The MSPB held in two cases, involving related issues, that a deciding official's consideration of information to enhance penalties violated an employee's due process rights where the employee was not put on notice of the consideration of new evidence. Both cases involved a deciding official improperly considering new and material information, but failing to inform the employee in the notice of proposed action that such information was being considered. The Administrative Judge in Thomas did not fully address the potential due process violation, while the Administrative Judge in Gray found that Mr. Gray failed to prove a violation of his due process rights. The Board reversed Gray after finding that the information the deciding official considered was "new and material," and remanded Thomas for further inquiries. Thomas v. U.S. Postal Service, 2011 MSPB 62 (June 14, 2011) and Gray v. Department of Defense, 2011 MSPB 64 (June 17, 2011).
These cases stand for the principle that employees are entitled to know, not just all of the evidence used against them to uphold a charge of misconduct, but are also entitled to know all of the reasons relied upon to support a particular penalty, such as a removal. If an agency deciding official relies on information to enhance a penalty, and that information is not shared with the employee so that the employee can present a response, the entire case aganist the employee may be thrown out by the MSPB. If the employee had been terminated, that means the employee would be reinstated to his/her prior job with full back pay and benefits.
This case represents a continuing and refreshing trend at the current MSPB to safegurad the due process rights of federal employees.