# United States **Court of Appeals**  **for the Federal Circuit**

______________________

RAYLAND YOUNG, Petitioner,

v.

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Respondent.

______________________

2011

- 3232

______________________

Petition for review of an arbitrator’s decision in FMCS

no. 111228

- 52284

- 6, by Marvin J. Feldman.

______________________

Decided: February 1 2 , 2013

______________________

M ATTHEW H. S OLOMSON , Sidley Austin, LLP, of Washington, DC, argued for petitioner. With him on the
brief was K YLE J. F IET . Of counsel on the brief was J ACOB Y. S TATMAN , Snider & Associates, LLC, of Baltimore, Maryland.

H ILLARY A. S TERN , Senior Trial Counsel, Comme rcial Litigation Branch, Civil Division, Unite d States Department of Justice, of Washington, DC, argued for respondent. With her on the brief were S TUART F.

D ELERY , Acting Assistant Attorney General, J EANNE E.YOUNG v. HUD 2

D AVIDSON , Director, and B RIAN M. S IMKIN , Assistant

Director.

______________________

Before P ROST

, O’M ALLEY

, and R EYNA

, Circuit Judges

.

Opinion for the court filed by Circuit Judge

R EYNA

. Dissenting opinion filed by Circuit Judge P ROST

.
R EYNA

, Circuit Judge

. Rayland Young seeks review of the arbitrator’s opi nion and award, dated August 31, 2011, denying his grie vance that challenged his termination. For the reasons set forth below, we reverse the arbitrator’s decision and remand for further proceedings consistent with this opinion.

I. B ACKGROUND

Mr. Young se rved as a Public Housing Revitalization Specialist in the Office of Public Housing in the Clev eland, Ohio office of the Department of Housing and Urban Development (HUD). He had been employed by HUD for more than ten years. On August 31, 2010, Mr. Young was representing himself at an arbitration hearing, appealing
his five

- day suspension for disruptive behavior, misrepr esentation of authority, and use of insulting language to and about other employees. One of the witnesses testifying against him was Greg ory Darr, the Executive Director of the Coschocton Metropolitan Housi ng Authority and a

HUD client.

Following Mr. Darr’s testimony, there was a recess in the proceeding. According to Mr. Darr, while he was walking down the hallway, about 25

- 30 feet away f rom Mr. Young, Mr. Young shouted from immediately outside the door of the hearing room, “[y]ou are a racist. You are a member of the KKK, and you should be shot.” Mr. DarrYOUNG v. HUD 3

reported that he was shaken by the alleged incident, and he immediately relayed th e events to an administrative officer, Reishmemah Haggins, and to the office manager, Doug Shelby. Mr. Darr also insisted on filing a statement
with the Federal Protective Service. Mr. Darr did not identify any person who directly witnessed the alleged

c onfrontation. In the days that followed the incident, distress within the office grew as word of the supposed confrontation spread. On September 3, 2010, Mr. Young was placed on administrative leave.

Shawn Sweet, Director of the Cleveland Hub Office of Public Housing prepared a proposal for disciplinary action to be taken against Mr. Young. Ms. Sweet determined that Mr. Young’s conduct was similar to Offense Five from the HUD Handbook No. 0752, “[r]ude boisterous, or disruptive conduct; use of insultin g, abusive or offensive language to or about other employees,” but bordered on Offense Six, “[t]hreatening behavior.” His threatening behavior was her key concern in recommending Mr. Young’s termination. But the reason Ms. Sweet gave for the punishment s he recommended was that he “[made] an aggressive or intimidating statement to an Agency wi tness at an arbitration hearing.” Joint App’x 17.

Once Ms. Sweet issued her notice of proposed remo val, Unabyrd Wadhams, Regional Public Housing Director,
became the deciding official. Ms. Wadhams reviewed the proposal as well as the notes and supporting documents. She also interviewed several relevant witnesses, including Mr. Darr, Mr. Shelby, Ms. Haggins, and Jimmy Davis. Notably, Ms. Wadhams conducted all of her interviews after Mr. Young submitted his oral and written stat ements. This meant that Mr. Young was unaware of the
content and substance of the interviews and was unable to respond to anything unearthed during those inte rviews.YOUNG v. HUD 4

Ms. Wadhams found Mr. Darr ’s account of the inc ident credible, but its only support came from other ind ividuals who relied on what Mr. Darr had told them about the incident. No witnesses testified that they either saw or heard Mr. Young yell or shout at Mr. Darr. In contrast,

Mr. Davis, a HUD employee assisting Mr. Young in the arbitration, submitted an affidavit on behalf of Mr. Young in which he stated, “I was with Mr. Young the entire time during this break. He never approached Mr. Darr and did not make any intimidating or aggressive statements to him. As a matter of fact he never said anything to Mr. Darr.” Joint App’x 35. During an interview held after Mr. Young made his submissions, Mr. Davis also testified that Mr. Young was in his view the entire break and that
he did n ot witness Mr. Young scream, threaten, or othe rwise interact with Mr. Darr. During the arbitration, HUD stipulated that Thomas Massouras, counsel for HUD at the hearing outside which the incident allegedly occurred, stayed in the hearing room during the e ntire recess and heard no confrontation or yelling. Consistent with these clear statements, Mr. Young and Mr. Davis maintained that they spent the entire recess outside the hearing room, while Mr. Davis later acknowledged in his
interview that the two wen t to his cubicle during the

recess and that he checked email and attended to other matters. Ms. Wadhams determined that this discrepancy wholly undermined Mr. Davis’ credibility as a witness and, as a result, Ms. Wadhams determined that Mr. Young engaged in the conduct described in Ms. Sweet’s proposal for removal. Mr. Young was never apprised of these supposed inconsistencies, nor did he have a chance to respond to them because the interview only occurred after Mr. Young had fully been heard.

In sustai ning the recommendation to remove Mr. Young, Ms. Wadhams explained that she considered this as his second offense (the first being the conduct that gave
rise to the five

- day suspension). She viewed Mr. Young’sYOUNG v. HUD 5

conduct as a very serious threat, and one that was parti cularly egregious because he directed it at a HUD client. She also explained that the language Mr. Young allegedly used was similar to language he allegedly used on other occasions, including the incident that gave rise to the prior appeal, so she treated those past incidents as ev idence of a pattern of misconduct. On the basis of these considerations, Ms. Wadhams concluded that removal was the appropriate measure.

Following Ms. Wadhams’ decision, Mr. Young arb itrated his grievance before Marvi n J. Feldman. The arbitrator found Mr. Darr’s testimony credible while Mr. Davis’ testimony was inconsistent and lacking in candor. As for the proposed penalty, the arbitrator also noted that this was Mr. Young’s second offense. But when discussing

the first incident, the arbitrator described it as “nothing more than the predecessor of the activity involving the instant matter.” Joint App’x 12. Finally, regarding Mr. Young’s due process arguments, the arbitrator found
them unfounded because he had been given adequate time at the end of his arbitration hearing to address them. The arbitrator found the charge against Mr. Young supported by preponderant evidence and denied the grievance. Following the arbitrator’s decision, Mr. Young appealed to this cou rt. We have jurisdiction pursuant to 5 U.S.C. §§ 7121(f) and 7703.

II. S TANDARD OF R EVIEW

This court reviews an arbitrator’s decision, issued pursuant to a negotiated grievance procedure, under the same standard that applies to appeals from the Merit Syst ems Protection Board. 5 U.S.C. § 7121(f) (2006); Dixon v. Dep’t of Transp. , 8 F.3d 798, 803 (Fed. Cir. 1993). Under that standard, we must affirm the arbitrator’s decision unless it is (1) arbitrary, capricious, an abuse of discretion, or otherwise not i n accordance with law; (2) obtained without procedures required by law, rule, orYOUNG v. HUD 6

regulation having been followed; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c); Dixon , 8 F.3d at 803. In addition, we must reverse an arbitrator’s decision if it is not in accordance with the requirements of the Due Process Clause of the Fifth Amendment or any other constitutional provision. Cf. Ward v. U.S. Postal Serv.

, 634 F.3d 1274, 1278 (Fed. Cir. 2011)

.
III. D ISCUSSION

The proceedings leading to Mr. Young’s removal pr esent serious concerns related to constitutional due process and observance of agency procedures, both of which the arbitrator failed to adequately address. In that order, we explain why each concern amounts to a violation and requires r eversal.

A. Due Process

Procedural due process requires that certain substa ntive rights

— including the property interest established by certain kinds of federal employment

— cannot be deprived unless constitutionally adequate procedures are followed. Stone v. Fed. Deposit Ins. Corp. , 179 F.3d 1368, 1375 (Fed. Cir. 1999) (quoting Cleveland Bd. of Educ. v. Loudermill

, 470 U.S. 532, 541 (1985)). Applicable to this case are “[t]he essential requirements of due process, . . . notice and an opportunity to respond. ” Id. at 1375

- 76 (quoting
Loudermill , 470 U.S. at 546). As such, an employee is entitled to notice of the charges against him, an explan ation of the employer’s evidence, and an opportunity to present his side of the story before termination. Id. at

1376 (quoting Loudermill , 470 U.S. at 546); see also Douglas v. Veterans Admin. , 5 M.S.P.R. 280, 304 (1981).

When an employer obtains new and material info rmation through ex parte communications, an “employee’s constitutional due process guarantee of notice (both of the charges and of the employer's evidence) and the oppo rtunity to respond” are undermined. Stone , 179 F.3d atYOUNG v. HUD 7

1376. Where an employee has notice only of certain charges or portions of the evidence and the deciding
official considers new and mat erial information, proc edural due process guarantees are not met because the employee is no longer on notice of the reasons for dismi ssal and/or the evidence relied upon by the agency. Id.

As we observed in Stone , not every ex parte commun ication is a procedural defect that is so substantial and so prejudicial as to undermine the due process guarantee and require an entirely new administrative proceeding. Rather, “only ex parte communications that introduce new and material information” to the deciding of ficial violate the due process guarantee of notice. Id. at 1377.

In Stone , we identified several useful factors to co nsider when determining if new and material information has been introduced by means of ex parte contacts: (1)

whether the ex parte comm unication introduces “cumul ative” information or new information; (2) whether the employee knew of the communication and had a chance to respond; and (3) whether the ex parte communication resulted in undue pressure upon the deciding official to

rule in a particular manner. Id. Where “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 circu mstances,” a due process violation has occurr ed and the former employee is entitled to a new constitutionally correct removal procedure. Id. Such a violation is not subject to the harmless error test. Id. (citing Sullivan v. Dep’t of the Navy , 720 F.2d 1266, 1274 (Fed. Cir. 1983)).

Under the first Stone factor, HUD argues that the d eciding official uncovered cumulative, rather than “new and material,” information during her investigatory interviews of Mr. Darr, Mr. Shelby, Ms. Haggins, and Mr.

Davis. HUD maintains that Blank v. Department of the Army , 247 F.3d 1225 (Fed. Cir. 2001), authorizes suchYOUNG v. HUD 8

interviews to “confirm and clarify information that was already contained in the record.” Id. at 1229.

We are convinced that the ex parte communications in
this case were more than “confi rming and clarifying information” that was already on the record because the deciding official described the ex parte communication as a “huge” departure from written statements already on the record. The deciding official also admitted that the ex parte communications were the most critical statements in her mind. The significant and overwhelming role that the new communication played in the termination dec ision makes it evident that the ex parte communications
introduced new and material information as understood
under the first Stone factor.

As we observed in Ward

— a case very similar to this

one

— the third Stone factor, undue pressure, is less rel evant 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 her determination. 634 F.3d at 1280 n.2. Based on record admissions regarding the significance of

the ex parte communications, the first Stone factor stron gly suggests a due proces s violation while any deficiency of the third factor is less significant.

We also find HUD’s reliance on Blank misplaced for another reason. In that case, the Board actually analyzed the allegedly improper ex parte communications under the
Stone factors, and this court found those findings su pported by substantial evidence. Blank , 247 F.3d at 1229. In this case, the arbitrator performed no due process analysis whatsoever. Cf. Stone , 179 F.3d at 1377. I nstead, the arbitrator merely noted that “[Mr. You ng]
received a full disclosure by the employer when reques ted . . . . [and] . . . was given, at the end of the hearing,
sufficient time to reflect on his activit ies in the case.” Joint App’x 15. But the opportunity “to reflect on hisYOUNG v. HUD 9

activities” post -ter mination does not address whether Mr. Young had notice and an opportunity to be heard at the investigation stage. Instead, the controverted ex parte contacts arose after Mr. Young had made his written and oral statements to the deciding official. Mr. You ng had no opportunity to respond to the allegedly inconsistent statements Mr. Davis had made only in his ex parte interview with the deciding official before the deciding official rendered her decision. This defect during the investigation stage more than satisfies the second Stone factor considering that Mr. Young neither learned of the

ex parte communication, nor had an opportunity to r espond to it before the deciding official. We also note the likelihood that any response from Mr. Young would have

been meaningful in addressing the allegedly inconsistent statements. Given the layout of the HUD offices, the proximity of the hearing room to Mr. Davis’s cubicle, and the sworn testimony that Mr. Young was in view of Mr. Davis at all times, the perceived inc onsistency in Mr. Davis’s statements appears easily reconcilable.

Mr. Young was entitled to “procedural fairness at each stage of the removal proceedings,” not just upon
review of the termination decision. Stone , 179 F.3d at 1376. No amount of time for reflection can excuse past due process violations. “[W]hen these rights are unde rmined, [he] is entitled to relief regardless of the stage of the proceedings.” Id. We conclude as a matter of law that

the ex parte communications from this case were so su bstantial and so likely to cause prejudice that no employee can fairly be required to be subjected to a deprivation of property under these circumstances. Id. at 1377. A due process violation has occurred and Mr. Young is entitled

to a new constitutionall y correct removal procedure. 1

1 The dissent accuses the majority of wearing bli nders in our review of the termination proceeding. The problem with this perspective is that the dissent, like theYOUNG v. HUD 10

B. Violation of Agency Procedures

Even if Mr. Young’s due process rights had not been violated, the deciding official’s conduct resulted in a harmful procedural error requiring reversal. Cf. Ward

, 634 F.3d at 1281. Applicabl e regulations instruct the deciding official to “consider only the reasons specified in the notice of proposed action and any answer of the e mployee” in arriving at a removal decision. 5 CFR § 752.404(g)(1) (2012). Similarly, HUD’s Adverse Actions

Handbo ok explains that a deciding official’s “decision must be based on the evidence relied upon to support the proposal, and not on ‘ ex parte ’ (with only one side present) communications; i.e., conversation that provides additio nal evidence that is not provided to the employee for co mment or response.” Dep’t of Housing and Urban Dev. Admin., Handbook 0752.02 REV

- 3, Adverse Actions (Dec. 1, 2000). “It is a procedural error . . . for ‘an agency to rely on matters . . . without including those matters in the

prop osal notice.’” Ward , 634 F.3d at 1281 (quoting Col eman v. Dep’t of Defense , 100 M.S.P.R. 574, 579 (2005)). Accordingly, because the deciding official relied on ex parte communications that were not part of the original proposal for removal, HUD committed procedural error.

Id.

deciding officer below, start s from the position that Mr. Young indisputably engaged in the behavior of which he

is accused , relying on prior experiences, the truth and veracity of which were not adjudged below or brought on

appe al

. See, e.g. , dissent at 2 (“ Young is not a stranger to disciplinary proceedings. ”); see also id. a t 2 n.1 (crediting the unsubstantiated “fears” of Mr. Young ’ s co

- workers). Thus, the dissent concludes that the ex parte communic ations were harmless proc edural errors that merely “co nfirmed” Mr. Young ’ s behavior. We believe the record evidence on that point is sufficiently in dispute that Mr. Young’ s due process rights must be safeguarded.YOUNG v. HUD 11

C. Evidence of Prior Misconduct

Finally, we believe that the deciding official and the arbitrator erred in basing their decisions

— in part

— upon similar instances of past misconduct. In particular, the deciding official explained that she found “Mr. Darr’s report . . . credible because the language he reported [Mr. Young] using is similar to language that the record shows [he] . . . used on other occasions, including those which have been the basis for pr ior discipline.” Joint App’ x 22. Similarly, the arbitrator noted that “[t]here is no doubt in th[e] writer’s mind [Mr. Young] was responsible for the commentary to Darr at the time and place complained of. [Mr. Young’s] alleged activity was nothing more than a
continuation of his behavior pattern that has followed the course of his presidency at the Cleveland HUD agency
office.” Id. at 11.

The Board has previously held that, while prior mi sconduct may be considered in determining the appropr iateness of a penalty or impeaching cr edibility where the prior misconduct relates to the propensity for honesty, reliance on prior conduct to prove whether the petitioner engaged in the same conduct on another occasion is inappropriate. See Carrick v. U.S. Postal Serv. , 67 M.S.P.R. 280, 283, aff’d , 69 F.3d 555 (Fed. Cir. 1995); see also Bennett v. Dep’t of the Air Force , 84 M.S.P.R. 132, 138 (M.S.P.B. 1999); Hawkins v. Smithsonian Inst. , 73 M.S.P.R. 397, 403 (M.S.P.B. 1997). Similarly, in Ibrahim v. Dep artment of the Army , 30 M.S.P.R. 531, 536 (1986), the Board, looking to Federal Rule of Evidence 404(a) for guidance, stated that “[t]he basic rule is that character evidence may not be introduced circumstantially to prove the conduct of the witness.” We agree. While the F ederal Rules of Evidence do not apply to Board hearings, we have found them to be a helpful guide to proper hearing practices. Yanopoulos v. Dep ’ t of Navy , 796 F.2d 468, 471 (Fed. Cir. 1986). On remand, Mr. Young’s past misco nduct should not be used to prove charges that have beenYOUNG v. HUD 12

asserted against him in this case. Mr. Young’s identity is not at issue here and the government’s reliance on Fede ral Rule of Evidence 404(b) to excuse this use of character

evidence is without merit.

IV . C ONCLUSION

Because we conclude that Mr. Young’s due process rights have been violated and that the agency violated its own procedures, we reverse the arbitrator’s decision and remand for further proceedings consistent with this opinion. Given this disposition, we need not addr ess the other grounds for relief asserted by the petitioner.

REVERSED AND REMANDED

C OS TS

No costs.

# United States **Court of Appeals**  **for the Federal Circuit**

______________________

RAYLAND YOUNG, Petitioner,

v.

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Respondent.

______________________

2011

- 3232

______________________

Petition for review of an arbitrator’s decision in FMCS

no. 111228

- 52284

- 6, by Marvin J. Feldman.

P ROST

, Circuit Judge , dissenting.

I disagree with the majority that Young’s termination amounted to a violation of his due process rights. In my opi nion, Young received all the process he was due

— and more. The majority views the termination proceedings with blinders, focusing solely on one particular portion of Wadhams’s investigation without considering the exte nsive pre

- and post

- termination procee dings that Young received. In doing so, the majority creates an unnece ssarily stringent due process standard that bumps up against Supreme Court precedent and opens the door to meritless claims by duly

- terminated employees. For these reasons, I respectfu lly dissent.YOUNG v. HUD 2

I

Young is not a stranger to disciplinary proceedings. The alleged conduct at issue in this case occurred during an earlier arbitration proceeding in which Young was contesting a five

- day suspension for allegedly engaging in disruptive behavior when he did not receive a specific
desk. J.A. 6. One of HUD’s witnesses at that earlier proceeding was Gregory Darr, who happened to be visi ting HUD’s Cleveland Field Office when Young had e ngaged in the behavior upon which his five

- day suspension
had been based. W hile questioning Darr during that proceeding, Young, on the record, asked Darr whether he was a racist. Young later allegedly told Darr during a break in the same proceeding, “You are a racist, you are a member of the Ku Klux Klan and you should be shot.” 1 J.A. 17. Based on this latter statement, Shawn Sweet proposed Young’s removal, and Young ultimately was

terminated.

II

Under Cleveland Board of Education v. Loudermill

, an agency’s pre

- termination proceedings need only afford the employee “oral or written notice of the charges against him, an explanation of the employer’s evidence, and an opportunity to present his side of the story.” 470 U.S. 532, 547 (1985). These proceedings “need not definitely

1 Indeed, in response to Young’s alleged statement during the break, his coworkers “expressed elevated concern in the possibility that Mr. Young’s unpredictable behavior will become violent.” J.A. 13. In fact, one coworker stated that “people here are scar ed, and their feelings are becoming more intensified because of the behavior of Mr. Young. They are afraid of him. . . . This is no way to work. No one should come into work fearful of what might happen if Mr. Young shows up and gets angry.” J.A. 14.YOUNG v. HUD 3

resolve the propriety of the discharge” but are onl y “an initial check against mistaken decisions

— essentially, a determination of whether there are reasonable grounds to believe that the charges against the employee are true and support the proposed action.” Id. at 545

- 46. Here, Young received all the pr ocess to which he was entitled. The notice of proposed removal informed Young that his removal was based on the statement he allegedly made to
Darr. It further noted that there was evidence that Darr was visibly shaken by Young’s alleged statement and th at Darr had complained to the Field Office Manager. J.A. 17. Young was then given an opportunity to respond to this charge prior to his termination. Ultimately, Young’s

termination was based on the precise charge for which he was accorded an opportunity to respond. In my opinion, these pre

- termination proceedings undoubtedly provided enough process to allow Wadhams, the deciding official, to determine whether there were reasonable grounds to believe that Young made the alleged statements and

whether ter mination was the appropriate penalty.

The majority, however, concludes that these pre

termination proceedings were insufficient because Young did not have an opportunity to respond to the evidence uncovered during Wadhams’s ex parte pre

- termination
inves tigation. As we have previously recognized, howe ver, “not every ex parte communication is a procedural defect so substantial and likely to cause prejudice that it undermines . . . due process.” Ward v. U.S. Postal Serv.

, 634 F.3d 1274, 1279 (Fed. Cir. 2 011) (quoting Stone v.
FDIC , 179 F.3d 1368, 1376

- 77 (Fed. Cir. 1999) ). Instead, “the ultimate inquiry is whether the ex parte communic ation is ‘so substantial and so likely to cause prejudice that no employee can fairly be required to be subjected to a

de privation of property under such circumstances.’” Id. (quoting Blank v. Dep’t of the Army , 247 F.3d 1225, 1229 (Fed. Cir. 2001)).YOUNG v. HUD 4

Here, I cannot accept that the identified ex parte communications created such prejudice to Young that his due process rights were violated. Young argues that these
ex parte communications

— particularly Wadhams’s co mmunications related to Davis’s alibi for Young

— led Wa dhams to discount Davis’s affidavit, an affidavit which Young himself had submitted to support his response to the proposed notice of removal. See Young Br. 22 (“In particular, Ms. Wadhams discounted Mr. Davis’ affidavit upon information she obtained ex parte from Mr. Davis and other HUD employees she interviewed, and this
information was pivotal to her decision to sustain the charge against Mr. Young.”). The ex parte communic ations, therefore, did not result in new and material info rmation to support the charge against Young, but merely
fol lowed up on Young’s own evidence. That is, Young was informed of the specific charge against him, had an oppo rtu nity to respond to the charge , and was ultimately removed based solely on that charge. Nevertheless

, Young is arguing that he had a right to k now

— before his

termination

— whether the deciding official would credit

his evidence. This is not the law.

Furthermore, to the extent that Young is arguing that
Wadhams’s additional communications with HUD e mployees violated his due process rights, those co mmunic ations simply confirmed what was already noted in the proposed notice of removal: Darr was visibly shaken after the alleged encounter with Young. J.A. 17. Where, as here, the deciding official interviews other agency e mployees “merely to confirm an d clarify information that was already in the record . . . there is no due process
violation.” Blank , 247 F.3d at 1229. Consequently, on this record, I am unwilling to conclude that Wadhams’s ex parte communications were “so substantial and so likely

to cause prejudice” that they amounted to a due process

violation.YOUNG v. HUD 5

Even assuming Wadhams’s ex parte investigation did taint the pre

- termination proceedings, the post

termination hearings before the arbitrator decidedly cured any procedural due process defic iencies. Our sister circuits, applying Loudermill , have recognized that “e xtensive post

- termination proceedings may cure inad equate pre

- termination proceedings.” Krentz v. Robertson

Fire Prot. Dist. , 228 F.3d 897, 902 (8th Cir. 2000); Schacht v. Wisconsin Dep’t of Corrections , 175 F.3d 497, 503 (7th Cir. 1999) (“[Plaintiff’s] procedural due process claim fails . . . because, even if he could prove his claim, he had adequate post

- termination administrative remedies he could have pursued.”). In this case, the arbitrator held a
four

- day hearing during which Davis testified and Young had an opportunity both to present his side of the story

and to cross

- examine HUD’s witnesses. The arbitrator was not persuaded by Young’s version of the events and

instead cred ited Darr’s testimony. We owe the arbitr ator’s determinations the same deference that we apply to
decisions from the Board. See 5 U.S.C. § 7121(f); Frank v. Dep’t of Transp. , 35 F.3d 1554, 1556 (Fed. Cir. 1994).

III

I also disagree with the majority’s determination that Wadhams’s conduct violated agency policy and somehow “resulted in a harmful procedural error requiring reve rsal.” Maj. Op. at 10 . As an initial matter, it is unclear whether HUD’s Adverse Actions Handbook is actually binding on the ag ency. See Farrell v. Dep’t of the Interior

, 314 F.3d 584, 590 (Fed. Cir. 2002) (“The general conse nsus is that an agency statement, not issued as a formal regulation, binds the agency only if the agency intended the statement to be binding.” (citations omitted)). But even if it were, Wadhams’s ultimate decision was not
“based on” her ex parte communications. Nor did Wa dhams rely on these communications to glean additional reasons for terminating Young in violation of 5 CFR § 52.404(g)(1). Rather, the co mmunications here wereYOUNG v. HUD 6

merely an attempt to confirm and clarify information

— submitted by Young

— that was already contained in the record. In my view, such communications do not amount to procedural error, let alone harmful procedural error.

Finally, neit her the arbitrator nor Wadhams impro perly relied upon Young’s prior misconduct. While the arbitrator did mention it, there is no indication that this recognition played any role in his conclusion that the agency proved the charge at is sue here . Indeed, b efore discussing Young’s past behavior pattern, the arbitrator had already concluded that “[t]here is no doubt in this writer’s mind that the grievant was responsible for the commentary to Darr at the time and place complained of.” J.A. 11. Similarly, Wa dhams’s decision letter expressly recognized “that the sustained charge, standing alone, regardless of [the] first or second offense, is sufficient to justify [Young’s] removal.” J.A. 23.

IV

In sum, let us be clear : Wadhams did not rely upon

her ex parte communications to bring additional charges against Young, or even to provide additional proof that Young committed the misconduct specifically charged

here . Rather, she relied upon these communications merely to confirm and clarify information that was a lready contained in the record. That is not a violation of due process. We should defer to the arbitrator’s asses sment of Young and his claim and affirm. I respectfully

dissent.