Lack of Date Specificity in Proposal Not Always Due Process Violation
By Deborah J. Hopkins, July 17, 2024
Quick facts:
- Due process requires specificity in charges
- When incidents of misconduct are clear – such as exposing a penis in the workplace or smacking a coworker on the buttocks – the date might not need to be specific
- If an appellant, by his response, indicates he is aware of the misconduct charged, it weakens his argument of a due process violation
One of the fundamental elements in an adverse action against a Federal employee is for the agency to provide the employee with due process: a notice of the charges against the employee and any material relied upon, an opportunity for the employee to respond, and an impartial decision. 5 USC §§ 7503(b), 7513(b). As part of the notice step, the charges are required to be specific and detailed so the employee can make a meaningful reply. See Mason v. Navy, 70 M.S.P.R. 584 (1996); Pope v. USPS, 114 F.3d 1144 (Fed. Cir. 1997).
A recent MSPB case involved an employee who was removed on a charge of conduct unbecoming, with six specifications of sexually inappropriate behavior, including comments, touching, and exposing his penis in the workplace, Lewis v. Army, DC-0752-18-0856-I-1 (May 20, 2024)(NP). The administrative judge affirmed the removal, finding the agency proved five of the six specifications. The appellant filed a Petition for Review, challenging that his due process rights were violated by the lack of detail and specificity in the dates and locations the agency provided in the proposal notice.
Consider the below specifications (taken word for word from the case, but with some quotes and internal citations omitted for ease of reading), and see if you agree:
- Specification 1: On multiple (approximately four) occasions during the period on or around June 2017 through January 2018, you kissed [your coworker] on her cheek during work hours in workspaces, such as by the water fountain, exiting the women’s restroom or in the hallway.
- Specification 2: On one Friday between June 2017 and January 2018, when [your coworker] was leaving the Payroll office, you smacked [her] buttocks with your hand.
- Specification 3: Between June 2017 and January 2018, on multiple occasions, primarily while [your coworker] was passing the hallway and once when she was sitting in [your supervisor’s] office, you held a paper towel dispenser roll to your genital area implying the size of your penis, and on one of these occasions stated, “In case you were wondering.”
- Specification 4: On or around Fall 2017, when [your coworker] was in the payroll office, you walked by her and told her, “One night with me, and you won’t want to be with your husband.”
- Specification 5: On 24 May 2018, while you were sitting down on your chair facing towards the walkway, you exposed your penis in full view and were taking pictures of your penis with your cellphone in your cubicle.
- Specification 6: In early winter of 2017, you went to [your coworker’s] office while she was working alone, you walked behind [your coworker], who was sitting in her chair, and you placed both of your arms around her. Your face was touching her cheek, and you whispered in her ear, “I noticed your leave was low, and I am known for padding people’s leave for ‘special favors.’” She rebuffed you. You kissed her cheek on your way out and told her, “Let me know if you change your mind.”
So, FELTG reader, what do you think? Specific enough to satisfy due process, or not?
The Board considered the appellant’s arguments. While it held the locations were specific, it agreed with the appellant that the notice was not specific about the times and dates of the alleged conduct; each specification identified a range of several months’ time (for example, “between June 2017 and January 2018”). The Board compared Lewis to a lead case (one we also will discuss during MSPB Law Week September 9-13) where a lack of specificity in the dates attached to the charges indeed violated the appellant’s due process: Mason, supra. The Board then distinguished Lewis from Mason:
[W]e decline to interpret Mason so broadly as to impose a due process requirement that agencies, in all cases, affix a specific date to alleged misconduct. This is particularly so in cases like this one, where the agency itself lacked sufficient information to narrow down the occurrences to specific dates. A blanket rule imposing such a requirement could effectively prevent agencies from disciplining employees when it is unclear exactly when their misconduct occurred, and we do not think that this would be a desirable outcome.
Lewis at 6.
The Board went on to explain three additional reasons why the events in Lewis can be distinguished from Mason:
- The agency provided the appellant in Lewis with an approximate range of dates (up to about 6 months) for each specification, whereas the agency in Mason did not even notify the appellant of the year when he was alleged to have committed his misconduct.
- The agency offered the appellant in Lewis all the information it had concerning the dates for the specifications, whereas the agency in Mason withheld such information even though it could have supplied it.
- The agency in Mason surprised the appellant at the hearing by eliciting testimony about the precise dates of the alleged misconduct, but there was no such surprise for the appellant in Lewis.
Id.
In addition, the appellant in Lewis indicated by his responses that he understood the events in question that led to the charges. Because of these significant differences, the Board held that the lack of specificity on the dates in Lewis was not so egregious that it deprived the appellant of a meaningful opportunity to respond. The Board upheld the removal and closed the case by saying:
In sum, although a more specific proposal notice may have offered the appellant additional bases to challenge the proposal, due process did not require any greater specificity under the facts of this case. The proposal notice disclosed all of the known facts with respect to time and place, and it was otherwise sufficient to put the appellant on notice of the reasons for his removal. We find that the administrative judge made no error in analyzing the appellant’s due process defense. The appellant has not challenged the administrative judge’s findings on the agency’s case in chief, and we find no reason to disturb them.
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