UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD

KENNETH M. HULETT, Appellant,

v. DEPARTMENT OF THE NAVY, Agency. DOCKET NUMBER SF-0752-11-0690-B-1

DATE: September 26, 2014



### THIS FINAL ORDER IS NONPRECEDENTIAL 1

Brook L. Beesley, Alameda, Ca lifornia, for the appellant. Patricia Zengel, Esquire, San Di ego, California, for the agency.

BEFORE
Susan Tsui Grundmann, Chairman Anne M. Wagner, Vice Chairman Mark A. Robbins, Member

FINAL ORDER ¶1 The agency has filed a petition for re view of the remand initial decision, which sustained the appellant’s removal. Generally, we grant petitions such as this one only when: the initial decision contains erroneous fi ndings of material

1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future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

fact; the initial decision is based on an erroneous inte rpretation of statute or regulation or the erroneous application of the law to the facts of the case; the judge’s rulings during either the course of the appeal or the initial decision were not consistent with require d 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, desp ite the petitioner’s due diligence, was not available when the r ecord closed. Title 5 of the Code of Federa l Regulations, section 1201.115 ( 5 C.F.R. § 1201.115 ). After fully considering the filings in this appeal, and based on the following points a nd authorities, we conclude that the petitioner has not establ ished any basis under section 1201.115 for granting the petition for review. Ther efore, we DENY the petition for review and AFFIRM the remand initial decisi on, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b). ¶2 As a Lead Firefighter, the appellant was subject to random drug testing. Initial Appeal File (IAF), Tab 7 at 11. On March 26, 2011, he exhibited behavior which gave the agency a reasonable susp icion that he was unable to perform his duties. He was directed to undergo a drug test, wh ich verified positive for marijuana. The agency pr oposed his removal for Ille gal Drug Use, specifically, testing positive for marijuana, id. at 123, and, at the same time, referred him to the Civilian Employee Assistance Program (CEAP), id. at 125. He was removed effective May 31, 2011. Id. at 14, 11. On appeal, the appellant admitted that he used marijuana but alleged, inter alia, that the agency committed harmful error in that the deciding official considered, in her penalty determination, aggravating factors with which the appellant wa s not charged and/or had ex parte communications that violated his due process rights. Id. , Tab 17 at 3. The appellant also raised claims of disabi lity discrimination and retaliation for engaging in protected activity. Id. at 3-4; Tab 20 at 4-5. ¶3 After convening the requested hearing, the administrative judge issued an initial decision affirmi ng the removal action. Id. , Tab 21, Initial Decision (ID) at3

1, 18. He found that the char ge was sustained, ID at 1-6; that the appellant failed to prove his affirmative defe nses of harmful error, disa bility discrimination, and retaliation for protected activ ity, ID at 7-10; and that the agency proved that a nexus existed between the su stained charge and the effi ciency of the service and that the penalty of removal was reasonable, ID at 10-17. ¶4 On the appellant’s petition for review, the Board first noted that he did not challenge the administrative judge’s findings that the agency proved the charge and that the appellant did not prove hi s affirmative defens es of disability discrimination and retaliation, stating th at “we do not address these issues.” Hulett v. Department of the Navy , 120 M.S.P.R. 54 , ¶ 5 n.2 (2013). The Board found, however, that the appellant implicitly rais ed a due process claim concerning the penalty imposed but that the administrative judge neither informed him of the applicable burdens of proof nor adjudicated the claim. Id. , ¶¶ 9-10. In remanding the case for further adjudication, id. , ¶ 10, the Board directed the administrative judge to appr ise the appellant of his bur den and the elements of proof regarding his due proc ess claim and to obtain clarificati on from him as to the alleged ex parte commu nications regarding aggrav ating factors that the deciding official allegedly consider ed in her penalt y assessment. Id. , ¶ 11. If the administrative judge found that there was an ex parte communi cation and that it was so substantial and so likely to cause prejudice that no employee could fairly be required to be subjecte d to a deprivation of prope rty under the circumstances, then the administrative judge was to find a due process violat ion and reverse the agency action; if not, then the admi nistrative judge was to conduct a harmful error analysis as to any pr ocedural error concerning th e penalty determination. Id. The Board also vacated the administ rative judge’s findi ngs regarding nexus and penalty. Id. , ¶ 1. ¶5 On remand and as directed, the administ rative judge issued an order setting out for the appellant the applicable burdens of proof on his claims of denial of due process and harmful procedural erro r. Remand Appeal File (RAF), Tab 3 at4

1-2. And, as directed, the administ rative judge afforded the appellant an opportunity to clarify the ex parte comm unications that he alleged the deciding official considered w ithout notice to him. Id. at 3. The administrative judge referred the appellant to the matters the Board had se t forth in its Opinion and Order as those he had identified in his petition for review. Id. at 3 n.1; see Hulett , 120 M.S.P.R. 54 , ¶ 2. The appellant responde d, RAF, Tab 4, as did the

agency, id. , Tab 5. ¶6 In his remand initial decisi on, the administrative j udge first repeated the analysis of the charge of Illegal Drug Us e that he made in his earlier initial decision and his finding that the agency met its burden of proof. 2RAF, Tab 6, Remand Initial Decision (RID) at 2-7. In addressing the deni al of due process claim, the administrative judge consider ed the appellant’s re sponse to the order he issued wherein the appellant appeared to allege that the deciding official had ex parte communications with the commanding offi cer of the naval base regarding the events underlying the agency ’s charge and that that information influenced the decidi ng official’s decision to remove the appellant, thus depriving him of due process. RAF, Tab 4. No ting the testimony of the deciding official that she never spoke with the commanding officer or received any guidance from him, the administrative judge concluded that th e appellant did not establish an ex parte communication. RID at 10. ¶7 The administrative judge then consid ered the allegations the appellant raised in his petition for re view, matters of which, he contended, he was not made aware in the notice of proposed remova l. They included his conviction for driving under the influence, his observed impairment, his inability to perform his duties, his use of a mind-altering drug, and his insubordinati on in not taking the

2The administrative judge need not have unde rtaken this analysis, given that the Board affirmed his earlier finding that the agency pr oved its charge by preponderant evidence. Hulett , 120 M.S.P.R. 54 , ¶ 1. Nonetheless, the administrative judge’s additional analysis did not constitute error.5

drug test on the date he was ordered to do so. The admini strative judge found that, based on the proposal no tice, the appellant was aw are of these matters and had a full and fair opportun ity to respond to them, whic h he did, and that the record contained no evidence of ex part e communication of a ny new and material information to the decidi ng official that was not brought to the appellant’s attention in the proposal notice. RID at 11. As to the consistency of the penalty, the notoriety of the misconduct , the deciding official’s be lief that, as an illegal drug user, the appellant lacked rehabilitative poten tial and that less er discipline is not a successful deterrent for such employees, the admi nistrative judge found that the appellant did not explai n what he believed to be any ex parte communication from or to the deciding offi cial that she cons idered without gi ving him notice and an opportunity to respond and that, to the ex tent the deciding offi cial testified that she considered these factors, they too we re referenced in the proposal notice. RID at 11-13. ¶8 Having found no due process vi olation, the administra tive judge as directed considered whether the appell ant had established harmful error. In finding that he did not, the administrative judge similarly found that he had not established that the agency committed any procedural error, much less any error that was likely to have caused the agency to reach a conclusion di fferent from the one it would have reached in the absence or cure of the error. RID at 14-15. ¶9 Next, the administrative j udge repeated the findings he had earlier made in concluding that the appellan t failed to establish his allegations of disability discrimination and retaliation. 3 RID at 15-16. Lastly , the administrative judge

3 As noted, the Board found in its Opinion and Order that the appellant did not challenge the administrative judge’s finding that he failed to prove his affirmative defenses of disability discri mination and retaliation and th at “[t]herefore, we do not address these matters.” Hulett , 120 M.S.P.R. 54 , ¶ 5 n.2. The Board’s Opinion did not direct the administrative judge to make an y further findings as to these claims and therefore he need not have done so. See Umshler v. Department of the Interior , 55 M.S.P.R. 593 , 597, aff’d , 6 F.3d 788 (Fed. Cir. 1992) (Table). Again, however, this did not constitute error.6

found, as he had earlier, th at the agency established that discipline for the sustained misconduct promoted the efficiency of the service and that removal for that misconduct was a reasonable penalty. RID at 17-24. ¶10 The appellant has filed a petition for review, Re mand Petition for Review (RPFR) File, Tab 6, to which the agency has responded in opposition, id. , Tab 8. ¶11 Concerning the due process issue, th e appellant argues on review that, although not part of the agen cy’s charge, the deciding o fficial considered as an aggravating factor that th e appellant was or may have been under the influence and/or was impaired. RPFR File, Tab 6 at 4; IAF, Tab 7 at 14. It is well established that only ex parte communica tions that introduce new and material information to the deciding official will violate th e due process guarantee of notice. Stone v. Federal Depos it Insurance Corporation , 179 F.3d 1368 , 1377 (Fed. Cir. 1999); Lopes v. Department of the Navy , 116 M.S.P.R. 470 , ¶ 7 (2011). Here, as the administrative judge found, the notice of proposed removal includes, in the narrative of the facts underlying th e charge, a description of the appellant as provided by the Chief who interviewe d him after several members of the Federal Fire Department repor ted that he did not appear to be able to perform his duties. IAF, Tab 7 at 123. The proposing offici al related that th e Chief described the appellant as slumped in his chair, with bloodshot eyes, pinpointed pupils, and slurred speech, and agreed that he was not capable of performing his duties. Id. ; RID at 11. The appellant has not shown error in th e administrative judge’s finding that, to the extent that there wa s an ex parte communi cation regarding the appellant’s possible impair ment, it introduced only cumu lative evidence, not new and material evidence, and th erefore did not constitute a due process violation. For the same reason, we find that the appellant ha s not shown error in the administrative judge’s finding that, to the extent there was ex parte communication regarding the appellant’s having used a mind-al tering drug, it introduced only cumulative evidence, not new and materi al evidence, and therefore did not consti tute a denial of due process. RID at 11.7

¶12 The appellant argues furthe r that, without giving adva nce notice to him, the deciding official relied in her penalty determination on the fact that he had received a Driving Under the Influence cr iminal conviction in 1998. RPFR File, Tab 6 at 4; IAF, Tab 7 at 16-19 (the agency’s Douglas factors analysis). However, the administrative judge c onsidered the hearing testimony of the deciding official wherein sh e specifically deni ed having given that conviction any weight in her penalty assess ment. RID at 11. The appe llant has failed to show error in the administrative judge’s findi ngs that, because the 1998 conviction was not a basis for the deciding o fficial’s determination on either the merits of the charge or the penalty to be imposed, there was no due process violation. Cf. Lopes , 116 M.S.P.R. 470 , ¶ 12 (explaining that the deciding offici al’s hearing testimony confirmed his consideration of ex parte inform ation about prior misconduct found on the Douglas factors worksheet); Pickett v. Department of Agriculture , 116 M.S.P.R. 439 , ¶ 12 (2011) (highlighting that the deciding official “testified that he considered information he received” outside the proposal notice). ¶13 Finally, the appellant argues on review that he was not on notice of the deciding official’s consider ation in her penalty determ ination of certain matters she deemed as aggravating f actors, specifically, the not oriety of the offense and the appellant’s being willfully defiant and insubordinate. RPFR File, Tab 6 at 5. As the administrative judge found, however, both of these matters were referenced in the notice of proposed re moval, wherein the proposing official noted that the appellant in itially refused to report for drug testing on the date identified and that, for a Le ad Firefighter, the use of illegal drugs violates the special trust of the general public who rely on Firefighters to protect life and property. RID at 11-12; IAF, Tab 6 at 123. We find th erefore that the appellant has not shown error in the administrative judge’s fi nding that, to the extent these8

matters constituted ex part e communications, they did not constitute a denial of due process. 4 ¶14 The appellant also appears to chal lenge on review the administrative judge’s finding that remova l is a reasonable penalty. 5 Specifically, the appellant argues, as he did below, th at the agency’s policy on ill egal drug use provides that a removal will be initiated for a first- time use if the employ ee refuses to obtain counseling or rehabilitation through the CE AP or for a second finding of illegal drug use. RPFR File, Tab 6 at 6. The appellant asserts that he fully cooperated with the CEAP and comple ted an “extensive rehabili tation program” and that these factors and others prec lude the agency’s imposition of the removal penalty. Id. The administrative judge carefully considered th e appellant’ s claim but found, based on Board precedent, that remova l may be appropriat e for a first-time offense, notwithstanding the employee’s pa rticipation in the CEAP, depending on the deciding official’s carefu l consideration of the fact ors set out by the Board in Douglas v. Veterans Administration , 5 M.S.P.R. 280 , 306 (1981). RID at 22-24;

see Zazueta v. Department of Justice , 94 M.S.P.R. 493 , ¶¶ 6-11 (2003), aff’d , 104 F. App’x 166 (Fed. Cir. 2004). ¶15 Here, as the administrativ e judge correctly found, th e deciding official did consider the relevant Douglas factors in rendering he r decision, including: (1) the seriousness nature of the appellant’s misconduct that was antithetical to

4 The appellant has not, on review, challenged the administrative judge’s finding that he did not establish harmful procedural error, and we discern no basis upon which to disturb that finding.

5 In connection therewith, the appellant argues that, by not allowing him to fully question the deciding official on cross-exa mination, the administrative judge prevented him from presenting his claim related to disparate penalty, that is, that other agency employees who had tested pos itive for illegal drugs were not ultimately removed from their positions because the agency offered, and they accepted, last-chance settlement agreements. RPFR File, Tab 6 at 2-3. A majority of the Board considered this argument in its Opinion and Order but fo und that it provided no basis to disturb the initial decision. Hulett , 120 M.S.P.R. 54 , ¶ 5 n.2. Therefore we will not further consider it.9

the duties of his position, which require critical thinking and the ability to manage stressful situations; (2) the fact that, as a Lead Firefighter, he directly supervised a crew of three or four pe rsonnel and was therefor e required to be alert, attentive, and respons ible for the safety of his crew; (3) that he provided emergency services of a critical nature , impacting the preservation of life and property, and was in contact with th e public who depends on Firefighters and typically holds them in high regard; (4 ) that she had lost confidence in the appellant’s ability to perform his duties, which negatively impa cted the agency’s ability to accomplish its mission; (5) that the appell ant’s drug test was the result of his crew members’ reas onable suspicion of his impa irment; (6) that removal was within the range of pe nalties for a first offense of illegal dr ug use in the applicable Table of Penalt ies; and (7) that the appe llant was subject to random drug testing and had been warn ed by a policy statement th at illegal drug use could lead to removal. RID at 17-23. The administrative judge fu rther found that the deciding official considered the appellan t’s satisfactory pe rformance ratings, his past training, and letters of appreciatio n he had received but found that these factors were not significant, given his 21 years of servic e. RID at 18-19. And, she considered that he was experien cing personal and medical problems, but found that he did not explain why these problems led him to illegal drug use, rather than other coping mech anisms. RID at 23-24. ¶16 The administrativ e judge considered other mitig ating factors cited by the appellant, that is, his year s of discipline-free service and the lack of notoriety surrounding his misconduct, but found that these matters were outweighed by the seriousness of his misc onduct. RID at 24. Be yond his disagreement, the appellant has not shown erro r in the administrative j udge’s finding that, based on the sole sustained charge, the penalty of removal di d not exceed the bounds of reasonableness. Ellis v. Department of Defense , 114 M.S.P.R. 407 , ¶ 11 (2010); Zazueta , 94 M.S.P.R. 493 , ¶¶ 6-11. Accordingly, we affirm the remand initial decision.10

NOTICE TO THE APPELLANT REGARDING YOUR FURTHER REVIEW RIGHTS You have the right to re quest further review of th is final decision.

Discrimination Claims: Administrative Review You may request review of this final decision on your discrimination claims by the Equal Employment O pportunity Commission (EEOC). See Title 5 of the United States C ode, 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 comme rcial 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 cal endar 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 repres entative. If you choose to file, be very carefu l 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 civ il action against the agency on both your discrimination claims and your other claims in an a ppropriate United States district court. See 5 U.S.C. § 7703 (b)(2). You must file your civil action with the district court no later th an 30 calendar days after your receipt of this order. If you have a representative in th is case, and your represen tative receives this order11

before you do, then you must fi le with the district cour t 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 acti on involves a claim of discri mination based on race, color, religion, sex, national orig in, or a disabling conditi on, you may be entitled to representation by a court-appoi nted lawyer and to waiver of any requirement of prepayment of fees, cost s, or other security. See 42 U.S.C. § 2000e5 (f) and 29 U.S.C. § 794a

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FOR THE BOARD:

Washington, D.C. ________________ ______________ William D. Spencer Clerk of the Board