Petition for review of the Merit Systems Protection Board in case no. PH0752090126-I-1.
The opinion of the court was delivered by: Prost, Circuit Judge.
Decided: February 17, 2011
Before RADER, Chief Judge, DYK and PROST, Circuit Judges.
Petitioner Thomas O. Ward ("Ward") petitions for review of the final decision of the Merit Systems Protection Board ("Board") affirming the U.S. Postal Service's ("Agency's") decision to remove him from employment. Ward v. U.S. Postal Serv., No. PH0752090126-I-1 (M.S.P.B. Aug. 31, 2009) ("Final Decision"). The Board recognized that the deciding official improperly considered Ward's alleged past instances of misconduct, which were conveyed to the deciding official through ex parte communications and were not included in Ward's Notice of Proposed Removal. The Board, however, erred in failing to consider whether this procedural error was harmful and in failing to address the due process issues arising out of the ex parte communications. Accordingly, we vacate and remand for further proceedings consistent with this opinion.
On August 19, 2008, Ward, a preference eligible Maintenance Mechanic for the Agency, was involved in an incident with a supervisor in which he shouted at her, acted in a manner that she perceived as threatening, and disobeyed her instructions to remain in her office ("August 19, 2008 Incident"). On August 29, 2008, the Agency issued a Notice of Proposed Removal, which proposed Ward's removal from employment with the Agency based on a single charge of improper conduct arising out of the August 19, 2008 Incident. The Notice of Proposed Removal mentioned only the August 19, 2008 Incident as grounds for Ward's removal; it did not reference any other misconduct by Ward.
On November 5, 2008, Dan O'Hara, the deciding official ("Deciding Official"), issued a Letter of Decision, finding that the improper conduct charge was fully supported by the evidence and that removal was warranted in light of the relevant Douglas factors. Douglas v. Veterans Admin., 5 M.S.P.B. 313 (1981) (discussing factors that supervisors must consider in determining an appropriate penalty to impose for an act of employee misconduct). Ward's removal from the Agency was effective November 7, 2008.
On December 5, 2008, Ward appealed the Deciding Official's decision to the Board. At a hearing before the administrative judge on February 10, 2009, the Deciding Official testified that before making his decision, he not only reviewed the Agency's investigative documents regarding the August 19, 2008 Incident but also spoke with three supervisors and one manager who discussed prior incidents in which Ward exhibited "loud, belligerent, [and] intimidating behavior." J.A. 138-39; see J.A. 135; J.A. 145-46. The Deciding Official admitted that Ward's "recurring pattern of behavior" affected his analysis of two Douglas factors, lowering the Deciding Official's confidence in Ward's ability to satisfactorily perform his duties and convincing the Deciding Official that Ward showed no potential for rehabilitation. J.A. 137; J.A. 140. Specifically, the Deciding Official testified that "after speaking with [the supervisor involved in the August 19, 2008 Incident] and speaking with the other people as to the pattern of conduct that [he had] heard over the years," he had little confidence that Ward could perform at a satisfactory level. J.A. 137. Further, in response to a question regarding Ward's potential for rehabilitation, the Deciding Official testified, "[W]ith the pattern, the recurring pattern of behavior that [he] discovered in . . . [Ward's] work record, [he] just didn't see how . . . any kind of letter, warning, or suspension was going to mitigate any of that." J.A. 140. Ward's counsel objected to the Deciding Official's testimony regarding Ward's past misconduct on the grounds that Ward "wasn't given any opportunity to explain anything about any prior conduct" before his removal. J.A. 137-38. The administrative judge, however, allowed the testimony, finding it relevant to the Deciding Official's penalty determination. J.A. 137-38.
On March 16, 2009, the administrative judge issued an initial decision that sustained the improper conduct charge and affirmed the Agency's removal of Ward. The administrative judge found that the Deciding Official properly considered Ward's alleged past instances of misconduct because they "are precisely the types of non-disciplinary counselings a deciding official may use to enhance a penalty." J.A. 27. The administrative judge further determined that the discussions were not improper ex parte communications because they were not "of the type that resulted in undue pressure upon [the Deciding Official] to rule in a particular manner." J.A. 27.
Ward petitioned the Board for review of the administrative judge's initial decision, arguing that the Agency failed to prove the improper conduct charge and that the penalty of removal was erroneous because, inter alia, the Deciding Official improperly considered alleged past misconduct that was not included in the Notice of Pro posed Removal. Final Decision at 3-4. On August 31, 2009, the Board issued a final decision, which granted Ward's petition for review as to the Agency's penalty determination yet upheld the imposed penalty of removal. Id. at 1, 3, 10. The Board found that the administrative judge, in analyzing the Deciding Official's consideration of Ward's alleged past misconduct, erred in two respects. Id. at 5. First, the Board concluded that the administrative judge erred in finding that the Deciding Official was entitled to consider Ward's alleged past misconduct in the penalty analysis. Id. The Board found that consideration of the alleged prior incidents as aggravating factors favoring an enhanced penalty was improper because the incidents were not included in the Notice of Proposed Removal and were instead mentioned for the first time during Ward's appeal to the Board. Id. Second, the Board determined that the administrative judge erred in analyzing whether the Deciding Official's discussions regarding this alleged prior misconduct constituted improper ex parte communications. Id. The Board reasoned that "[w]here an ex parte communication does not relate to the charge itself, but relates instead to the penalty, the Board has not considered such error to be [a] denial of due process of law . . . ." Id. at 5-6. The Board explained that, in these circumstances, it would "remedy the error by doing its own analysis of the penalty factors" to determine whether "removal is within the bounds of reasonableness, considering the pertinent factors other than [Ward's] past work record." Id. at 6. Upon independently reviewing the Douglas factors, the Board concluded that the penalty of removal "does not exceed the tolerable limits of reasonableness." Id. at 6-10. Therefore, despite finding that the Deciding Official erroneously considered Ward's alleged prior misconduct and that the administrative judge erred in her penalty analysis, the Board sustained Ward's removal from the Agency. Id. at 4-10.
Ward timely petitioned for review of the Board's final decision in this court. We have jurisdiction pursuant to
"Our review of Board decisions is limited. We may only reverse a Board decision if we find the decision to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law; or unsupported by substantial evidence." Kahn v. Dep't of Justice, 618 F.3d 1306, 1312 (Fed. Cir. 2010) (citing 5 U.S.C. § 7703(c)). We "must reverse a decision of the Board if it . . . is not in accordance with the requirements of the Due Process Clause ...