                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     KAREN A. WILSON,                                DOCKET NUMBER
                   Appellant,                        DA-0752-12-0101-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: August 19, 2014
                   Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Joyce E. Kitchens, Esquire, and Stuart A. Miller, Esquire, Atlanta, Georgia,
             for the appellant.

           Isabel M. Robison, Esquire, and Theresa M. Gegen, Esquire, Dallas, Texas,
              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 the reduction in grade and pay action. Generally, we grant petitions
     such as this one only when: the initial decision contains erroneous findings 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     material fact; the initial decision is based on an erroneous interpretation of statute
     or regulation or the erroneous application of 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.          Except as
     modified by this Final Order, we AFFIRM the initial decision.

                                       BACKGROUND
¶2         The agency proposed to demote the appellant from an EAS-24 Manager of
     Human Resources position to an EAS-17 Supervisor of Customer Service
     position based upon a charge of unsatisfactory performance. Initial Appeal File
     (IAF), Tab 33, Volume (Vol.) 9 at 22-24. The agency specified that:
           [a] July 2011 Hostile Work Environment Investigation revealed that
           during 2010 and 2011, [the appellant] exercised poor judgment and
           acted unprofessionally towards [her] staff and subordinates on many
           occasions including, but not limited to:
           -   humiliating subordinate employees by making demeaning,
               personal and derogatory comments while in the presence of other
               employees, and;
           -   instances of coercion and intimidation of subordinates by yelling
               at them or making threats to remove them from their positions
               and/or reassign them. 2

     2
        Although the proposal notice does not indicate that the agency enclosed any
     documents, it is undisputed that the agency attached a 68-page investigative report
     (report), which the appellant received. See IAF, Tab 29 at 5, Tab 33, Vol. 9 at 78. The
     appellant submitted a copy of the report as Exhibit A to her motion for summary
     judgment. IAF, Tab 29 at 5, Tab 31 at 1-70. The report consists of incident reports,
                                                                                                 3

     Id. The agency further elaborated in the “BACKGROUND” section of the letter
     that an employee contacted the appellant’s supervisor by email on March 17,
     2011, alleging that the appellant “had subjected her to continued hostile work
     environment.” Id. The agency stated that, while the appellant averred that poor
     performance was the motivation for the complaint and that the alleged events did
     not occur, “the overwhelming testimony from employees subordinate to [the
     appellant] is that [she had] exhibited ongoing, unprofessional and inappropriate
     behavior during [her] interactions with them.”                 Id.    After considering the
     appellant’s written and oral responses, the agency demoted the appellant to an
     EAS-17 Supervisor of Customer Service, which resulted in a reduction in grade
     and pay. 3 IAF, Tab 33, Vol. 10 at 80-81.
¶3           The appellant appealed the reduction in grade and pay action, alleging that
     the agency discriminated against her on the basis of sex and violated her due
     process rights. IAF, Tab 1.            Regarding the latter claim, she alleged that the
     generalized statements in the proposal notice were insufficient to adequately
     apprise her of the charges against her, and that the deciding official improperly
     considered ex parte information 4 and construed her length of service as an


     summaries of investigative interviews, sworn declarations, and other documents. Id.
     The agency does not dispute that the documents marked as Exhibit A to the appellant’s
     motion for summary judgment constitute the report that it attached to the proposal
     notice.
     3
       The appellant was demoted from an EAS-24 position with an annual salary of $92,796
     to an EAS-17 Supervisor position with an annual salary of $73,639. IAF, Tab 33, Vol.
     4 at 60, Vol. 9 at 22, Vol. 10 at 80.
     4
         The appellant alleges that:
              2.  In deciding the penalty, the Agency improperly relied on
              Appellant’s responses to incidents that were in the 68-page notice, yet
              which were not part of the Agency’s reasons for proposing [her]
              demotion.
              . . . the Deciding Official [] stated she relied on the investigative file . . .
              and that as Deciding Official, she was simply assessing the appellant’s
              behavior . . . . Moreover, [the Deciding Official] testified that she
              seriously considered “every word” of the appellant’s massive written
                                                                                         4

     aggravating factor in assessing the penalty. Id. at 5, Tab 29 at 4-15, Tab 32 at
     4-5, Tab 44 at 2.
¶4         The appellant filed a motion for summary judgment, alleging a violation of
     her due process rights. IAF, Tab 29. She moved for the administrative judge to
     compel the agency to respond to her motion. IAF, Tab 37. At the prehearing
     conference, the administrative judge denied the motion for summary judgment
     because she wanted to hear from witnesses before ruling on the due process
     issue. 5 IAF, Tab 36 at 4. Subsequently, the appellant withdrew her request for a
     hearing. IAF, Tab 42. After the parties filed final evidentiary submissions, IAF,
     Tabs 47, 50-51, the appellant requested a hearing on the due process issue, IAF,
     Tab 52.
¶5         Based on the written record, the administrative judge affirmed the reduction
     in grade and pay action, finding that the agency proved that the appellant’s
     performance was unsatisfactory.        IAF, Tab 56, Initial Decision (ID) at 5-45.
     Further, the administrative judge found that the appellant failed to prove her due
     process claim based on the following:          (1) the agency’s proposal notice and
     attached report sufficiently notified the appellant of the nature of the charges
     against her, ID at 45-47; and (2) the appellant failed to prove that the deciding
     official considered information outside of the scope of the charge, i.e., a
     particular incident detailed in the report, but not charged in the notice letter, in
     deciding to demote her, ID a 47-48, or that the deciding official considered her
     length of service as an aggravating factor to enhance the penalty, ID at 48-49.
     Regarding the appellant’s sex discrimination claim, the administrative judge

           response to the proposed action and in her response the appellant
           addressed the [RC incident] . . . . Thus, the Deciding Official considered
           misconduct matters that were not properly noticed to the appellant
           violating her due process rights under Ward.
     IAF, Tab 29 at 10-11 (bold in the original).
     5
      Subsequently, the administrative judge issued a written order denying the appellant’s
     motion for summary judgment. IAF, Tab 38.
                                                                                             5

     found that the appellant failed to identify any similarly-situated employees that
     were treated more favorably than her to support her disparate treatment claim.
     ID at 50-53.     Finally, the administrative judge found that the agency proved
     nexus and that the reduction in grade and pay action was reasonable.                ID at
     54-56.
¶6         The appellant filed a petition for review. 6 Petition for Review (PFR) File,
     Tab 1. The agency responded in opposition. PFR File, Tab 3.

                                           ANALYSIS

     The appellant has not shown that the administrative judge committed adjudicatory
     error that warrants reversal of the initial decision.
¶7         The appellant contends that the administrative judge erred in failing to
     compel the agency to respond to her motion for summary judgment; she alleges
     that without the agency’s statement of disputed facts, she could not adequately
     prepare for a hearing, and therefore she had to withdraw her hearing request. 7
     PFR File, Tab 1 at 2-3; see IAF, Tab 37 at 4, Tab 39 at 4, Tab 42 at 4-5.


     6
       The appellant asserts that the agency violated her due process rights when the
     deciding official considered her length of service as an aggravating factor in assessing
     the penalty; however, the appellant does not appear to dispute the administrative
     judge’s penalty analysis. As the record evidence and the applicable law support the
     administrative judge’s finding that the deciding official considered the relevant Douglas
     factors and that the penalty of demotion falls within the tolerable limits of
     reasonableness, we discern no reason to disturb these findings. See Crosby v. U.S.
     Postal Service, 74 M.S.P.R. 98, 106 (1997) (finding no reason to disturb the
     administrative judge’s findings where the administrative judge considered the evidence
     as a whole, drew appropriate inferences, and made reasoned conclusions); Broughton v.
     Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (same).
     7
       The appellant first asserts that the administrative judge erred in failing to rule upon
     her motion for summary judgment. PFR File, Tab 1 at 1. However, the record reflects
     that the administrative judge denied the appellant’s motion. IAF, Tab 38. To the extent
     that the appellant is challenging the administrative judge’s denial of her motion, she has
     not shown that the matter presents circumstances in which summary judgment is
     appropriate and that the administrative judge erred in denying her motion. See Johnson
     v. Department of Justice, 104 M.S.P.R. 624, ¶ 30 (2007) (the Board has recognized that
     it generally lacks the authority to grant summary judgment).
                                                                                    6

     However, an administrative judge has wide discretion to control the proceedings
     before her.      See Oulianova v. Pension Benefit Guaranty Corporation,
     120 M.S.P.R. 22, ¶ 12 (2013). The record reflects that the administrative judge
     denied the appellant’s July 6, 2012 motion for summary judgment on July 11,
     2012, prior to the deadline for the agency to file a response to the appellant’s
     motion. IAF, Tab 29, Tab 36 at 4; see 5 C.F.R. § 1201.55(b) (an objection to a
     motion must be filed within 10 days of service of the written motion).       The
     appellant has not pointed to any law, rule, or regulation that precluded the
     administrative judge from denying her motion until after the agency responded,
     or shown that the administrative judge abused her discretion in failing to compel
     the agency to respond to the motion for summary judgment after she ruled on the
     motion.
¶8        Furthermore, we are unpersuaded by the appellant that she was prejudiced
     by the administrative judge’s failure to compel the agency to file a statement of
     disputed facts in response to her motion. The agency’s July 9, 2012 prehearing
     submission sets forth a 31-page statement of the facts, including a statement of
     agreed-upon facts from which the appellant could deduce the alleged disputed
     facts. See IAF, Tab 33, Vol. 4 at 7-36. As the agency and the appellant are
     registered e-filers, the appellant received the agency’s prehearing submission on
     the day it was filed, more than a month before she withdrew her request for a
     hearing.   IAF, Tabs 33, 38, 42.     Further, the appellant did not request a
     continuance of the hearing or move for a dismissal of the appeal without
     prejudice to refiling in order to afford her additional time to conduct discovery
     or to prepare for a hearing based upon the disputed facts related to the due
     process issue.
                                                                                        7

¶9         On September 17, 2012, after the parties submitted their final evidentiary
      submissions, the appellant requested a hearing on the due process issue. 8 IAF,
      Tab 52 at 8-9. On review, the appellant asserts that the administrative judge
      erred in not granting her hearing request. See PFR File, Tab 1 at 3. However,
      the record reflects that, on August 15, 2012, the appellant, through her attorney,
      filed a pleading entitled, “Appellant’s Withdrawal of Request for Hearing” in
      which she clearly and unequivocally states “Appellant withdraws her request for
      the hearing currently scheduled for August 21, 2012, and instead, requests a
      decision on the record.” IAF, Tab 42 at 4-5. In her submission, she explained
      that she decided to withdraw her request for a hearing as part of a litigation
      strategy following the administrative judge’s denial of her motion for summary
      judgment. Id. Later in her petition for review, the appellant also asserts that she
      withdrew her request for a hearing “to avoid being ambushed at the hearing.”
      PFR File, Tab 1 at 3.     Consequently, we find that she made a knowing and
      unequivocal waiver of her right to a hearing.         Lee v. Office of Personnel
      Management, 83 M.S.P.R. 236, ¶ 3 (1999) (waiver of the right to a hearing may
      be accomplished only by a knowing and unequivocal act on the appellant’s part).
      Contrary to her assertion, nothing in the appellant’s August 15, 2012 withdrawal
      of her hearing request reflects that she made a conditional waiver. See PFR File,
      Tab 1 at 3; IAF, Tab 42. Further, the appellant has not pointed to any law to
      support her position that the Board should invalidate her August 25, 2012
      waiver. Thus, we discern no error by the administrative judge in deciding this
      appeal based upon the written record.

      We discern no error in the administrative judge’s finding that the appellant failed
      to prove her due process claim.
¶10        Where, as here, a public employee has a property interest in her continued
      employment, the government cannot deprive her of that interest without due

      8
        The administrative judge erred in failing to address the appellant’s September 17,
      2013 request for a hearing.
                                                                                         8

      process. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538 (1985).
      The Supreme Court has described the requirements of due process as follows:
            The essential requirements of due process . . . are notice and an
            opportunity to respond. The opportunity to present reasons, either in
            person or in writing, why proposed action should not be taken is a
            fundamental due process requirement . . . . The tenured public
            employee is entitled to oral or written notice of the charges against
            him, an explanation of the employer’s evidence, and an opportunity
            to present his side of the story.
      Loudermill, 470 U.S. at 546. As the Court explained in Loudermill, the need for
      a meaningful opportunity for the employee to present her side of the story is
      important for two reasons. First, an adverse action “will often involve factual
      disputes,” id. at 543, and consideration of the employee’s response may clarify
      such disputes, Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368,
      1376 (Fed. Cir. 1999) (citing Loudermill, 470 U.S. at 543).        Second, “[e]ven
      where the facts are clear, the appropriateness or necessity of the discharge may
      not be.”   Loudermill, 470 U.S. at 543.       Thus, “the employee’s response is
      essential 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 1376.
¶11        In Stone, the U.S. Court of Appeals for the Federal Circuit stressed that an
      agency’s consideration of ex parte communication violates due process only
      when the information introduced was new and material. Id. In making such a
      determination, the Board may consider, among other factors, whether: (1) the
      information is cumulative, rather than new; (2) the employee knew of the error
      and had a chance to respond to it; and (3) the communication was of the type
      likely to result in undue pressure upon the deciding official to rule in a particular
      manner. Id. at 1377. Ultimately, the inquiry is whether the deciding official’s
      consideration of the additional material was substantial and so likely to cause
      prejudice that no employee can fairly be required to be subjected to a deprivation
      of property absent an opportunity to respond. Id.
                                                                                       9

¶12        The Board has determined that this analysis applies not only to ex parte
      communications introducing information that was previously 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 in imposing the penalty, resulting in a potential constitutional violation.
      Id. Our reviewing court recently noted that “[w]here an employee has notice
      only of certain charges or portions of the evidence and the deciding official
      considers new and material information, procedural due process guarantees are
      not met because the employee is no longer on notice of the reasons for dismissal
      and/or of the evidence relied upon by the agency.” Young v. Housing and Urban
      Development, 706 F.3d 1372, 1376 (Fed. Cir. 2013). It has similarly recognized
      that the regulation governing adverse actions requires that an “agency will
      consider only the reasons specified in the notice of proposed action and any
      answer of the employee or his or her representative, or both, made to a
      designated official . . . .”   Norris v. Securities and Exchange Commission,
      675 F.3d 1349, 1353 (Fed. Cir. 2012) (quoting 5 C.F.R. § 752.404(g)(1)).
¶13        The appellant contends that the agency improperly relied upon the report
      attached to the proposal notice to inform her of the nature of the charges, thereby
      depriving her of the opportunity to make an informed reply, and pursuant to the
      Board’s holding in Special Counsel v. Smith, 116 M.S.P.R. 520 (2011), the
      Board should reverse the demotion action on due process grounds. PFR File,
      Tab 9-13.    However, in this case, the proposal letter provided a detailed
      description of the charges and specifically notified the appellant that the
      incidents described in the attached investigatory report were the basis for the
      charge. See IAF, Tab 29 at 5, Tab 33, Vol. 9 at 78. By contrast, in Smith, the
      complaint issued by the Office of Special Counsel (OSC) lacked the necessary
                                                                                      10

      particularity and supporting facts to satisfy due process. Rejecting OSC’s claim
      that its investigatory interviews put the respondent on sufficient notice of the
      charges underlying the complaint, the Board found that the volume of documents
      that OSC provided the respondent during the investigatory process indicated that
      the interviews were not sufficiently focused to put the respondent on notice of
      the precise allegations against him. See Smith, 116 M.S.P.R. 520, ¶¶ 5, 8. Thus,
      under the circumstances of this appeal, we find that the agency’s notice of the
      charge and its proposed action satisfied due process.
¶14        The appellant also asserts that she discovered that certain incidents
      contained in the report were excluded from the charge; however, she has not
      shown that the administrative judge erred in finding that she failed to prove a
      Ward-Stone violation. 9 The mere fact that the report included some incidents
      that the deciding official did not consider in sustaining the charge does not
      demonstrate that the deciding official considered ex parte communications in
      deciding to enhance the penalty. We further note that the appellant submitted a
      200-page written response to the proposal notice in which she addressed all of
      the incidents alleged in the report, and that she had lengthy discussions with the
      proposing and deciding officials regarding the incidents underlying the charge.
      See IAF, Tab 33, Vol. 9 at 35-155, Vol. 10 at 6-79.
¶15        The appellant has not otherwise shown that the deciding official considered
      new and material outside information in assessing the penalty.                 The
      administrative judge credited the deciding official’s deposition testimony and
      other evidence showing that the deciding official considered the appellant’s oral
      and written responses to the proposed action, as well as the report attached to the
      proposal notice, the appellant’s Standard Form (SF) 50, and Pay for Performance
      (PFP) ratings for 3 years. ID at 47-48. To the extent that the agency did not


      9
        See Ward v. U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 2011); Stone, 179 F.3d
      at 1376.
                                                                                       11

      provide advance notice to the appellant that it was considering her SF-50 and
      PFP ratings in assessing the penalty, the appellant has not shown that this
      information is new and not cumulative or of the type likely to result in undue
      pressure on the deciding official to rule in a particular manner. See Wilson v.
      Department of Homeland Security, 118 M.S.P.R. 62, ¶ 5 (2012) (in analyzing the
      Stone factors, the Board considers whether the ex parte communication merely
      introduces ‘cumulative’ information or new information; whether the employee
      knew of the error and had a chance to respond to it; and 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).
¶16        Based on the foregoing, we find that the appellant has not shown any error
      in the administrative judge’s finding that the agency adequately set forth the
      nature of the charge in the proposal notice and that the appellant responded in
      detail, reflecting her understanding of the incidents underlying the charge; thus,
      she failed to prove her due process claim. Wilson v. Department of Homeland
      Security, 120 M.S.P.R. 686, ¶¶ 10-11 (2014); Yinat v. Department of the Army,
      101 M.S.P.R. 328, ¶ 19 (2005) (an agency’s failure to provide a tenured public
      employee with an opportunity to present a response, either in person or in
      writing, to an appealable agency action that deprives him of his property right in
      his employment constitutes an abridgement of his constitutional right to
      minimum due process of law, i.e., prior notice and an opportunity to respond)
      (citing Loudermill, 470 U.S. at 546).
¶17        The appellant further challenges the administrative judge’s finding that she
      failed to prove that the agency considered her length of service as an aggravating
      factor and thereby violated her due process rights. PFR File, Tab 1 at 4. She
      asserts that the deciding official admitted at her deposition that she considered
      the appellant’s length of service as an aggravating factor, but later via affidavit
      asserted that the appellant’s years of service was a credibility factor. Id. at 4-6.
                                                                                       12

      However, the appellant has not shown that the administrative judge disregarded
      material evidence in reaching her conclusion.
¶18        The initial decision reflects that the administrative judge considered the
      deciding official’s deposition testimony upon which the appellant relied in
      support of her claim that the deciding official considered her length of service to
      be an aggravating factor.     ID at 48-49.    However, the administrative judge
      ultimately afforded greater weight to the deciding official’s sworn declaration
      that she considered the appellant’s length of service in assessing the appellant’s
      credibility regarding her denial of the charged misconduct, not to enhance the
      penalty. ID at 48-49; see IAF, Tab 53 at 12-13. Although the administrative
      judge did not enumerate these facts in the initial decision, the record includes the
      deciding official’s notes from her meeting with the appellant in which the
      appellant rebutted evidence that she created a hostile work environment for her
      subordinates. The deciding official wrote, “[has] worked for [J] for a while, in
      diff capacities + districts  convinces me he really knows who she is and I see it
      as aggravating factor not mitigating.” IAF, Tab 33, Vol. 10 at 79. From our
      review of this evidence, the administrative judge’s fact findings are supported by
      the record evidence.    As the appellant has not shown that the administrative
      judge ignored material facts, we discern no reason to disturb the administrative
      judge’s weighing of the evidence and her finding that the appellant failed to
      prove that the deciding official considered her length of service as an
      aggravating factor in assessing an enhanced penalty, and thereby violated her due
      process rights.   See Lopes, 116 M.S.P.R. 470, ¶ 10 (when a deciding official
      receives new and material information by means of ex parte communications or
      considers information known from personal knowledge, a due process violation
      has occurred and the employee is entitled to a new constitutionally correct
      action).
                                                                                    13

      The appellant has not shown that the administrative judge erred in sustaining the
      charge or finding that she failed to prove her sex discrimination claim.
¶19        In the last sentence of her petition, the appellant generally challenges the
      administrative judge’s decision sustaining the charge and finding that she failed
      to prove her sex discrimination claim. PFR File, Tab 1 at 14-15. However, the
      Board has held that the petitioning party must explain in the petition how the
      administrative judge made an erroneous finding of material fact, how the initial
      decision is based on an erroneous interpretation of statute or regulation or the
      erroneous application of the law to the facts of the case, and/or how the
      administrative judge’s rulings are inconsistent with required procedures or
      involved an abuse of discretion.      See Weaver v. Department of the Navy,
      2 M.S.P.R. 129, 133 (1980); 5 C.F.R. § 1201.115.
¶20        Here, the appellant has failed to state specific objections to the initial
      decision supported by references to the applicable laws, regulations, and the
      record. Her vague assertion that the administrative judge erred in sustaining the
      charge and in finding that she failed to prove her sex discrimination claim is
      insufficient to show that the administrative judge made erroneous findings of
      material fact, erroneously interpreted statutes or regulations, or erroneously
      applied the law to the facts of the case. For these reasons, we discern no reason
      to disturb the administrative judge’s explained findings, which are supported by
      the record evidence and the applicable law. See Crosby, 74 M.S.P.R. at 106.

      The appellant has not shown that the administrative judge was biased.
¶21        Finally, the appellant alleges that the administrative judge was biased
      against her based upon the administrative judge’s prior employment with the
      agency and her friendship with the agency representative. PFR File, Tab 1 at 7
      n.1. She notes that the administrative judge addressed the agency representative
      by her first name, but addressed her attorney as “Mr. Miller.” Id. However,
      these assertions fail to establish that the administrative judge demonstrated a
      deep-seated favoritism towards the appellant that would make fair judgment
                                                                                     14

      impossible in order to overcome the presumption of the administrative judge’s
      honesty and integrity.     Bieber v. Department of the Army, 287 F.3d 1358,
      1362-63 (Fed. Cir. 2002); Oliver v. Department of Transportation, 1 M.S.P.R.
      382, 386 (1980).     Furthermore, nothing in the record below reflects that the
      appellant filed a motion to recuse the administrative judge based upon her
      alleged concerns regarding the administrative judge’s bias in favor of the agency.
      See Lee v. U.S. Postal Service, 48 M.S.P.R. 274, 280-82 (1991) (an allegation of
      bias by an administrative judge must be raised as soon as practicable after a
      party has reasonable cause to believe that grounds for disqualification exist, and
      must be supported by an affidavit).
¶22        Based on the foregoing, we AFFIRM the initial decision. We MODIFY the
      initial decision, however, to deny the appellant’s September 17, 2012 request for
      a hearing on the due process issues as she previously withdrew her hearing
      request.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            The initial decision, as supplemented by this Final Order, constitutes the
      Board's final decision in this matter. 5 C.F.R. § 1201.113. 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:
                                Office of Federal Operations
                         Equal Employment Opportunity Commission
                                      P.O. Box 77960
                                 Washington, D.C. 20013
                                                                                   15

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
                                                                          16

prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e5(f) and
29 U.S.C. § 794a.




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