                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     MARY S. HEIMER,                                 DOCKET NUMBER
                   Appellant,                        DE-0432-14-0347-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: March 24, 2015
       AFFAIRS,
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Joyce E. Kitchens, Esquire, Atlanta, Georgia, for the appellant.

           Michael L. Gurnee, Esquire, Denver, Colorado, 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 her removal.      For the reasons discussed below, we GRANT the




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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     appellant’s petition and REVERSE the initial decision. The appellant’s removal
     is REVERSED.

                                        BACKGROUND
                                  2
¶2         On April 17, 2013,         during a progress review, the appellant, a GS-7
     Voucher Examiner (Spina Bifida), was advised that her performance was
     unacceptable in two of her critical elements:             critical element 1, Program
     Administration, and critical element 2, Organizational Goals. Initial Appeal File
     (IAF), Tab 10 at 60, Tab 34 at 26. On May 1, 2013, the appellant’s supervisor
     issued her a Notification of Unacceptable Performance/Opportunity to Improve,
     affording her 90 days in which to demonstrate acceptable performance in all of
     her critical elements.     IAF, Tab 10 at 51-52.         On September 27, 2013, the
     appellant’s second-line supervisor notified her that, during the performance
     improvement period (PIP), she had failed to meet the performance standards of
     critical elements 1 and 2 and that it was proposing to remove her from her
     position. IAF, Tab 7 at 44-45. The appellant responded orally and in writing to
     the proposal. Id. at 41-42, 38-39. On January 15, 2014, the agency issued her an
     Abeyance of Proposed Removal. Id. at 36. The notice stated that, although the
     appellant’s performance did not meet the minimum requirements for her position
     and she had failed the assigned PIP, the agency had learned that she had since
     completed the Employee Assistance Program (EAP), indicating a potential for
     rehabilitation. Therefore, the notice stated, the agency had decided to hold the
     appellant’s removal in abeyance for 90 days, and that, if she provided
     documentation showing completion of the EAP and no new instances of
     misconduct or performance deficiencies during the 90-day period, her removal


     2
       The date by the appellant’s supervisor’s signature indicates that the progress review
     occurred on April 17, 2012, and because the appellant apparently refused to sign that
     the progress review had taken place, the supervisor indicated that fact in the area for the
     appellant’s signature and again stated the date as April 17, 2012. IAF, Tab 10 at 60.
     From the record, it is clear that the progress review at issue occurred in 2013.
                                                                                            3

     would be rescinded.      Id.   On April 22, 2014, however, the agency issued the
     appellant a notice stating that a decision had been made in accordance with
     5 U.S.C. chapter 43 to remove her from federal employment, effective April 28,
     2014, because she failed to successfully complete the PIP and because, during the
     90-day period of abeyance, she failed to meet the performance standards for
     critical elements 1 and 2. IAF, Tab 6 at 18-21.
¶3         On appeal, the appellant challenged the validity of her performance
     standards and argued that she was denied a reasonable opportunity to improve.
     IAF, Tabs 1, 17. She further alleged that, in taking the action, the agency had
     denied her due process or committed harmful error, discriminated against her
     based on her age and disability (migraines), and retaliated against her for taking
     leave under the Family and Medical Leave Act (FMLA). IAF, Tab 17.
¶4         In an initial decision based on the written record, 3 the administrative judge
     affirmed the agency’s action. IAF, Tab 43, Initial Decision (ID) at 1, 24. He
     found that the agency proved by substantial evidence that:           (1) the Office of
     Personnel Management approved its performance appraisal system, ID at 4-5;
     (2) the appellant’s performance standards and critical elements were established
     and communicated to her, ID at 5; (3) the standards were valid, ID at 6-10; (4) the
     agency advised the appellant that her performance was unacceptable and warned
     her of her performance inadequacies, ID at 10-11; (5) the agency provided her a
     reasonable opportunity to demonstrate acceptable performance, ID at 11-15; and
     (6) her performance remained unacceptable in at least one critical element for
     which she was provided a reasonable opportunity to demonstrate acceptable
     performance. ID at 15-16. In addressing the appellant’s affirmative defenses, the

     3
       Although the appellant initially requested a hearing, IAF, Tab 1 at 2, she subsequently
     withdrew that request, IAF, Tab 27. The administrative judge issued a close of the
     record notice, IAF, Tab 28, but then reopened the record twice to allow the parties to
     address certain specific issues, IAF, Tabs 35-36, 38-41. Although some of the
     responses were untimely, the administrative judge considered them to the extent he
     found them responsive. IAF, Tab 43, Initial Decision at 3.
                                                                                              4

     administrative judge found that she failed to establish her claim of denial of due
     process/harmful error in connection with the agency’s abeyance action, ID at
     17-19; or her claims of age discrimination, ID at 19-21, disability discrimination,
     ID at 21-22, and FMLA retaliation, ID at 22-23.
¶5         The appellant has filed a petition for review, Petition for Review (PFR)
     File, Tabs 1-2; the agency has responded in opposition, PFR File, Tab 8; and the
     appellant has replied thereto, PFR File, Tab 11

                                           ANALYISIS
     The removal cannot be sustained because the agency violated the appellant’s due
     process rights. 4
¶6         On review, the appellant challenges the administrative judge’s finding that
     the agency did not deny her due process or commit harmful procedural error with
     regard to its abeyance action. Specifically, the appellant argues that, based on
     that action, the agency removed her, not only because of her performance during
     the PIP, but also because of her alleged performance deficiencies from
     January 15, 2014, through April 15, 2014, deficiencies to which she was denied
     the opportunity to respond. PFR File, Tab 1 at 25-29, Tab 2 at 24-28. In finding
     no violation of the appellant’s due process rights, the administrative judge found
     that the agency’s action was not an extension of the PIP, but rather a unilateral
     last chance, and that, as such, there was no error, no harmful error, and no
     violation of the appellant’s due process rights which she had already been
     afforded. ID at 17-19.
     4
       To the extent that the Board is required by 5 U.S.C. § 7702(a)(1) to render a decision
     on the appellant’s affirmative defense of discrim ination based on age and disability, the
     petition for review fails to identify any errors in the administrative judge’s thorough
     analysis of these issues and we affirm the in itial decision in th is regard. See Crosby v.
     U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the
     administrative judge’s findings where he considered the evidence as a whole, drew
     appropriate references, and made reasoned conclusions); Marchese v. Department of the
     Navy, 32 M.S.P.R. 461, 464 (1987) (finding that the Board must make findings on
     claims of discrimination). The initial decision, therefore, is the Board’s final decision
     on the appellant’s discrimination claims.
                                                                                      5

¶7           It is undisputed that the agency did not refer to the appellant’s allegedly
     poor performance of 2014 in its September 27, 2013 notice of proposed removal,
     IAF, Tab 7 at 44-46; indeed, it could not have done so.        Nevertheless, in the
     April 22, 2014 decision letter, the deciding official stated that it had been
     determined to remove the appellant, effective April 28, 2014, “for the following
     reasons:” her failure to successfully complete the PIP, and her failure to meet the
     performance standards for critical elements 1 and 2 during the period from
     January 15, 2014, through April 15, 2014, the period provided for in the abeyance
     letter. IAF, Tab 6 at 18. Because the deciding official considered information
     that was not included in the notice of proposed removal, we find that she relied
     on ex parte information in her decision to remove the appellant. See Howard v.
     Department of the Air Force, 118 M.S.P.R. 106, ¶ 4 (2012). However, such ex
     parte information will only violate an employee’s right to due process when it
     introduces new and material information to the deciding official. Ward v. U.S.
     Postal Service, 634 F.3d 1274, 1279 (Fed. Cir. 2011); Stone v. Federal Deposit
     Insurance Corporation, 179 F.3d 1368, 1377 (Fed. Cir. 1999).
¶8           To determine if the deciding official’s consideration of this ex parte
     information constituted a due process violation, we must inquire whether the
     information 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.     In making this determination, the Board will consider, among
     other factors:      (1) whether the ex parte information merely introduces
     “cumulative information” or new information; (2) whether the employee knew of
     the information and had a chance to respond to it; and (3) whether the ex parte
     information was of the type likely to result in undue pressure upon the deciding
     official to rule in a particular manner. Ward, 634 F.3d at 1279; Stone, 179 F.3d at
     1377.
¶9           Here, we find that information as to the appellant’s performance during the
     period of abeyance was not cumulative because, even if similar in nature to the
                                                                                    6

incidents of poor performance in the agency’s notice of proposed action, it
concerned performance of which the appellant was not given notice and an
opportunity to respond.    See Stone, 179 F.3d at 1376 (procedural due process
guarantees are not met if the employee has notice only of certain charges or
portions of the evidence relied upon by the agency). Furthermore, the U.S. Court
of Appeals for the Federal Circuit has noted that ex parte information is plainly
material when the deciding official has admitted that the information influenced
his penalty determination. See Ward, 634 F.3d at 1280 n.2. Although penalty is
not at issue in chapter 43 performance-based actions, see Lisiecki v. Merit
Systems Protection Board, 769 F.2d 1558, 1566-67 (Fed. Cir. 1985), it is clear,
based on the decision letter, that the deciding official in this case considered the
ex parte information, IAF, Tab 6 at 18; see Silberman v. Department of Labor,
116 M.S.P.R. 501, ¶ 12 (2011). It is equally clear that the appellant did not know
of the information and had no opportunity to respond to it. 5 In fact, the agency,
in its decision letter, did not provide any specific incidents of unacceptable
performance, but only stated that, during the period of abeyance, the appellant
failed to meet the performance standards for critical elements 1 and 2. IAF, Tab
6 at 18. Finally, as to the undue pressure factor, the court in Ward clarified that it
is only one of several enumerated factors and is not the ultimate inquiry in the
Stone analysis. See Ward, 634 F.3d at 1280 n.2. The court added that, although
ex parte information of a type likely to result in undue pressure may make it more
likely that an appellant was deprived of due process, the lack of undue pressure
may be less relevant to finding a constitutional violation where, as here, the
deciding official    admits   that   the   ex   parte   information   influenced   his
determination. Id.



5
  The appellant did not, for example, have the opportunity to explain to the deciding
official why she believed that her performance between January 15, 2014, and April 15,
2014, was not deficient.
                                                                                            7

¶10         Consequently, even if, as the agency now argues, its intention in holding the
      appellant’s removal in abeyance for 90 days was to afford her one last chance to
      demonstrate acceptable performance, 6 we find that the deciding official’s
      admitted ex parte consideration of the appellant’s performance during the
      abeyance period undermined her constitutional due process guarantee of notice
      and of the opportunity to respond. 7 The agency’s error cannot be excused as
      harmless, and the appellant’s removal must be cancelled. See Ward, 634 F.3d at
      1280. The agency may not remove the appellant unless and until she is afforded a
      new “constitutionally correct removal procedure.” See Stone, 179 F.3d at 1377;
      see also Ward, 634 F.3d at 1280.
¶11         Accordingly, we REVERSE the initial decision and DO NOT SUSTAIN the
      removal action. 8

                                             ORDER
¶12         We ORDER the agency to cancel the appellant’s removal and to restore her
      effective April 28, 2014. 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.
¶13         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

      6
        To be clear, the agency decision to hold the appellant’s removal in abeyance was a
      unilateral action and not the product of an agreement in which the appellant waived any
      of her rights.
      7
        Given our finding of a due process violation, we need not determine whether the
      deciding official’s consideration of the appellant’s alleged performance deficiencies in
      2014 also constituted harmful procedural error. Silberman, 116 M.S.P.R. 501, ¶ 4 n.3.
      8
        In reversing the appellant’s removal, we make no findings concerning the merits of
      this performance-based action or the appellant’s defense of retaliation for taking FMLA
      leave.
                                                                                       8

      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.
¶14        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).
¶15        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).
¶16        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 adjustments 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
                                                                                  9

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). 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
     The Final Order constitutes the Board's final decision in this matter. 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

     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
                                                                                   10

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
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.
                                                      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.
