UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

LISA J. STEG, Appellant,

v

. DEPARTMENT OF DEFENS E, Agency

. DOCKET NUMBER SF

- 0752

- 15

- 0185

- I

- 1

DATE: March 7, 2016



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Bobby Devadoss , Esquire, and Stephanie Bernstein , Esquire, Dallas, Texas, for the appellant

. Susan D. Hooks , Esquire, St. Louis, Missouri, for the agency

.

BEFORE
Susan Tsui Grundmann, Chairman Mark A. Robbins, Member

FINAL ORDER ¶1 The appellant has filed a petition for review of the initial decision, which sustained the agency’s demotion action. Generally, we grant petitions such as this one only when: the initial decision contains erroneous findings of material fact; the initial decision is based on an erroneous interpretat ion of statute or

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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 contr ast, 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

regulation or the erroneous application of the law to the facts of the case; the administrative judge’s rulings during either the course of the appeal or the initial
decision were not consistent with required procedures or involved an abu se of discretion, and the resulting error affected the outcome of the case; or new and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. See title 5 of the Code of Federal Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, we conclude that the p etitioner has not established any basis under section 1201.115 for granting the petition for review. Therefore, we DENY the petition for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 On review, the appellant first contends that the administrative judge incorrectly attributed statements to certain agency wi tnesses. Petition for Review (PFR) File, Tab 1 at 4

- 5. S he asserts that , contrary to the administrative judge’s findings: (1) witness C.T. did not state that she was able to see the appellant’s office from her desk; and (2) witness E.N. did not report that the appellant asked
her if she had Attention Deficit Hyperactivity Disorder ( ADHD )

. Id .; see Initial Appeal File (IAF), Tab 29, Initial Decision (ID) at 11, 20. The appellant is
mistaken on both points

. C.T. did state in her July 16, 2013 declaration that her
office “was across the hall from [the appellant’s] so I was in a position to observe when she arrived and departed for the day.” IAF, Tab 17, Subtab 6, ¶ 3

. 2 Also,
E.N. did report in her July 22, 2015 declaration that the appellant “asked me

. . .

2 The appellant appears to d ispute that C.T. was able to see her desk, but in the absence of any contradictory evidence, or any indication of bias on C.T’s part, we find the administrative judge properly credited C.T.’s statement, made under penalty of perjury, that she was able to visually observe the appellant’s comings and goings. See Borninkhof v. Department of Justice
, 5 M.S.P.R. 7 7 , 87 (1981 ).3

to my face if I had ADHD
, ” and that the appellant “ seemed to think it was
humorous

. ” Id
., Subtab 12, ¶¶ 5

- 6. 3 ¶3 The appellant next argues that the administrative judge improperly
di scounted documentary evidence that purportedly accounts for the discrepancy between the work hours she reported on the Performance Labor Accounting System (PLAS), and the entry and exit times evidenced by security card scans ( rec orded on the Recall Access Log) and coworkers’ visual observations. PFR File, Tab 1 at 6

- 7. She refer s specifically to her July 23, 2015 affidavit and
October 22, 2014 response to the proposal notice, in which she explained: (1) that her duties regularly required her to “meet with folks and look for employees ” ou tside of the building; and (2) that it is possible to enter the building
without a badge scan
, that there is no policy requiring employees to use their badges, and that this could be confirmed by “even a cursory review” of the times recorded for other employees on the Recall Access Log and in PLAS

. Id

. ; s ee IAF, Tab 19, Tab 4 at 22

- 23

. ¶4 We find that the administrative judge gave due co nsideration to the appellant’s explanations. Concerning the appellant’s claim that her duties routinely required her to work outside the building, the administrative judge
noted that this claim was uncorroborated by other evidence, and contradicted by the agency’s contention that the appellant was not authorized to allocate duty hours to look for employees outside the building. ID at 14

- 15; see IAF, Tab 4

at 16. The administrative judge further noted that it was inherently unlikely tha t

3 In any event, the specification at issue concerns a separate incident in which the appellant told E.N

. that s he was a “case of ADHD gone bad.” IAF, Tab 4 at 34 (Charge 2, Specification 2.a). E.N. reported that incident in both her May 12, 2015 signed statement ( incorrectly labeled as a “declaration ” ) a nd her July 22, 2015 declaration

. IAF, Tab 17, Exhibit 13 at 1 & Subtab 12, ¶ 5

. The appellant h as not identified any error in the administrative judge’s decision to credit E.N.’s version of events

. See Weaver v. Department of the Navy
, 2 M.S.P.R. 129 , 133

- 34 (1980) ( explaining that mere disagreement with the administrative judge’s findings and credibility determinations does not warrant full review of the reco rd by the Board).4

the appellant routinely looked for employees outside the building, given that she was responsible for managing an off ice of professionals. ID at 14

- 15. Under
thes e circumstances, the administrative judge did not err in declining to credit th e appellant’s claim

. See Hillen v. Department of the Army
, 35 M.S.P.R. 453
, 460

- 61 (1987) (fin ding that consistency with other evidence and inherent improbability are factors in assessing credibility). T he record also contains no
evidence to corroborate the appellant’s claim that it was unnecessary to use her badge to enter the buildin g, and in an y case, the agency did not rely exclusively
on the badge scans recorded on the Recall Access Log, but also provided
statements and contemporaneous notes by agency witnesses who observed that the appellant di d not appear to be working f ull hours. IAF, Tab 17, Subtabs 1, 5

- 6,
Tab 24. In sum, we discern no error in the administrative judge ’ s finding that the appellant did not work th e hours she recorded in PLAS. 4 ¶5 The appellant next argues that the administrative judge should have found
, without reopening t he record, that the agency violated her due process rights
because the deciding official considered ex parte information in making his
decision

. PFR File, Tab 1 at 7

- 9. An employee’s constitutional due process rights may be violated if a deciding official consid ers new and material information, whether in assessing the charges or deciding on a penalty

. Ward v. U.S. Postal Service
, 634 F. 3d 1274 (Fed. Cir. 2011). In determining whether to find a due process violation occurred, the Board must consider the facts and circumstances of each particular case. Stone v. Federal Deposit Insurance Corporation , 179 F. 3d 1368 , 1377 (Fed. Cir. 1999). Among the factors to be
considered are whether : (1) the additional material merely introduced

4 Nor do we discern any error in the administrative judge’s finding that the appellant knowingly supplied wrong information with the intent of defrauding the agency for her

own private gain, i.e., to receive pay for hours she did not wo rk. ID at 16

. We find that, b ecause the agency established the elements of a falsification charge
, see Boo v. Department of Homeland Security
, 122 M.S.P.R. 100 , ¶¶ 10

- 12 (2014), the administrative judge correctly sustained the charge of Falsification of Time Sheets.5

“cumulative” information or new information; (2) the employee knew of the error and had a chance to respond to it; and (3) the information was of the type likely to result in undue pressure upon the deciding official to rule in a particular

manner. Id . Ultimately, the inquiry is whether the deciding o fficial’s consideration of the additional material was substantial and so likely to cause prejudice that no employee can fairly be required to be subjected to a deprivation of property absent an opportunity to respond. Id . In determining whether a due process violation occurred, there is no basis for distinguishing between information provided to the deciding official by another source and information personally known by the deciding official

. Lopes v. Department of the Navy
, 116 M.S.P.R. 470 , ¶¶ 10

- 13 (2011)

. ¶6 In his July 21, 2015 declaration, included in the agency’s close of record submission, the deciding official devoted several paragraphs to discussing his experien ce of the appellant’s performance and conduct in her previous position as an Administrative Contracting Officer (ACO) . IAF, Tab 17, Subtab 2 at 2

- 3. In particular, he recalled that after a claims dispute had arisen with a contractor, the appellant had b een uncooperative and nonchalant about helping others who were trying to support her actions. Id

. He explained that he raised the issue because it “colored [his] perception of her professionalism.” Id

. at 3. He also recounted that when the appe llant ha d transferred to the Los Angeles office through a hardship request , two of his subordinate employees informed him that they had “encountered some difficulty with [the appellant’s] cooperativeness and experienced some untruthfulness on her part” when she was an ACO. Id

. ¶7 Although t he deciding official did not explicitly refer to the appellant’s prior service as an ACO in the decision letter, or otherwise admit to considering it in his decision, the record indicates he did consider the appellant’s credibility, trustworthiness, and professionalism in making his decision. For example, in assessing the agency’s second charge , he considered the appellant’s credibility and trustworthiness in finding that her various explanations were unworthy of6

credence. IAF, Tab 4 at 9

- 10. Additionally, in assessing the Douglas penalty factors the deciding official referenced the appellant’ s professionalism, trust, and integrity. Id

. at 10

- 20. Given the evidence that was available before the record was reopened, there was an open question as to whether the deciding official considered the appellant’s performance and conduct as an ACO in ma king
his decision. ¶8 By contrast, the proposal notice made no mention of the appellant’s prior service as an ACO. IAF, Tab 4 at 32

- 38

. Hence, as the administrative judge
stated in his order reopening the record
, “[i]t does not appear that the proposal notice put the appellant on notice that the deciding official’ s assessment of he r conduct and performance as an ACO

. . . might be something he would consider
in deciding the proposed demotion if, indeed, he did

. ” IAF, Tab 25 at 4 (emphasis added). Under these circumstances, it was appropriate for the administrative judge to reopen the record sua sponte to permit the parties to submit additional evidence and argument on the due process issue. See Powers v. Department of the Treasury
, 86 M.S.P.R. 256
, ¶¶ 8, 10 n.3 (2000) (approving an administrative judge ’s adjudication of a due process violation sua spo nte). ¶9 The appellant suffered no harm as a result of t he administrative judge’s decision to reopen the record. To the contrary, he provided her an opportunity
she would not have otherwise had to meet her burden of proving the affirmative
defense by preponderant evidence

. See 5 C.F.R. § 1201.56 ( a)(2)(iii)

. Howev er, we discern no error in the administrative judge ’s decision to credit the deciding
offici al’s supplemental declaration
, in which he stated under penalty of perjury
that he had mentioned the appellant’s conduct and performance as an ACO only as background information, and did not consider it in assessing her credibility as
to the charges or in determining an appropriate pena lty. IAF, Tab 2 7 ; see Norris v. Securities & Exchange Commission
, 675 F. 3d 1349 , 135 4 (Fed. Cir. 2012) (“A deciding official’s knowledge of an employee’s background only raises due process

. . . concerns where that knowledge is a basis for the deciding7

official’s determinations on either the merits of the underlying charge or the penalty t o be imposed.”). ¶10 Finally, the appellant a rgues that the agency committed harmful procedural

error , as opposed to a constitutional due process violation, by failing to comply with the requirements of 5 C.F.R. § 752.404 (b)(1)

. PFR File, Tab 1 at 8

- 9. The appellant did not raise this affirmative defense below, and she has not shown that
it is based on new and material evidence that was no t previously available despite her due diligence. Accordingly, we give it no further consideration. See Banks v. Depa rtment of the Air Force , 4 M.S.P.R. 268 , 271 (1980).

N OTICE TO THE APPELLA NT REGARDING YOUR FURTHER REVIEW RIGHTS You have the right to request review of this final decision by the U.S. Court of Appeals for the Federal Circuit. You must submit your reques t 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 compl y with the deadline must be dismissed. See Pinat v. Office of Personnel Management
, 931 F.2d 1544 (Fed. Cir. 1991). If you need further infor mation 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 U.S. 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 U.S. Code, at our website, http://www.mspb.gov/appeals/uscode.htm . Additional information is8

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 secur ing pro bono representation for an appeal to
the U.S. 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 provided by any attorney nor warrants that any attorney will a ccept representation in a given case.

FOR THE BOARD:

Washington, D.C. ______________________________ William D. Spencer Clerk of the Board