                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     AMY TERRELL PAYTON,                             DOCKET NUMBER
                  Appellant,                         AT-0752-14-0055-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: January 29, 2015
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Kaye Johnson Persons, Biloxi, Mississippi, for the appellant.

           Johnston B. Walker, Jackson, Mississippi, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The appellant has filed a petition for review of the initial decision which
     affirmed her removal and denied her affirmative defenses.            For the reasons
     discussed below, we GRANT the appellant’s petition for review, REVERSE the
     initial decision IN PART on the basis of a Ward/Stone due process violation, and

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     DO NOT SUSTAIN the appellant’s removal. We AFFIRM the initial decision
     insofar as it denied the appellant’s affirmative defenses of equal employment
     opportunity (EEO) retaliation and sex-based discrimination. This is the Board’s
     final decision in this matter. See 5 C.F.R. § 1201.113.
¶2        The appellant served as a Nursing Assistant in one of the agency’s geriatric
     dementia units at all times relevant to this appeal. Initial Appeal File (IAF), Tab
     4 at 10-11. The agency issued the appellant a notice of proposed removal based
     upon three charges of misconduct: endangering the safety of a patient, leaving the
     work area, and lack of candor (based on two specifications). Id. at 27-31. In its
     notice of proposed removal, the agency specified that it was relying on two prior
     instances of discipline as aggravating factors. Id. at 29. The appellant provided
     written replies addressing both her proposed removal and the merits of her prior
     disciplinary actions. Id. at 23-26. The deciding official signed a Douglas factors
     worksheet containing a narrative explanation of each of the factors he considered
     in reaching his decision, including the intentional nature of the employee’s
     misconduct, the appellant’s past disciplinary history, the severity of her
     misconduct (including the risk of harm to the patient), and the possible negative
     attention and notoriety that the appellant’s misconduct could have caused the
     agency.   Id. at 19-21.   The deciding official imposed the appellant’s removal
     effective August 24, 2013. Id. at 15-18.
¶3        The appellant filed an initial appeal of her removal, raised affirmative
     defenses of retaliation and sex discrimination, and requested a hearing. IAF, Tab
     1. Following an in-person hearing, the administrative judge ordered the parties to
     brief any and all potential Ward/Stone due process or harmful procedural error
     claims that might have been developed during the hearing. IAF, Tab 29, Initial
     Decision (ID) at 19-20; see also IAF, Tabs 26 (agency post-hearing brief), 27
     (appellant’s post-hearing brief). The administrative judge subsequently issued an
     initial decision sustaining two of the three charges and affirming the appellant’s
     removal, finding that although the deciding official improperly considered
                                                                                          3

     discipline, which was issued after the appellant’s misconduct at issue in this
     case, 2 the agency nevertheless proved the reasonableness of the penalty of
     removal based upon the sustained charges. ID at 13 (citing the deciding official’s
     testimony). The administrative judge further found no evidence of a due process
     or harmful error violation, and he denied the appellant’s affirmative defenses of
     EEO retaliation and sex discrimination. ID at 16-19.
¶4        The appellant has filed a petition for review challenging the administrative
     judge’s initial decision. Petition for Review (PFR) File, Tab 1. In her petition
     for review, the appellant argues, inter alia, that the administrative judge erred in
     sustaining the charges against her and wrongly denied her discrimination and due
     process claims. PFR File, Tab 1 at 17-23. The agency has filed a response in
     opposition. PFR File, Tab 3.

     The deciding official considered aggravating factors which were not contained
     within the notice of proposed removal.
¶5        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 right to due
     process when he relies upon new and material ex parte information as a basis for
     his decisions 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). Ward/Stone
     and its progeny recognize, however, that not all ex parte communications rise to
     the level of a due process violation; rather, only ex parte communications which
     introduce   new    and   material   information    to   the   deciding   official   are
     constitutionally infirm. Id. In Stone, the U.S. Court of Appeals for the Federal
     Circuit identified the following factors to be used to determine whether ex parte


     2
       See ID at 13 (citing Cantu v. Department of the Treasury, 88 M.S.P.R. 253, ¶ 6 (2001)
     (discipline which is issued after the incidents at issue in an appeal should not be
     considered as an aggravating factor because the employee has not been given an
     opportunity to learn from his past mistakes)).
                                                                                        4

     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. Id. (citing Stone, 179 F.3d at 1377).
¶6        Pursuant to the Ward/Stone line of authority, when an agency intends to rely
     on an aggravating factor as the basis for the imposition of a penalty, such factors
     must be included in the agency’s advance notice of the adverse action so that the
     employee will have a fair and complete opportunity to respond to those factors
     before   the   deciding    official.      Jenkins   v.   Environmental    Protection
     Agency, 118 M.S.P.R. 161, ¶ 10 (2012).        If an employee has not been given
     “notice of any aggravating factors supporting an enhanced penalty,” an ex parte
     communication with the deciding official may constitute a constitutional due
     process violation because it potentially deprives the employee of notice of all of
     the evidence being used against her and the opportunity to respond. Id. (quoting
     Ward, 634 F.3d at 1280).
¶7        We have reviewed the initial decision, along with the record evidence
     developed below, and we find that the deciding official committed a Ward/Stone
     due process violation by considering several aggravating factors which were not
     included in the agency’s advance notice of the action. In its notice of proposed
     removal, the agency explained that the appellant’s misconduct jeopardized the
     safety of a particular residential patient and that the appellant had previously been
     disciplined in April 2013 and November 2012. IAF, Tab 4 at 37-31. The agency
     included no additional discussion of any other proposed aggravating factors in its
     notice of proposed removal.        Id.   The deciding official’s Douglas factors
     worksheet, however, reflects that the deciding official took into account several
     additional aggravating factors in rendering his decision, including the severity of
     the appellant’s misconduct, the intentional nature of her actions, management’s
                                                                                         5

     loss of trust in the appellant, and the potential negative notoriety that the agency
     could have faced as a result of the appellant’s misconduct. See id. at 19-21.
¶8        Although some of the aggravating factors cited by the deciding official
     “flowed naturally from the fact” that the appellant was charged with endangering
     the safety of a patient and lack of candor (such as the severity of the appellant’s
     misconduct) and were thus properly considered, we find that the intentional
     nature of the appellant’s conduct and the potential for negative attention toward
     the agency were not within the natural ambit of these charges. See, e.g., Harding
     v. U.S. Naval Academy, 567 F. App’x 920, 925-26 (Fed. Cir. 2014) 3; IAF, Tab 4
     at 19 (Douglas factors worksheet referencing that the appellant “intentionally did
     not inform leadership when asked” about an unlocked gate and that “during a
     fact-finding the employee again intentionally gave untrue information”). Under
     these circumstances, the agency was required to notify the appellant that it would
     rely upon these additional aggravating factors in reaching a decision on her
     proposed removal. See Langham v. U.S. Postal Service, 92 M.S.P.R. 268, ¶ 7
     (2002) (suggesting that the agency erred by not informing the appellant that it
     would consider the intentional nature of his conduct). 4 The agency, however, did
     not include these factors in the notice of proposed removal, and the appellant had
     no opportunity to respond to these aggravating factors before the deciding official
     rendered a decision. 5 IAF, Tab 4 at 27-31. We accordingly find that the deciding

     3
       The Board may choose to follow nonprecedential decisions issued by the Federal
     Circu it which it finds persuasive. See Erlendson v. Department of Justice,
     121 M.S.P.R. 441, ¶ 6 n.2 (2014).
     4
       In Langham, the Board found that it could remedy the deciding official’s error by
     performing its own analysis of the reasonableness of the penalty.          Langham,
     92 M.S.P.R. 268, ¶ 7. This practice, however, was overturned by the Federal Circuit’s
     decision in Ward. See Gray v. Department of Defense, 116 M.S.P.R. 461, ¶ 7 (2011).
     5
       Durin g the hearing, the deciding official also offered conflicting testimony as to
     whether he considered the appellant’s written rep ly before reviewing and sign ing the
     Douglas factors worksheet. See Hearing Transcript (HT) at 206, 214-15. In light of our
     decision, we do not reach the issue of whether the deciding official committed a
     separate due process violation based upon his possible failure to consider the
                                                                                           6

     official’s reliance on these factors violated the appellant’s due process rights
     under Ward/Stone. See Solis v. Department of Justice, 117 M.S.P.R. 458, ¶ 9
     (2012) (finding a due process violation based on the deciding official’s Douglas
     factors worksheet and hearing testimony); HT at 155-56 (deciding official’s
     testimony that he reviewed each of the Douglas factors listed on the worksheet). 6
¶9         In further support of our conclusion, we note that neither of the sustained
     charges against the appellant—endangering the safety of a patient and lack of
     candor—required proof of intent; although lack of candor is a broad and flexible
     concept, it does not require a showing of intent. See Rhee v. Department of the
     Treasury, 117 M.S.P.R. 640, ¶ 10 (2012) (citing Ludlum v. Department of
     Justice, 287 F.3d 1208, 1283-84 (Fed. Cir. 2002)).           Moreover, although the
     intentional nature of an employee’s conduct is always a relevant aggravating
     factor that may be considered as part of the deciding official’s penalty analysis
     even if it is not part of the charge against the employee, a deciding official must
     inform the employee in advance of his intent to rely upon such an aggravating
     factor in reaching a decision on the proposed adverse action. See Fernandez v.
     Department of Agriculture, 95 M.S.P.R. 63, ¶¶ 8, 14 (2003) (intent is always
     relevant to the reasonableness of an agency’s penalty determination); Hamilton v.
     U.S. Postal Service, 71 M.S.P.R. 547, 556 (1996) (an agency may consider the
     employee’s intent even if it is not required as part of the charge of misconduct).
     Because neither of the sustained charges against the appellant required proof of


     appellant’s response before rendering a decision on the proposed removal. See, e.g.,
     Massey v. Department of the Army, 120 M.S.P.R. 226, ¶ 10 (2013).
     6
       There was testimony and evidence furnished below that the appellant was presented
     with “the evidence file” prior to her responding to the notice of proposed removal.
     Based on the information in the record before us, it does not appear that the agency
     provided the appellant with a copy of the Douglas factor worksheet as part of the
     evidence file. However, if the agency had done so and had allowed the appellant, in her
     reply to the deciding official, and opportunity to address the factors identified in the
     worksheet (whether or not she availed herself of that opportunity), then there would
     have been no ex parte communication and, therefore, no Ward/Stone violation.
                                                                                       7

      intent, we find that the deciding official erred in considering the intentional
      nature   of   the   appellant’s   misconduct   without    advanced   notice.   See
      Jenkins, 118 M.S.P.R. 161, ¶ 12 (the agency erred by considering charges in the
      agency’s table of penalties which were not included in the notice of proposed
      removal); Howard v. Department of the Air Force, 118 M.S.P.R. 106, ¶ 6 (2012)
      (finding a due process violation based on the deciding official’s consideration of
      performance deficiencies which were not included in the removal proposal).
¶10        The appellant’s removal is NOT SUSTAINED, and the appellant is entitled
      to a new constitutionally-correct removal proceeding. See Gray, 116 M.S.P.R.
      461, ¶ 12.

      The administrative judge’s denial of the appellant’s affirmative defenses of
      retaliation and sex discrimination is affirmed.
¶11        The appellant also alleged that she was subjected to a hostile work
      environment based upon the sexual advances of a coworker and that the agency
      retaliated against her when it removed her from employment after filing a hostile
      work environment complaint. IAF, Tabs 1, 13. The administrative judge denied
      these affirmative defenses, finding that there was no causal link between the
      appellant’s removal and the alleged hostile work environment caused by one of
      her coworkers, and that the appellant otherwise failed to offer any evidence in
      support of a claim of disparate treatment. ID at 18-19.
¶12        We agree with the administrative judge that there is no linkage between the
      alleged hostile work environment and the appellant’s removal.          Although an
      adverse employment action, such as a removal, can be considered as a part of a
      pattern of harassment, here, where the alleged harasser was not involved in either
      the decision to propose or to effectuate the appellant’s removal, we agree with the
      administrative judge that there is no evidence of a nexus which could make the
                                                                                            8

      appellant’s removal part of the alleged pattern of sexual harassment. 7             See
      Johnson v. Defense Logistics Agency, 61 M.S.P.R. 601, 609 (1994) (finding a
      linkage between the proposing official’s racially-charged comments about the
      appellant and the deciding official’s removal decision). We therefore concur with
      the administrative judge that the appellant failed to establish that her removal was
      the result of sex-based discrimination. ID at 17-18. We further agree that there
      is no evidence of comparator employees in the record, and that the appellant has
      failed to demonstrate that the agency’s decision to remove her from employment
      was a pretext for sex-based discrimination. See ID at 18; PFR File, Tab 1 at 22
      (only arguing that the deciding official’s “strained” Douglas factors analysis
      evidences pretext). 8
¶13         Lastly, we agree with the administrative judge that there is no evidence of
      retaliation based on the appellant’s filing of an EEO complaint. ID at 17. The
      administrative judge found that the deciding official had no motive to retaliate
      against the appellant for filing an EEO complaint based on a coworker’s alleged
      sexual harassment, and he credited the testimony of the deciding official that he
      took steps to separate the appellant from her coworker after she filed her
      complaint.    ID at 17-18.      The appellant has presented nothing on review
      challenging these findings, and we agree that the appellant has failed to establish
      by a preponderance of the evidence that the agency’s real reason for removing her
      from employment was based on her prior EEO activity.            See Jefferson v. U.S.
      Postal Service, 81 M.S.P.R. 607, ¶ 9 (1999) (finding that the appellant did not
      establish retaliation even though the Board did not sustain the underlying charges
      of misconduct); Carter v. Small Business Administration, 61 M.S.P.R. 656,

      7
        The merits of the appellant’s underlying hostile work environment claim are not
      before the Board in this proceeding and are the basis of a separate EEO complaint. See
      ID at 19 n.4.
      8
       Even though we find that the deciding official considered certain aggravating factors
      which were not included in the notice of proposed removal, there is no evidence that the
      deciding official’s removal decision was based on the appellant’s sex.
                                                                                       9

      665-66 (1994) (concluding that the appellant did not establish retaliation even
      though the agency failed to establish unacceptable performance under chapter
      43).

                                             ORDER
¶14          We ORDER the agency to CANCEL the appellant’s removal and to restore
      the appellant effective August 24, 2013. See Kerr v. National Endowment for the
      Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no
      later than 20 days after the date of this decision.
¶15          We also ORDER the agency to pay the appellant the correct amount of back
      pay, interest on back pay, and other benefits under the Office of Personnel
      Management’s regulations, no later than 60 calendar days after the date of this
      decision. We ORDER the appellant to cooperate in good faith in the agency's
      efforts to calculate the amount of back pay, interest, and benefits due, and to
      provide all necessary information the agency requests to help it carry out the
      Board's Order. If there is a dispute about the amount of back pay, interest due,
      and/or other benefits, we ORDER the agency to pay the appellant the undisputed
      amount no later than 60 calendar days after the date of this decision.
¶16          We further ORDER the agency to tell the appellant promptly in writing
      when it believes it has fully carried out the Board’s Order and of the actions it
      took to carry out the Board’s Order. The appellant, if not notified, should ask the
      agency about its progress. See 5 C.F.R. § 1201.181(b).
¶17          No later than 30 days after the agency tells the appellant that it has fully
      carried out the Board’s Order, the appellant may file a petition for enforcement
      with the office that issued the initial decision on this appeal if the appellant
      believes that the agency did not fully carry out the Board’s Order. The petition
      should contain specific reasons why the appellant believes that the agency has not
      fully carried out the Board’s Order, and should include the dates and results of
      any communications with the agency. 5 C.F.R. § 1201.182(a).
                                                                                   10

¶18        For agencies whose payroll is administered by either the National Finance
      Center of the Department of Agriculture (NFC) or the Defense Finance and
      Accounting Service (DFAS), two lists of the information and documentation
      necessary to process payments and adjustments resulting from a Board decision
      are attached. The agency is ORDERED to timely provide DFAS or NFC with all
      documentation necessary to process payments and adjust ments resulting from the
      Board’s decision in accordance with the attached lists so that payment can be
      made within the 60-day period set forth above.

                      NOTICE TO THE APPELLANT REGARDING
                            YOUR RIGHT TO REQUEST
                           ATTORNEY FEES AND COSTS
            You may be entitled to be paid by the agency for your reasonable attorney
      fees and costs. To be paid, you must meet the requirements set out at Title 5 of
      the United States Code (U.S.C.), sections 7701(g), 1221(g), 1214(g) or 3330c(b);
      or 38 U.S.C. § 4324(c)(4).       The regulations may be found at 5 C.F.R.
      §§ 1201.201, 1201.202, and 1201.203.           If you believe you meet these
      requirements, you must file a motion for attorney fees WITHIN 60 CALENDAR
      DAYS OF THE DATE OF THIS DECISION. You must file your attorney fees
      motion with the office that issued the initial decision on your appeal.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            You have the right to request further review of this final decision.

      Discrimination Claims: Administrative Review
            You may request review of this final decision on your discrimination
      claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
      of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
      submit your request by regular U.S. mail, the address of the EEOC is:
                                                                                   11

                             Office of Federal Operations
                    Equal Employment Opportunity Commission
                                P.O. Box 77960
                            Washington, D.C. 20013

      If you submit your request 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, NE
                                 Suite 5SW12G
                            Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. 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
                                                                       12

prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.




FOR THE BOARD:                       ______________________________
                                     William D. Spencer
                                     Clerk of the Board
Washington, D.C.
                                                      DFAS CHECKLIST
                                      INFORMATION REQUIRED BY DFAS IN
                                     ORDER TO PROCESS PAYMENTS AGREED
                                       UPON IN SETTLEMENT CASES OR AS
                                        ORDERED BY THE MERIT SYSTEMS
                                             PROTECTION BOARD
     AS CHECKLIST: INFORMATION REQUIRED B Y IN ORDER TO PROCESS PAYMENTS AGREED UPON IN SETTLEMENT
                                                  CASES
     CIVILIAN PERSONNEL OFFICE MUST NOTIFY CIVILIAN PAYROLL
         OFFICE VIA COMMAND LETTER WITH THE FOLLOWING:

     1. Statement if Unemployment Benefits are to be deducted, with dollar amount, address
            and POC to send.
     2. Statement that employee was counseled concerning Health Benefits and TSP and the
            election forms if necessary.
     3. Statement concerning entitlement to overtime, night differential, shift premium,
            Sunday Premium, etc, with number of hours and dates for each entitlement.
     4. If Back Pay Settlement was prior to conversion to DCPS (Defense Civilian Pay
            System), a statement certifying any lump sum payment with number of hours and
            amount paid and/or any severance pay that was paid with dollar amount.
     5. Statement if interest is payable with beginning date of accrual.

     6. Corrected Time and Attendance if applicable.

        ATTACHMENTS TO THE LETTER SHOULD BE AS FOLLOWS:
1. Copy of Settlement Agreement and/or the MSPB Order.
2. Corrected or cancelled SF 50’s.
3. Election forms for Health Benefits and/or TSP if app licable.
4. Statement certified to be accurate by the employee which includes:
      a. Outside earnings with copies of W2’s or statement from employer.
       b. Statement that employee was ready, willing and able to work durin g the period.
       c. Statement of erroneous payments employee received such as; lump sum leave, severance
       pay, VERA/VSIP, retirement annuity payments (if applicab le) and if employee withdrew
       Retirement Funds.
5. If employee was unable to work during any or part of the period involved, certification of the
type of leave to be charged and number of hours.
NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
Below is the information/documentation required by National Finance Center to process
payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as
ordered by the Merit Systems Protection Board, EEOC, and courts.
1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise
information describing what to do in accordance with decision.
2. The following information must be included on AD-343 for Restoration:
   a. Employee name and social security number.
   b. Detailed explanation of request.
   c. Valid agency accounting.
   d. Authorized signature (Table 63)
   e. If interest is to be included.
   f. Check mailing address.
   g. Indicate if case is prior to conversion. Computations must be attached.
   h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to
be collected. (if applicable)
Attachments to AD-343
1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
Premium, etc. with number of hours and dates for each entitlement. (if applicable)
2. Copies of SF-50’s (Personnel Actions) or list of salary adjustments/changes and
amounts.
3. Outside earnings documentation statement from agency.
4. If employee received retirement annuity or unemployment, provide amount and address
to return monies.
5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
6. If employee was unable to work during any or part of the period involved, certification of
the type of leave to be charged and number of hours.
7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual
Leave to be paid.
NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay
Period and required data in 1-7 above.
The following information must be included on AD-343 for Settlement Cases: (Lump
Sum Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
   a. Must provide same data as in 2, a-g above.
   b. Prior to conversion computation must be provided.
   c. Lump Sum amount of Settlement, and if taxable or non-taxable.
If you have any questions or require clarification on the above, please contact NFC’s
Payroll/Personnel Operations at 504-255-4630.
