Wednesday, November 6, 2013

MSPB Reverses Removal Because Due Process Was Not Provided.

In Massey v. Department of the Army, 2013 M.S.P.B. 80 (Oct. 25, 2013), the Merit Systems Protection Board (MSPB) issued an important decision about the right of federal employees to Due Process of Law.

In Ms. Massey’s case, she was originally represented by the union.  The agency proposed to terminate her employment as a Nurse for medical inability to perform the duties of her position.  The human resources specialist instructed the union to “[p]lease ensure you are on [the deciding official's] calendar NLT COB on 7Feb12.”  On February 3, Ms. Massey informed the deciding official that she would be represented by an attorney.  On February 7, the attorney emailed the deciding official to schedule an oral reply.  A written reply was never submitted.  No one responded to Ms. Massey’s attorney’s request for an oral reply.  Instead, the deciding official issued a decision sustaining the charge and removing her.

Ms. Massey appealed to the MSPB.  Although she did not dispute that she was unable to perform the essential functions of her position, she argued that the agency should have tried harder to find her a position in which her chronic respiratory disorder would not be disabling.  She also asserted that the agency violated her right to due process when it did not allow her to respond orally to the proposal. 

The Administrative Judge sustained the agency’s charge, found that the agency did not discriminate against the appellant, and rejected Ms. Massey’s due process argument.  The Administrative Judge rejected Ms. Massey’s due process argument because he found that the agency provided Ms. Massey with numerous opportunities to respond to the charges and did not owe her an additional extension of time.   Ms. Massey petitioned for review of the Initial Decision.

The Board granted Ms. Massey’s Petition for Review, vacated the Initial Decision in part, reversed the agency’s removal action because it deprived Ms. Massey of due process, and affirmed the administrative judge’s finding that the agency did not discriminate on the basis of disability.

With respect to the due process issue, the Board relied upon Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985), which established that the “root requirement” of due process was an opportunity to be heard before being deprived of a significant property interest.  At a minimum, this requires that the employee have notice of the charges against her, an explanation of the employer’s evidence, and an opportunity, either in person or in writing, to present evidence and convince the decision maker that the proposed action should not be taken.

The Board disagreed with the Administrative Judge and relied upon Alford v. Department of Defense, 118 M.S.P.R. 556 (2013), in which it found a due process violation. In Alford, the agency gave the appellant two weeks to submit a written reply and to schedule an oral reply.   Two weeks after receiving the notice, the appellant sent a letter requesting an oral reply.  Two days after the letter was sent, but before it was received, the agency issued its decision.  The Board found that because the appellant’s request was timely, issuance of the decision violated the appellant’s due process rights. 

Similarly, in Ms. Massey’s case, the Board found that Ms. Massey timely requested an oral reply.  The agency’s notice of proposed removal allowed Ms. Massey to request an oral reply on the final day of the original response period. According to the Board, the “instruction to be ‘on [the deciding official’s] calendar’ by February 7, 2012, implies that February 7 was the new deadline for filing a written response or for requesting an oral reply.” (Emphasis in original).  If the agency considered February 7 to be the date by which the oral reply had to be completed, it should have stated this when it granted the extension.  Therefore, because the agency violated Ms. Massey’s due process rights, she was entitled to a new constitutionally correct removal procedure and the removal was reversed.

This is the kind of issue that Kalijarvi, Chuzi, Newman & Fitch looks for when we represent federal employees before the Board.



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