United States Court of Appeals 

for the Federal Circuit 

__________________________ 

THOMAS O. WARD, 

Petitioner, 

v. 

UNITED STATES POSTAL SERVICE, 

Respondent. 

__________________________ 

2010-3021 

__________________________ 

Petition for review of the Merit Systems Protection 

Board in case no. PH0752090126-I-1. 

__________________________ 

Decided: February 17, 2011 

__________________________ 

MATTHEW J. DOWD, Wiley Rein LLP, of Washington, 

DC, argued for petitioner. With him on the brief was 

ROBERT J. SCHEFFEL. Of counsel on the brief was JOSEPH 

CHESTER, Caplan & Chester, of Pittsburgh, Pennsylvania. 

MATTHEW H. SOLOMSON, Trial Attorney, Commercial 

Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With him on the brief were TONY WEST, Assistant 

Attorney General, JEANNE E. DAVIDSON, Director, and 

KENNETH M. DINTZER, Assistant Director. Of counsel was 
WARD v. USPS 2

MICHAEL J. ELSTON, Appellate Counsel, Office of the 

General Counsel, United States Postal Service, of Washington, DC. 

__________________________ 

Before RADER, Chief Judge, DYK and PROST, Circuit 

Judges. 

PROST, Circuit Judge. 

Petitioner Thomas O. Ward (“Ward”) petitions for review of the final decision of the Merit Systems Protection 

Board (“Board”) affirming the U.S. Postal Service’s 

(“Agency’s”) decision to remove him from employment. 

Ward v. U.S. Postal Serv., No. PH0752090126-I-1 

(M.S.P.B. Aug. 31, 2009) (“Final Decision”). The Board 

recognized that the deciding official improperly considered Ward’s alleged past instances of misconduct, which 

were conveyed to the deciding official through ex parte 

communications and were not included in Ward’s Notice 

of Proposed Removal. The Board, however, erred in 

failing to consider whether this procedural error was 

harmful and in failing to address the due process issues 

arising out of the ex parte communications. Accordingly, 

we vacate and remand for further proceedings consistent 

with this opinion. 

BACKGROUND

On August 19, 2008, Ward, a preference eligible 

Maintenance Mechanic for the Agency, was involved in an 

incident with a supervisor in which he shouted at her, 

acted in a manner that she perceived as threatening, and 

disobeyed her instructions to remain in her office (“August 19, 2008 Incident”). On August 29, 2008, the Agency 

issued a Notice of Proposed Removal, which proposed 
3 WARD v. USPS

Ward’s removal from employment with the Agency based 

on a single charge of improper conduct arising out of the 

August 19, 2008 Incident. The Notice of Proposed Removal mentioned only the August 19, 2008 Incident as 

grounds for Ward’s removal; it did not reference any other 

misconduct by Ward. 

On November 5, 2008, Dan O’Hara, the deciding official (“Deciding Official”), issued a Letter of Decision, 

finding that the improper conduct charge was fully supported by the evidence and that removal was warranted 

in light of the relevant Douglas factors. Douglas v. Veterans Admin., 5 M.S.P.B. 313 (1981) (discussing factors that 

supervisors must consider in determining an appropriate 

penalty to impose for an act of employee misconduct). 

Ward’s removal from the Agency was effective November 

7, 2008. 

On December 5, 2008, Ward appealed the Deciding 

Official’s decision to the Board. At a hearing before the 

administrative judge on February 10, 2009, the Deciding 

Official testified that before making his decision, he not 

only reviewed the Agency’s investigative documents 

regarding the August 19, 2008 Incident but also spoke 

with three supervisors and one manager who discussed 

prior incidents in which Ward exhibited “loud, belligerent, 

[and] intimidating behavior.” J.A. 138-39; see J.A. 135; 

J.A. 145-46. The Deciding Official admitted that Ward’s 

“recurring pattern of behavior” affected his analysis of 

two Douglas factors, lowering the Deciding Official’s 

confidence in Ward’s ability to satisfactorily perform his 

duties and convincing the Deciding Official that Ward 

showed no potential for rehabilitation. J.A. 137; J.A. 140. 

Specifically, the Deciding Official testified that “after 

speaking with [the supervisor involved in the August 19, 

2008 Incident] and speaking with the other people as to 
WARD v. USPS 4

the pattern of conduct that [he had] heard over the years,” 

he had little confidence that Ward could perform at a 

satisfactory level. J.A. 137. Further, in response to a 

question regarding Ward’s potential for rehabilitation, the 

Deciding Official testified, “[W]ith the pattern, the recurring pattern of behavior that [he] discovered in . . . 

[Ward’s] work record, [he] just didn’t see how . . . any kind 

of letter, warning, or suspension was going to mitigate 

any of that.” J.A. 140. Ward’s counsel objected to the 

Deciding Official’s testimony regarding Ward’s past 

misconduct on the grounds that Ward “wasn’t given any 

opportunity to explain anything about any prior conduct” 

before his removal. J.A. 137-38. The administrative 

judge, however, allowed the testimony, finding it relevant 

to the Deciding Official’s penalty determination. J.A. 137-

38. 

On March 16, 2009, the administrative judge issued 

an initial decision that sustained the improper conduct 

charge and affirmed the Agency’s removal of Ward. The 

administrative judge found that the Deciding Official 

properly considered Ward’s alleged past instances of 

misconduct because they “are precisely the types of nondisciplinary counselings a deciding official may use to 

enhance a penalty.” J.A. 27. The administrative judge 

further determined that the discussions were not improper ex parte communications because they were not “of 

the type that resulted in undue pressure upon [the Deciding Official] to rule in a particular manner.” J.A. 27. 

Ward petitioned the Board for review of the administrative judge’s initial decision, arguing that the Agency 

failed to prove the improper conduct charge and that the 

penalty of removal was erroneous because, inter alia, the 

Deciding Official improperly considered alleged past 

misconduct that was not included in the Notice of Pro-
5 WARD v. USPS

posed Removal. Final Decision at 3-4. On August 31, 

2009, the Board issued a final decision, which granted 

Ward’s petition for review as to the Agency’s penalty 

determination yet upheld the imposed penalty of removal. 

Id. at 1, 3, 10. The Board found that the administrative 

judge, in analyzing the Deciding Official’s consideration of 

Ward’s alleged past misconduct, erred in two respects. Id.

at 5. First, the Board concluded that the administrative 

judge erred in finding that the Deciding Official was 

entitled to consider Ward’s alleged past misconduct in the 

penalty analysis. Id. The Board found that consideration 

of the alleged prior incidents as aggravating factors 

favoring an enhanced penalty was improper because the 

incidents were not included in the Notice of Proposed 

Removal and were instead mentioned for the first time 

during Ward’s appeal to the Board. Id. Second, the 

Board determined that the administrative judge erred in 

analyzing whether the Deciding Official’s discussions 

regarding this alleged prior misconduct constituted improper ex parte communications. Id. The Board reasoned 

that “[w]here an ex parte communication does not relate 

to the charge itself, but relates instead to the penalty, the 

Board has not considered such error to be [a] denial of due 

process of law . . . .” Id. at 5-6. The Board explained that, 

in these circumstances, it would “remedy the error by 

doing its own analysis of the penalty factors” to determine 

whether “removal is within the bounds of reasonableness, 

considering the pertinent factors other than [Ward’s] past 

work record.” Id. at 6. Upon independently reviewing the 

Douglas factors, the Board concluded that the penalty of 

removal “does not exceed the tolerable limits of reasonableness.” Id. at 6-10. Therefore, despite finding that the 

Deciding Official erroneously considered Ward’s alleged 

prior misconduct and that the administrative judge erred 

in her penalty analysis, the Board sustained Ward’s 

removal from the Agency. Id. at 4-10. 
WARD v. USPS 6

Ward timely petitioned for review of the Board’s final 

decision in this court. We have jurisdiction pursuant to 

28 U.S.C. § 1295(a)(9). 

DISCUSSION

“Our review of Board decisions is limited. We may 

only reverse a Board decision if we find the decision to be 

arbitrary, capricious, an abuse of discretion, or otherwise 

not in accordance with law; obtained without procedures 

required by law; or unsupported by substantial evidence.” 

Kahn v. Dep’t of Justice, 618 F.3d 1306, 1312 (Fed. Cir. 

2010) (citing 5 U.S.C. § 7703(c)). We “must reverse a 

decision of the Board if it . . . is not in accordance with the 

requirements of the Due Process Clause of the Fifth 

Amendment or any other constitutional provision.” Blank 

v. Dep’t of the Army, 247 F.3d 1225, 1228 (Fed. Cir. 2001). 

The removal proceedings in this case present serious 

due process concerns and a violation of Agency procedure, 

both of which the Board erred in addressing. Ward’s 

Notice of Proposed Removal proposed his removal from 

the Agency based solely on his conduct during the August 

19, 2008 Incident. The Deciding Official, however, proceeded to have ex parte communications with three 

supervisors and one manager from the Agency during 

which he learned of several alleged past instances of 

misconduct by Ward. Although these prior incidents were 

not referenced in Ward’s Notice of Proposed Removal, 

leaving Ward entirely unaware that such incidents would 

be considered as grounds for his removal, the Deciding 

Official later admitted, in his testimony before the administrative judge, that these incidents had influenced his 

decision that removal was warranted. Specifically, the 

Deciding Official testified that Ward’s “recurring pattern” 

of misconduct impacted his analysis of at least two Doug-
7 WARD v. USPS

las factors, as it gave the Deciding Official little confidence in Ward’s ability to satisfactorily perform his duties 

and convinced the Deciding Official that Ward showed no 

potential for rehabilitation. J.A. 137; J.A. 140. 

At worst, the Deciding Official’s ex parte communications violated Ward’s due process rights, automatically 

entitling him to a new removal proceeding free from any 

violation of his constitutional rights. The Board, however, 

erred in failing to analyze the due process issues presented in this case. At a minimum, the Deciding Official’s 

consideration of alleged past misconduct that was not 

included in the Notice of Proposed Removal violated 

Agency procedure, requiring a harmless error analysis. 

The Board properly recognized this procedural error. Yet 

the Board erred in concluding that it could “remedy the 

error” by performing its own penalty analysis in which it 

considered whether, in its view, the removal penalty was 

“within the tolerable limits of reasonableness.” Final 

Decision at 6, 10. We address the due process issues and 

the procedural error in turn.1

 1 At oral argument, the government repeatedly argued that Ward did not raise the issue of the Agency’s 

improper consideration of Ward’s alleged past misconduct. Oral Arg. at 14:10-23, 16:25-59, 18:17-22, 29:35-

30:01, 30:31-42, available at

http://oralarguments.cafc.uscourts.gov/Audiomp3/2010-

3021.MP3. It is true that Ward did not fully address the 

implications of this error. Yet Ward’s brief quotes the 

Deciding Official’s testimony before the administrative 

judge, wherein he admitted that Ward’s alleged pattern of 

misconduct influenced his penalty determination, and 

argues that the Deciding Official’s penalty recommendation was erroneous because it was based on this improper 

evidence of past misconduct in violation of Agency procedure and due process. Pet’r’s Br. 52-53. In addition to 

this reference to the error, there is no question that a 
WARD v. USPS 8

A 

First, the Board erred in failing to address the due 

process concerns arising out of the Deciding Official’s ex 

parte communications regarding Ward’s alleged prior 

instances of misconduct, which were not mentioned in 

Ward’s Notice of Proposed Removal or otherwise referenced in the proceeding until the Deciding Official testified before the administrative judge that these incidents 

played a role in his penalty determination. Where a 

public employee has a property interest in continued 

 

central focus of Ward’s appeal was the impropriety of the 

imposed penalty of removal and the penalty analysis. See

Pet’r’s Br. 4, 39-54; Pet’r’s Reply Br. 21-30. Therefore, to 

the extent that the legal implications of the Agency’s 

improper consideration of Ward’s alleged prior misconduct in its penalty analysis was “not discretely identified 

in the parties’ briefs,” we conclude that we may resolve 

the case on this issue because it is “inextricably linked to, 

and is thus ‘fairly included’ within, the questions presented.” City of Sherrill, N.Y. v. Oneida Indian Nation of 

N.Y., 544 U.S. 197, 214 n.8 (2005); see Long Island Sav. 

Bank, FSB, v. United States, 503 F.3d 1234, 1244 (Fed. 

Cir. 2007). 

Further, the court notes that Ward’s counsel objected 

to the Deciding Official’s testimony regarding Ward’s 

alleged prior misconduct during the hearing before the 

administrative judge, the first time such misconduct was 

referenced in the proceeding, and Ward raised the issue 

in his petition for review before the Board. See Final 

Decision at 3-4; J.A. 137-38. The issue is therefore explicitly addressed in both the administrative judge’s initial 

decision and the Board’s final decision. See Final Decision at 5-6; J.A. 27. Thus, although not thoroughly 

briefed on appeal, the issue has been raised and addressed throughout the proceeding. Moreover, after the 

issue was raised at oral argument, the government did 

not seek an opportunity for further briefing. Under these 

circumstances, it is well within our discretion to decide 

the issue. 
9 WARD v. USPS

employment, the Due Process Clause of the Fifth 

Amendment requires that the employee be afforded notice 

“both of the charges and of the employer’s evidence” and 

an “opportunity to respond” before being removed from 

employment. Stone v. FDIC, 179 F.3d 1368, 1374-76 (Fed. 

Cir. 1999). In Stone v. FDIC, we established a standard 

for determining whether ex parte communications with a 

deciding official in the course of a public employee’s 

removal proceeding violate the employee’s due process 

rights. We recognized that “not every ex parte communication is a procedural defect so substantial and likely to 

cause prejudice that it undermines . . . due process.” Id.

at 1376-77. Instead, “only ex parte communications that 

introduce new and material information to the deciding 

official” violate due process. Id. at 1377. We emphasized 

that 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.” 

Blank, 247 F.3d at 1229; Stone, 179 F.3d at 1377. 

Given the seriousness of a due process violation, we 

made clear that if the deciding official received “new and 

material information” by means of ex parte communications, thereby violating the employee’s due process rights, 

the “violation is not subject to the harmless error test.” 

Stone, 137 F.3d at 1377. Instead, the employee is automatically entitled to an “entirely new” and “constitutionally correct” removal proceeding. Id. 

Here, the Board did not analyze the Deciding Official’s ex parte communications under the Stone framework to determine whether Ward’s due process rights 

were violated. Rather, the Board held that “[w]here an ex 

parte communication does not relate to the charge itself, 

but relates instead to the penalty, the Board has not 
WARD v. USPS 10

considered such error to be [a] denial of due process of law 

to be analyzed under the factors set forth in Stone.” Final 

Decision at 5-6; see Biniak v. Soc. Sec. Admin., 90 

M.S.P.R. 682, 686-87 (2002). We reject as arbitrary and 

unsupportable the Board’s distinction between ex parte 

communications relating to the charge itself and ex parte 

communications relating to the penalty. Indeed, 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. Moreover, the distinction has no support in our case law. 

Stone, referencing Supreme Court precedent, emphasized 

the importance of giving an employee notice of any aggravating factors supporting an enhanced penalty as well as 

a meaningful opportunity to address “whether the level of 

penalty to be imposed is appropriate.” 179 F.3d at 1376. 

In our view, Stone thus makes clear that ex parte communications introducing information material to the 

penalty run astray of the due process requirements of 

notice and an opportunity to be heard. Ex parte communications that introduce “new and material information,” 

whether material to the merits of the underlying charge 

or material to the penalty to be imposed, violate due 

process. There is no constitutionally relevant distinction 

between ex parte communications relating to the underlying charge and those relating to the penalty. 

Accordingly, we remand this case to the Board to analyze, in the first instance, whether the ex parte communications between the Deciding Official and various Agency 

supervisors and managers undermined Ward’s procedural 

due process rights under Stone. “Specifically, the Board 

must analyze whether the ex parte communications in 

this case introduced new and material information to the 
11 WARD v. USPS

[D]eciding [O]fficial.”2 Id. If the Board finds that the 

communications did introduce new and material information in violation of Ward’s due process rights, Ward must 

be afforded a “constitutionally correct removal procedure.” 

Id. The Board may not excuse the constitutional violation 

as harmless error. Id. at 1372-77 (remanding to the 

Board for determination of whether ex parte communications violated the employee’s due process rights despite 

deciding official’s affidavit stating that “he would have 

 2 We note that the administrative judge found that 

the ex parte communications at issue in this case did not 

violate Ward’s due process rights because they were not 

“of the type that resulted in undue pressure upon [the 

Deciding Official] to rule in a particular manner.” J.A. 27. 

In Stone, we held that “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” 

is a relevant factor in determining whether the ex parte 

communications violated due process. Blank, 247 F.3d at 

1229; Stone, 179 F.3d at 1377. This, however, is only one 

of several enumerated factors and is not the ultimate 

inquiry in the Stone analysis. See Blank, 247 F.3d at 

1229; Stone, 179 F.3d at 1377. The administrative judge’s 

finding on this point is therefore not a sufficient basis on 

which to conclude that the Deciding Official’s ex parte 

communications did not violate Ward’s due process rights. 

Further, the court notes that if the ex parte communications “were of the type likely to result in undue pressure upon the deciding official,” this may well make it 

more likely that the employee was deprived of due process. Yet the lack of such undue pressure may be less 

relevant to determining whether the ex parte communications deprived the employee of due process where, as 

here, the Deciding Official admits that the ex parte communications influenced his penalty determination. See

J.A. 137; J.A. 140. Under these circumstances, the materiality of the ex parte communications appears to be selfevident from the Deciding Official’s admission. 
WARD v. USPS 12

concluded that [the employee] should be removed whether 

or not he had [received the ex parte communications].”). 
13 WARD v. USPS

B 

Even if the Board, on remand, concludes that the ex 

parte communications did not rise to the level of a due 

process violation, the Agency’s consideration of Ward’s 

alleged past instances of misconduct, without referencing 

these incidents in the Notice of Proposed Removal, was 

still a procedural error. As Stone recognized, “the Due 

Process Clause only provides the minimum process to 

which a public employee is entitled prior to removal.” 179 

F.3d at 1377-78. “Public employees are, of course, entitled to . . . other procedural protections . . . afforded them 

by statute, regulation, or agency procedure.” Id. at 1378. 

Section 752.404(f) of 5 C.F.R., the regulation governing 

Agency procedure for removal of qualified employees, 

including Ward, provides that “[i]n arriving at its decision, the agency shall not consider any reasons for action 

other than those specified in the notice of proposed action.” See Douglas, 5 M.S.P.B. at 331 & n.65; 5 C.F.R. § 

752.401(c). As such, it is a procedural error, in violation 

of 5 C.F.R. § 752.404(f), for “an agency to rely on matters 

affecting the penalty it imposes without including those 

matters in the proposal notice.” Coleman v. Dep’t of Def., 

100 M.S.P.R. 574, 579 (2005); see Turner v. U.S. Postal 

Serv., 85 M.S.P.R. 565, 569 (2000); Westmoreland v. Dep’t 

of Veterans Affairs, 83 M.S.P.R. 625, 628 (1999); 5 C.F.R. 

§ 752.404(f). Thus, the Board in this case properly found 

that the Deciding Official erred in considering Ward’s 

alleged prior incidents of misconduct, which were not 

included in the Notice of Proposed Removal, as grounds 

for imposing the penalty of removal. Final Decision at 5. 

Despite recognizing this procedural error, the Board 

erred in concluding that it could “remedy the error” by 

performing an independent analysis of the Douglas factors to determine whether “removal is within the bounds 
WARD v. USPS 14

of reasonableness.”3 Id. at 6. Instead, the Board was 

required to run a harmless error analysis to determine 

whether the procedural error required reversal. The Civil 

Service Reform Act provides that the Board may not 

sustain an agency decision if the employee “shows harmful error in the application of the agency’s procedures in 

arriving at such decision.” 5 U.S.C. § 7701(c)(2)(A); Diaz 

v. Dep’t of the Air Force, 63 F.3d 1107, 1109 (Fed. Cir. 

1995); Shaw v. U.S. Postal Serv., 697 F.2d 1078, 1080 

(Fed. Cir. 1983); see 5 C.F.R. § 1201.56(b)(1). The Board’s 

regulations define “harmful error” as an “[e]rror by the 

agency in the application of its procedures that is likely to 

have caused the agency to reach a conclusion different 

from the one it would have reached in the absence or cure 

of the error.” 5 C.F.R. § 1201.56(c)(3); Shaw, 697 F.2d at 

1080. We have repeatedly held employees to this burden 

to show harmful error in an agency’s procedure in order to 

establish reversible procedural error. Diaz, 63 F.3d at 

1109 (“We have previously held that an employee chal-

 3 At oral argument, the government cited LaChance 

v. Merit Systems Protection Board, 147 F.3d 1367, 1374 

(Fed. Cir. 1998), to defend the Board’s independent penalty analysis. Final Decision at 6; Oral Argument at 

17:00–38; 21:05–21:21. The issue addressed in LaChance, 

however, is distinct from that presented in this case, 

namely, the analysis required where the Board finds that 

an agency violated its own procedure in reaching its 

decision. In related circumstances, we have held that a 

reasonableness inquiry is not sufficient. In addition to 

determining “whether the penalty was reasonable . . . if 

there is ‘some indication that the agency would have 

regarded the sustained charges as insufficient to justify 

the penalty imposed,’ the Board must remand the case to 

the agency for redetermination of the appropriate penalty 

in the first instance.” Chambers v. Dep’t of the Interior, 602 F.3d 1370, 1381 (Fed. Cir. 2010) (quoting Guise v. 

Dep’t of Justice, 330 F.3d 1376, 1381 (Fed. Cir. 2003)). 
15 WARD v. USPS

lenging an agency action has the burden to prove that a 

violation of a statutory procedure was harmful.”); Handy 

v. U.S. Postal Serv., 754 F.2d 335, 337-38 (Fed. Cir. 1985) 

(“It is insufficient simply to show that a statutory procedure was not followed at the agency level. Harmful error 

must be shown.”); Shaw, 697 F.2d at 1080-81. 

Arguably, the Board’s independent analysis of the 

Douglas factors to determine whether “removal is within 

the bounds of reasonableness” was the Board’s attempt to 

perform a harmless error analysis. Final Decision at 6. 

The focus of a harmless error analysis, however, is the 

agency and whether the agency is likely to have reached a 

different conclusion in the absence of the procedural 

error. 5 C.F.R. § 1201.56(c)(3); see Diaz, 63 F.3d at 1109 

(“[Petitioner] did not argue or submit any evidence that 

showed that the agency’s procedural violation affected the 

outcome of the agency’s decision or was in any way harmful. Therefore, the Board properly declined to reverse the 

agency’s decision to remove [Petitioner].”); Handy, 754 

F.2d at 338 (“Having failed to show that in some way 

[that the absence of the procedural error] would have 

possibly affected the agency’s decision, petitioner is not 

entitled to prevail.”); Shaw, 697 F.2d at 1080-81. In 

contrast, the Board’s “own analysis” of Ward’s penalty 

considered whether, in its view, the imposed penalty did 

“not exceed the tolerable limits of reasonableness.” Final 

Decision at 6, 10. Thus, the Board’s independent analysis 

of the Douglas factors did not constitute a proper harmless error analysis. 

Accordingly, on remand, if the Board determines that 

the Deciding Official’s ex parte communications did not 

violate Ward’s due process rights, the Board must consider whether the Agency’s procedural error, in considering Ward’s alleged prior instances of misconduct without 
WARD v. USPS 16

including these incidents in the Notice of Proposed Removal, constituted harmful error. Specifically, here as in 

other cases, the Board must analyze whether “there is 

some indication that the agency would have regarded the 

sustained charges as insufficient to justify the penalty 

imposed.”4 Chambers, 602 F.3d at 1381 (internal quotation omitted). If there is such an indication, the matter 

must be remanded “to the agency for redetermination of 

the appropriate penalty in the first instance.” Id. 

CONCLUSION

In light of the above analysis, we vacate the Board’s 

decision and remand the case for further proceedings 

consistent with this opinion. On remand, the Board must 

first analyze whether the Deciding Official’s ex parte 

communications violated Ward’s due process rights by 

introducing new and material information. If the Board 

finds that the ex parte communications did introduce new 

and material information, Ward must be afforded a new 

removal proceeding free from such violations of his consti-

 4 Although we take no position regarding whether 

the Agency’s error was harmful, we note that the Deciding Official did not testify that he would have reached the 

same penalty determination without considering Ward’s 

prior misconduct. Cf. Coleman, 100 M.S.P.R. at 579. 

Instead, the Deciding Official expressly admitted that 

Ward’s alleged “recurring pattern of behavior” influenced 

his determination that two Douglas factors weighed in 

favor of removal, as it lowered the Deciding Official’s 

confidence in Ward’s ability to perform his duties and 

convinced the Deciding Official that Ward showed no 

potential for rehabilitation. J.A. 137; J.A. 140; see

Turner, 85 M.S.P.R. at 569. The Deciding Official also 

testified that several other Douglas factors weighed 

against removal. 
17 WARD v. USPS

tutional rights. If, however, the Board finds that Ward’s 

due process rights were not violated because the ex parte 

communications did not introduce new and material 

information, the Board must analyze whether the 

Agency’s procedural error, considering Ward’s alleged 

prior misconduct that was not included in his Notice of 

Proposed Removal, was harmful error. 

VACATED AND REMANDED