                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     RANDALL D. ROGERS,                              DOCKET NUMBER
                  Appellant,                         SF-0752-14-0006-I-1

                  v.

     DEPARTMENT OF                                   DATE: October 16, 2014
       TRANSPORTATION,
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Jeffrey G. Letts, Esquire, Trenton, New Jersey, for the appellant.

           Ann P. Herchenrider, Esquire, Washington, D.C., 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 agency’s removal 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 regulation

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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. We MODIFY
     the administrative judge’s analysis regarding the appellant’s constitutional due
     process claim, still finding that the appellant failed to establish a constitutional
     due process violation.    Except as expressly modified by this Final Order, we
     AFFIRM the initial decision.

                                      BACKGROUND
¶2         The appellant was a GS-14 Gateway Port and Intermodal Specialist with the
     Intermodal System Development Division, Maritime Administration.               Initial
     Appeal File (IAF), Tab 6 at 19, 21 of 56. On July 26, 2013, the agency issued the
     appellant a notice of proposed removal based on the charge of conduct
     demonstrating untrustworthiness, with four specifications. IAF, Tab 6 at 49-54 of
     56.   As background to the charge, the proposing official stated that he had
     received a report that the appellant’s attendance at his place of duty and hours of
     work were not consistent with agency requirements.          Id. at 49 of 56.     The
     proposing official stated that, based on this report, he directed an administrative
     inquiry that was conducted on April 24, 2013. Id. The proposing official stated
     that, after reviewing the administrative inquiry report, he determined that the
     appellant “engaged in an ongoing pattern and practice of egregious conduct” that
     served as the basis for the charge. Id.
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¶3         Under specification (1) of the charge, the agency stated that the appellant
     failed to report to his official work station on a regular basis. Id. at 50 of 56.
     The agency stated that, instead, the appellant was working from home 3 to 4 days
     per week. Id. The agency further stated that the appellant failed to work within
     his assigned tour of duty from 7:00 a.m. to 3:30 p.m. Id.
¶4         Under specification (2), the agency specified that the appellant had abused
     the telework program. Id. The agency specified that, pursuant to a February 14,
     2011 telework agreement that had been signed by the appellant, he only was
     allowed to telework every Wednesday. Id. The telework agreement also stated
     that the appellant was expected to be present at his official duty station every
     Monday, Tuesday, Thursday, and Friday of the work week. Id.
¶5         Under specification (3), the agency stated that the appellant failed to follow
     leave procedures and submitted inaccurate time and attendance (T&A) reports
     when: from April 15-17, 2013, he reported regular hours on his T&A while he
     was not in the office for his full tour of duty; from April 18-23, 2013, he worked
     at home without supervisory approval and inaccurately reported his time as
     regular time; and from April 1-24, 2013, he only logged onto his onsite computer
     on April 13, 2013, at 8:09 a.m.      Id.   The agency further specified that the
     appellant had worked in the office only 4 times in 17 weeks, and that when he did
     work in the office, he spent no more than a couple of hours there. Id. The agency
     also stated that he had failed to request leave for personal appointments for many
     years. Id. at 51 of 56.
¶6         Under specification (4), the agency stated that the appellant had claimed
     federal transit benefits in the amount of $1,770.00 per year, or $147.50 per
     month, for his commute. Id. The agency stated that the appellant had certified
     that he was using his federal government subsidy for his transportation to and
     from his duty station, but in fact he was not commuting to his duty station on a
     regular and full-time basis. Id. The agency stated that, pursuant to the transit
     benefits program, the appellant was required to adjust the cost benefit and only
                                                                                      4

     receive benefits for the actual number of days he commuted between his home
     and duty station, and his failure to do so constituted a clear violation of this
     program. Id.
¶7        After providing the appellant with the opportunity to respond to the notice
     of proposed removal, the deciding official issued a decision letter sustaining the
     charge and finding that removal was the appropriate penalty. IAF, Tab 6 at 21-26
     of 56. The appellant was removed effective September 17, 2013. Id. at 19 of 56.
¶8        The appellant filed an appeal of his removal. IAF, Tab 1. After holding a
     hearing, the administrative judge issued an initial decision affirming the agency’s
     removal action. IAF, Tab 15, Initial Decision (ID) at 1, 15. The administrative
     judge found that the agency proved each of the four specifications underlying its
     charge of conduct demonstrating untrustworthiness and sustained the charge. ID
     at 5-9. In sustaining the four specifications, the administrative judge noted that
     the appellant: (1) admitted to the agency that he worked at home 3 to 4 days per
     week and did not work within his assigned tour of duty; (2) claimed he received
     higher-level authority in 2005 to work where and when he wanted but continued
     to sign telework contracts to the contrary after 2005, demonstrating that he was
     aware that he could only work at home on Wednesdays; (3) did not dispute
     specification (3); and (4) received transit benefits as if he were commuting 4 days
     a week, when in fact he was not. ID at 5-9. The administrative judge further
     found that the appellant failed to establish his constitutional due process claim.
     ID at 10-12.     In addition, the administrative judge found that the agency
     established nexus and the penalty of removal was within the parameters of
     reasonableness. ID at 9, 12-14.
¶9        The appellant has timely filed a petition for review. Petition for Review
     (PFR) File, Tab 1. The agency has filed a response to the petition. PFR File, Tab
     3.
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                        DISCUSSION OF ARGUMENTS ON REVIEW
¶10         On petition for review, the appellant contends that: (1) his constitutional
      due process rights were violated when the deciding official considered a comment
      from a stakeholder that the stakeholder had not heard from the appellant in a
      while; (2) the agency did not prove nexus because he was fulfilling his job duties
      and meeting performance expectations; and (3) the agency-imposed penalty
      exceeded the bounds of reasonableness. PFR File, Tab 1 at 2-9. As discussed
      below, the appellant’s arguments on review fail to provide a basis for disturbing
      the initial decision. 2

      The appellant has failed to show that the agency violated his constitutional due
      process rights.
¶11         The appellant contends that the agency committed a constitutional due
      process violation because the deciding official considered a comment from a
      stakeholder that was not included in the notice of proposed removal. PFR File,
      Tab 1 at 8-9. Pursuant to the U.S. Court of Appeals for the Federal Circuit’s
      decisions in Ward v. U.S. Postal Service, 634 F.3d 1274, 1279-80 (Fed. Cir.
      2011), and Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368,
      1376-77 (Fed. Cir. 1999), a deciding official violates an employee’s due process
      rights when he relies upon new and material ex parte information as a basis for
      his decisions on the merits of a proposed charge or the penalty to be imposed.
      See Norris v. Securities & Exchange Commission, 675 F.3d 1349, 1353-54 (Fed.
      Cir. 2012).



      2
        The appellant does not contest the administrative judge’s finding that the agency
      proved its charge of conduct demonstrating untrustworthiness and each of the four
      specifications underlying the charge. In any event, we discern no basis for disturbing
      these well-reasoned findings on review. 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).
                                                                                            6

¶12        Not all ex parte communications rise to the level of due process violations;
      rather, only ex parte communications which introduce new and material
      information to the deciding official are constitutionally infirm.               Solis v.
      Department of Justice, 117 M.S.P.R. 458, ¶ 8 (2012). The question is whether the
      ex parte communication 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.” Ward, 634 F.3d at 1279. The Board will consider the
      following factors, among others, to determine if an ex parte contact is
      constitutionally impermissible: (1) whether the ex parte communication 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 communication was of the type likely to result in undue
      pressure   upon   the   deciding   official   to   rule   in   a   particular   manner.
      Solis, 117 M.S.P.R. 458, ¶ 8.      A due process violation is not subject to the
      harmful error test; instead, the employee is automatically entitled to a new
      constitutionally-correct removal proceeding. Ward, 634 F.3d at 1279.
¶13        As noted by the administrative judge, the deciding official stated in his
      penalty analysis, when discussing the nature and seriousness of the offense, that
      key stakeholders had reported that contact with the appellant was infrequent and
      they had not seen him in years. ID at 11; IAF, Tab 6 at 22 of 56. In finding that
      this information regarding stakeholder reports was not cumulative, the
      administrative judge noted that the appellant was aware of it. ID at 11. However,
      the fact that the underlying information is known to the appellant does not
      determine whether it is cumulative.           See Lopes v. Department of the
      Navy, 116 M.S.P.R. 470, ¶ 13 (2011) (holding that it was improper for the
      deciding official to consider a prior 3-day suspension and other alleged past
      instances of misconduct because the agency failed to advise the appellant of these
      factors in the proposal notice). When an appellant is not aware that information
      was considered as an aggravating factor in determining the penalty and the
                                                                                        7

      agency did not include the information in its proposal notice, then the information
      cannot be considered cumulative. Gray v. Department of Defense, 116 M.S.P.R.
      461, ¶ 11 (2011).
¶14        Rather, we find that the deciding official’s consideration of reports from
      key stakeholders regarding the appellant’s absence did not deprive the appellant
      of due process because the proposal notice and the accompanying administrative
      inquiry report did, or should have, put him on notice that such information would
      be considered.      The specification section of the proposal notice quotes the
      appellant as stating that when not in the office, he was out meeting with
      stakeholders.    IAF, Tab 6 at 50 of 56.    The notices goes on to state that the
      Gateway offices “provide a local emphasis and a local face to support and help
      coordinate with the many private sector and government maritime stakeholders.”
      Id. at 51.      Citing the appellant’s job level and type of employment as an
      aggravating factor, the proposing official noted that the appellant’s position “is
      heavily focused on contacts and interactions with the public and maritime
      industry and you are often the face and voice of the Agency for these
      stakeholders.” Id. at 52. Thus the proposal letter clearly put the appellant on
      notice that the lack of frequency of his contacts with stakeholders was at issue,
      both in terms of the charges as well as the penalty. In addition, the administrative
      inquiry report, which was attached to the notice of proposed removal, explicitly
      referenced the stakeholders’ reports when it stated that headquarters had received
      reports from stakeholders that the appellant’s calls were infrequent and limited
      and that they had not seen him in years. IAF, Tab 6 at 7, 9 of 195, 54 of 56. As
      such, by citing the stakeholders’ input as an aggravating factor, the deciding
      official did not rely on new information in concluding that removal was
                                                                                                8

      reasonable. Accordingly, this case does not present a due process violation. 3 See
      Ward, 634 F.3d at 1279.
¶15         Even if an ex parte communication does not rise to the level of a due
      process violation, it may still constitute a procedural error.           See id. at 1281.
      When there is an error in the application of the agency’s procedures, the Board is
      required to conduct a harmful error analysis to determine whether the procedural
      error requires reversal. See id. Here, the appellant has failed to establish that the
      agency committed a procedural error in failing to explicitly reference the
      information on stakeholders’ reports in the notice of proposed removal. To the
      extent the agency did commit a procedural error by failing to provide the
      appellant with such information, any such error was not harmful because it did
      not cause the agency to reach a different conclusion regarding the appellant’s
      removal. See 5 C.F.R. § 1201.56(c)(3).



      3
        To the extent the administrative judge found that the information regarding reports
      from key stakeholders referenced by the deciding official in the decision letter was not
      material, ID at 11, we disagree. In the initial decision, the administrative judge notes
      that this information did not result in undue pressure on the deciding official to rule in a
      particular manner. ID at 11. However, the Federal Circuit in Ward emphasized that
      whether the additional information was of the type likely to result in undue pressure
      upon the deciding official is only one of the several enumerated factors and is not the
      ultimate inquiry in the Stone analysis. Ward, 634 F.3d at 1280 n.2. The court
      recognized that “the lack of such undue pressure may be less relevant to determining
      when the ex parte communications deprived the employee of due process where . . . the
      [d]eciding [o]fficial admits that the ex parte communications influenced his penalty
      determination,” making the “materiality of the ex parte communications . . .
      self-evident from the [d]eciding [o]fficial’s admission.” Id.
      Therefore, while no clear evidence of undue pressure exists in the record, the deciding
      official’s statement on the Douglas factors is evidence of the information’s materiality
      regarding stakeholder reports in the deciding official’s decision to remove the
      appellant. In any event, any such error on the administrative judge’s part does not
      provide a basis for disturbing the initial decision because the administrative judge
      properly found that the agency did not deny the appellant constitutional due process.
      Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) (an adjudicatory
      error that is not prejudicial to a party’s substantive rights provides no basis for reversal
      of an initial decision).
                                                                                           9

      The administrative judge properly found that the agency established nexus and
      that the penalty was within the parameters of reasonableness.
¶16         In the absence of certain egregious misconduct that “speaks for itself,” an
      agency may establish nexus by showing that the employee’s conduct: (1) affected
      the employee’s or his coworkers’ job performance, (2) affected management’s
      trust and confidence in the employee’s job performance, or (3) interfered with or
      adversely   affected    the   agency’s    mission. 4     Doe    v.   Department     of
      Justice, 103 M.S.P.R. 135, ¶ 7 (2006).        In this case, despite the appellant’s
      successful performance, his misconduct caused his supervisors to lose trust and
      confidence in his ability to perform his job because he held a position involving a
      high degree of trust. IAF, Tab 6 at 22-25 of 56. Accordingly, we agree with the
      administrative judge’s finding that the agency established a nexus between the
      sustained charge and the efficiency of the service. ID at 9.
¶17         Moreover, the administrative judge correctly found that the penalty of
      removal did not exceed the bounds of reasonableness. ID at 12, 14. Where the
      Board sustains the charge and underlying specifications, it will defer to an
      agency’s penalty decision unless the penalty exceeds the range of allowable
      punishment specified by statute or regulation or the penalty is so harsh and
      unconscionably disproportionate to the offense that it amounts to an abuse of
      discretion. Vaughn v. U.S. Postal Service, 109 M.S.P.R. 469, ¶ 14 (2008), aff’d,
      315 F. App’x 305 (Fed. Cir. 2009).        That is because the agency has primary
      discretion in maintaining employee discipline and efficiency. Id. The Board will
      not displace management’s responsibility, but will instead ensure that managerial
      judgment has been properly exercised. Id.



      4
        “A nexus between the conduct and the efficiency of the service may be established by
      a preponderance of specific evidence or by a rebuttable presumption where the conduct
      is so egregious that it ‘speaks for itself.’” Dominguez v. Department of the Air Force,
      803 F.2d 680, 682-83 (Fed. Cir. 1986) (citing Sanders v. U.S. Postal Service, 801 F.2d
      1328 (Fed. Cir. 1986)).
                                                                                        10

¶18         The Board has articulated factors to be considered in determining the
      propriety of a penalty, such as the nature and seriousness of the offense, the
      employee’s past disciplinary record, the supervisor’s confidence in the
      employee’s ability to perform his assigned duties, and the consistency of the
      penalty with those imposed upon other employees for the same or similar
      offenses. Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981).
      The Board places primary importance upon the nature and seriousness of the
      offense, and its relation to the appellant’s duties, position, and responsibilities.
      Vaughn, 109 M.S.P.R. 469, ¶ 15. Mitigation is appropriate only where the agency
      failed to weigh the relevant factors or the agency’s judgment clearly exceeded the
      limits of reasonableness. Id., ¶ 16.
¶19         In deciding to remove the appellant, the deciding official considered the
      nature and seriousness of the appellant’s misconduct, stating that he considered
      the misconduct to be intentional, egregious, and deceitful. IAF, Tab 6 at 22 of
      56. The deciding official also considered the appellant’s job level and duties as a
      Gateway Port and Intermodal Specialist, noting that the appellant was responsible
      for interfacing with the local industry and other stakeholders, and essentially
      serving as the face of the agency. Id.
¶20         The deciding official explained that, as a result of the appellant’s
      misconduct, the agency had lost confidence in his trustworthiness and ability to
      carry out his assigned duties.     Id. at 23 of 56.    The deciding official also
      considered the consistency of the penalty with those imposed on other employees
      for the same or similar offenses. Id. In this regard, the deciding official stated
      that he was aware of only one other incident of a similar scope and nature and
      that in that instance the employee also was removed. Id. The deciding official
      considered the consistency of the penalty with the agency’s table of penalties and
      explained   that   the   penalty   for   a   charge   of   conduct   demonstrating
      untrustworthiness ranges from a reprimand to a removal for a first offense. Id.
                                                                                        11

¶21         Next, the deciding official considered the clarity with which the appellant
      was on notice of any rules that were violated in committing the offense. Id. The
      deciding official stated that the appellant had to be cognizant of the fact that what
      he was doing was wrong, as evidenced by his efforts to conceal his failure to
      report to his official duty station.    Id.   The deciding official noted that the
      appellant had completed a mandatory transit benefits awareness program, which
      put him on notice that the transit benefit was to be used to cover his
      transportation to and from work. Id. The deciding official further noted that the
      appellant’s official telework agreement documented the expectation that he be
      present at his official duty station on all work days except for Wednesday. Id.
¶22         The deciding official considered the appellant’s potential for rehabilitation
      and determined that there was no real potential for rehabilitation. Id. at 24 of 56.
      The deciding official also considered relevant mitigating factors, such as the
      appellant’s 21 years of prior service with the federal government and lack of a
      disciplinary record but found that the seriousness of the charge outweighed any of
      these factors. Id.
¶23         Based on the foregoing, we find that the deciding official appropriately
      considered the relevant Douglas factors.          We also find that, under the
      circumstances in this case, removal was a reasonable penalty for the sustained
      misconduct. As noted by the administrative judge, the agency’s loss of trust and
      confidence in the appellant was a significant aggravating factor. See Talavera v.
      Agency for International Development, 104 M.S.P.R. 445, ¶ 12 (2007) (sustaining
      the appellant’s removal based on the charges of misrepresenting a material fact
      and providing false information to a supervisor).       The Board has previously
      upheld an agency’s removal action where an appellant has falsely claimed
      payments. See, e.g., Seibert v. Department of the Treasury, 41 M.S.P.R. 133, 138
      (1989) (removal was reasonable for making false claims for emergency salary
      payments, even though the employee notified the agency of his wrongdoing on
                                                                                 12

his own volition). Based on the foregoing, we conclude that the administrative
judge properly sustained the agency’s action.

                   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 the United States Court of Appeals for the Federal Circuit to review this
final decision.    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 United States 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 United
States     Code,    at   our   website,   http://www.mspb.gov/appeals/uscode.htm.
Additional information is 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.
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     If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.
