UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

TREDITH H. KNOWLIN,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

DC-0752-17-0703-I-1

DATE: February 15, 2023

THIS FINAL ORDER IS NONPRECEDENTIAL1

Allison B. Eddy, Esquire, Virginia Beach, Virginia, for the appellant.

Amanda E. Shaw, Esquire, Roanoke, Virginia, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

Member Leavitt issues a separate dissenting opinion.

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

sustained her removal and found that she failed to prove her affirmative defenses. 

For the reasons discussed below, we GRANT the appellant’s petition for review, 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

REVERSE the initial decision in part to find that the agency violated her due 

process rights, AFFIRM the portion of the initial decision that found that she 

failed to prove her equal employment opportunity (EEO) retaliation claim, and 

DO NOT SUSTAIN the appellant’s removal. 

BACKGROUND

¶2 The appellant was employed as a GS-11 Military Services Coordinator 

(MSC) at the Veterans Service Center of the Veterans Benefits Administration 

Roanoke Regional Office and worked at the Portsmouth Naval Hospital. Initial 

Appeal File (IAF), Tab 4 at 9. According to the appellant, on March 16, 2017, a 

coworker recounted an incident to her in which he interacted with a female 

service member when he was enlisted in the U.S. Navy. IAF, Tab 21 at 53. In 

describing this incident to the appellant, he referred to the female service 

member’s sexual orientation in derogatory terms and demonstrated her behavior 

“by grabbing himself twice.” Id. The agency credited the appellant’s statements, 

and the appellant’s supervisor issued the coworker a letter of reprimand for 

sexual harassment on May 12, 2017. Id. at 42, 50-52. 

¶3 As an MSC, the appellant was responsible for assisting service members 

being separated for medical reasons. IAF, Tab 4 at 54-55. Between March 7 and 

23, 2017, she met with at least three service members regarding their medical 

separations. Id. at 95-96. All three reported that their interactions with her were

brusque, hostile, and disrespectful. Id. at 98, 100, 102-103, 117-121, 125-126. 

On June 12, 2017, the agency proposed the appellant’s removal for “disrespectful, 

insulting, abusive, insolent, or obscene language or conduct to or about . . . other 

employees, patients, or visitors” based on these events. Id. at 95-97. The 

proposal notice indicated that the evidence file supporting the proposal was 

available for the appellant’s review if she desired. Id. at 96. The notice did not 
3

include a discussion of the Douglas 2 factors. Id. at 95-97. After the appellant 

submitted her written reply, id. at 13-94, the deciding official issued a final 

decision sustaining the charge and removing her from Federal service, effective 

July 22, 2017, id. at 10-12. In the decision, the deciding official expressly stated 

that the decision “takes into consideration the aggravating factors considered by 

the proposing official in determining an appropriate penalty.” Id. at 10. 

¶4 On August 1, 2017, the appellant filed the instant appeal with the Board. 

IAF, Tab 1. In her appeal, she denied the charge and specifications, alleged that 

the removal was in retaliation for her complaint to her supervisor that her 

coworker sexually harassed her, claimed that the agency violated her due process 

rights when the deciding official considered the proposing official’s Douglas

factors analysis without informing her and by failing to provide sufficient detail 

for one of the specifications, and asserted that she received a disparate penalty. 

IAF, Tab 20 at 18. 

¶5 After holding the requested hearing, the administrative judge issued an 

initial decision finding that the agency proved the charge by preponderant 

evidence, that the appellant failed to prove her affirmative defenses of EEO 

retaliation and due process violations, and that there was no evidence that she was 

subjected to a disparate penalty. IAF, Tab 48, Initial Decision (ID) at 3-15. The 

appellant has filed a petition for review, and the agency has responded. Petition 

for Review (PFR) File, Tabs 1, 3.

DISCUSSION OF ARGUMENTS ON REVIEW

¶6 In the appellant’s petition for review, she challenges the administrative 

judge’s credibility findings regarding the agency’s witnesses. PFR File, Tab 1 

at 18-27. She argues that the administrative judge erred in finding that she failed 

to prove that her removal was issued in retaliation for her protected EEO activity 

 2 See Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981) (providing a 

nonexhaustive list of factors relevant to a determination of a reasonable penalty). 
4

of reporting sexual harassment and that the agency violated her due process 

rights. Id. at 4, 11-18. She also renews her claim that she received a disparate 

penalty from other employees who engaged in similar misconduct. Id. at 27-29. 

As discussed below, we find that the agency violated the appellant’s due process 

rights. Because we reverse her removal on due process grounds, we decline to 

address her arguments concerning the charges except as necessary to address her 

EEO retaliation affirmative defense. We also do not address her disparate penalty 

claim. We agree with the administrative judge that the appellant did not meet her 

burden to prove her EEO claim. 

The agency’s removal process violated the appellant’s due process rights. 

¶7 The essential requirements of procedural due process are prior notice of the 

charges against the employee and a meaningful opportunity to respond to those 

charges. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985). 

The appellant argued below and reasserts on review that the agency violated her 

due process rights when it failed to provide sufficient detail of the allegations set 

forth in one of the specifications and when the deciding official considered the 

proposing official’s Douglas factors analysis and discussion of relevant 

aggravating factors. IAF, Tab 20 at 18; PFR File, Tab 1 at 4, 11-16. The 

administrative judge did not address these due process arguments. We agree with 

the appellant that the deciding official considered an aggravating factor of which 

the appellant did not have notice and an opportunity to respond. 

¶8 The same day that the proposed removal was issued, the proposing official 

completed a Douglas factors worksheet. IAF, Tab 5 at 6-12. In the worksheet, 

under the “notoriety of the offense or its impact upon the reputation of the 

[a]gency,” she wrote that the appellant’s behavior “could have a negative impact” 

on the agency and those stationed at the appellant’s location. Id. at 8-9. She 

further stated that if the behavior continued, “it could also be chronicled in the 

local media which would lead to additional scrutiny on the agency.” Id. at 9. It 

appears undisputed that the agency did not provide the appellant with the 
5

proposing official’s Douglas factors analysis and that the deciding official 

considered the analysis, although it is not clear from the record how he received 

the worksheet. IAF, Tab 4 at 10; Tab 46, Hearing Compact Disc, Day 1 (HCD 1) 

(testimony of the deciding official); Tab 47, Hearing Compact Disc, Day 2 

(HCD 2) (testimony of the appellant). It is also undisputed that the deciding 

official considered the notoriety of the offense and the possibility that it could 

produce negative publicity for the agency as an aggravating factor in his decision 

to remove the appellant. HCD 1 (testimony of the deciding official). 

¶9 We find that the consideration of the potential notoriety of the offense was 

an improper ex parte communication. Regardless of whether the deciding official 

relied on the proposing official’s analysis of the notoriety factor or he considered 

it separately on his own prior to issuing the decision, the agency was required to 

inform the appellant that it was considering the notoriety factor as an aggravating 

one before it imposed the removal. See Jenkins v. Environmental Protection 

Agency, 118 M.S.P.R. 161, ¶ 10 (2012) (stating that when determining whether a 

due process violation has occurred, there is no basis for distinguishing between 

ex parte information provided to the deciding official and information personally 

known by the deciding official if the information was considered in reaching the 

decision and not previously disclosed to the appellant); Lopes v. Department of 

the Navy, 116 M.S.P.R. 470, ¶ 10 (2011) (observing that when a deciding official 

considers either ex parte information provided to him or information personally 

already known to him, the employee is no longer on notice of portions of the 

evidence relied upon by the agency in imposing the penalty). 

¶10 When an employee has not been given notice of an aggravating factor 

supporting an enhanced penalty, as was the case here, an ex parte communication 

with the deciding official regarding such factors may constitute a constitutional 

due process violation. Ward v. U.S. Postal Service, 634 F.3d 1274, 1280 (Fed. 

Cir. 2011). However, “not every ex parte communication” rises to the level of a 

due process violation; “[o]nly [those] that introduce new and material 
6

information” do. Stone v. Federal Deposit Insurance Corporation, 179 F.3d 

1368, 1376-77 (Fed. Cir. 1999). In deciding whether new and material 

information has been introduced by means of ex parte communications, the Board 

should consider factors such as “whether the ex parte communication merely 

introduces ‘cumulative’ information or new information; whether the employee 

knew of the information and had a chance to respond to it; and 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.” Id. at 1377; see Ward, 

634 F.3d at 1280 (instructing the Board to apply Stone to determine if “new and 

material information” was introduced by the deciding official to enhance the 

penalty). The main concern is that an appellant have notice and an opportunity to 

respond to information “so substantial and so likely to cause prejudice” that the 

failure to provide it amounts to a deprivation of her property interest in continued 

employment. Stone, 179 F.3d at 1374-75, 77. 

¶11 Regarding the first factor, the agency argues that the notoriety of the 

offense is not new information because it “flowed naturally from the [c]harge” 

and did not provide any additional information that was not already apparent from 

the proposal and evidence file. PFR File, Tab 3 at 11. We disagree. The 

deciding official’s consideration that the appellant’s misconduct “could” have a 

negative impact and lead to additional scrutiny on the agency was purely 

speculative. Nearly any misconduct by an employee has the potential for 

notoriety. In the absence of actual notoriety in the media or in the community, 

there was no reason to think that this counterfactual scenario should have been of 

special concern to the agency in this case. As such, the appellant could not have 

known that the agency would rely on the notoriety of the offense as an 

aggravating factor or that the deciding official would construe the factor in such a 

way. See Jenkins, 118 M.S.P.R. 161, ¶ 12 (finding the deciding official’s reliance 

on the recommended penalties from the agency’s table of penalties for a charge 

other than those set forth in the proposal notice constituted new information 
7

because the appellant was not aware that the proposed penalty would be 

considered that way). Therefore, the deciding official’s reliance on the notoriety 

factor cannot fairly be deemed cumulative or immaterial to the final decision. 

See id. 

¶12 Regarding the second Stone factor, it is undisputed that the appellant did 

not have an opportunity to respond to the agency’s reliance on the notoriety 

factor. In fact, it is unclear from the record when she even became aware of 

which factors the agency was relying upon for an aggravated penalty. Although 

the proposing official informed the appellant that the agency was concerned about 

an internal complaint lodged by one of the affected service members, IAF, Tab 4 

at 96, this is not the same thing as the agency’s fear of possible future media 

attention. Regarding the third Stone factor, it is also undisputed that the deciding 

official considered the notoriety factor. He testified that the notoriety of the 

appellant’s misconduct was an important factor in his decision and that the 

proposing official’s analysis of that factor “did not go far enough.” 3

 HCD 1

(testimony of the deciding official). However, there is no evidence in the record 

that the information resulted in undue pressure on him to remove the appellant. 

Nonetheless, our reviewing court has emphasized that whether the additional 

information was of the type likely to result in undue pressure is only one factor 

and is not the ultimate inquiry. Ward, 634 F.3d at 1280 n.2. Specifically, the 

court recognized that “the lack of such undue pressure may be less relevant to 

determining when the ex parte communications deprived the employee of due 

process where . . . the [d]eciding [o]fficial admits that the ex parte 

communications influenced his penalty determination.” Id. Therefore, while no 

 3 Even if the dissent is correct that the deciding official considered the notoriety of the 

offense independently of the proposing official’s analysis, the due process problem

would remain. A deciding official is not permitted to consider aggravating factors that 

the employee was not warned about in advance, regardless of whether any ex parte 

communication was involved. See Richardson v. Department of Veterans Affairs, 

2023 MSPB 1, ¶ 32.
8

clear evidence of undue pressure exists, the deciding official’s testimony is clear 

evidence of the materiality of the notoriety of the offense in his decision to 

remove the appellant. 

¶13 Based on the foregoing, we find that the deciding official’s consideration of 

the notoriety factor was so substantial and likely to cause prejudice that the 

agency’s failure to notify the appellant in advance violated her right to due 

process. See Gray v. Department of Defense, 116 M.S.P.R. 461, ¶¶ 9-13 (2011) 

(finding a due process violation when the deciding official considered the 

appellant’s likely loss of eligibility for a sensitive position as an aggravating 

factor without notifying the appellant). Accordingly, we reverse the initial 

decision in this regard and do not sustain the appellant’s removal. The agency 

may not remove the appellant unless and until she is afforded due process. Id., 

¶ 12. In light of our findings here, we find it unnecessary to reach the appellant’s 

additional due process claim that one of the agency’s specifications was vague. 

The appellant failed to show that her EEO activity was a motivating factor in her 

removal. 

¶14 Even though we reverse the agency’s removal action on due process 

grounds, we must still address the appellant’s EEO retaliation claim because of 

the potential for damages. IAF, Tab 6 at 4-5; see Hess v. U.S. Postal Service, 

124 M.S.P.R. 40, ¶¶ 8, 18-20 (2016) (finding that when the appellant has been 

returned to the status quo ante and still has an outstanding claim of discrimination 

for which she has requested compensatory damages, her appeal is not moot and 

the Board must adjudicate the affirmative defense). 

¶15 The appellant claims that her removal was in retaliation for complaining of 

her coworker’s March 16, 2017 sexual harassment. PFR File, Tab 1 at 16-18; 

IAF, Tab 1 at 6, Tab 20 at 18. When an appellant asserts an affirmative defense 

of discrimination or retaliation for EEO activity protected by Title VII, she bears

the burden to prove by preponderant evidence that the prohibited consideration 

was a motivating factor in the contested personnel action. Savage v. Department 
9

of the Army, 122 M.S.P.R. 612, ¶ 51 (2015), overruled in part by Pridgen v.

Office of Management and Budget, 2022 MSPB 31, ¶¶ 23-25. If the appellant 

meets her burden, the burden then shifts to the agency to prove by preponderant 

evidence that it would have taken the personnel action regardless of the 

discriminatory or retaliatory motive. Id., ¶¶ 48-49, 51. The Board has clarified 

that evidence of discrimination or retaliation should not be sorted into piles of 

“direct” and “indirect” evidence, and emphasized that the evidence should be 

considered as a whole in determining if an appellant satisfied her burden. 

Gardner v. Department of Veterans Affairs, 123 M.S.P.R. 647, ¶¶ 28-31 (2016), 

clarified by Pridgen, 2022 MSPB 31, ¶¶ 23-24. 

¶16 Here, the administrative judge found that the appellant failed to explain how 

her complaint had any connection to her discipline. ID at 13. Although the 

administrative judge informed the appellant of the “motivating factor” causation 

standard in the order and summary of the prehearing conference, IAF, Tab 45 

at 2-4, she did not apply that standard in her analysis in the initial decision, 

finding only that the appellant failed to show a “causal connection,” ID at 13. To 

clarify, as explained below, we find that the appellant failed to show that her EEO 

activity was a motivating factor in the agency’s decision to remove her.

¶17 The record shows that on March 20, 2017, the appellant reported alleged 

sexual harassment by a coworker on March 16, 2017. IAF, Tab 20 at 50-52. It is 

undisputed that the coworker was one of the agency employees named as a 

witness in specifications B and D, which both concern the appellant’s behavior 

while interacting with a service member on March 15, 2017. IAF, Tab 4 at 95-96; 

PFR File, Tab 1 at 16-17; HCD 2 (testimony of the coworker). The appellant 

claims that no agency employee, including the coworker, reported or submitted 

any statements regarding her alleged behavior during the March 15, 2017 

interaction with the service member until after she filed the sexual harassment 

complaint against the coworker on March 20, 2017. PFR File, Tab 1 at 17. She 
10

claims that, due to the timing of the sexual harassment complaint, the coworker

and other agency witnesses had motive to lie. Id. at 22-23. 

¶18 The administrative judge considered this argument but ultimately credited 

the service member’s and agency witnesses’ testimony, which was largely 

consistent with the allegations in the specifications, thereby discounting the 

appellant’s assertion that her coworker was lying about the incident because she 

had filed a sexual harassment complaint against him. ID at 13. Specifically, she 

found that the witnesses to the March 15, 2017 incident all testified in a clear and 

straightforward manner, that they had no motive to lie or exaggerate, that their 

statements were corroborated by other witnesses, and that their testimony 

matched prior statements they had made. ID at 4-9. Because these credibility 

determinations were explicitly based on the demeanor of witnesses testifying at 

the hearing, as well as other appropriate credibility considerations, we defer to 

them. See Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) 

(providing that the Board must give deference to an administrative judge’s 

credibility determinations when they are based explicitly or implicitly on the 

observations of witnesses testifying at hearing and may overturn such 

determinations only when it has “sufficiently sound” reasons for doing so); Hillen

v. Department of the Army, 35 M.S.P.R. 453, 458 (1987) (providing factors 

relevant to credibility findings).

¶19 Further, although the deciding official testified that he was aware of the 

sexual harassment complaint and effectuated the removal within 4 months, he 

testified that his knowledge of the complaint did not affect his impressions of the 

evidence in the appellant’s case or his decision to remove her. HCD 1 (testimony 

of the deciding official). Specifically, he stated that he had “no desire” to protect 

the subject of the sexual harassment complaint, that he would have removed the 

appellant “irrespective” of the complaint, and that it had “nothing to do with” the 

removal. Id. The administrative judge found the deciding official to be a

“credible, persuasive witness,” ID at 15, and we defer to that finding, see Haebe, 
11

288 F.3d at 1301. Aside from temporal proximity, the appellant has not pointed 

to any evidence suggesting that the deciding official had a motive to retaliate 

against her. Accordingly, we find that the appellant failed to prove that her EEO 

activity was a motivating factor in her removal. 4

¶20 Based on the foregoing, we grant the appellant’s petition for review and 

reverse the initial decision. Because we reverse the initial decision on due 

process grounds, we do not address her remaining arguments on review. See 

Solis v. Department of Justice, 117 M.S.P.R. 458, ¶ 10 (2012) (declining to 

consider any of the appellant’s other arguments after reversing an agency removal 

action on due process grounds); Lopes, 116 M.S.P.R. 470, ¶ 14 n.4 (making no 

findings with respect to the merits of the agency’s charges after reversing the 

appellant’s removal based on a due process violation). 

ORDER

¶21 We ORDER the agency to CANCEL the appellant’s removal and to restore 

her effective July 22, 2017. See Kerr v. National Endowment for the Arts, 

726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no later 

than 20 days after the date of this decision.

¶22 We also ORDER the agency to pay the appellant the correct amount of back 

pay, interest on back pay, and other benefits under the Office of Personnel 

Management’s regulations, no later than 60 calendar days after the date of this 

decision. We ORDER the appellant to cooperate in good faith in the agency’s 

efforts to calculate the amount of back pay, interest, and benefits due, and to 

provide all necessary information the agency requests to help it carry out the 

Board’s Order. If there is a dispute about the amount of back pay, interest due, 

and/or other benefits, we ORDER the agency to pay the appellant the undisputed 

amount no later than 60 calendar days after the date of this decision. 

 4 Because the appellant here failed to prove her initial burden that a prohibited factor 

played any part in the agency’s decision, we do not reach the question of whether 

retaliation was a but-for cause of that decision.
12

¶23 We further ORDER the agency to tell the appellant promptly in writing 

when it believes it has fully carried out the Board’s Order and of the actions it has 

taken to carry out the Board’s Order. The appellant, if not notified, should ask 

the agency about its progress. See 5 C.F.R. § 1201.181(b). 

¶24 No later than 30 days after the agency tells the appellant that it has fully 

carried out the Board’s Order, the appellant may file a petition for enforcement 

with the office that issued the initial decision on this appeal if the appellant 

believes that the agency did not fully carry out the Board’s Order. The petition 

should contain specific reasons why the appellant believes that the agency has not 

fully carried out the Board’s Order, and should include the dates and results of 

any communications with the agency. 5 C.F.R. § 1201.182(a).

¶25 For agencies whose payroll is administered by either the National Finance 

Center of the Department of Agriculture (NFC) or the Defense Finance and 

Accounting Service (DFAS), two lists of the information and documentation 

necessary to process payments and adjustments resulting from a Board decision 

are attached. The agency is ORDERED to timely provide DFAS or NFC with all 

documentation necessary to process payments and adjustments resulting from the 

Board’s decision in accordance with the attached lists so that payment can be 

made within the 60-day period set forth above.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney 

fees and costs. To be paid, you must meet the requirements set forth at Title 5 of 

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The 

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If 

you believe you meet these requirements, you must file a motion for attorney fees 

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION. 
13

You must file your motion for attorney fees and costs with the office that issued 

the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS5

The initial decision, as supplemented by this Final Order, constitutes the 

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain 

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of 

your claims determines the time limit for seeking such review and the appropriate 

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following 

summary of available appeal rights, the Merit Systems Protection Board does not 

provide legal advice on which option is most appropriate for your situation and 

the rights described below do not represent a statement of how courts will rule 

regarding which cases fall within their jurisdiction. If you wish to seek review of 

this final decision, you should immediately review the law applicable to your 

claims and carefully follow all filing time limits and requirements. Failure to file 

within the applicable time limit may result in the dismissal of your case by your 

chosen forum.

Please read carefully each of the three main possible choices of review 

below to decide which one applies to your particular case. If you have questions 

about whether a particular forum is the appropriate one to review your case, you 

should contact that forum for more information. 

(1) Judicial review in general. As a general rule, an appellant seeking 

judicial review of a final Board order must file a petition for review with the U.S. 

Court of Appeals for the Federal Circuit, which must be received by the court 

within 60 calendar days of the date of issuance of this decision. 5 U.S.C. 

§ 7703(b)(1)(A). 

 5 Since the issuance of the initial decision in this matter, the Board may have updated 

the notice of review rights included in final decisions. As indicated in the notice, the 

Board cannot advise which option is most appropriate in any matter.
14

If you submit a petition for review to the U.S. Court of Appeals for the 

Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit 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, 10, and 11. 

If you are interested in securing 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 

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

(2) Judicial or EEOC review of cases involving a claim of 

discrimination. This option applies to you only if you have claimed that you 

were affected by an action that is appealable to the Board and that such action 

was based, in whole or in part, on unlawful discrimination. If so, you may obtain 

judicial review of this decision—including a disposition of your discrimination 

claims—by filing a civil action with an appropriate U.S. district court (not the 

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you 

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems 

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a 

representative in this case, and your representative receives this decision before 

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

after your representative receives this decision. If the action involves a claim of 
15

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 prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a. 

Contact information for U.S. district courts can be found at their respective 

websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

Alternatively, you may request review by the Equal Employment 

Opportunity Commission (EEOC) of your discrimination claims only, excluding 

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the 

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case, 

and your representative receives this decision before you do, then you must file 

with the EEOC no later than 30 calendar days after your representative receives

this decision. 

If you submit a request for review to the EEOC 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 a request for review to the EEOC 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, N.E. 

Suite 5SW12G 

Washington, D.C. 20507 

(3) Judicial review pursuant to the Whistleblower Protection 

Enhancement Act of 2012. This option applies to you only if you have raised 

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or 
16

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D). 

If so, and your judicial petition for review “raises no challenge to the Board’s 

disposition of allegations of a prohibited personnel practice described in 

section 2302(b) other than practices described in section 2302(b)(8), or 

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial 

review either with the U.S. Court of Appeals for the Federal Circuit or any court 

of appeals of competent jurisdiction. 6

 The court of appeals must receive your 

petition for review within 60 days of the date of issuance of this decision. 

5 U.S.C. § 7703(b)(1)(B). 

If you submit a petition for judicial review to the U.S. Court of Appeals for 

the Federal Circuit, you must submit your petition to the court at the 

following address: 

U.S. Court of Appeals 

for the Federal Circuit 

717 Madison Place, N.W. 

Washington, D.C. 20439 

Additional information about the U.S. Court of Appeals for the Federal 

Circuit 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, 10, and 11. 

If you are interested in securing 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 

 6 The original statutory provision that provided for judicial review of certain 

whistleblower claims by any court of appeals of competent jurisdiction expired on 

December 27, 2017. The All Circuit Review Act, signed into law by the President on 

July 7, 2018, permanently allows appellants to file petitions for judicial review of 

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals 

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction. 

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195, 

132 Stat. 1510. 
17

Board neither endorses the services provided by any attorney nor warrants that 

any attorney will accept representation in a given case. 

Contact information for the courts of appeals can be found at their 

respective websites, which can be accessed through the link below: 

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx. 

FOR THE BOARD:

Washington, D.C.

 /s/ for 

Jennifer Everling

Acting Clerk of the Board
DEFENSE FINANCE AND ACCOUNTING SERVICE

Civilian Pay Operations

DFAS BACK PAY CHECKLIST

The following documentation is required by DFAS Civilian Pay to compute and pay back pay 

pursuant to 5 CFR § 550.805. Human resources/local payroll offices should use the following 

checklist to ensure a request for payment of back pay is complete. Missing documentation may 

substantially delay the processing of a back pay award. More information may be found at: 

https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx. 

NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by 

vendor pay, not DFAS Civilian Pay. 

☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the 

specific dates of the back pay period within the ticket comments. 

Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket 

comments as to why the documentation is not applicable: 

☐ 2) Settlement agreement, administrative determination, arbitrator award, or order. 

☐ 3) Signed and completed “Employee Statement Relative to Back Pay”. 

☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s 

until notified to do so by DFAS Civilian Pay.*** 

☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until 

notified to do so by DFAS Civilian Pay.*** 

☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.). 

☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee 

in a job undertaken during the back pay period to replace federal employment. 

Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also, 

include record of any unemployment earning statements, workers’ compensation, 

CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums, 

or severance pay received by the employee upon separation. 

Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority 

under 5 U.S.C. § 5551 for the reinstated employee to keep the lump sum annual leave payment 

they may have received. The payroll office must collect the debt from the back pay award. The 

annual leave will be restored to the employee. Annual leave that exceeds the annual leave 

ceiling will be restored to a separate leave account pursuant to 5 CFR § 550.805(g).
2

NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES

Below is the information/documentation required by National Finance Center to process 

payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by 

the Merit Systems Protection Board, EEOC, and courts. 

1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information 

describing what to do in accordance with decision. 

2. The following information must be included on AD-343 for Restoration: 

a. Employee name and social security number. 

b. Detailed explanation of request. 

c. Valid agency accounting. 

d. Authorized signature (Table 63). 

e. If interest is to be included. 

f. Check mailing address. 

g. Indicate if case is prior to conversion. Computations must be attached. 

h. Indicate the amount of Severance and Lump Sum Annual Leave Payment to be 

collected (if applicable). 

Attachments to AD-343 

1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday 

Premium, etc. with number of hours and dates for each entitlement (if applicable). 

2. Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts. 

3. Outside earnings documentation statement from agency. 

4. If employee received retirement annuity or unemployment, provide amount and address to 

return monies. 

5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)

6. If employee was unable to work during any or part of the period involved, certification of the 

type of leave to be charged and number of hours. 

7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave 

to be paid. 

NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and 

required data in 1-7 above. 

The following information must be included on AD-343 for Settlement Cases: (Lump Sum 

Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.) 

a. Must provide same data as in 2, a-g above. 

b. Prior to conversion computation must be provided. 

c. Lump Sum amount of Settlement, and if taxable or non-taxable. 

If you have any questions or require clarification on the above, please contact NFC’s 

Payroll/Personnel Operations at 504-255-4630. 
DISSENTING OPINION OF TRISTAN L. LEAVITT

in

Tredith H. Knowlin v. Department of Veterans Affairs

MSPB Docket No. DC-0752-17-0703-I-1

¶1 For the reasons explained below, I respectfully dissent from the majority 

opinion in this case. 

¶2 The deciding official in this case received ex parte information from the 

proposing official, a Douglas factors worksheet that was not provided to the 

appellant. The majority opinion finds that the ex parte information violated the 

appellant’s constitutional due process rights. The opinion focuses exclusively on 

a section of the worksheet dealing with the “notoriety of the offense or its impact 

upon the reputation of the [a]gency.” The proposing official wrote on 

the worksheet: 

This type of behavior could have a negative impact on the 

Department of Veterans Affairs and the employees stationed at the 

Naval Medical Center Portsmouth. We are located there in a 

collaborative program with the Department of the Navy as part of the 

Integrated Disability Evaluation System program. If this behavior

continued it could also be chronicled in the local media[,] which 

would lead to additional scrutiny on the agency. The behavior 

exhibited is not acceptable as this is a customer service 

oriented position. 

Initial Appeal File (IAF), Tab 5 at 8-9. 

¶3 As the majority opinion notes, the U.S. Court of Appeals for the Federal 

Circuit reasoned in Stone v. Federal Deposit Insurance Corporation, 179 F.3d 

1368 (Fed. Cir. 1999): “[N]ot every ex parte communication is a procedural 

defect so substantial and so likely to cause prejudice that it undermines the due 

process guarantee and entitles the claimant to an entirely new administrative 

proceeding.” Id. at 1376-77. Rather, the standard the Federal Circuit articulated 

is whether ex parte communications “introduce new and material information to 
2

the deciding official[.]” Id. at 1377. This applies equally to ex parte

determinations relating to the charge itself and ex parte communications relating 

to the penalty. Ward v. U.S. Postal Service, 634 F.3d 1274, 1280 (Fed. Cir. 

2011). To determine whether information is “new and material,” the court stated 

in Stone: 

Among the factors that will be useful for the Board to weigh are: 

whether the ex parte communication merely introduces “cumulative” 

information or new information; whether the employee knew of the 

error and had a chance to respond to it; and 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. 

Stone, 179 F.3d at 1377. 

¶4 Regarding the first of these factors here, I agree with the agency that the 

proposing official’s four sentences about the notoriety of the offense introduced 

only cumulative information because they “flowed naturally from the [c]harge” 

and did not provide any additional information that was not already apparent from 

the proposal and evidence file. Petition for Review File, Tab 3 at 11. The 

majority opinion declares, “The deciding official’s consideration that an 

appellant’s misconduct ‘could’ have a negative impact and lead to additional 

scrutiny on the agency was purely speculative.” Supra. Yet this conclusion 

required no leap of logic for either the appellant or the deciding official, given 

that the notice of proposed removal itself highlighted negative attention the 

agency had already experienced because of the appellant’s actions: “As a result 

of your treatment of [a Navy SEAL who deployed twice to a combat zone], a 

complaint was made to the Office of the Secretary of the VA about your behavior, 

and your supervisors had to respond.” IAF, Tab 1 at 10. A second service

member’s fears of retaliation, as recounted in the notice of proposed removal, 

practically beg for scrutiny of the agency: “The service member stated he fears 

his claims for disability will have retribution in the VA process now because of 

the treatment he received.” Id. at 9. While anticipating future consequences is 
3

always speculative, that continued mistreatment of suffering service members 

could attract further negative attention—including in the media—seems obvious. 

¶5 The second factor the court in Stone directed the Board to consider was 

whether the employee knew of the error and had a chance to respond to it. 

Acknowledging that the appellant did not learn the proposing official conducted a 

Douglas factors analysis until she received the notice of removal, the appellant 

clearly had the opportunity to respond to the charge that her actions reflected 

negatively on the Department of Veterans Affairs and employees stationed at 

Naval Medical Center Portsmouth. As the notice of proposed removal stated, “As 

a Military Services Coordinator, your performance standards require you to 

communicate in a courteous manner with Veteran/service member customers 

during the personal or telephone interview process. This conduct toward a 

service member cannot be tolerated[.]” IAF, Tab 1 at 9-10. I do not see how the 

appellant could have further responded regarding the notoriety of the offense 

beyond the response she provided. 

¶6 Even if new, ex parte information may or may not be material. While Stone

was not exhaustive regarding the factors the Board might consider, the third and 

final factor goes to the materiality of the ex parte information: were the ex parte

communications of the type likely to result in undue pressure upon the deciding 

official to rule in a particular manner? Stone, 179 F.3d at 1377. The majority 

opinion acknowledges there is no such evidence in the record. Supra. Instead, 

the opinion pivots to Ward, where the court stated: “[T]he lack of such undue 

pressure may be less relevant to determining when the ex parte communications 

deprived the employee of due process where . . . the [d]eciding [o]fficial admits 

that the ex parte communications influenced his penalty determination.” Ward, 

634 F.3d at 1280 n.2. The court in Ward continued: “Under these circumstances, 

the materiality of the ex parte communications appears to be self-evident from the 

Deciding Official’s admission.” Id. 
4

¶7 Here, the appellant’s strongest argument is that the removal notice states: 

“This decision . . . takes into consideration the aggravating factors considered by 

the proposing official in determining an appropriate penalty.” IAF, Tab 1 at 12. 

While this is a close call given the inclusion of this language in the removal 

notice, it appears to have been pro forma. In the hearing before the 

administrative judge, the deciding official explicitly testified that the proposing 

official’s analysis of the Douglas factors did not influence his own analysis, and 

that instead he believed the proposing official’s analysis of the notoriety Douglas 

factor “did not go far enough.” Hearing Compact Disc, Day 1 (HCD 1) 

(testimony of the deciding official). The Board must defer to an administrative 

judge’s credibility determinations when they are based, explicitly or implicitly, 

on observing the demeanor of witnesses testifying at a hearing; the Board may 

overturn such determinations only when it has “sufficiently sound” reasons for 

doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002). 

It may not overturn an administrative judge’s demeanor-based credibility findings 

merely because it disagrees with those findings. Purifoy v. Department of 

Veterans Affairs, 838 F.3d 1367, 1372 (Fed. Cir. 2016) (quoting Haebe, 288 F.3d 

at 1299). The administrative judge “found [the deciding official] a credible, 

persuasive witness,” Initial Decision (ID) at 15, and I believe we must defer to 

her credibility finding on this issue. 

¶8 The majority opinion declares that “[i]t is . . . undisputed that the deciding 

official considered the notoriety of the offense and the possibility that it could 

produce negative publicity for the agency as an aggravating factor in his decision 

to remove the appellant,” and “the deciding official’s testimony is clear evidence 

of the materiality of the notoriety of the offense in his decision to remove the 

appellant.” Yet the relevant question is not whether the deciding official 

considered the notoriety Douglas factor. (Indeed, the whole point of Douglas v. 

Veterans Administration is that agencies should consider all relevant factors. 

5 M.S.P.R. 280, 303-08 (1981)). It is not even whether that factor was material to 
5

his overall decision. The relevant question is whether the ex parte information 

was material to the deciding official’s decision, which, as noted above, the 

deciding official testified it was not (and the administrative judge found this 

testimony credible). 

¶9 The deciding official testified that he in fact learned no new information 

from the proposing official’s Douglas factors worksheet, and that he conducted 

his own analysis of the Douglas factors. HCD 1 (testimony of the deciding 

official). He thoroughly explained his Douglas factors analysis at the hearing, 

including several mitigating factors in the appellant’s favor. Id. The initial 

decision noted that the deciding official “testified at length as to why he regarded 

the appellant’s misconduct as extremely serious.” ID at 14. Among other things, 

the deciding official testified, “This position is one of the most critical positions 

that [the Department of Veterans Affairs] has. We are dealing directly with 

service members who are separating because of medical reasons.” HCD 1

(testimony of the deciding official). According to the initial decision, the 

deciding official further testified that the appellant’s “misconduct disrupted 

operations and other employees and clients at the hospital, given the loud and 

disruptive disturbance she caused[.]” ID at 14. Overall, the administrative judge 

found that the deciding official “credibly testified as to his reasoned 

consideration of the relevant factors.” ID at 15. Thus, that “it is . . . undisputed 

that the deciding official considered the notoriety factor,” as the majority opinion 

notes, supra, speaks not to the materiality of the ex parte information but rather to 

the reality that the notoriety Douglas factor would be significant to anyone who 

considered the case—even without the proposing official’s Douglas factors 

worksheet. This significantly diminishes the materiality of the worksheet, and I 

believe the third Stone factor weighs in favor of the agency. 

¶10 As the majority opinion acknowledged, the court in Ward noted that Stone

factor three “is only one of several enumerated factors and is not the ultimate 

inquiry[.]” Ward, 634 F.3d at 1280 n.2. Indeed, the court in Stone rephrased 
6

precisely the ultimate inquiry: “Ultimately, the inquiry of the Board 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.” Stone, 179 F.3d at 1377. Given the foregoing, it 

seems quite clear to me that this case does not demonstrate such a set of facts. I 

thus would find that the ex parte information was not “new and 

material” information. 

¶11 The majority opinion cites two earlier Board cases for the proposition that 

an agency is required to inform an appellant that it is considering a factor as an 

aggravating one before it imposes a removal, regardless of whether a deciding 

official relies on a proposing official’s analysis or considers the factor separately 

on his own prior to issuing the decision. Supra; Jenkins v. Environmental 

Protection Agency, 118 M.S.P.R. 161, ¶ 10 (2012); Lopes v. Department of the 

Navy, 116 M.S.P.R. 470, ¶ 10 (2011). Yet I believe both of those cases are 

distinguishable from the case at hand. Lopes involved past misconduct and prior 

discipline, which the deciding official considered despite their not being included 

in the notice of proposed removal. 116 M.S.P.R. 470, ¶ 9-10. The Board applied 

the Stone analysis to conclude that these “portions of evidence relied upon by the 

agency in imposing the penalty” were material. Id. at ¶ 10-12 (emphasis added). 

Here, no new evidence was considered, and the reformulation of existing facts in 

the record was not material for the reasons discussed above. In Jenkins, the 

deciding official relied on an offense from the agency’s table of penalties 

different from the offenses charged in the notice of proposed removal. 

118 M.S.P.R. 161, ¶ 9. While this did not introduce new evidence, it did 

introduce a new charge, apparently central to the deciding official’s decision, that 

the appellant was not on notice of. Id. at ¶ 12. In both Lopes and Jenkins, the 

aggravating factor stemmed from information not provided to the appellant. 

Here, by contrast, the proposal letter put the appellant on notice of both the 

charges and of what made her conduct particularly problematic. That the 
7

problematic nature of the conduct would constitute an aggravating factor was 

implicit in the notice. 

¶12 Even if the ex parte communication is not sufficiently substantial to rise to 

the level of a due process violation, then “the Board [is] required to run a 

harm[ful] error analysis to determine whether the procedural error require[s] 

reversal.” Ward, 634 F.3d at 1281; see 5 U.S.C. § 7701(c)(2)(A). Harmful error 

is an error 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. Ward, 634 F.3d at 1281; 5 C.F.R. 

§ 1201.56(c)(3). 

¶13 Here, the fact that the proposing official’s Douglas analysis was provided to 

the deciding official and not the appellant was clearly an error. As the Federal 

Circuit noted in Ward: “[I]t 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’” (citations omitted). 

Ward, 634 F.3d at 1281. That the deciding official cited in his decision letter 

“the aggravating factors considered by the proposing official in determining an 

appropriate penalty”—information not provided to the appellant—makes clear the 

error. IAF, Tab 1 at 12, Tab 5 at 6-12. However, I believe such error was 

harmless given that the ex parte worksheet contained no new and material 

information, the appellant was still on notice to answer all relevant charges 

against her, and the outcome would have been the same even without the 

ex parte communication. 

¶14 Thus, I would affirm as modified the initial decision of the administrative 

judge, and uphold the appellant’s removal. 

/s/

Tristan L. Leavitt

Member