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 NONPRECEDENTIAL1

Brook L. Beesley, Alameda, California, for the appellant. 

Patricia Zengel, Esquire, San Diego, 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 review 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 findings 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 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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 interpretation 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 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. 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, and based on the following points and authorities, 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 remand initial decision, 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 suspicion that he was unable to perform his 

duties. He was directed to undergo a drug test, which verified positive for 

marijuana. The agency proposed his removal for Illegal 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 was 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 disability 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 affirming the removal action. Id., Tab 21, Initial Decision (ID) at 
3

1, 18. He found that the charge was sustained, ID at 1-6; that the appellant failed 

to prove his affirmative defenses of harmful error, disability discrimination, and 

retaliation for protected activity, ID at 7-10; and that the agency proved that a 

nexus existed between the sustained charge and the efficiency 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 his affirmative defenses of disability 

discrimination and retaliation, stating that “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 raised 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 apprise the appellant of his burden and the elements of 

proof regarding his due process claim and to obtain clarification from him as to 

the alleged ex parte communications regarding aggravating factors that the 

deciding official allegedly considered in her penalty assessment. Id., ¶ 11. If the 

administrative judge found that there was an ex parte communication and that it 

was so substantial and so likely to cause prejudice that no employee could fairly 

be required to be subjected to a deprivation of property under the circumstances, 

then the administrative judge was to find a due process violation and reverse the 

agency action; if not, then the administrative judge was to conduct a harmful 

error analysis as to any procedural error concerning the penalty determination. 

Id. The Board also vacated the administrative judge’s findings regarding nexus 

and penalty. Id., ¶ 1. 

¶5 On remand and as directed, the administrative 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 error. Remand Appeal File (RAF), Tab 3 at 
4

1-2. And, as directed, the administrative judge afforded the appellant an 

opportunity to clarify the ex parte communications that he alleged the deciding 

official considered without notice to him. Id. at 3. The administrative judge 

referred the appellant to the matters the Board had set 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 responded, RAF, Tab 4, as did the 

agency, id., Tab 5. 

¶6 In his remand initial decision, the administrative judge first repeated the 

analysis of the charge of Illegal Drug Use that he made in his earlier initial 

decision and his finding that the agency met its burden of proof.2

 RAF, Tab 6, 

Remand Initial Decision (RID) at 2-7. In addressing the denial of due process 

claim, the administrative judge considered the appellant’s response to the order 

he issued wherein the appellant appeared to allege that the deciding official had 

ex parte communications with the commanding officer of the naval base 

regarding the events underlying the agency’s charge and that that information 

influenced the deciding official’s decision to remove the appellant, thus depriving 

him of due process. RAF, Tab 4. Noting 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 the appellant did not establish an ex 

parte communication. RID at 10. 

¶7 The administrative judge then considered the allegations the appellant 

raised in his petition for review, matters of which, he contended, he was not made 

aware in the notice of proposed removal. 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 insubordination in not taking the 

 

2

 The administrative judge need not have undertaken this analysis, given that the Board 

affirmed his earlier finding that the agency proved 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 administrative judge found 

that, based on the proposal notice, the appellant was aware of these matters and 

had a full and fair opportunity to respond to them, which he did, and that the 

record contained no evidence of ex parte communication of any new and material 

information to the deciding 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 belief that, as an illegal 

drug user, the appellant lacked rehabilitative potential and that lesser discipline is 

not a successful deterrent for such employees, the administrative judge found that 

the appellant did not explain what he believed to be any ex parte communication 

from or to the deciding official that she considered without giving him notice and 

an opportunity to respond and that, to the extent the deciding official testified that 

she considered these factors, they too were referenced in the proposal notice. 

RID at 11-13. 

¶8 Having found no due process violation, the administrative judge as directed 

considered whether the appellant 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 different from the one it would have 

reached in the absence or cure of the error. RID at 14-15. 

¶9 Next, the administrative judge repeated the findings he had earlier made in 

concluding that the appellant 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 discrimination and retaliation and that “[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 any 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, that 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, Remand Petition for Review 

(RPFR) File, Tab 6, to which the agency has responded in opposition, id., Tab 8. 

¶11 Concerning the due process issue, the appellant argues on review that, 

although not part of the agency’s charge, the deciding official considered as an 

aggravating factor that the 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 communications that introduce new and material 

information to the deciding official will violate the due process guarantee of 

notice. Stone v. Federal Deposit 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 the charge, a description of the appellant 

as provided by the Chief who interviewed him after several members of the 

Federal Fire Department reported that he did not appear to be able to perform his 

duties. IAF, Tab 7 at 123. The proposing official related that the 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 the administrative judge’s 

finding that, to the extent that there was an ex parte communication regarding the 

appellant’s possible impairment, it introduced only cumulative evidence, not new 

and material evidence, and therefore did not constitute a due process violation. 

For the same reason, we find that the appellant has 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-altering drug, it 

introduced only cumulative evidence, not new and material evidence, and 

therefore did not constitute a denial of due process. RID at 11. 
7

¶12 The appellant argues further that, without giving advance notice to him, the 

deciding official relied in her penalty determination on the fact that he had 

received a Driving Under the Influence criminal 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 considered the hearing testimony of the 

deciding official wherein she specifically denied having given that conviction any 

weight in her penalty assessment. RID at 11. The appellant has failed to show 

error in the administrative judge’s findings that, because the 1998 conviction was 

not a basis for the deciding official’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 official’s hearing 

testimony confirmed his consideration of ex parte information 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 consideration in her penalty determination of certain matters 

she deemed as aggravating factors, specifically, the notoriety 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 removal, wherein the proposing official 

noted that the appellant initially refused to report for drug testing on the date 

identified and that, for a Lead 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 therefore that the appellant 

has not shown error in the administrative judge’s finding that, to the extent these 
8

matters constituted ex parte communications, they did not constitute a denial of 

due process.4

¶14 The appellant also appears to challenge on review the administrative 

judge’s finding that removal is a reasonable penalty.5

 Specifically, the appellant 

argues, as he did below, that the agency’s policy on illegal drug use provides that 

a removal will be initiated for a first-time use if the employee refuses to obtain 

counseling or rehabilitation through the CEAP 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 completed an “extensive rehabilitation program” and that 

these factors and others preclude the agency’s imposition of the removal penalty. 

Id. The administrative judge carefully considered the appellant’s claim but 

found, based on Board precedent, that removal may be appropriate for a first-time 

offense, notwithstanding the employee’s participation in the CEAP, depending on 

the deciding official’s careful consideration of the factors 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 administrative judge correctly found, the deciding official did 

consider the relevant Douglas factors in rendering her 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-examination, the administrative judge prevented 

him from presenting his claim related to disparate penalty, that is, that other agency 

employees who had tested positive 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 found 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 personnel and was therefore required to be 

alert, attentive, and responsible 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 the 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 impacted the agency’s 

ability to accomplish its mission; (5) that the appellant’s drug test was the result 

of his crew members’ reasonable suspicion of his impairment; (6) that removal 

was within the range of penalties for a first offense of illegal drug use in the 

applicable Table of Penalties; and (7) that the appellant was subject to random 

drug testing and had been warned by a policy statement that illegal drug use could 

lead to removal. RID at 17-23. The administrative judge further found that the 

deciding official considered the appellant’s satisfactory performance ratings, his 

past training, and letters of appreciation he had received but found that these 

factors were not significant, given his 21 years of service. RID at 18-19. And, 

she considered that he was experiencing personal and medical problems, but 

found that he did not explain why these problems led him to illegal drug use, 

rather than other coping mechanisms. RID at 23-24. 

¶16 The administrative judge considered other mitigating factors cited by the 

appellant, that is, his years of discipline-free service and the lack of notoriety 

surrounding his misconduct, but found that these matters were outweighed by the 

seriousness of his misconduct. RID at 24. Beyond his disagreement, the 

appellant has not shown error in the administrative judge’s finding that, based on 

the sole sustained charge, the penalty of removal did 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 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 

of the United States 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 United States 

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 
11

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 

prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e5(f) and 

29 U.S.C. § 794a. 

 

 

FOR THE BOARD: 

Washington, D.C. 

______________________________ 

William D. Spencer 

Clerk of the Board