                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     KENNETH M. HULETT,                              DOCKET NUMBER
                  Appellant,                         SF-0752-11-0690-B-1

                  v.

     DEPARTMENT OF THE NAVY,
                 Agency.                             DATE: September 26, 2014




                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Brook L. Beesley, Alameda, California, for the appellant.

           Patricia Zengel, Esquire, San Diego, California, for the agency.


                                           BEFORE

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


                                       FINAL ORDER

¶1         The agency has filed a petition for review of the remand initial decision,
     which sustained the appellant’s removal. Generally, we grant petitions such as
     this one only when: the initial decision contains erroneous findings of material


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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. 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 and AFFIRM
     the remand initial decision, which is now the Board’s final decision. 5 C.F.R.
     § 1201.113(b).
¶2         As a Lead Firefighter, the appellant was subject to random drug testing.
     Initial Appeal File (IAF), Tab 7 at 11. On March 26, 2011, he exhibited behavior
     which gave the agency a reasonable suspicion that he was unable to perform his
     duties.   He was directed to undergo a drug test, which verified positive for
     marijuana. The agency proposed his removal for Illegal Drug Use, specifically,
     testing positive for marijuana, id. at 123, and, at the same time, referred him to
     the Civilian Employee Assistance Program (CEAP), id. at 125. He was removed
     effective May 31, 2011. Id. at 14, 11. On appeal, the appellant admitted that he
     used marijuana but alleged, inter alia, that the agency committed harmful error in
     that the deciding official considered, in her penalty determination, aggravating
     factors with which the appellant was not charged and/or had ex parte
     communications that violated his due process rights.         Id., Tab 17 at 3.   The
     appellant also raised claims of disability discrimination and retaliation for
     engaging in protected activity. Id. at 3-4; Tab 20 at 4-5.
¶3         After convening the requested hearing, the administrative judge issued an
     initial decision affirming the removal action. Id., Tab 21, Initial Decision (ID) at
                                                                                      3

     1, 18. He found that the charge was sustained, ID at 1-6; that the appellant failed
     to prove his affirmative defenses of harmful error, disability discrimination, and
     retaliation for protected activity, ID at 7-10; and that the agency proved that a
     nexus existed between the sustained charge and the efficiency of the service and
     that the penalty of removal was reasonable, ID at 10-17.
¶4         On the appellant’s petition for review, the Board first noted that he did not
     challenge the administrative judge’s findings that the agency proved the charge
     and that the appellant did not prove his affirmative defenses of disability
     discrimination and retaliation, stating that “we do not address these issues.”
     Hulett v. Department of the Navy, 120 M.S.P.R. 54, ¶ 5 n.2 (2013). The Board
     found, however, that the appellant implicitly raised a due process claim
     concerning the penalty imposed but that the administrative judge neither informed
     him of the applicable burdens of proof nor adjudicated the claim. Id., ¶¶ 9-10. In
     remanding the case for further adjudication, id., ¶ 10, the Board directed the
     administrative judge to apprise the appellant of his burden and the elements of
     proof regarding his due process claim and to obtain clarification from him as to
     the alleged ex parte communications regarding aggravating factors that the
     deciding official allegedly considered in her penalty assessment. Id., ¶ 11. If the
     administrative judge found that there was an ex parte communication and that it
     was so substantial and so likely to cause prejudice that no employee could fairly
     be required to be subjected to a deprivation of property under the circumstances,
     then the administrative judge was to find a due process violation and reverse the
     agency action; if not, then the administrative judge was to conduct a harmful
     error analysis as to any procedural error concerning the penalty determination.
     Id. The Board also vacated the administrative judge’s findings regarding nexus
     and penalty. Id., ¶ 1.
¶5         On remand and as directed, the administrative judge issued an order setting
     out for the appellant the applicable burdens of proof on his claims of denial of
     due process and harmful procedural error. Remand Appeal File (RAF), Tab 3 at
                                                                                           4

     1-2.    And, as directed, the administrative judge afforded the appellant an
     opportunity to clarify the ex parte communications that he alleged the deciding
     official considered without notice to him. Id. at 3. The administrative judge
     referred the appellant to the matters the Board had set forth in its Opinion and
     Order as those he had identified in his petition for review.         Id. at 3 n.1; see
     Hulett, 120 M.S.P.R. 54, ¶ 2. The appellant responded, RAF, Tab 4, as did the
     agency, id., Tab 5.
¶6          In his remand initial decision, the administrative judge first repeated the
     analysis of the charge of Illegal Drug Use that he made in his earlier initial
     decision and his finding that the agency met its burden of proof. 2 RAF, Tab 6,
     Remand Initial Decision (RID) at 2-7. In addressing the denial of due process
     claim, the administrative judge considered the appellant’s response to the order
     he issued wherein the appellant appeared to allege that the deciding official had
     ex parte communications with the commanding officer of the naval base
     regarding the events underlying the agency’s charge and that that information
     influenced the deciding official’s decision to remove the appellant, thus depriving
     him of due process. RAF, Tab 4. Noting the testimony of the deciding official
     that she never spoke with the commanding officer or received any guidance from
     him, the administrative judge concluded that the appellant did not establish an ex
     parte communication. RID at 10.
¶7          The administrative judge then considered the allegations the appellant
     raised in his petition for review, matters of which, he contended, he was not made
     aware in the notice of proposed removal.          They included his conviction for
     driving under the influence, his observed impairment, his inability to perform his
     duties, his use of a mind-altering drug, and his insubordination in not taking the


     2
       The administrative judge need not have undertaken this analysis, given that the Board
     affirmed his earlier finding that the agency proved its charge by preponderant evidence.
     Hulett, 120 M.S.P.R. 54, ¶ 1. Nonetheless, the administrative judge’s additional
     analysis did not constitute error.
                                                                                         5

     drug test on the date he was ordered to do so. The administrative judge found
     that, based on the proposal notice, the appellant was aware of these matters and
     had a full and fair opportunity to respond to them, which he did, and that the
     record contained no evidence of ex parte communication of any new and material
     information to the deciding official that was not brought to the appellant’s
     attention in the proposal notice. RID at 11. As to the consistency of the penalty,
     the notoriety of the misconduct, the deciding official’s belief that, as an illegal
     drug user, the appellant lacked rehabilitative potential and that lesser discipline is
     not a successful deterrent for such employees, the administrative judge found that
     the appellant did not explain what he believed to be any ex parte communication
     from or to the deciding official that she considered without giving him notice and
     an opportunity to respond and that, to the extent the deciding official testified that
     she considered these factors, they too were referenced in the proposal notice.
     RID at 11-13.
¶8         Having found no due process violation, the administrative judge as directed
     considered whether the appellant had established harmful error. In finding that he
     did not, the administrative judge similarly found that he had not established that
     the agency committed any procedural error, much less any error that was likely to
     have caused the agency to reach a conclusion different from the one it would have
     reached in the absence or cure of the error. RID at 14-15.
¶9         Next, the administrative judge repeated the findings he had earlier made in
     concluding that the appellant failed to establish his allegations of disability
     discrimination and retaliation. 3 RID at 15-16. Lastly, the administrative judge

     3
       As noted, the Board found in its Opinion and Order that the appellant did not
     challenge the administrative judge’s finding that he failed to prove his affirmative
     defenses of disability discrimination and retaliation and that “[t]herefore, we do not
     address these matters.” Hulett, 120 M.S.P.R. 54, ¶ 5 n.2. The Board’s Opinion did not
     direct the administrative judge to make any further findings as to these claims and
     therefore he need not have done so. See Umshler v. Department of the Interior,
     55 M.S.P.R. 593, 597, aff’d, 6 F.3d 788 (Fed. Cir. 1992) (Table). Again, however, this
     did not constitute error.
                                                                                         6

      found, as he had earlier, that the agency established that discipline for the
      sustained misconduct promoted the efficiency of the service and that removal for
      that misconduct was a reasonable penalty. RID at 17-24.
¶10        The appellant has filed a petition for review, Remand Petition for Review
      (RPFR) File, Tab 6, to which the agency has responded in opposition, id., Tab 8.
¶11        Concerning the due process issue, the appellant argues on review that,
      although not part of the agency’s charge, the deciding official considered as an
      aggravating factor that the appellant was or may have been under the influence
      and/or was impaired.    RPFR File, Tab 6 at 4; IAF, Tab 7 at 14.         It is well
      established that only ex parte communications that introduce new and material
      information to the deciding official will violate the due process guarantee of
      notice. Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1377
      (Fed. Cir. 1999); Lopes v. Department of the Navy, 116 M.S.P.R. 470, ¶ 7 (2011).
      Here, as the administrative judge found, the notice of proposed removal includes,
      in the narrative of the facts underlying the charge, a description of the appellant
      as provided by the Chief who interviewed him after several members of the
      Federal Fire Department reported that he did not appear to be able to perform his
      duties. IAF, Tab 7 at 123. The proposing official related that the Chief described
      the appellant as slumped in his chair, with bloodshot eyes, pinpointed pupils, and
      slurred speech, and agreed that he was not capable of performing his duties. Id.;
      RID at 11.    The appellant has not shown error in the administrative judge’s
      finding that, to the extent that there was an ex parte communication regarding the
      appellant’s possible impairment, it introduced only cumulative evidence, not new
      and material evidence, and therefore did not constitute a due process violation.
      For the same reason, we find that the appellant has not shown error in the
      administrative judge’s finding that, to the extent there was ex parte
      communication regarding the appellant’s having used a mind-altering drug, it
      introduced only cumulative evidence, not new and material evidence, and
      therefore did not constitute a denial of due process. RID at 11.
                                                                                       7

¶12        The appellant argues further that, without giving advance notice to him, the
      deciding official relied in her penalty determination on the fact that he had
      received a Driving Under the Influence criminal conviction in 1998. RPFR File,
      Tab 6 at 4; IAF, Tab 7 at 16-19 (the agency’s Douglas factors analysis).
      However, the administrative judge considered the hearing testimony of the
      deciding official wherein she specifically denied having given that conviction any
      weight in her penalty assessment. RID at 11. The appellant has failed to show
      error in the administrative judge’s findings that, because the 1998 conviction was
      not a basis for the deciding official’s determination on either the merits of the
      charge or the penalty to be imposed, there was no due process violation. Cf.
      Lopes, 116 M.S.P.R. 470, ¶ 12 (explaining that the deciding official’s hearing
      testimony confirmed his consideration of ex parte information about prior
      misconduct found on the Douglas factors worksheet); Pickett v. Department of
      Agriculture, 116 M.S.P.R. 439, ¶ 12 (2011) (highlighting that the deciding
      official “testified that he considered information he received” outside the
      proposal notice).
¶13        Finally, the appellant argues on review that he was not on notice of the
      deciding official’s consideration in her penalty determination of certain matters
      she deemed as aggravating factors, specifically, the notoriety of the offense and
      the appellant’s being willfully defiant and insubordinate. RPFR File, Tab 6 at 5.
      As the administrative judge found, however, both of these matters were
      referenced in the notice of proposed removal, wherein the proposing official
      noted that the appellant initially refused to report for drug testing on the date
      identified and that, for a Lead Firefighter, the use of illegal drugs violates the
      special trust of the general public who rely on Firefighters to protect life and
      property. RID at 11-12; IAF, Tab 6 at 123. We find therefore that the appellant
      has not shown error in the administrative judge’s finding that, to the extent these
                                                                                            8

      matters constituted ex parte communications, they did not constitute a denial of
      due process. 4
¶14         The appellant also appears to challenge on review the administrative
      judge’s finding that removal is a reasonable penalty. 5 Specifically, the appellant
      argues, as he did below, that the agency’s policy on illegal drug use provides that
      a removal will be initiated for a first-time use if the employee refuses to obtain
      counseling or rehabilitation through the CEAP or for a second finding of illegal
      drug use. RPFR File, Tab 6 at 6. The appellant asserts that he fully cooperated
      with the CEAP and completed an “extensive rehabilitation program” and that
      these factors and others preclude the agency’s imposition of the removal penalty.
      Id.   The administrative judge carefully considered the appellant’s claim but
      found, based on Board precedent, that removal may be appropriate for a first-time
      offense, notwithstanding the employee’s participation in the CEAP, depending on
      the deciding official’s careful consideration of the factors set out by the Board in
      Douglas v. Veterans Administration, 5 M.S.P.R. 280, 306 (1981). RID at 22-24;
      see Zazueta v. Department of Justice, 94 M.S.P.R. 493, ¶¶ 6-11 (2003), aff’d,
      104 F. App’x 166 (Fed. Cir. 2004).
¶15         Here, as the administrative judge correctly found, the deciding official did
      consider the relevant Douglas factors in rendering her decision, including:
      (1) the seriousness nature of the appellant’s misconduct that was antithetical to

      4
       The appellant has not, on review, challenged the administrative judge’s finding that he
      did not establish harmful procedural error, and we discern no basis upon which to
      disturb that finding.
      5
        In connection therewith, the appellant argues that, by not allowing him to fully
      question the deciding official on cross-examination, the administrative judge prevented
      him from presenting his claim related to disparate penalty, that is, that other agency
      employees who had tested positive for illegal drugs were not ultimately removed from
      their positions because the agency offered, and they accepted, last-chance settlement
      agreements. RPFR File, Tab 6 at 2-3. A majority of the Board considered this
      argument in its Opinion and Order but found that it provided no basis to disturb the
      initial decision. Hulett, 120 M.S.P.R. 54, ¶ 5 n.2. Therefore we will not further
      consider it.
                                                                                        9

      the duties of his position, which require critical thinking and the ability to
      manage stressful situations; (2) the fact that, as a Lead Firefighter, he directly
      supervised a crew of three or four personnel and was therefore required to be
      alert, attentive, and responsible for the safety of his crew; (3) that he provided
      emergency services of a critical nature, impacting the preservation of life and
      property, and was in contact with the public who depends on Firefighters and
      typically holds them in high regard; (4) that she had lost confidence in the
      appellant’s ability to perform his duties, which negatively impacted the agency’s
      ability to accomplish its mission; (5) that the appellant’s drug test was the result
      of his crew members’ reasonable suspicion of his impairment; (6) that removal
      was within the range of penalties for a first offense of illegal drug use in the
      applicable Table of Penalties; and (7) that the appellant was subject to random
      drug testing and had been warned by a policy statement that illegal drug use could
      lead to removal. RID at 17-23. The administrative judge further found that the
      deciding official considered the appellant’s satisfactory performance ratings, his
      past training, and letters of appreciation he had received but found that these
      factors were not significant, given his 21 years of service. RID at 18-19. And,
      she considered that he was experiencing personal and medical problems, but
      found that he did not explain why these problems led him to illegal drug use,
      rather than other coping mechanisms. RID at 23-24.
¶16        The administrative judge considered other mitigating factors cited by the
      appellant, that is, his years of discipline-free service and the lack of notoriety
      surrounding his misconduct, but found that these matters were outweighed by the
      seriousness of his misconduct.      RID at 24.     Beyond his disagreement, the
      appellant has not shown error in the administrative judge’s finding that, based on
      the sole sustained charge, the penalty of removal did not exceed the bounds of
      reasonableness. Ellis v. Department of Defense, 114 M.S.P.R. 407, ¶ 11 (2010);
      Zazueta, 94 M.S.P.R. 493, ¶¶ 6-11. Accordingly, we affirm the remand initial
      decision.
                                                                                   10

                 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:
                           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
                                                                                 11

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.
