                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LISA J. STEG,                                   DOCKET NUMBER
                         Appellant,                  SF-0752-15-0185-I-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: March 7, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Bobby Devadoss, Esquire, and Stephanie Bernstein, Esquire, Dallas, Texas,
             for the appellant.

           Susan D. Hooks, Esquire, St. Louis, Missouri, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     sustained the agency’s demotion action. 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


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     regulation or the erroneous application of the law to the facts of the case; the
     administrative judge’s rulings during either the course of the appeal or the initial
     decision were not consistent with required procedures or involved an abuse of
     discretion, and the resulting error affected the outcome of the case; or new and
     material evidence or legal argument is available that, despite the petitioner’s due
     diligence, was not available when the record closed. 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, 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         On review, the appellant first contends that the administrative judge
     incorrectly attributed statements to certain agency witnesses. Petition for Review
     (PFR) File, Tab 1 at 4-5. She asserts that, contrary to the administrative judge’s
     findings: (1) witness C.T. did not state that she was able to see the appellant’s
     office from her desk; and (2) witness E.N. did not report that the appellant asked
     her if she had Attention Deficit Hyperactivity Disorder (ADHD). Id.; see Initial
     Appeal File (IAF), Tab 29, Initial Decision (ID) at 11, 20.           The appellant is
     mistaken on both points. C.T. did state in her July 16, 2013 declaration that her
     office “was across the hall from [the appellant’s] so I was in a position to observe
     when she arrived and departed for the day.” IAF, Tab 17, Subtab 6, ¶ 3. 2 Also,
     E.N. did report in her July 22, 2015 declaration that the appellant “asked me . . .




     2
       The appellant appears to dispute that C.T. was able to see her desk, but in the absence
     of any contradictory evidence, or any indication of bias on C.T’s part, we find the
     administrative judge properly credited C.T.’s statement, made under penalty of perjury,
     that she was able to visually observe the appellant’s comings and goings. See
     Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 87 (1981).
                                                                                          3

     to my face if I had ADHD,” and that the appellant “seemed to think it was
     humorous.” Id., Subtab 12, ¶¶ 5-6. 3
¶3         The appellant next argues that the administrative judge improperly
     discounted documentary evidence that purportedly accounts for the discrepancy
     between the work hours she reported on the Performance Labor Accounting
     System (PLAS), and the entry and exit times evidenced by security card scans
     (recorded on the Recall Access Log) and coworkers’ visual observations. PFR
     File, Tab 1 at 6-7.   She refers specifically to her July 23, 2015 affidavit and
     October 22, 2014 response to the proposal notice, in which she explained:
     (1) that her duties regularly required her to “meet with folks and look for
     employees” outside of the building; and (2) that it is possible to enter the building
     without a badge scan, that there is no policy requiring employees to use their
     badges, and that this could be confirmed by “even a cursory review” of the times
     recorded for other employees on the Recall Access Log and in PLAS. Id.; see
     IAF, Tab 19, Tab 4 at 22-23.
¶4         We find that the administrative judge gave due consideration to the
     appellant’s explanations.     Concerning the appellant’s claim that her duties
     routinely required her to work outside the building, the administrative judge
     noted that this claim was uncorroborated by other evidence, and contradicted by
     the agency’s contention that the appellant was not authorized to allocate duty
     hours to look for employees outside the building. ID at 14-15; see IAF, Tab 4
     at 16. The administrative judge further noted that it was inherently unlikely that


     3
       In any event, the specification at issue concerns a separate incident in which the
     appellant told E.N. that she was a “case of ADHD gone bad.” IAF, Tab 4 at 34
     (Charge 2, Specification 2.a). E.N. reported that incident in both her May 12, 2015
     signed statement (incorrectly labeled as a “declaration”) and her July 22, 2015
     declaration. IAF, Tab 17, Exhibit 13 at 1 & Subtab 12, ¶ 5. The appellant has not
     identified any error in the administrative judge’s decision to credit E.N.’s version of
     events. See Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133-34 (1980)
     (explaining that mere disagreement with the administrative judge’s findings and
     credibility determinations does not warrant full review of the record by the Board).
                                                                                          4

     the appellant routinely looked for employees outside the building, given that she
     was responsible for managing an office of professionals. ID at 14-15. Under
     these circumstances, the administrative judge did not err in declining to credit the
     appellant’s claim.    See Hillen v. Department of the Army, 35 M.S.P.R. 453,
     460-61 (1987) (finding that consistency with other evidence and inherent
     improbability are factors in assessing credibility). The record also contains no
     evidence to corroborate the appellant’s claim that it was unnecessary to use her
     badge to enter the building, and in any case, the agency did not rely exclusively
     on the badge scans recorded on the Recall Access Log, but also provided
     statements and contemporaneous notes by agency witnesses who observed that the
     appellant did not appear to be working full hours. IAF, Tab 17, Subtabs 1, 5-6,
     Tab 24. In sum, we discern no error in the administrative judge’s finding that the
     appellant did not work the hours she recorded in PLAS. 4
¶5         The appellant next argues that the administrative judge should have found,
     without reopening the record, that the agency violated her due process rights
     because the deciding official considered ex parte information in making his
     decision.    PFR File, Tab 1 at 7-9.      An employee’s constitutional due process
     rights may be violated if a deciding official considers new and material
     information, whether in assessing the charges or deciding on a penalty. Ward v.
     U.S. Postal Service, 634 F.3d 1274 (Fed. Cir. 2011). In determining whether to
     find a due process violation occurred, the Board must consider the facts and
     circumstances of each particular case.        Stone v. Federal Deposit Insurance
     Corporation, 179 F.3d 1368, 1377 (Fed. Cir. 1999).          Among the factors to be
     considered    are   whether:    (1) the    additional   material   merely introduced

     4
       Nor do we discern any error in the administrative judge’s finding that the appellant
     knowingly supplied wrong information with the intent of defrauding the agency for her
     own private gain, i.e., to receive pay for hours she did not work. ID at 16. We find
     that, because the agency established the elements of a falsification charge, see Boo v.
     Department of Homeland Security, 122 M.S.P.R. 100, ¶¶ 10-12 (2014), the
     administrative judge correctly sustained the charge of Falsification of Time Sheets.
                                                                                        5

     “cumulative” information or new information; (2) the employee knew of the error
     and had a chance to respond to it; and (3) the information was of the type likely
     to result in undue pressure upon the deciding official to rule in a particular
     manner.    Id.    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. In determining whether a due
     process violation occurred, there is no basis for distinguishing between
     information provided to the deciding official by another source and information
     personally known by the deciding official.      Lopes v. Department of the Navy,
     116 M.S.P.R. 470, ¶¶ 10-13 (2011).
¶6         In his July 21, 2015 declaration, included in the agency’s close of record
     submission, the deciding official devoted several paragraphs to discussing his
     experience of the appellant’s performance and conduct in her previous position as
     an Administrative Contracting Officer (ACO). IAF, Tab 17, Subtab 2 at 2-3. In
     particular, he recalled that after a claims dispute had arisen with a contractor, the
     appellant had been uncooperative and nonchalant about helping others who were
     trying to support her actions. Id. He explained that he raised the issue because it
     “colored [his] perception of her professionalism.” Id. at 3. He also recounted
     that when the appellant had transferred to the Los Angeles office through a
     hardship request, two of his subordinate employees informed him that they had
     “encountered some difficulty with [the appellant’s] cooperativeness and
     experienced some untruthfulness on her part” when she was an ACO. Id.
¶7         Although the deciding official did not explicitly refer to the appellant’s
     prior service as an ACO in the decision letter, or otherwise admit to considering it
     in his decision, the record indicates he did consider the appellant’s credibility,
     trustworthiness, and professionalism in making his decision.       For example, in
     assessing the agency’s second charge, he considered the appellant’s credibility
     and trustworthiness in finding that her various explanations were unworthy of
                                                                                       6

     credence. IAF, Tab 4 at 9-10. Additionally, in assessing the Douglas penalty
     factors the deciding official referenced the appellant’s professionalism, trust, and
     integrity. Id. at 10-20. Given the evidence that was available before the record
     was reopened, there was an open question as to whether the deciding official
     considered the appellant’s performance and conduct as an ACO in making
     his decision.
¶8         By contrast, the proposal notice made no mention of the appellant’s prior
     service as an ACO. IAF, Tab 4 at 32-38. Hence, as the administrative judge
     stated in his order reopening the record, “[i]t does not appear that the proposal
     notice put the appellant on notice that the deciding official’s assessment of her
     conduct and performance as an ACO . . . might be something he would consider
     in deciding the proposed demotion if, indeed, he did.”           IAF, Tab 25 at 4
     (emphasis added).     Under these circumstances, it was appropriate for the
     administrative judge to reopen the record sua sponte to permit the parties to
     submit additional evidence and argument on the due process issue. See Powers v.
     Department of the Treasury, 86 M.S.P.R. 256, ¶¶ 8, 10 n.3 (2000) (approving an
     administrative judge’s adjudication of a due process violation sua sponte).
¶9         The appellant suffered no harm as a result of the administrative judge’s
     decision to reopen the record. To the contrary, he provided her an opportunity
     she would not have otherwise had to meet her burden of proving the affirmative
     defense by preponderant evidence. See 5 C.F.R. § 1201.56(a)(2)(iii). However,
     we discern no error in the administrative judge’s decision to credit the deciding
     official’s supplemental declaration, in which he stated under penalty of perjury
     that he had mentioned the appellant’s conduct and performance as an ACO only
     as background information, and did not consider it in assessing her credibility as
     to the charges or in determining an appropriate penalty.         IAF, Tab 27; see
     Norris v. Securities & Exchange Commission, 675 F.3d 1349, 1354 (Fed. Cir.
     2012) (“A deciding official’s knowledge of an employee’s background only raises
     due process . . . concerns where that knowledge is a basis for the deciding
                                                                                        7

      official’s determinations on either the merits of the underlying charge or the
      penalty to be imposed.”).
¶10        Finally, the appellant argues that the agency committed harmful procedural
      error, as opposed to a constitutional due process violation, by failing to comply
      with the requirements of 5 C.F.R. § 752.404(b)(1).     PFR File, Tab 1 at 8-9. The
      appellant did not raise this affirmative defense below, and she has not shown that
      it is based on new and material evidence that was not previously available despite
      her due diligence. Accordingly, we give it no further consideration. See Banks v.
      Department of the Air Force, 4 M.S.P.R. 268, 271 (1980).

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the U.S.
      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 U.S. 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 U.S. Code, at our
      website, http://www.mspb.gov/appeals/uscode.htm.        Additional information is
                                                                                  8

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.
      If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
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.
