Board Erred when it Neglected to Consider Timely Response to Notice of Proposed Removal and Failed to Address Employee’s Allegation that Deciding Official Improperly Considered Matters not Contained in Notice of Proposed Removal, Federal Circuit rules

The Merit Systems Protection Board (the Board) erred when it failed to consider an employee’s response to a notice of proposed removal that was posted in the mail within the ten-day time limit and when it failed to address the employee’s allegation that the deciding official improperly considered matters not included in his notice of proposed removal, the Federal Circuit recently held. Consequently, the court remanded the matter back to the Board to properly address the employee’s allegations of procedural error.

Terry Doe worked for the United States Postal Service for 24 years until his termination on March 14, 2010, following an incident where Doe allegedly struck his then-supervisor, Jamie Good, in the face during a dispute over Doe’s uniform. Doe denied striking Good.

In January 2010, the Postal Service issued to Doe a notice of proposed removal based on the charge of “improper conduct,” following the alleged assault of Good. Doe was given 10 days from the receipt of the letter to answer the proposal. On February 17, 2010, Postmaster Ricky Burleson sent Doe a decision letter that informed Doe that he was being removed from his Postal Service position based on the “improper conduct” charge. However, Burleson failed to consider a February 7, 2010, response letter Doe had mailed because it had not been received within ten days and Burleson considered it untimely. Doe appealed to the Board, and an administrative judge issued a decision affirming the Postal Service’s removal of Doe. Doe appealed to the Federal Circuit.

On appeal, Doe argued that two procedural errors were committed during the removal process: 1) that Burleson’s refusal to consider his response to the notice of proposed removal violated his due process rights or, at a minimum, constituted harmful procedural error; and 2) that Burleson’s consideration of a prior disciplinary incident which was not referenced in the notice of proposed removal when determining his penalty was harmful procedural error.

First, the court explained that the Board erred when it neglected to address whether Burleson’s failure to consider Doe’s February 7 letter amounted to a constitutional violation. While the letter was, in fact, received more than ten days after Doe’s receipt of the notice of proposed removal, it was posted in the mails within the ten-day period. The court turned to the language used in Doe’s notice of proposed removal to determine whether a response mailed within the ten-day period but not received by the Postal Service within the ten-day period was untimely. The Federal Circuit interpreted the language to mean that, if Doe elected to send his response via the mail, the ten-day period would be measured from the date Doe deposited his response in the mail.

Next, the court explained that, even if the Board finds that Burleson’s failure to address the February 7 letter did not amount to a constitutional violation, the Board still must analyze whether the procedural violation was harmless. Under 5 U.S.C. § 7701(c)(2)(A), the Board may not sustain an agency’s decision if the employee shows harmful error in the application of the agency’s procedures when arriving at a decision. The Board’s regulations define “harmful error” as an agency error that is likely to have caused the agency to reach a different conclusion than it would have reached in the absence of the error. Therefore, if the Board finds on remand that Burleson’s consideration of the February 7 letter would have altered his decision, the case should be remanded to the Postal Service for consideration. While the court did not express a view on whether Burleson’s refusal to address Doe’s letter amounted to a constitutional violation, it did note that the information Doe put in the letter went to the question of whether he committed the charged act, and Burleson admitted that some of the contents of the letter might require further inquiry.

The court also addressed whether his removal was procedurally flawed because the deciding official considered a previous disciplinary action against Doe that was not included in the notice of proposed removal. The court explained that, under 5 C.F.R. § 752.404(g), an agency may only consider the reasons specified in the notice of proposed action, and it is procedural error for an agency to rely on matters affecting the penalty without referencing those matters in the proposal notice. On remand, the court continued, the Board must determine whether the procedural error requires upsetting the penalty of removal.

Therefore, the court remanded the matter to the Board to address whether Burleson’s failure to consider Doe’s February 7 letter rose to the level of a constitutional violation and whether Burleson considered a previous disciplinary action against Doe that was not included in the notice of proposed removal.

The case is Doe v. United States Postal Service and is available here.

Posted in Case Law Update

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