                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     GAIL AVENT,                                     DOCKET NUMBER
                         Appellant,                  CB-7121-14-0008-V-1

                  v.

     DEPARTMENT OF LABOR,                            DATE: September 10, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Maureen Willoughby, Esquire, Washington, D.C., for the appellant.

           Rolando N. Valdez, 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 request for review of an arbitration decision,
     which affirmed her removal and denied her allegation of discrimination.
     See 5 U.S.C. § 7121(d); 5 C.F.R. § 1201.155. For the reasons discussed below,



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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     we DENY the appellant’s request for review and SUSTAIN the arbitrator’s
     decision.
¶2         The agency removed the appellant from the position of Workers’
     Compensation Program Manager, effective March 23, 2012, for (1) excessive use
     of government equipment for personal, unofficial purposes, and (2) improper use
     of official work hours for personal, unofficial purposes.         Request for Review
     (RFR) File, Tab 5 at 33-40.        The appellant challenged the removal through
     arbitration, pursuant to the grievance procedure. See RFR File, Tab 2 at 14-15.
¶3         Prior to a hearing on the merits, the appellant submitted a motion for
     summary judgment, asserting that the agency violated her due process rights. See
     RFR File, Tab 5 at 25-26. The arbitrator denied this motion, finding that the
     agency had not committed a due process violation. Id. at 32. Subsequently, the
     arbitrator held a hearing on the merits and issued a decision, denying the
     appellant’s grievance and sustaining her removal. RFR File, Tab 2 at 14-34.
¶4         The appellant has filed a request for review, arguing that the arbitrator erred
     in determining (1) that the agency did not violate her due process rights, and
     (2) that removal was a reasonable punishment in light of similarly-situated white
     employees.    Id. at 5-10.   The agency has filed a response.         RFR File, Tab 5
     at 4-19.
     The appellant established good cause for the untimeliness of her request for
     review.
¶5         The appellant argues that her request for review was timely or, in the
     alternative, that good cause exists for the untimeliness. RFR File, Tab 2 at 1. We
     find that the request was untimely, but that good cause exists for the
     untimeliness. 2


     2
        The Board also has jurisdiction over the appellant’s appeal. The Board has
     jurisdiction to review an arbitrator’s decision under 5 U.S.C. § 7121(d) when the
     subject matter of the grievance is one over which the Board has jurisdiction, the
     appellant alleged in her grievance that the agency discriminated against her in violation
     of 5 U.S.C. § 2302(b)(1) in connection with the underlying action, and a final decision
                                                                                         3

¶6         Pursuant to 5 C.F.R. § 1201.155(b), an appellant must file a request for
     review of a final arbitration decision within 35 days after the date of issuance of
     the decision or, if the appellant shows that she received the decision more than
     5 days after the date of issuance, within 30 days after the date she received the
     decision. Here, the final arbitration decision is dated February 11, 2014. RFR
     File, Tab 2 at 34. Therefore, under the default calculation of 35 days, the request
     for review should have been filed by March 18, 2014. However, the appellant’s
     representative filed her request for review on March 19, 2014, using e-Appeal.
     RFR File, Tab 1. She filed again, by hand delivery, on March 20, 2014. RFR
     File, Tab 2 at 1.
¶7         The appellant’s representative argued that the arbitration decision was not
     received in her office until February 20, 2014, more than 5 days after issuance.
     Id. However, she did not provide a sworn statement or evidence to support this
     claim. See Hutchinson v. Department of Labor, 91 M.S.P.R. 31, ¶ 5 (2001) (the
     statements of a party’s representative in a pleading do not constitute evidence of
     timeliness). Moreover, while the representative alleged that it was received in her
     office more than 5 days after issuance, she was silent as to when the appellant
     received the arbitration decision.       See generally Lagreca v. U.S. Postal
     Service, 114 M.S.P.R. 162, ¶ 5 (2010) (if a petitioner is represented, the time
     period to file a petition for review begins to run upon receipt of the decision by
     either the representative or the petitioner, whichever comes first). In the absence
     of a showing that the appellant received the decision more than 5 days after the
     date of issuance, we find that the February 11, 2014 decision date is controlling,




     has been issued. See Brookens v. Department of Labor, 120 M.S.P.R. 678, ¶ 4 (2014);
     5 C.F.R. § 1201.155(a)(1), (c). Each of these conditions is met in this case. The
     appellant’s removal for misconduct could have been appealed to the Board, see 5 U.S.C.
     §§ 7512(1), 7513(d), & 7702(a)(1), she alleged that the agency subjected her to a
     disparate penalty when compared to similarly situated white employees, see RFR File,
     Tab 2 at 28, and the arbitrator issued a final decision, id. at 14-34.
                                                                                        4

      and the request for review was due 35 days later, on March 18, 2014.
      Accordingly, the March 19, 2014 appeal was one day late.
¶8            To establish good cause for the untimely filing of an appeal, a party must
      show that she exercised due diligence or ordinary prudence under the particular
      circumstances of the case. See Alonzo v. Department of the Air Force, 4 M.S.P.R.
      180, 184 (1980) (establishing the good cause standard for an untimely petition for
      review); see also Hutchinson v. Department of Labor, 91 M.S.P.R. 31, ¶ 7 (2001)
      (the Alonzo standard governs the late filing of a request for review of an
      arbitration decision). To determine whether an appellant has shown good cause,
      the Board will consider the length of the delay, the reasonableness of her excuse
      and her showing of due diligence, whether she is proceeding pro se, and whether
      she has presented evidence of the existence of circumstances beyond her control
      that affected her ability to comply with the time limits or of unavoidable casualty
      or misfortune which similarly shows a causal relationship to his inability to
      timely file. Moorman v. Department of the Army, 68 M.S.P.R. 60, 62-63 (1995),
      aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶9            In asserting that good cause exists for her untimely filing, the appellant’s
      attorney argues that she sent the request for review to opposing counsel on
      March 18, 2014, but was unable to file until the following day, March 19, 2014,
      due to technical difficulties with the e-Appeal system. RFR File, Tab 2 at 1. The
      Board’s records confirm that the appellant’s attorney attempted to use the system
      on March 18, 2014. The records also confirm that she contacted the Board the
      same day, reporting an inability to file an appeal that was due.        Finally, the
      Board’s records confirm that although the e-Appeal site was available, there was
      a higher than normal incidence of users reporting problems around that same
      time.
¶10           Under these limited circumstances, and considering the length of the delay,
      we find that good cause exists for the appellant’s untimely request for review.
      See Boykin v. U.S. Postal Service, 104 M.S.P.R. 460, ¶¶ 6-7 (2007) (finding good
                                                                                        5

      cause for untimeliness of one day where the appellant alleged difficulties with
      e-Appeal and the Board’s records confirmed a higher incidence of problems with
      the system during the relevant period).
      The appellant’s due process argument is preserved, despite the arbitrator denying
      a motion for summary judgment on the issue prior to his final arbitration
      decision.
¶11        The agency does not dispute the timeliness of the request for review,
      generally, but asserts that the appellant’s allegation of a due process violation is
      untimely. RFR File, Tab 5 at 10-12. According to the agency, the appellant
      should have appealed the issue within 35 days of the arbitrator’s August 5, 2013
      denial of the motion for summary judgment.            Id. at 10 (citing 5 C.F.R.
      § 1201.155(b)). We disagree.
¶12        Despite the agency’s argument to the contrary, our precedent does not
      support a requirement that an appellant request review within 35 days of an
      arbitrator’s denial of summary judgment.     In making its argument, the agency
      relies on Brookens, 120 M.S.P.R. 678, ¶ 12 n.*.          RFR File, Tab 5 at 10.
      However, in Brookens the Board determined that the arbitrator had issued two
      separate and final award decisions, with different case numbers, relating to
      different grievances. Brookens, 120 M.S.P.R. 678, ¶ 5. Accordingly, the Board
      required that the employee separately establish jurisdiction over and timeliness of
      each request for review. See id., ¶ 12 n.*. In contrast, the arbitrator here merely
      denied the appellant’s motion for summary judgment on August 5, 2013. RFR
      File, Tab 5 at 32. He did not issue a final arbitration decision until February 11,
      2014. RFR File, Tab 2 at 34. Until the arbitrator issued a final decision, the
      Board lacked jurisdiction over any aspect of the case, including the appellant’s
      due process argument.      See Brookens, 120 M.S.P.R. 678, ¶ 4 (listing this
      requirement among the jurisdictional elements).
                                                                                          6

      The appellant has not shown that the arbitrator erred in denying her due process
      claim.
¶13         The appellant alleges that the arbitrator erred in finding that the deciding
      official’s ex parte communications did not rise to the level of a due process
      violation. RFR File, Tab 2 at 5-8. We find that the appellant failed to prove this
      claim.
¶14         The standard of the Board’s review of an arbitrator’s award is limited; such
      awards are entitled to a greater degree of deference than initial decisions issued
      by the Board’s administrative judges. Brookens, 120 M.S.P.R. 678, ¶ 8. The
      Board will modify or set aside an arbitration decision only when the arbitrator has
      erred as a matter of law in interpreting a civil service law, rule, or regulation. Id.
      Even if the Board disagrees with an arbitrator’s decision, absent legal error, the
      Board cannot substitute its conclusions for those of the arbitrator. Id. Thus, the
      arbitrator’s factual determinations are entitled to deference unless the arbitrator
      erred in his legal analysis, for example, by misallocating the burdens of proof or
      employing the wrong analytical framework. Id.
¶15         In addition to the deference afforded arbitration awards, we note that an
      appellant seeking review of an arbitration decision has the burden of providing
      the Board with materials necessary to support matters raised on review. Holly v.
      Department of Health & Human Services, 92 M.S.P.R. 601, ¶ 10 (2002); 5 C.F.R.
      § 1201.155(d)(4). Here, the only evidence the appellant provided was the final
      arbitration decision. See RFR File, Tab 2 at 14-34. In its response, the agency
      provided its removal letter, RFR File, Tab 5 at 33-40, and the arbitrator’s denial
      of summary judgment, id. at 21-32. However, the record does not include the
      proposal to remove the appellant, a transcript or recording of the arbitration
      hearing, or any other supportive evidence.
¶16         Based upon the limited information available to us, we conclude that the
      arbitrator looked to the correct law regarding the appellant’s allegation of a due
      process violation.   See id. at 29-32.     In Stone v. Federal Deposit Insurance
                                                                                       7

      Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999), our reviewing court held that
      introduction of new and material information to the deciding official through ex
      parte communications undermines the due process guarantee of notice and an
      opportunity to respond because the employee is no longer on notice of all the
      reasons for the action and/or the evidence relied upon by the agency.            In
      determining if an ex parte communication introduces new and material
      information, the Board considers, among other factors, whether: (1) the ex parte
      communication merely introduces cumulative information or new information;
      (2) the employee knew of the error and had a chance to respond to it; and (3) the
      ex parte communications were of the type likely to result in undue pressure upon
      the deciding official to rule in a particular manner. Id. at 1377. Ultimately, the
      inquiry is whether the deciding official’s consideration of the additional material
      was so substantial and so likely to cause prejudice that no employee could fairly
      be required to be subjected to a deprivation of property absent an opportunity to
      respond. Id.
¶17        The foregoing analysis applies to ex parte communications concerning both
      charges and penalties. See Ward v. U.S. Postal Service, 634 F.3d 1274, 1279-80
      (Fed. Cir. 2011).    In Ward, the court stated, “if ex parte communications
      influence a deciding official’s penalty determination, contributing to the
      enhancement of the penalty to removal, the communications impact the
      employee’s property interest in continued employment no less than if they relate
      to the underlying charge.” Id. at 1280. The court also characterized Stone as
      “emphasiz[ing] the importance of giving an employee notice of any aggravating
      factors supporting an enhanced penalty as well as a meaningful opportunity to
      [respond].” Id.
¶18         Here, the arbitrator considered Stone and Ward before concluding that the
      communications at issue did not rise to the level of a due process violation. RFR
      File, Tab 5 at 29-32.     The agency’s January 2012 proposal to remove was
      premised on the allegation that the appellant performed services for outside
                                                                                        8

      employment from her government computer, during working hours, between
      November 24, 2009, and May 7, 2011. See RFR File, Tab 2 at 16, Tab 5 at 33-34.
      Among other things, in responding to the proposal, the appellant asserted that she
      completely stopped accessing personal files or unofficial websites by July 2011.
      See RFR File, Tab 5 at 37.        Therefore, the appellant argued that she was
      completely rehabilitated, and disciplinary action would be purely punitive in
      nature. See id. at 37-38; see also Douglas v. Veterans Administration, 5 M.S.P.R.
      280, 305-06 (1981) (among the factors that may be relevant in determining the
      appropriateness of a penalty are the potential for an employee’s rehabilitation and
      the adequacy and effectiveness of alternative sanctions to deter such conduct in
      the future).
¶19         According to his decision letter, the deciding official investigated the
      veracity of the appellant’s argument by working with staff to audit her computer
      usage between July 2011, when she was reportedly rehabilitated, and
      December 2011, just before the proposed removal. RFR File, Tab 5 at 37. This
      audit revealed that the appellant continued to access hundreds of personal
      documents and unofficial web sites during those months leading up to the
      proposed removal. Id. The decision letter referenced those findings in analyzing
      three Douglas factors: potential for rehabilitation, adequacy of alternative
      sanctions, and the clarity with which the appellant was on notice of the rules. Id.
      at 37-39. In pertinent part, the decision letter states, “Because the assertions of
      your rehabilitation are in direct conflict with fact, I cannot find that your
      potential for rehabilitation is a mitigating factor as is suggested in your
      responses.” Id. at 38. It also states, “Even if it were true that you had stopped
      the misconduct . . . (which the record demonstrates you did not do), I would find
      it difficult to believe in the likely rehabilitation of someone engaging in behavior
      such as yours constantly and frequently over such a long period of time as
      included in the Proposal to Remove.” Id. at 39.
                                                                                         9

¶20          In denying the appellant’s motion for summary judgment, the arbitrator
      analogized these facts to those of Blank v. Department of the Army, 247 F.3d
      1225, 1229-30 (Fed. Cir. 2001), where our reviewing court recognized that a
      deciding official may conduct a limited inquiry to confirm or clarify information
      already in the record. RFR File, Tab 5 at 31-32. In Blank, the court found no due
      process violation where a deciding official obtained ex parte communications
      through a post-proposal investigation that sought to determine whether there were
      inconsistencies in the agency’s case and whether facts supported the employee’s
      defenses of discrimination and hostile work environment.           Blank, 247 F.3d
      at 1227, 1229-30.     Citing that precedent, the arbitrator concluded that the
      deciding official’s inquiry of the appellant’s computer usage between the last day
      of charged misconduct and the proposed removal was not “new and material”
      because it was merely used to “confirm and clarify” information already in the
      record. RFR File, Tab 5 at 31-32. The arbitrator reasoned that the appellant
      raised the issue, she presumably had the information at her disposal, and the
      information was used only to verify a mitigating factor. Id. at 30-31.
¶21          On the one hand, in a case factually similar to the appellant’s, we reversed
      an administrative judge’s decision to find that the agency violated an employee’s
      due process guarantee.     Seeler v. Department of Interior, 118 M.S.P.R. 192
      (2012).    The deciding official in Seeler contacted an employee’s former
      supervisor to confirm and clarify what was already in the record for a proposed
      removal. Id., ¶ 6. However, the supervisor’s response not only confirmed what
      was in the record, it contained an allegation that the employee told her she should
      have lied for him about the charges.        Id.   The deciding official cited this
      allegation in the decision letter, when discussing the appropriate penalty. Id., ¶ 7.
      In Seeler, we concluded that although the inquiry was intended to confirm and
      clarify what was already in the record, the ex parte communication gleaned was
      actually new and material information, resulting in a due process violation. Id.,
      ¶ 8.
                                                                                                  10

¶22           On the other hand, the Board sustained an arbitrator’s decision that the
      agency did not violate an employee’s due process guarantee by engaging in ex
      parte     communications        in      Dobruck       v.    Department        of       Veterans
      Affairs, 102 M.S.P.R. 578, ¶¶ 13-15 (2006), aff’d, 212 F. App’x 997 (Fed. Cir.
      2007). In that case, the agency proposed an employee’s removal for unacceptable
      performance. Id., ¶ 3. However, the employee alleged that the deciding official
      engaged in ex parte communications with his managers regarding allegations of
      misconduct before issuing his decision. Id., ¶ 13. The arbitrator denied the due
      process claim, finding that the deciding official relied solely on the employee’s
      performance in rendering his decision.               Id., ¶ 14.       On review, the Board
      concluded that the employee had failed to show that the arbitrator erred as a
      matter of law. Id., ¶¶ 14-15. In so concluding, we cited the deference afforded
      an arbitrator’s factual determinations and an appellant’s burden of providing the
      Board with supportive materials, such as a transcript of the arbitration hearing or
      exhibits. Id.
¶23           Although it appears as if the ex parte communications at issue here are
      similar to those of Seeler, and could have risen to the level of a due process
      violation, the appellant did not provide the Board with the necessary materials to
      overcome      the   deference        afforded   an     arbitrator’s     conclusions.       See
      Brookens, 120 M.S.P.R. 678, ¶ 8; Holly, 92 M.S.P.R. 601, ¶ 10; 5 C.F.R.
      § 1201.155(d)(4). In the decision letter, the deciding official indicated that he
      considered the ex parte communications to confirm the absence of mitigating
      factors. RFR File, Tab 5 at 37-39. Without evidence such as the proposal letter
      or testimony from the deciding official, we cannot conclude that the ex parte
      communications went beyond that limited purpose and actually “contribut[ed] to
      enhancement of the penalty to removal.” Ward, 634 F.3d at 1280. Nor can we
      conclude that the communication was “so substantial and so likely to cause
      prejudice that it undermines the due process guarantee.” Stone, 179 F.3d at 1376-
      77.
                                                                                      11

      The appellant has not shown that the arbitrator erred in denying her
      discrimination claim.
¶24         The appellant alleges that the arbitrator erred by finding that removal was a
      reasonable penalty when compared to similarly-situated white individuals. RFR
      File, Tab 2 at 8-9. We find that the appellant failed to prove this claim.
¶25         After weighing witness testimony, the arbitrator dismissed the allegation
      that the appellant was subjected to a disparate penalty when compared to white
      individuals. Id. at 28-29. He reached this conclusion by finding that there was
      insufficient evidence of the claim, “especially when considering the sparse
      testimony of the [appellant] and the straight forward [sic] testimony of [another
      witness].” Id.
¶26         Because the appellant failed to present the Board with a transcript of the
      hearing and the arbitrator relied on testimony in dismissing the appellant’s
      allegation, we are unable to assess the determinations at issue.               See
      Holly, 92 M.S.P.R. 601, ¶ 10; 5 C.F.R. § 1201.155(d)(4). Absent any supporting
      evidence, the appellant’s claim constitutes mere disagreement with the
      arbitrator’s finding, which is entitled to deference. See Holly, 92 M.S.P.R. 601, ¶
      10. Therefore, we decline to consider this matter further.

                       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
                                                                                   12

      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
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. § 2000e-5(f)
and 29 U.S.C. § 794a.
                                                    13

FOR THE BOARD:     ______________________________
                   William D. Spencer
                   Clerk of the Board
Washington, D.C.
