UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

EMILIE A. SCHROEDER,

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

DE-0752-14-0402-I-1

DATE: August 4, 2016

THIS FINAL ORDER IS NONPRECEDENTIAL1

Joshua L. Klinger, Esquire, Denver, Colorado, for the appellant.

Richard C. Wolfe, Esquire, Fort Huachuca, Arizona, 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 her removal. 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 interpretation of statute or regulation or the 

erroneous application of the law to the facts of the case; the administrative 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 contrast, 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

judge’s rulings during either the course of the appeal or the initial decision were 

not consistent with required procedures or involved an abuse 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 petitioner 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 The appellant held the position of Training Instructor, operating unmanned 

aircraft systems and teaching others how to do the same. Initial Appeal File 

(IAF), Tab 4 at 17, 114-17. In 2013, the agency removed her for charges that 

included failing to meet a condition of employment pertaining to medical fitness, 

but an administrative judge reversed the action because of a due process 

violation. Schroeder v. Department of the Army, MSPB Docket No. DE‐0752‐13

‐1678-I-1, Initial Decision (Dec. 30, 2013).

¶3 The agency proposed the appellant’s removal again in January 2014, this 

time relying solely on a charge of failing to meet a condition of employment 

pertaining to medical fitness. IAF, Tab 4 at 43-45. The deciding official 

sustained the removal action, id. at 19-23, and this appeal followed, IAF, Tab 1.

¶4 After holding the requested hearing, the administrative judge affirmed the 

appellant’s removal. IAF, Tab 20, Initial Decision (ID). The appellant has filed a 

petition for review. Petition for Review (PFR) File, Tab 3. Her lone argument on 

review is that the agency once again has violated her due process rights. Id. 

at 4-12. Specifically, she alleges that the deciding official improperly relied on

ex parte information. Id. The agency has filed a response, and the appellant has 

replied. PFR File, Tabs 5-6.
3

¶5 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. Ward, 

Stone, and their progeny recognize, 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. Solis v. Department of Justice, 117 M.S.P.R. 458, ¶ 8 

(2012).

¶6 The following factors are 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.

¶7 The appellant alleges that the deciding official committed a due process 

violation by comparing her failure to meet a condition of employment, which is 

not listed in the agency’s table of penalties, with two charges that are listed in the 

table—false statements and failure to observe written rules. 2

 PFR File, Tab 3 

at 6, 8-11 (referencing IAF, Tab 15 at 4-10, Tab 18, Hearing Compact Disc 

(HCD) (testimony of M.F.)). We disagree.

 2 The letter proposing the appellant’s removal did place her on notice that the agency’s 

table of penalties was considered, but it did not specify how the table applied to the 

charge at issue. IAF, Tab 4 at 43. 
4

¶8 While testifying about the reasonableness of the penalty, the deciding 

official recognized that one Douglas factor is the consistency of the penalty with 

any agency table of penalties. HCD (testimony of M.F.); see Douglas v. Veterans 

Administration, 5 M.S.P.R. 280, 305 (1981). When further pressed about how he 

considered that factor, the deciding official identified charges delineated in the 

table of penalties that he considered most comparable to the charge at issue. 

HCD (testimony of M.F.); see IAF, Tab 15 at 4-10. However, he also noted that 

even the best comparisons within the table of penalties were distinguishable from 

the appellant’s failure to meet a condition of employment. HCD (testimony of 

M.F.). The deciding official explained that, while all the charges in the table of 

penalties were misconduct offenses, the appellant’s failure to meet a condition of 

employment was not. Id.; see IAF, Tab 15 at 4-10. He indicated that, unlike 

misconduct matters requiring some level of discipline, the appellant’s failure to 

meet a condition of employment flowed from her medical status, by no fault of 

her own, rendering her incapable of performing her duties. HCD (testimony of 

M.F.). Accordingly, the facts of this case differ from those in which an employee 

is on notice of one charge, but a deciding official treats that charge as something 

altogether different to support an enhanced penalty. Cf. Jenkins v. Environmental 

Protection Agency, 118 M.S.P.R. 161, ¶¶ 9, 12 (2012) (finding a Ward/Stone

violation when the deciding official treated a charge as something altogether 

different to support a more severe penalty under the agency’s table of penalties). 

¶9 Under these circumstances, we agree with the administrative judge’s 

conclusion that the deciding official’s consideration of charges in the agency’s 

table of penalties did not amount to a due process violation. ID at 11. For 

adverse actions resulting from an employee’s failure to maintain a condition of 

employment, a table of penalties is not particularly relevant. See Penland v. 

Department of the Interior, 115 M.S.P.R. 474, ¶ 8 (2010) (recognizing that, in 

cases of a failure to maintain a condition of employment, the most relevant 

Douglas factors are the nature of the offense; its effect on an appellant’s 
5

performance of the job; and the availability and effect of alternative sanctions). 

The deciding official’s testimony merely reflected that, as he attempted to explain 

how he considered each factor listed on a Douglas checklist. HCD (testimony 

of M.F.); see IAF, Tab 4 at 28-30. His testimony about the table of penalties does 

not show that he considered aggravating factors to the penalty determination or 

any other new information that was substantial and likely to cause prejudice. Cf. 

Lopes v. Department of the Navy, 116 M.S.P.R. 470, ¶ 13 (2011) (reversing an 

adverse action for a Ward/Stone due process violation because the deciding 

official considered an employee’s prior 3-day suspension as an aggravating factor 

in determining an appropriate penalty without prior notice). 

¶10 For the same reasons, we find that the appellant’s argument that she lacked 

prior notice of the deciding official’s Douglas factor checklist is unavailing. PFR 

File, Tab 3 at 8-11 (referencing IAF, Tab 4 at 28-30). Although an agency is 

required to provide an employee with notice of any aggravating factors that 

support an enhanced penalty, Ward, 634 F.3d at 1280, there is no per se 

requirement that an agency provide an employee with a Douglas factor checklist. 

Therefore, even if the appellant was deprived prior access to the agency’s 

Douglas factor checklist, the deprivation is meaningless absent evidence that the 

checklist contained aggravating factors supporting an enhanced penalty or any 

other specific information that qualifies as new and material. See Stone, 179 F.3d 

at 1377; supra ¶¶ 7-9.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request further review of this final decision.

Discrimination Claims: Administrative Review

You may request review of this final decision on your discrimination 

claims by the Equal Employment Opportunity Commission (EEOC). See title 5 
6

of the U.S. Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit your 

request by regular U.S. mail, the address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit your request via commercial delivery or by a method requiring a 

signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, NE

Suite 5SW12G

Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after 

your receipt of this order. If you have a representative in this case, and your 

representative receives this order before you do, then you must file with EEOC no 

later than 30 calendar days after receipt by your representative. If you choose to 

file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your 

discrimination claims, you may file a civil action against the agency on both your 

discrimination claims and your other claims in an appropriate U.S. district court. 

See 5 U.S.C. § 7703(b)(2). You must file your civil action with the district court 

no later than 30 calendar days after your receipt of this order. If you have a 

representative in this case, and your representative receives this order before you 

do, then you must file with the district court no later than 30 calendar days after 

receipt by your representative. If you choose to file, be very careful to file on 

time. If the action involves a claim of discrimination based on race, color, 

religion, sex, national origin, or a disabling condition, you may be entitled to 

representation by a court-appointed lawyer and to waiver of any requirement of
7

prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) 

and 29 U.S.C. § 794a. 

FOR THE BOARD:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board