                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     SYLVESTER WILLIAMS, JR.,                        DOCKET NUMBER
                  Appellant,                         DE-0752-13-0322-I-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: April 8, 2015
                   Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Thomas F. Muther, Jr., Esquire, Denver, Colorado, for the appellant.

           Brian J. Odom, 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
     affirmed the agency’s action demoting him for unacceptable performance.
     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 or the erroneous application of

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     the law to the facts of the case; the judge’s rulings during either the course of the
     appeal or the initial decision were not consistent with required procedures or
     involved an abuse of discretion, and the resulting error affected the outcome of
     the case; or new and material evidence or legal argument is available that, despite
     the petitioner’s due diligence, was not available when the record closed.        See
     Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
     § 1201.115). After fully considering the filings in this appeal, and based on the
     following points and authorities, we conclude that the petitioner has not
     established any basis under section 1201.115 for granting the petition for review.
     Therefore, we DENY the petition for review. Except as expressly MODIFIED by
     this Final Order to include a harmful error analysis, we AFFIRM the initial
     decision.
¶2         The appellant appealed from the agency’s decision demoting him from
     Supervisor, Distribution Operations, EAS-17, at the Denver General Mail Facility
     in Denver, Colorado, to Bulk Mail Dock Clerk, PS-07. Initial Appeal File (IAF),
     Tab 1, Tab 5 at 18, 20-23. The agency initially proposed the appellant’s removal,
     charging him with Unacceptable Performance. 2 IAF, Tab 5 at 36-43. The parties
     engaged in mediation pursuant to chapter 650 of the agency’s Employee and
     Labor Relations Manual, but they were unable to resolve the matter. Id. at 35.
     On May 15, 2013, the Senior Manager of Distribution Operations, J.M., issued a
     decision letter sustaining the charge, but mitigating the removal to a downgrade
     in craft. Id. at 20-23.   On appeal, the administrative judge found that the agency
     proved three of ten specifications of the charge. IAF, Tab 19, Initial Decision
     (ID) at 5-10.   The appellant alleged as an affirmative defense that the agency
     denied him procedural due process because J.M. relied upon ex parte information
     developed during the mediation, at which J.M. was not present, when he decided

     2
       Although the agency labeled the charge as Unacceptable Performance, the
     administrative judge found that it was more properly construed as Unacceptable
     Conduct. IAF, Tab 16 at 2 n.1. We agree.
                                                                                            3

     to mitigate the penalty. See IAF, Tab 15 at 5-6, Tab 16 at 5-6. Although the
     administrative judge could not determine the source of the information that J.M.
     received, the agency did not dispute that it failed to advise the appellant that
     statements he made during the mediation would be considered in the penalty
     determination. ID at 13-14. The administrative judge concluded that an ex parte
     communication had taken place.           Because J.M. considered the communicated
     information as a mitigating factor, however, and not as an aggravating factor that
     enhanced the penalty, no due process violation occurred, “and thus the appellant
     was not prejudiced by its consideration.” 3 ID at 14.
¶3         On review, the appellant challenges only the findings regarding due
     process. 4 The appellant argues that the information from the mediation session
     that J.M. received was new and material information received by ex parte
     communications      as   defined    in    Stone   v.   Federal     Deposit    Insurance
     Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999). He argues that the analytical
     requirements set forth in Ward v. U.S. Postal Service, 634 F.3d 1274, 1279-80
     (Fed. Cir. 2011) (applying the Stone factors 5 to information introduced during
     penalty determinations), are not limited to the review of information supporting
     enhancement of the penalty and may include mitigating information. Petition for


     3
       The appellant also alleged that management was acting in reprisal for a failed removal
     action against an employee that he supervised. See IAF, Tab 16 at 3.                  The
     administrative judge found no evidence to support the proposition that J.M. considered
     the appellant’s role in the failed removal other than the temporal connection between
     the attempted removal and the onset of discip linary action against the appellant. See ID
     at 14.
     4
       The appellant does not take issue with the administrative judge’s findings regarding
     the charge.
     5
        Stone set forth factors for determ ining whether ex parte communications have
     introduced new and material information: (1) whether the information was merely
     cumulative; (2) whether the employee knew of and had an opportunity to respond to the
     information; and (3) whether the ex parte communications would likely have resulted in
     undue pressure upon the deciding official to rule in a particu lar manner. Stone,
     179 F.3d at 1377.
                                                                                     4

     Review (PFR) File, Tab 1 at 7-11.       Ward, he argues, requires the agency to
     provide “a meaningful opportunity to address ‘whether the level of penalty to be
     imposed is appropriate.’” Id. at 10. There is no indication in Ward, he asserts,
     that ex parte communications are somehow permissible even if they are used as
     mitigating factors in penalty determinations. Id. The appellant further argues
     that the agency’s failure to notify him regarding its use of the information was
     prejudicial “because [he] was deprived of any meaningful opportunity to address
     whether the ultimate demotion, in light of the ex parte evidence considered, was
     appropriate.” Id. at 11 (emphasis in original). He argues that had he been able to
     respond, the agency might have imposed a less severe penalty or even allowed
     him to retain his supervisory position. Id.
¶4        The appellant does not cite any authority supporting the specific proposition
     he advances, nor have we found any such authority. Ward explicitly states that an
     employee must receive “notice of any aggravating factors supporting an
     enhanced penalty” given to the deciding official.      Ward, 634 F.3d at 1280
     (emphasis added).      The court referenced information “contributing to the
     enhancement of the penalty” more than once when explaining that there exists
     “no constitutionally relevant distinction between ex parte communications
     relating to the underlying charge and those relating to the penalty.” Id.     The
     Board has repeatedly cited Ward for the specific proposition that an employee
     must receive notice of aggravating or penalty-enhancing factors.        See, e.g.,
     Buelna v. Department of Homeland Security, 121 M.S.P.R. 262, ¶ 31 (2014);
     Hulett v. Department of the Navy, 120 M.S.P.R. 54, ¶ 11 (2013); Lopes v.
     Department of the Navy, 116 M.S.P.R. 470, ¶¶ 5-7 (2011).          Ultimately, the
     Board’s inquiry must be “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.”          Stone,
     179 F.3d at 1377.       Although the agency failed to inform him of the
     communication, its omission was not by its very nature likely to cause prejudice
                                                                                       5

     against the appellant.    Accordingly, we AFFIRM the administrative judge’s
     finding that the communication did not violate the appellant’s right to due
     process.
¶5        If the ex parte communications are insufficiently substantial to rise to the
     level of a due process violation, then “the Board [is] required to run a harm[ful]
     error analysis to determine whether the procedural error require[s] reversal.”
     Ward, 634 F.3d at 1281; see 5 U.S.C. § 7701(c)(2)(A). Here, the initial decision
     states that J.M.’s consideration of the information attained through ex parte
     communications did not prejudice the appellant, but it does not clearly state that
     the administrative judge considered whether the agency’s procedural error
     required reversal. We thus consider the issue here. 6
¶6        Harmful error is an “‘[e]rror by the agency in the application of its
     procedures that is 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.’” Ward,
     634 F.3d at 1281; 5 C.F.R. § 1201.56(c)(3).        Harmful error under 5 U.S.C.
     § 7701(c)(2)(A) cannot be presumed; an agency error is harmful only where the
     record shows that the procedural error 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. Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 681,
     685 (1991).    The appellant here has not shown that the agency would have
     reached a different decision in the absence of the error. His assertions that he
     might have provided additional supporting evidence or made arguments that
     might have resulted in a less severe penalty are speculative. It is not clear how he
     could have augmented the arguments that were already sufficiently persuasive to
     convince J.M. to mitigate the penalty of removal. He argues that “there is no
     evidence that [the information gleaned from the mediation] was in any way

     6
       An administrative judge’s adjudicatory error that does not prejudice a party’s
     substantive rights provides no basis for reversal of an initial decision. Panter v.
     Department of the Air Force, 22 M.S.P.R. 281, 282 (1984).
                                                                                    6

duplicative” of the information that he raised in his reply to the notice of
proposed removal. PFR File, Tab 4 at 5. However, he bore the burden of proof
for his affirmative defenses, see 5 C.F.R. § 1201.56(a)(2)(iii), (b)(i), and he is the
party in the best position to know and explain how the information would have
been different. He also cannot establish that the agency would have considered a
lesser penalty to be appropriate for the specific misconduct he committed. Duties
related to timekeeping go to the heart of supervisory responsibilities, and
supervisors are held to a higher standard of conduct than the employees they
supervise.   Cf., e.g., Bowman v. Small Business Administration, 122 M.S.P.R.
217, ¶ 12 (2015); Little v. Department of Transportation, 112 M.S.P.R. 224, ¶ 32
(2009); Whelan v. U.S. Postal Service, 103 M.S.P.R. 474, ¶¶ 13-14 (2006), aff’d,
231 F. App’x 965 (Fed. Cir. 2007). Accordingly, we AFFIRM the administrative
judge’s decision as MODIFIED.

                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 review of this final decision by the United States 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
                                                                                  7

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.
         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.
