In Evans v. Dep’t of the Air Force, 113 FMSR 10 (Sept. 27, 2013), the Merit Systems Protection Board affirmed, in a non-precedential decision, the administrative judge’s initial decision holding that the agency had violated the appellant’s due process rights and reversing the appellant’s removal.
Evans, an Air Force manager, was removed from his position for “improper conduct.” After Evans appealed to the Board, the AJ reversed his removal on the ground that the agency had violated his due process rights. Specifically, the AJ reasoned that, despite being charged with “improper conduct,” the deciding official had considered the recommended penalties for the offense of sexual harassment, and Evans had not been given notice of his intent to do so.
On appeal, the agency argued that Evans was given adequate notice that the deciding official would consider the recommended penalties for sexual harassment. In this respect, the agency argued that the investigative report that accompanied the notice of proposed removal contained language such as “improper conduct/sexual harassment” and that the notice of proposed removal itself referred to “sexual” or “sexually oriented” misconduct. The Board, however, rejected this argument.
First, the Board reasoned that the agency had not charged Evans with sexual harassment but instead had used a general charge label and then relied on the fact that Evans’ misconduct resembled sexual harassment as an aggravating factor in deciding to remove him. The Board then noted that when an agency intends to enhance a penalty upon aggravating factors, these factors must be included in the notice of proposed adverse action so that the appellant has an opportunity to address them. If the agency fails to do so, then the aggravating factors constitute an ex parte communication and the deciding official’s reliance on them may violate the appellant’s due process rights. Whether such a violation has occurred depends on factors such as whether the ex parte communication was cumulative or new information, whether the appellant knew of the information and had an opportunity to respond to it, and whether the ex parte communication was of the type likely to result in undue pressure on the deciding official to rule in a particular manner.
In this case, the Board found that the agency had given sufficient notice that the alleged misconduct was of a sexual nature, but not that the deciding official would consider an enhanced penalty based upon the recommended range of penalties for the offense of sexual harassment. The Board also found that the fact that the penalty information for sexual harassment—a charge other than the one set forth in the notice of proposed removal—cannot be deemed cumulative or immaterial to the deciding official’s decision. Further, the Board found that Evans’ written and oral replies did not suggest that he was aware of the deciding official’s intention to rely on the recommended penalties for sexual harassment.
Thus, the Board held that the agency had violated Evans’ due process rights when he was not given sufficient notice that the deciding official intended to rely—and indeed relied—on the recommended penalties for sexual harassment, as such information constitutes an ex parte communication that was new, material and of which the appellant had no knowledge. In finding this, the Board also noted that what the agency had done in this case was rely on the penalty recommendations for a more serious charge that it might not have been able to prove.
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