Sinclair v. Dep't of Transp.
| Docket Number | AT-0752-22-0108-I-1 |
| Decision Date | 30 June 2023 |
| Parties | SYLVESTER SINCLAIR, JR., Appellant, v. DEPARTMENT OF TRANSPORTATION, Agency. |
| Court | Merit Systems Protection Board |
THIS FINAL ORDER IS NONPRECEDENTIAL [1]
Georgia A. Lawrence, Esquire, and Shaun Southworth, Esquire Atlanta, Georgia, for the appellant.
Christopher R. Lopez, Esquire, Des Plaines, Illinois, for the agency.
¶1 The appellant has filed a petition for review of the initial decision, which sustained his removal from his position as an Air Traffic Control Specialist based on charges of (1) unavailability for regular, full-time duty and (2) failure to maintain medical clearance. For the reasons discussed below, we GRANT the appellant's petition for review. We REVERSE the initial decision in part to find that the agency violated the appellant's due process rights, AFFIRM as MODIFIED the initial decision in part to clarify the legal standards applicable to the appellant's disability discrimination affirmative defenses, and DO NOT SUSTAIN the appellant's removal.
¶2 Effective December 29, 2017, the agency removed the appellant from his position as an Air Traffic Control Specialist based on charges of (1) unavailability for regular, full-time duty and (2) failure to maintain medical clearance. Initial Appeal File (IAF), Tab 6 at 68-74, 84-86. Regarding the former charge, the agency alleged that the appellant had not reported for regular, full-time duty since May 8, 2015. Id. at 84. Regarding the latter change, the agency alleged that the appellant had been rendered medically disqualified for air traffic control duties effective April 19, 2016, and that he had not challenged this determination. Id. at 84, 87-88. Both the agency's notice of proposed removal and decision letter referenced the agency's unsuccessful efforts to locate another position to which the appellant could be reassigned. Id. at 70, 85. Following his removal, the appellant filed a formal equal employment opportunity complaint alleging that the agency had discriminated against him by (1) failing to provide him with a reasonable accommodation and (2) removing him from his position. Id. at 11-12, 31-34. In a final agency decision issued on November 12, 2021, the agency made a finding of no discrimination as related to the appellant's removal. Id. at 11-30.
¶3 On December 12, 2021, the appellant filed the instant appeal with the Board challenging the agency's removal action. IAF, Tab 1. He requested a hearing on the matter. IAF, Tab 5 at 4, Tab 11 at 3, 7. The appellant alleged before the administrative judge that the agency had engaged in disability discrimination (failure to accommodate and disparate treatment). IAF, Tab 1 at 5, Tab 20 at 6. He also alleged that the agency had violated his due process rights because (1) the deciding official also served as the proposing official and (2) the agency had improperly relied on ex parte information regarding searches conducted for a vacant position for the appellant. IAF, Tab 18 at 4, Tab 25 at 15-18. The administrative judge informed the appellant of the applicable evidentiary burdens for these affirmative defenses. IAF, Tab 20 at 4-10.
¶4 Following a hearing conducted via Zoom for Government, the administrative judge issued an initial decision affirming the agency's removal action. IAF, Tab 26, Initial Decision (ID) at 1, 25. In so doing, she found that the agency proved the charges of (1) unavailability for regular, full-time duty and (2) failure to maintain medical clearance[2] by preponderant evidence and had satisfied the nexus requirement. ID at 9-13. She also found that the appellant failed to prove the aforementioned affirmative defenses and that, given the nature of the agency's charges, removal was warranted. ID at 13-24.
¶5 The appellant has filed a petition for review, and the agency has filed a response. Petition for Review (PFR) File, Tabs 1, 3. In his petition, the appellant argues that (1) the agency violated his due process rights and (2) the agency engaged in failure to accommodate disability discrimination. PFR File, Tab 1 at 4-20.
We reverse the initial decision in part to find that the agency violated the appellant's due process rights.
¶6 The appellant argues that the agency violated his due process rights. PFR File, Tab 1 at 6-10. To this end, he contends that the deciding official improperly relied on material ex parte information in deciding to remove him, i.e information regarding searches conducted by the agency for a vacant position to which he could be reassigned. Id. He avers that, although he was notified about one job search, the agency failed to inform him about the "particularities of other job searches" despite his requesting this information. Id. at 6-8. For the reasons discussed herein, we agree that the agency violated the appellant's due process rights and we reverse the agency's removal action.[3] ¶7 Before taking an appealable action that deprives a tenured Federal employee of his property right in his employment, an agency must provide him with minimum due process of law. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 543-46 (1985). Due process entitles the employee to oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story. Id. at 546; see 5 U.S.C. § 7513(b). In determining whether these requirements have been met, the Board analyzes whether a notice of proposed removal, along with the supporting documentation attached thereto and contemporaneously provided to the appellant, afforded him sufficient notice of the charges against him to enable him to make a meaningful reply to the proposal. See Alvarado v. Department of the Air Force, 97 M.S.P.R. 389, ¶ 8 (2004).
¶8 The Board also looks to whether new and material information was introduced by means of an ex parte communication to the deciding official. Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376-77 (Fed. Cir. 1999). Pursuant to the U.S. Court of Appeals for the Federal Circuit's decisions in Stone and Ward v. U.S. Postal Service, 634 F.3d 1274, 1279 (Fed. Cir. 2011), a deciding official violates an employee's due process rights when he relies on new and material ex parte information as a basis for his decisions on the merits of a proposed charge or the penalty to be imposed. The Board will consider the following factors, among others, to determine whether an ex parte contact is constitutionally impermissible: (1) whether the ex parte communication merely introduces "cumulative" information or new information; (2) whether the employee knew of the error and had a chance to respond to it; and (3) whether the ex parte communications were of the type likely to result in undue pressure upon the deciding official to rule in a particular manner. Stone, 179 F.3d at 1377. When a procedural due process violation has occurred, such a violation is not subject to the harmless error test; rather, the appellant is entitled to a new constitutionally correct administrative procedure. Id. ¶9 Here, the agency's August 21, 2017 notice of proposed removal stated, in pertinent part, that the appellant had been medically disqualified from his Air Traffic Control Specialist position since April 2016. IAF, Tab 6 at 84. The notice explained that "[t]he [agency's] policy is to assist, to the extent possible, the continued employment for employees who are found medically disqualified from their present position, but may still be qualified for other positions in the [a]gency." Id. at 85. The notice indicated that, on June14, 2016, the agency had received the appellant's requested job parameters and conducted an unsuccessful search for a vacant position based on the information he provided; however, "as of August 4, 2016," no vacant positions were available for him. Id. The notice also stated that the agency had conducted "a [second] job search, [Federal Aviation Administration (FAA)] and [Department of Transportation (DOT)] wide." Id.
¶10 In response to the notice of proposed removal, the appellant averred that he had not been provided information regarding the agency's job searches, to include the results thereof, and that the agency had not included this information in the list of the materials relied upon in the notice of proposed removal. Id. at 52-53, 86. Accordingly, the appellant requested information regarding both of the agency's job searches along with a list of "all FAA and DOT Jobs Government wide, which have been hired within the FAA and DOT Whether Temporaily Detailed and/or made permanent for hire, from the period of May 8th 2015 until present date." Id. at 52-53 (grammar, punctuation, and spelling in original).
¶11 On December 20, 2017, the agency issued its decision on the proposed removal, again stating that the agency had conducted two unsuccessful job searches for a position for the appellant. Id. at 54-59. The decision letter acknowledged the appellant's request for information regarding the searches; however, the letter stated that, if the appellant "would like to request information regarding FAA and DOT jobs [] from the period of May 8, 2015 to the present," he could "submit a formal request to the Freedom of Information Act (FOIA) Coordinator." Id. at 54-55. In other words, the decision letter indicated that the agency had not provided the appellant with any additional information regarding the job searches prior to effecting his removal; rather, upon effecting his removal, it informed him that he could seek publicly available information via a FOIA request. Id.
¶12 The appellant has not disputed...
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