                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2015 MSPB 39

                            Docket No. AT-0432-14-0867-I-1

                                     Lorena Mathis,
                                       Appellant,
                                            v.
                                  Department of State,
                                         Agency.
                                       June 4, 2015

           John V. Berry, Esquire, and Alison R. Wills, Reston, Virginia, for the
             appellant.

           Elizabeth R. Amory, Charleston, South Carolina, for the agency.

           Anne Joyce, Esquire, Washington, D.C., for the agency.

                                        BEFORE

                            Susan Tsui Grundmann, Chairman
                               Mark A. Robbins, Member



                                OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed the agency’s removal action based on her unacceptable performance
     under chapter 43 of Title 5 of the United States Code. For the reasons set forth
     below, we DENY the petition for review, AFFIRM the initial decision AS
     MODIFIED, and SUSTAIN the removal action.
                                                                                         2

                                       BACKGROUND
¶2         The agency removed the appellant, formerly a GS-11 Passport Specialist,
     effective July 3, 2014, for unacceptable performance in Critical Performance
     Element 1, Work Commitment 1C, which sets forth the minimu m requirements
     for accuracy and efficiency in passport adjudication. Initial Appeal File (IAF),
     Tab 4 at 28-31 (proposed removal), 222-28 (decision notice), 233 (Standard Form
     50). The appellant appealed the removal to the Board, asserting that the agency
     had failed to consider mitigating circumstances and alleging affirmative defenses
     of harmful procedural error, disability discrimination, and due process violations
     based on an alleged ex parte communication between the deciding official and a
     human resources (HR) representative after the oral reply. 1        IAF, Tab 1 at 6,
     Tab 11 at 8-24, Tab 13.      After holding the appellant’s requested hearing, the
     administrative judge affirmed the removal, finding that the agency established
     that the appellant’s performance was unacceptable in one critical element and that
     she failed to prove a harmful procedural error or due process violation.         IAF,
     Tab 14, Initial Decision (ID). The appellant has filed a petition for review of the
     initial decision, wherein she challenges only the administrative judge’s finding
     that the ex parte communication did not violate her due process right to a
     constitutionally-correct removal procedure.       Petition for Review (PFR) File,
     Tab 1. The agency has responded in opposition to the appellant’s petition for
     review, and she has replied to the agency’s opposition. PFR File, Tabs 3-4.
¶3         The undisputed facts are that, from September 16, 2013, to October 30,
     2013, the appellant was placed on a performance improvement plan (PIP) due to
     her failure to meet the minimum requirements of Work Commitment 1C of her


     1
       The appellant, through her attorney, withdrew her disability discrimination claim
     during the prehearing conference. IAF, Tab 13. The appellant did not object to the
     administrative judge’s characterization of the withdrawal below and has not done so on
     review. See Petition for Review File, Tabs 1, 4.
                                                                                       3

     performance standards. IAF, Tab 4 at 34-36, 68-72. At the end of the PIP, the
     appellant’s supervisor rated her performance during the PIP as acceptable but
     informed her that, if she resumed unacceptable performance within 1 year, she
     might be subject to an adverse action without an additional period to improve.
     Id. at 74. On March 19, 2014, the agency proposed to remove the appellant for
     unacceptable performance in Work Commitment 1C—specifically, failure to
     adjudicate an average of fifteen to seventeen passport applications per hour
     between November 1, 2013, and March 14, 2014. Id. at 28-31. The appellant
     replied to the proposed removal orally and in writing, asserting, among other
     things, that computer outages and her work on more complex “derivative cases”
     had lowered her production rate and that the agency had ignored her requests for
     a reasonable accommodation. Id. at 171-77, 218-20.
¶4         Shortly after the oral reply, on April 24, 2014, the deciding official emailed
     an HR representative seeking information about the appellant’s alleged mitigating
     circumstances. See IAF, Tab 12 at 93. Specifically, the deciding official asked:
     whether computer outages had affected the production rates of other passport
     specialists in the “same way” as the appellant; whether the appellant had
     correctly represented the policy regardin g how cases, including “derivative
     cases,” were counted in the Management Information System (MIS); and whether
     the Disability and Reasonable Accommodation Division (DRAD) had correctly
     handled the appellant’s reasonable accommodation request.        See id.   The HR
     representative responded that: other employees in the office had not shown a
     downturn in production during the same period; MIS would typically be corrected
     to make production allowances in the event of a significant computer outage;
     derivative cases were part of a passport specialist’s normal work and “drive” the
     GS-11 grade level; and the appellant never sent any information to DRAD,
     although she had been provided information on the reasonable accommodation
     process. See id. at 92-93.
                                                                                     4

¶5         On July 13, 2014, the deciding official imposed the removal. IAF, Tab 4
     at 222-25. In the decision notice, the deciding official rejected the appellant’s
     allegations that computer outages and derivative cases had lowered her
     production rate, explaining that the office’s practice was to “issue specific
     instructions about any allowances that should be made in the MIS system when
     there have been significant system outage issues” and that “[s]ome derivative
     cases may be included in a single batch, but batches are not made up primarily of
     derivative cases.” Id. at 224. Further, the deciding official explained that the
     appellant had failed to provide any details about “how or when” she was
     allegedly discouraged from filing the paperwork to request a reasonable
     accommodation and that he did not credit her claim. Id. at 225.

                                       ANALYSIS
¶6         As stated above, the sole issue raised by the appellant on review is whether
     the administrative judge erred in finding that the ex parte communication did not
     violate her due process rights. See PFR File, Tab 1 at 5-13. 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, 1354 (Fed. Cir. 2012); see also Gray v.
     Department of Defense, 116 M.S.P.R. 461, ¶ 6 (2011). The Board has held that
     an employee’s due process right to notice extends to both ex parte information
     provided to a deciding official and information known personally to the deciding
     official, if the information was considered in reaching the decision and not
     previously disclosed to the appellant.        Solis v. Department of Justice,
     117 M.S.P.R. 458, ¶ 7 (2012).      Ward, Stone, and their progeny recognize,
                                                                                        5

     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. Id., ¶ 8.
¶7            In Stone, the Federal Circuit identified the following factors to be 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.
¶8            In this case, the administrative judge considered the Stone factors and
     determined that: (1) the information contained in the ex parte communication
     was new information because, prior to the ex parte communication, the deciding
     official did not have anything in his possession that described what happened
     when system outages occurred; and (2) the appellant did not have an opportunity
     to respond to the information; but (3) the general procedural information supplied
     by the HR representative was “highly unlikely” to put any pressure on the
     deciding official to rule in any particular manner, and the evidence showed that
     the deciding official was already inclined to sustain the removal when he sent the
     email in question. ID at 14-15. Thus, the administrative judge concluded that the
     ex parte communication did not violate the appellant’s due process rights.        ID
     at 15.
¶9            Reviewing the first Stone factor, we note that the Board has recently
     explained that a deciding official does not violate an employee’s right to due
     process when he considers issues raised by an employee in her response to the
     proposed adverse action and then rejects those arguments in reaching a decision.
                                                                                         6

      Grimes v. Department of Justice, 122 M.S.P.R. 36, ¶ 13 (2014) (citing Wilson v.
      Department of Homeland Security, 120 M.S.P.R. 686, ¶ 11 (2014), aff’d, 595 F.
      App’x 995 (Fed. Cir. 2015)); see 5 C.F.R. § 752.404(g)(1) (stating that, in
      rendering a decision on a proposed adverse action, the agency will consider the
      reasons specified in the notice and any answer of the employee or her
      representative, or both, made to a designated official). In so holding, the Board
      explained that an employee is not entitled to know the particular weight the
      deciding official will attach to her arguments raised in response to the proposed
      adverse action in advance of the final decision. Grimes, 122 M.S.P.R. 36, ¶ 13
      (citing Wilson, 120 M.S.P.R. 686, ¶ 12). Thus, in the instant case, the deciding
      official did not violate the appellant’s due process rights insofar as he considered,
      but was not persuaded by, her allegations of mitigating circumstances in reaching
      his decision to impose the proposed removal.
¶10         Moreover, a deciding official does not violate an employee’s due process
      rights by initiating an ex parte communication that only confirms or clarifies
      information already contained in the record. Blank v. Department of the Army,
      247 F.3d 1225, 1229 (Fed. Cir. 2001).         In Blank, the agency proposed the
      employee’s removal based on three charges of misconduct. Id. at 1226. After the
      employee submitted a written response disputing the charges, the deciding
      official interviewed a number of agency employees in order to determine whether
      there were inconsistencies in the agency’s case and whether the facts supported
      the employee’s defenses of discrimination and hostile work environment.           Id.
      at 1227.   The administrative judge found, and the court agreed, that the
      information obtained from the interviews was merely cumulative of the
      documentary evidence already assembled to support the notice of proposed
      removal. Id. at 1229. As such, the court explained that ex parte communications
      like the ones at issue in Blank are not proscribed by Stone; rather, investigatory
      interviews and communications that do no more than confirm or clarify pending
      charges do not introduce new and material information. Id. at 1229-30.
                                                                                       7

¶11         On the other hand, information obtained from an ex parte post-proposal
      investigatory interview may be considered new and material if it constitutes a
      significant departure from evidence already in the record and the deciding official
      considers it in reaching a decision.    See Young v. Department of Housing &
      Urban Development, 706 F.3d 1372, 1375-78 (Fed. Cir. 2013). In Young, the
      agency proposed to remove the appellant based on disruptive conduct during an
      arbitration hearing recess. Id. at 1374-75. In his written reply, the appellant and
      a supporting witness denied the charge entirely and provided statements that they
      spent the whole recess together outside the hearing room. Id. However, during
      an ex parte interview with the deciding official, the witness later acknowledged
      that he and the appellant went to his cubicle during the recess so that he could
      check his email and attend to other matters. Id. at 1375. The deciding official
      found that the discrepancies in the witness’s statements wholly undermined his
      credibility and led her to conclude that the appellant engaged in the charged
      misconduct. Id. She described the ex parte communication as a “huge” departure
      from written statements already on the record and admitted that the ex parte
      communications were the most critical statements in her mind.         Id. at 1377.
      Given the “significant and overwhelming role that the new communication played
      in the termination decision,” the court found that the ex parte communications in
      Young introduced new and material information as understood under the first
      Stone factor. Id.
¶12         In the instant case, the deciding official initiated ex parte communications
      with the HR representative to determine whether the appellant’s alleged
      mitigating factors were supported by the facts. See IAF, Tab 4 at 171-77 (written
      response), 218-20 (agency notes from oral response), Tab 12 at 92-93 (ex parte
      email).   In response, the HR representative essentially explained that the
      appellant’s allegations were not accurate. See IAF, Tab 12 at 92-93. Unlike
      Young, the ex parte information in this case was consistent with the information
      already in the record and did not play a “significant and overwhelming role” in
                                                                                                8

      the deciding official’s decision to impose the proposed removal.               See Young,
      706 F.3d at 1377; see also IAF, Tab 4 at 222-25, Tab 12 at 92-93. Rather, as in
      Blank, the ex parte communication merely clarified or confirmed whether the
      allegations raised in the appellant’s response to the proposed removal were
      supported by facts. 2 See Blank, 247 F.3d at 1227, 1229-30; see also IAF, Tab 12
      at 92-93. As such, we disagree with the administrative judge’s finding as to the
      first Stone factor that the information was new and modify the initial decision to
      find that the ex parte communication did not introduce new information.
¶13          As discussed above, the second factor the court found must be considered
      in determining whether ex parte information violated an appellant’s due process
      rights is whether the employee knew of the information and had an opportunity to
      respond to it.    Stone, 179 F.3d at 1377.        The parties do not dispute that the
      appellant did not have an opportunity to respond to the information contained in
      the ex parte communication. See PFR File, Tabs 1, 3-4.
¶14          Regarding the third Stone factor, which concerns 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, the appellant argues that the
      administrative judge improperly applied the harmful error doctrine. PFR File,
      Tab 1 at 12-13; see ID at 14-15. Under the harmful error doctrine, an agency’s
      action is reversible only if the employee proves that the procedural error
      substantially prejudiced his rights by possibly affecting the agency’s decision.
      Tom v. Department of the Interior, 97 M.S.P.R. 395, ¶ 43 (2004); see Ward,

      2
         In Shockley v. U.S. Postal Service, 95 M.S.P.R. 264, ¶¶ 17-18 (2003), a
      nonprecedential split vote Board decision, see 5 C.F.R. § 1200.3(b), (d),
      then-Chairman Marshall expressed the view that a deciding official’s ex parte
      communications aimed at determining the accuracy of statements made in an
      appellant’s response to the proposed removal did not constitute a due process violation.
      To the contrary, she explained, a deciding official who fails to try to verify or clarify an
      appellant’s allegations has arguably neglected his responsibilities as a deciding official.
      Shockley, 95 M.S.P.R. 264, ¶ 18 (separate opinion of Chairman Marshall).
                                                                                              9

      634 F.3d at 1281. Harmful error cannot be presumed; the employee must show
      that the 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. Tom,
      97 M.S.P.R. 395, ¶ 43.       In contrast, if a deciding official receives new and
      material information by means of an ex parte communication, then a due process
      violation has occurred and the agency action must be reversed until such time as
      the agency conducts a new constitutionally-correct removal procedure.              Stone,
      179 F.3d at 1376. In other words, a due process violation is not subject to the
      harmful error test. Id.
¶15         The administrative judge does appear to have conducted a harmful error
      analysis in considering whether there was a due process violation in this appeal. 3
      See ID at 14-15. Any such analytical error by the administrative judge is not
      reversible error, however, because the administrative judge also conducted the
      correct analysis, i.e., whether the information was of the type likely to result in
      undue pressure upon the deciding official.         See ID at 14; see also 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).    Specifically, the administrative judge found, and we
      agree, that the “general procedural information” contained in the ex parte
      communication was not of the type of information likely to result in undue
      pressure upon the deciding official to rule in a particular manner. ID at 14.
¶16         Weighing all of the Stone factors, we find that the information contained in
      the ex parte communication was not “so likely to cause prejudice that no


      3
        In his consideration of the third Stone factor, the admin istrative judge explained that
      testimonial and documentary evidence showed that the deciding official was already
      planning to impose the removal when he initiated the ex parte communication and that
      he did not change his mind after receiving the responses. See ID at 14-15.
      Consideration of whether the particu lar information conveyed in an ex parte
      communication actually influenced a deciding official is a harmful error analysis.
                                                                                             10

      employee can fairly be required to be subjected to a deprivation of property under
      such circumstances.” Stone, 179 F.3d at 1377. Thus, we conclude that there was
      not a violation of the appellant’s constitutionally guaranteed due process rights. 4
¶17         Further, we find that the administrative judge properly sustained the
      performance-based removal under chapter 43. The administrative judge correctly
      found that the agency established the following factors by substantial evidence:
      (1) the agency took its action under a performance appraisal system approved by
      the Office of Personnel Management; (2) the performance standards were valid;
      (3) the appellant’s performance in Work Element 1C was deficient as charged;
      and (4) the agency provided the appellant with a reasonable opportunity to
      demonstrate acceptable performance prior to effecting the removal action.              ID
      at 6-12.   On review, the appellant does not challenge these findings, and we
      discern no reason to disturb the administrative judge’s well-reasoned findings.
      See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no
      reason to disturb the administrative judge’s findings when she considered the
      evidence as a whole, drew appropriate inferences, and made reasoned
      conclusions); see also Broughton v. Department of Health & Human Services,
      33 M.S.P.R. 357, 359 (1987) (same).

                                              ORDER
¶18         This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).




      4
        We also find that, to the extent that the decid ing official’s communication with the HR
      representative may have constituted harmful procedural error, for the reasons discussed,
      the appellant has not shown that any such error was likely to have caused the agency to
      have reached a different conclusion about the removal action. See Tom, 97 M.S.P.R.
      395, ¶ 43.
                                                                                 11

                     NOTICE TO THE APPELLANT REGARDING
                        YOUR FURTHER REVIEW RIGHTS
         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
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 an appeal to
the United States Court of Appeals for the Federal Circuit, you may visit our
website at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit.    The Merit Systems Protection Board neither endorses the services
                                                                               12

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.
