
     interim relief in accordance with 5 U.S.C. § 7701(b)(2)(A), if either party filed a
     petition for review of the initial decision. ID at 10‑11.
¶5         The agency has filed a petition for review of the initial decision, in which it
     argues that the administrative judge erred in finding that it violated the
     appellant’s due process rights.    Petition for Review (PFR) File, Tab 1.        The
     appellant has responded in opposition to the petition for review, and the agency
     has replied. PFR File, Tabs 4‑5.

                      DISCUSSION OF ARGUMENTS ON REVIEW
     The agency has substantially complied with the interim relief order.
¶6         When, as here, the appellant was the prevailing party in the initial decision
     and interim relief was ordered, a petition for review filed by the agency must be
     accompanied by a certification that it has complied with the interim relief
     order. 5 C.F.R. § 1201.116(a). To establish compliance with an interim relief
     order, all that an agency must accomplish by the petition for review filing
     deadline is to take appropriate administrative action, such as executing a Standard
     Form 50 (SF-50), which will result in the issuance of a paycheck for the interim
     relief period.   Archerda v. Department of Defense, 121 M.S.P.R. 314, ¶ 13
     (2014); Salazar v. Department of Transportation, 60 M.S.P.R. 633, 639 (1994).
                                                                                         4

     Reasonable, inadvertent delays in issuing pay due under an interim relief order do
     not demonstrate noncompliance with the order.           Archerda, 121 M.S.P.R. 314,
     ¶ 13; cf. Bradstreet v. Department of the Navy, 83 M.S.P.R. 288, ¶¶ 11‑13 (1999)
     (dismissing an agency’s petition for review based on its 8‑month delay in
     providing an appellant with back pay required by an interim relief order).
¶7         The agency’s petition for review itself was not accompanied by a
     certification of compliance, as required by the Board’s regulations.         5 C.F.R.
     § 1201.116(a). After the agency filed its petition for review, the appellant filed a
     pleading asserting that the agency failed to comply with the interim relief order
     and requesting that the Board ensure compliance with the order. PFR File, Tab 3
     at 4. In response, the agency submitted a certification of compliance and a copy
     of an SF-50, issued 7 days before the agency filed the petition for review, which
     reflected that the agency had reinstated the appellant, effective the date of the
     initial decision.   PFR File, Tab 5 at 7‑8.        In an accompanying pleading, the
     agency represented that, pursuant to 5 U.S.C. § 7701(a)(2)(A)(ii), it determined
     that it would be unduly disruptive to return the appellant to work and that it
     placed her on administrative leave and mailed paychecks to her shortly after
     filing the petition for review. Id. at 5.
¶8         The Board’s regulations do not provide for a motion for compliance with an
     interim relief order, and the Board will not entertain such a motion. Forma v.
     Department of Justice, 57 M.S.P.R. 97, 102, aff’d, 11 F.3d 1071 (Fed. Cir.
     1993); 5 C.F.R. § 1201.182(a)‑(b).          However, if an appellant believes that an
     agency has not complied with an interim relief order, she may move to dismiss
     the    agency’s     petition    for    review.         Forma,    57    M.S.P.R.     at
     102; 5 C.F.R. § 1201.116(d). If an agency fails to establish compliance with an
     interim relief order, the Board has the discretion to dismiss its petition for review,
     but need not do so. Erickson v. U.S. Postal Service, 120 M.S.P.R. 468, ¶¶ 11‑12
     (2013); 5 C.F.R. § 1201.116(e).
                                                                                       5

¶9          The appellant has not specified the nature of the agency’s alleged
      noncompliance with the interim relief order, and, based on the evidence submitted
      by the agency, we discern no basis to dismiss the agency’s petition for review.
      Therefore, to the extent that the appellant’s pleading asserting that the agency
      failed to comply with the interim relief order may be construed as a motion to
      dismiss the agency’s petition for review, we deny the motion.
      The administrative judge erred in finding that the agency violated the appellant’s
      due process rights.
¶10         Pursuant to Ward v. U.S. Postal Service, 634 F.3d 1274, 1279–80 (Fed. Cir.
      2011), and Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368,
      1376–77 (Fed. Cir. 1999), a deciding official violates an employee’s due process
      rights when she relies upon new and material ex parte information as a basis for
      her decision on the merits of a proposed charge or the penalty to be imposed.
      See Lange v. Department of Justice, 119 M.S.P.R. 625, ¶ 8 (2013). The Board
      has held that this analysis applies not only to ex parte communications
      introducing information that previously was unknown to the deciding official, but
      also to information personally known and considered by the deciding official, if
      that information was not included in the notice of proposed removal to the
      appellant.   Lopes v. Department of the Navy, 116 M.S.P.R. 470, ¶ 10 (2011).
      When a deciding official considers either type of information, the employee is no
      longer on notice of portions of the evidence relied upon by the agency, resulting
      in a potential constitutional violation. Id.
¶11         Even assuming without finding that the deciding official relied on ex parte
      information when she considered the appellant’s alleged misconduct as a threat
      charge, ID at 4‑6, the proposal notice informed the appellant that the agency
      charged her with conduct prejudicial to the best interests of the service. This
      contains a lesser burden of proof than a threat charge because it does not require
      an agency to establish that the appellant intended to cause harm or that any
      listeners felt threatened by the alleged statements or actions at issue. IAF, Tab 7
                                                                                       6

      at 25; see Wiley v. U.S. Postal Service, 102 M.S.P.R. 535, ¶ 10 (2006) (finding
      that an improper conduct charge contains a lesser burden of proof than a threat
      charge), aff’d, 218 F. App’x 1001 (Fed. Cir. 2007); Otero v. U.S. Postal
      Service, 73 M.S.P.R. 198, 200, 204 (1997) (finding that an administrative judge
      erred in requiring an agency to demonstrate the elements of a threat charge when
      it charged an appellant with “improper conduct” based on threatening remarks
      towards      his   supervisor);   see   also   Metz    v.   Department    of   the
      Treasury, 780 F.2d 1001, 1004 (Fed. Cir. 1986) (finding that, in deciding whether
      statements constitute threats, the Board is to apply the reasonable person
      criterion, considering the listeners’ reactions and apprehensions, the wording of
      the statements, the speaker’s intent, and the attendant circumstances).
¶12        The deciding official testified that, in deciding to remove the appellant, she
      considered that:    (1) the appellant had made “a threat to a colleague at the
      workplace”; (2) the gun at issue in the charge was used as “a threat to another
      employee”; (3) the gun was “perceived as a threat”; and (4) “showing a gun is a
      threat”. IAF, Tab 21, Hearing Compact Disc (HCD) (testimony of the deciding
      official). She further testified that the appellant’s removal was consistent with
      the agency’s treatment of employees who convey “threats with deadly weapons
      such as firearms and knives,” and that the appellant’s removal was necessary
      because the “threat level was so high.” Id. We have considered the agency’s
      arguments on review that the deciding official’s testimony pertained solely to the
      severity of the alleged misconduct at issue in the charged offense of conduct
      prejudicial to the best interests of the service, and find them unpersuasive.
      PFR File, Tab 1 at 5, 10, 12‑16. We agree with the administrative judge that the
      deciding official considered the appellant’s alleged misconduct as a threat charge.
      ID at 4‑5.
¶13        Again, not necessarily finding as such, we note that not every ex parte
      communication rises to the level of a due process violation; only ex parte
                                                                                          7

      communications that introduce new and material information to the deciding
      official   are   constitutionally   infirm.        Stone,    179   F.3d   at 1376‑77;
      Lange, 119 M.S.P.R. 625, ¶ 8.       In Stone, the U.S. Court of Appeals for the
      Federal Circuit identified the following factors to be used to determine whether
      ex parte information is new and material:               (1) whether the ex parte
      communication     introduces   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. 179 F.3d
      at 1377. Ultimately, the Board’s inquiry in deciding whether an employee’s due
      process rights have been violated 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.
¶14         Here, we agree with the agency that the administrative judge erred in
      finding that the allegedly ex parte information considered by the deciding official
      was new and material. PFR File, Tab 1 at 7, 10, 12‑16. Although the agency did
      not charge the appellant with making a threat, the penalty section of the proposal
      notice quoted agency policies regarding firearms and workplace violence, which
      prohibited threats, and addressed the same type of alleged misconduct that formed
      the basis for the appellant’s removal. IAF, Tab 7 at 26‑27.
¶15         Specifically, the proposal notice quoted an agency policy on firearms at the
      worksite, which stated:
             It is Agency policy to protect employees from assault, harassment,
             interference, intimidation, or threats related to, or as the result of,
             performing their official duties and responsibilities, whenever
             possible. The Agency will not tolerate careless or indiscriminate
             incidents involving firearms or references to firearms (examples:
             joking, improper handling or storage, horseplay, or belligerent or
             hostile exchanges involving firearms).        Actions or statements
             referencing firearms used to assault, harass, interfere with,
                                                                                         8

            intimidate, or threaten employees are unacceptable and will not be
            tolerated.
      Id. at 26 (emphasis added).
           The proposal notice also quoted an agency policy on workplace violence,
      which stated:
            It is the Agency’s policy that the workplace environment must
            remain free of behavior, action, or language causing or contributing
            to workplace violence.          Assault, harassment, interference,
            intimidation, or threat by or against any Agency employee or client
            at the worksite is unacceptable and will not be tolerated.
            It is a violation of Agency policy to have, use, or threaten use of a
            firearm, explosive, or other dangerous weapons at a worksite or in a
            vehicle used for official business . . . . It is inappropriate to refer to
            or threaten the use of these items in a violent act or manner contrary
            to their normal use. Such a threat is unacceptable and will not be
            tolerated.
      Id. at 27 (emphasis added).     Thus, the agency policies quoted in the penalty
      section of the proposal notice used the word “threat” or “threaten” no less than
      six times. Id. at 26‑27. Under these circumstances, we find that, although the
      agency did not charge the appellant with making a threat, the proposal notice did,
      or should have, put the appellant on notice that the agency viewed her alleged
      misconduct as analogous to a threat. Therefore, we find that, to the extent the
      information relied on by the deciding official may have been ex parte, it was
      merely cumulative. See Stone, 179 F.3d at 1377.
¶16        We further disagree with the administrative judge’s finding that the
      appellant’s response to the proposal notice reflected that she was unaware that the
      agency considered her alleged misconduct as a threat. ID at 6. In the appellant’s
      response, she asserted that the alleged misconduct at issue in specification two
      was a misguided attempt at humor, indicating that she was aware that the
      threatening nature of the alleged misconduct was at issue. IAF, Tab 7 at 21‑22;
      see Wilson v. Department of Homeland Security, 120 M.S.P.R. 686, ¶¶ 10‑11
      (2014) (finding that an agency did not violate an appellant’s due process rights
                                                                                       9

      when she raised and responded to alleged ex parte information in replying to a
      proposal notice). For these reasons, regardless of whether the purported ex parte
      information at issue was of the type likely to result in undue pressure, we find
      that the other factors do not weigh in the appellant’s favor and do not warrant a
      finding that the alleged ex parte information was so substantial and so likely to
      cause prejudice that no employee could fairly be required to be subjected to a
      deprivation of property under the circumstances. See Stone, 179 F.3d at 1377.
¶17        Therefore, we vacate the initial decision finding that the agency violated the
      appellant’s due process rights and remand the case to the regional office. On
      remand, the administrative judge shall conduct any further proceedings necessary
      to make findings regarding the charge, the appellant’s affirmative defenses,
      nexus, and the penalty, including continuing the hearing, if appropriate.
      Thereafter, the administrative judge shall issue a new initial decision. In the new
      initial decision, the administrative judge may adopt his original finding regarding
      the appellant’s affirmative defense of discrimination based on race, if he finds
      that it is supported by any additional evidence that may be developed on remand.
      See ID at 8‑10.

                                           ORDER
¶18        For the reasons discussed above, we vacate the initial decision and remand
      this case to the regional office for further adjudication in accordance with this
      Remand Order.




      FOR THE BOARD:                           ______________________________
                                               Jennifer Everling
                                               Acting Clerk of the Board
      Washington, D.C.
