                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     EMILIE A. SCHROEDER,                            DOCKET NUMBER
                   Appellant,                        DE-0752-14-0402-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: August 4, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Joshua L. Klinger, Esquire, Denver, Colorado, for the appellant.

           Richard C. Wolfe, Esquire, Fort Huachuca, Arizona, 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. 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 the law to the facts of the case; the administrative

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     judge’s rulings during either the course of the appeal or the initial decision were
     not consistent with required procedures or involved an abuse of discretion, and
     the resulting error affected the outcome of the case; or new and material evidence
     or legal argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, we conclude that the petitioner has not established any basis under
     section 1201.115 for granting the petition for review. Therefore, we DENY the
     petition for review and AFFIRM the initial decision, which is now the Board’s
     final decision. 5 C.F.R. § 1201.113(b).
¶2        The appellant held the position of Training Instructor, operating unmanned
     aircraft systems and teaching others how to do the same.        Initial Appeal File
     (IAF), Tab 4 at 17, 114-17. In 2013, the agency removed her for charges that
     included failing to meet a condition of employment pertaining to medical fitness,
     but an administrative judge reversed the action because of a due process
     violation. Schroeder v. Department of the Army, MSPB Docket No. DE‑0752‑13
     ‑1678-I-1, Initial Decision (Dec. 30, 2013).
¶3        The agency proposed the appellant’s removal again in January 2014, this
     time relying solely on a charge of failing to meet a condition of employment
     pertaining to medical fitness.    IAF, Tab 4 at 43-45.       The deciding official
     sustained the removal action, id. at 19-23, and this appeal followed, IAF, Tab 1.
¶4        After holding the requested hearing, the administrative judge affirmed the
     appellant’s removal. IAF, Tab 20, Initial Decision (ID). The appellant has filed a
     petition for review. Petition for Review (PFR) File, Tab 3. Her lone argument on
     review is that the agency once again has violated her due process rights.        Id.
     at 4-12. Specifically, she alleges that the deciding official improperly relied on
     ex parte information. Id. The agency has filed a response, and the appellant has
     replied. PFR File, Tabs 5-6.
                                                                                           3

¶5         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. Ward,
     Stone, and their progeny recognize, however, that not all ex parte communications
     rise to the level of due process violations; rather, only ex parte communications
     that 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).
¶6         The following factors are used to determine if ex parte information is new
     and material:    (1) whether the ex parte information introduced cumulative, as
     opposed to new, information; (2) whether the employee knew of the information
     and had an opportunity to respond; and (3) whether the communication was of the
     type likely to result in undue pressure on the deciding official to rule in a
     particular manner.    Stone, 179 F.3d at 1377.       Ultimately, we must determine
     “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.” Id.
¶7         The appellant alleges that the deciding official committed a due process
     violation by comparing her failure to meet a condition of employment, which is
     not listed in the agency’s table of penalties, with two charges that are listed in the
     table—false statements and failure to observe written rules. 2 PFR File, Tab 3
     at 6, 8-11 (referencing IAF, Tab 15 at 4-10, Tab 18, Hearing Compact Disc
     (HCD) (testimony of M.F.)). We disagree.

     2
       The letter proposing the appellant’s removal did place her on notice that the agency’s
     table of penalties was considered, but it did not specify how the table applied to the
     charge at issue. IAF, Tab 4 at 43.
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¶8        While testifying about the reasonableness of the penalty, the deciding
     official recognized that one Douglas factor is the consistency of the penalty with
     any agency table of penalties. HCD (testimony of M.F.); see Douglas v. Veterans
     Administration, 5 M.S.P.R. 280, 305 (1981). When further pressed about how he
     considered that factor, the deciding official identified charges delineated in the
     table of penalties that he considered most comparable to the charge at issue.
     HCD (testimony of M.F.); see IAF, Tab 15 at 4-10. However, he also noted that
     even the best comparisons within the table of penalties were distinguishable from
     the appellant’s failure to meet a condition of employment. HCD (testimony of
     M.F.). The deciding official explained that, while all the charges in the table of
     penalties were misconduct offenses, the appellant’s failure to meet a condition of
     employment was not. Id.; see IAF, Tab 15 at 4-10. He indicated that, unlike
     misconduct matters requiring some level of discipline, the appellant’s failure to
     meet a condition of employment flowed from her medical status, by no fault of
     her own, rendering her incapable of performing her duties. HCD (testimony of
     M.F.). Accordingly, the facts of this case differ from those in which an employee
     is on notice of one charge, but a deciding official treats that charge as something
     altogether different to support an enhanced penalty. Cf. Jenkins v. Environmental
     Protection Agency, 118 M.S.P.R. 161, ¶¶ 9, 12 (2012) (finding a Ward/Stone
     violation when the deciding official treated a charge as something altogether
     different to support a more severe penalty under the agency’s table of penalties).
¶9        Under these circumstances, we agree with the administrative judge’s
     conclusion that the deciding official’s consideration of charges in the agency’s
     table of penalties did not amount to a due process violation.       ID at 11.   For
     adverse actions resulting from an employee’s failure to maintain a condition of
     employment, a table of penalties is not particularly relevant.     See Penland v.
     Department of the Interior, 115 M.S.P.R. 474, ¶ 8 (2010) (recognizing that, in
     cases of a failure to maintain a condition of employment, the most relevant
     Douglas factors are the nature of the offense; its effect on an appellant’s
                                                                                       5

      performance of the job; and the availability and effect of alternative sanctions).
      The deciding official’s testimony merely reflected that, as he attempted to explain
      how he considered each factor listed on a Douglas checklist. HCD (testimony
      of M.F.); see IAF, Tab 4 at 28-30. His testimony about the table of penalties does
      not show that he considered aggravating factors to the penalty determination or
      any other new information that was substantial and likely to cause prejudice. Cf.
      Lopes v. Department of the Navy, 116 M.S.P.R. 470, ¶ 13 (2011) (reversing an
      adverse action for a Ward/Stone due process violation because the deciding
      official considered an employee’s prior 3-day suspension as an aggravating factor
      in determining an appropriate penalty without prior notice).
¶10        For the same reasons, we find that the appellant’s argument that she lacked
      prior notice of the deciding official’s Douglas factor checklist is unavailing. PFR
      File, Tab 3 at 8-11 (referencing IAF, Tab 4 at 28-30). Although an agency is
      required to provide an employee with notice of any aggravating factors that
      support an enhanced penalty, Ward, 634 F.3d at 1280, there is no per se
      requirement that an agency provide an employee with a Douglas factor checklist.
      Therefore, even if the appellant was deprived prior access to the agency’s
      Douglas factor checklist, the deprivation is meaningless absent evidence that the
      checklist contained aggravating factors supporting an enhanced penalty or any
      other specific information that qualifies as new and material. See Stone, 179 F.3d
      at 1377; supra ¶¶ 7-9.

                      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
                                                                                 6

of the U.S. 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 U.S. 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
                                                                        7

prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e-5(f)
and 29 U.S.C. § 794a.




FOR THE BOARD:                       ______________________________
                                     Jennifer Everling
                                     Acting Clerk of the Board
Washington, D.C.
