                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     DWIGHT V. LUNDY,                                DOCKET NUMBER
                  Appellant,                         DA-0752-13-4522-I-1

                  v.

     DEPARTMENT OF HOMELAND                          DATE: February 19, 2015
       SECURITY,
                 Agency.



                THIS FINAL ORDER IS NO NPRECEDENTIAL 1

           Robert Autrey, Washington, D.C., for the appellant.

           Olamide Famuyiwa, Washington, D.C., 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 initial decision, which
     mitigated the appellant’s removal to a 45-day suspension.            For the reasons
     discussed below, we DENY the petition for review, VACATE the initial decision,
     and ORDER the agency to cancel the appellant’s removal.

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

¶2            The appellant worked as a Materials Handler Leader for the agency’s
     Federal Emergency Management Agency (FEMA) at a distribution center in Fort
     Worth, Texas.      Initial Appeal File (IAF), Tab 17 at 109.      In May 2010, the
     agency’s Office of Inspector General (OIG) began an investigation into
     allegations that another employee was stealing items from the distribution center
     for his personal use. Id. at 78. During the investigation, the employee informed
     the OIG that the appellant gave him permission to take items home from the
     distribution center for personal use including large plastic bags filled with rolls of
     toilet paper.    Id.   The OIG interviewed the appellant who provided a written
     sworn statement admitting to removing items. Id. at 28-29, 31-34. The appellant
     allowed a search of his residence and the OIG discovered evidence, including
     tissue, soap, hand sanitizer, toilet paper and paper towels. Id. at 30, 35. The OIG
     completed its investigation in 2011, and provided its findings to FEMA.            Id.
     at 83.
¶3            Also in 2010, an anonymous note was left under a door of the information
     technology server room alleging that two employees of the center, including the
     appellant, were accessing explicit web sites from their work computers.            Id.
     at 18-19. The agency conducted an investigation into this allegation during 2010
     and 2011. Id. at 6-16.
¶4            In March 2012, the agency placed the appellant on administrative leave.
     IAF, Tab 16 at 107.       On April 1, 2013, the agency proposed to remove the
     appellant based on three charges:         (1) unauthorized removal of government
     property—ten      specifications;   (2)   unauthorized   possession   of   government
     property—nine specifications; and (3) misuse of government computer—two
     specifications. IAF, Tab 16 at 109-11. Accompanying the notice of proposed
     removal was the proposing official’s Douglas factors worksheet which identified
     three aggravating factors for penalty consideration: the nature and seriousness of
     the offense, the effect of the offense on the supervisor’s confidence in the
     appellant’s ability to perform assigned duties, and whether the appellant was on
                                                                                      3

     notice of the rules that were violated.    Id. at 115-18.     The appellant’s union
     submitted a written reply on his behalf.     Id. at 34-105.   The deciding official
     sustained seven specifications for charge one, five specifications for charge two,
     and both specifications for charge three. Id. at 23. He reviewed the Douglas
     factors in an accompanying worksheet and identified seven of them to be
     aggravating factors in his decision. Id. at 23, 27-31. He directed the appellant’s
     removal effective August 8, 2013, and advised him of his Board appeal rights. Id.
     at 23-24.
¶5           The appellant initiated a Board appeal challenging his removal. IAF, Tab 1
     at 4. The administrative judge conducted a hearing and issued an initial decision
     that mitigated the appellant’s removal to a 45-day suspension.        IAF, Tab 24,
     Initial Decision (ID) at 1. The administrative judge found the agency proved the
     seven specifications of unauthorized removal of government property and the five
     specifications of unauthorized possession of government property.        ID at 6-7.
     She found the agency proved the appellant authorized a coworker to remove
     plastic bags filled with 25 rolls of toilet paper on four occasions, and that the
     appellant removed similar bags filled with toilet paper on three occasions. ID
     at 4.   The administrative judge also found that the appellant possessed in his
     home 83 hand sanitizer bottles, 68 soap bars, and 54 toilet paper rolls that
     belonged to FEMA.       ID at 6-7.   She also found that the agency proved one
     specification of misuse of a government computer.             ID at 8, 10.     The
     administrative judge found the appellant failed to prove his due process claim
     because he did not produce any evidence that either the proposing or deciding
     official in the decision-making process considered or relied upon the anonymous
     note (a copy of which the appellant claimed he was not provided with), referenced
     in the proposal letter. ID at 10. In reviewing the agency’s penalty determination,
     the administrative judge found that the deciding official did not give serious
     consideration to a lesser penalty than removal, the appellant’s rehabilitative
     potential, or the fact that the appellant’s prior supervisor had approved removing
                                                                                       4

     and possessing government property.      ID at 12-13.    The administrative judge
     noted that the record did not support the agency’s argument that the appellant
     could not continue to provide efficient service to the government, and so the
     penalty of removal exceeded the tolerable limits of reasonableness. ID at 13.
¶6        The agency has filed a timely petition for review of the initial decision,
     arguing that the Board should defer to its determination that removal was the
     appropriate penalty. Petition for Review (PFR) File, Tab 1. The appellant has
     filed an untimely document that he states is a cross petition for review, however,
     he alleges no error and argues that the initial decision should be sustained. PFR
     File, Tab 3 at 1, 3, 7. Because the appellant has not alleged any error in the
     initial decision, we construe his untimely submission as a response to the
     agency’s petition for review and not a cross petition for review under the Board’s
     regulations.   See 5 C.F.R. § 1201.114(a).    Because we find that the deciding
     official considered aggravating factors not listed in the proposal notice, we do not
     reach the parties’ arguments on petition for review.      Instead, we reverse the
     appellant’s removal on due process grounds.
¶7        When an agency intends to rely on aggravating factors as the basis for the
     imposition of a penalty, such factors should be included in the advance notice of
     adverse action so that the employee will have a fair opportunity to respond to
     those factors before the agency’s deciding official. Lopes v. Department of the
     Navy, 116 M.S.P.R. 470, ¶ 5 (2011).          When a deciding official relies on
     information, which the appellant is not on notice may be considered, the
     information is referred to as an ex parte communication. See Stone v. Federal
     Deposit Insurance Corporation, 179 F.3d 1368, 1376-77 (Fed. Cir. 1999)
     (discussing when ex parte concerns arise in connection with an adverse action);
     see also Black’s Law Dictionary 316 (9th ed. 2009) (defining an ex parte
     communication as one “between counsel and the court when opposing counsel is
     not present,” and noting that “such communications are ordinarily prohibited”).
     Our reviewing court has explained that, if an employee has not been given notice
                                                                                        5

     of aggravating factors contributing to an enhanced penalty, the ex parte
     communication with the deciding official may constitute a constitutional due
     process violation because it potentially deprives the employee of notice of all the
     evidence being used against him and the opportunity to respond to it. Ward v.
     U.S. Postal Service, 634 F.3d 1274, 1280 (2011).        However, “[o]nly ex parte
     communications that introduce new and material information to the deciding
     official” constitute due process violations.      Stone, 179 F.3d at 1377.       The
     “ultimate inquiry” 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.
¶8            The Board will consider the following factors, among others, to determine
     whether 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 communications were of the type
     likely to result in undue pressure upon the deciding official to rule in a particular
     manner. Bennett v. Department of Justice, 119 M.S.P.R. 685, ¶ 8 (2013). A due
     process violation is not subject to the harmless error test; instead, the employee is
     automatically entitled to a new, constitutionally-correct removal proceeding.
     Ward, 634 F.3d at 1279. The Board has determined that this analysis applies not
     only to ex parte communications introducing information that was previously
     unknown to the deciding official, but also to information personally known and
     considered by the deciding official, if that information was not included in the
     notice of proposed removal to the appellant. Wilson v. Department of Homeland
     Security, 120 M.S.P.R. 686, ¶ 9 (2014).
¶9            The deciding official stated in his decision letter that he considered the
     Douglas factors indicated on the worksheet attached to his letter. IAF, Tab 16
     at 23.     On the attached worksheet, the deciding official indicated the three
                                                                                         6

      aggravating factors considered by the proposing official, and added an additional
      four factors as aggravating. IAF, Tab 16 at 27-31, 115-18; see PFR File, Tab 3
      at 31 (table comparing Douglas factors between deciding and proposing officials).
      Those factors were:     the employee’s job level and type of employment, the
      notoriety of the offense or its impact on the agency’s reputation, the potential for
      the employee’s rehabilitation, and the adequacy and effectiveness of alternative
      sanctions to deter such conduct in the future. IAF, Tab 16 at 28-31. Regarding
      the appellant’s job level, the deciding official explained that the appellant was to
      set an example for new hires at the agency’s biggest distribution center. Id. at 28.
      For the notoriety factor, the deciding official explained that if the misconduct
      were to become public, it would damage the agency’s reputation and potentially
      result in a loss of trust and confidence in the agency. Id. at 30. However, the
      record does not indicate that the appellant’s conduct garnered any public
      attention. For the rehabilitation factor, the deciding official determined that there
      were repeated incidents of the same offenses, suggesting that the appellant could
      not be rehabilitated.   Id.   Similarly for the alternative sanctions factor, the
      deciding official also considered the repeated incidents, along with the
      seriousness of the conduct, and the potential impact on the agency. Id. at 31.
¶10        Here, the Douglas factor analysis introduced new information because the
      deciding official considered additional factors to be aggravating. The notice of
      proposed removal contained none of the information detailed by the deciding
      official regarding the four additional aggravating factors.     Id. at 109-18.   The
      proposing official’s Douglas factors worksheet reflects each of the four factors as
      being either neutral or not applicable. Id. 115-18. The proposing official also
      noted that the appellant had the potential to be rehabilitated, contrary to the
      conclusion of the deciding official. Id. at 117. There is no evidence in the record
      to suggest that the deciding official shared any of the information regarding the
      additional aggravating factors with the appellant prior to his issuance of the
                                                                                              7

      decision letter. 2 Therefore, we find that the deciding official’s consideration of
      four additional Douglas factors was new information not included in the agency’s
      proposal notice.
¶11         To find a violation of the appellant’s due process rights, not only must the
      ex parte communication considered by the deciding official be new, but the
      communication also must be material. See Ward, 634 F.3d at 1279. An ex parte
      communication is material when it influences the deciding official’s penalty
      determination.     Seeler v. Department of the Interior, 118 M.S.P.R. 192, ¶ 9
      (2012).    The deciding official stated in his decision letter that he took into
      consideration all of the Douglas factors and referenced his worksheet.               IAF,
      Tab 16 at 23. Further, his testimony reflected consideration of the new factors as
      part of the penalty determination. Hearing Transcript at 134-41. Although the
      deciding official did not explicitly state that he was influenced by the additional
      aggravating factors, we find that his specific identification of them in the decision
      letter shows that the determination was material to his decision in this case. See
      Silberman v. Department of Labor, 116 M.S.P.R. 501, ¶ 12 (2011) (specific
      identification of supervisory memoranda of unprofessional conduct as factors in
      the agency’s suspension decision showed that they were material to the case).
¶12         As to the second Stone factor, there is no evidence in the record that the
      appellant knew of the deciding official’s consideration of additional Douglas
      factors. The appellant did not present an oral reply and presented only a written
      reply to the deciding official. IAF, Tab 16 at 23, 37-105. We find no evidence
      that the appellant had the opportunity to respond to the additional aggravating
      factors.


      2
       For example, the appellant did not file a grievance regard ing h is removal, wh ich might
      have led to the sharing of this information. IAF, Tab 1 at 5; see Henton v. U.S. Postal
      Service, 102 M.S.P.R. 572, ¶¶ 11-13 (2006) (find ing the requirements of due process
      met notwithstanding the absence of a proposal notice where the appellant had notice
      and an opportunity to respond in the grievance process).
                                                                                       8

¶13        In Ward, our reviewing court clarified that the third Stone factor of undue
      pressure 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 communications of this type 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 the deciding official “admits
      that the ex parte communication influenced his penalty determination.” Id. Here,
      we find that the additional aggravating factors in the decision letter’s Douglas
      factors worksheet, along with the manner in which the information was used in
      the penalty determination, establishes that the appellant’s right to due process
      was violated by the deciding official’s ex parte communication, and that the third
      factor is thus less relevant.   Therefore, we conclude that the agency may not
      remove the appellant unless and until he is afforded a new constitutionally-correct
      removal procedure.     See Lopes, 116 M.S.P.R. 470, ¶ 13.        Accordingly, we
      VACATE the initial decision and do not sustain the removal action.

                                           ORDER
¶14        We ORDER the agency to cancel the removal action dated August 8, 2013.
      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.
¶15        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
      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,
                                                                                       9

      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.
¶16        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).
¶17        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).
¶18        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
      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
                                                                                 10

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
     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.
     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
                                                                           11

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.
                                                      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.
