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 minimum 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 regarding 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 administrative 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 particular 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 deciding 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.