The Federal Circuit Court of Appeals just administered a major smack down to HUD when it let a deciding official (DO) talk to witnesses after management had issued its proposed termination letter. (See Rayland Young v. Dept. of HUD, (Fed. Cir. 2013). The court made it clear yet again that once the proposed adverse action letter has been issued management is almost always barred from collecting additional information about the case.  

Once Mr. Young finished his written and oral replies, the deciding official talked to some of the employees who might have witnessed the event that led to Young’s proposed termination. However, Young was never informed Young this was happening, what information the DO had gathered from those discussions, or what conclusions he drew from them.  It turned out that based on these discussions the DO concluded that there were inconsistencies in the stories  told by Young’s witnesses, decided to ignore whatever help their testimony had given Young, and upheld Young’s termination.

When Young’s case got before an arbitrator, the arbitrator decided that the extra evidence gathering did little or no harm to Young because he had a chance at the end of the arbitration hearing to contest the newly gathered facts. The arbitrator then upheld the removal.

Young appealed the arbitrator’s decision to court arguing that his Constitutional right to due process had been violated by using the facts gathered after his oral and written replies—and the court agreed.

When an employer obtains new and material information through ex parte communications, an “employee’s constitutional due process guarantee of notice (both of the charges and of the employer’s evidence) and the opportunity to respond” are undermined.

The court then noted that not every ex parte communication is a procedural defect so substantial and so prejudicial as to undermine the due process guarantee and require an entirely new administrative proceeding. It then pointed to the criteria that distinguish between those that are so damaging as to require reversing management’s adverse action decision and those that are not.

(1) whether the ex parte communication introduces “cumulative” information or new information; (2) whether the employee knew of the communication and had a chance to respond; and (3) whether the ex parte communication resulted in undue pressure upon the deciding official to rule in a particular manner. Id. Where “the ex parte communication is so substantial and so likely to cause prejudice that no employee can fairly be required to be subjected to a deprivation of property under such circumstances,” a due process violation has occurred and the former employee is entitled to a new constitutionally correct removal procedure. Id. Such a violation is not subject to the harmless error test.

The court also criticized the arbitrator for compounding the error by incorrectly concluding that Young had enough of a chance to reply to the facts the DO gathered after Young’s replies at the arbitration hearing.  It told the arbitrator he had no authority to smooth over due process violations like this, but must overturn the agency’s removal.

While the court could have ended its analysis there, it then turned to the fact that the deciding official had relied on Young’s prior similar conduct to partially conclude that Young must also be guilty of the more recent violation as well. Doing so flew in the face of MSPB and Federal Circuit court decisions holding that prior misconduct may only be considered to determine the appropriateness of a proposed penalty or to impeach the accused employee’s credibility; it may not be used to conclude guilt.

Union leaders who represent employees in adverse actions should make a note of the criteria for determining an excessive or improper ex parte communication by a deciding official. They should also review the adverse action file AFTER the final decision to search for any evidence that was gather after the proposal letter was issued.  Finally, it is a good idea once management issues a final decision to go back to the witnesses involved to ask if they had been contacted by anyone in management to discuss the case after the proposal letter was issued.

Finding and enforcing procedural error in an adverse or disciplinary action is one of the many advantages a union offers employees. While most accused employees may sense that something is wrong with how management has treated them, only a tiny few will be sophisticated enough to put their finger right on the error and structure the legal defense. FEDSMILL has spotlighted adverse action procedural errors in two prior posts. See “Turning Tables of Penalties on Management” and “Adverse Action Due Process and Aggravating Factors.” As we find more, we will pass them on.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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