FEDERAL EDUCATION ASSOCIATION - STATESIDE REGION, KAREN GRAVISS, Petitioners
DEPARTMENT OF DEFENSE, DOMESTIC DEPENDENTS ELEMENTARY AND SECONDARY SCHOOL, Respondent
for review of an arbitrator's decision in No.
14-1024-00182-7 by Steven G. Hoffmeyer.
Dorothy Louise Lee, Federal Education Association Stateside
Region, Dublin, OH, argued for petitioners.
K. HOGAN, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, argued
for respondent. Also represented by Benjamin C. Mizer, Robert
E. Kirschman, Jr., Claudia Burke.
Dyk, Plager, and Reyna, Circuit Judges.
Karen Graviss petitions for review of an arbitrator's
decision denying the Federal Education Association -Stateside
Region's ("FEA") grievance of her removal for
"inappropriate physical contact with a student."
The arbitrator held that FEA failed to show that Ms.
Graviss's due process rights were violated and that the
Department of Defense and Domestic Dependent Elementary and
Secondary Schools ("DDESS") had proved by a
preponderance of the evidence that the removal penalty both
promoted the efficiency of the service and was reasonable. We
hold that Ms. Graviss's due process rights were violated
by an improper ex parte communication between a
supervisor and the deciding official. Accordingly, we reverse
Graviss has worked in the education field since 1978,
primarily serving as a teacher to young special needs
children. Ms. Graviss started as a pre-school teacher for a
rehabilitation center and eventually transitioned to work as
a second-grade teaching assistant and regular education
teacher. From 1994 to 2008, Ms. Graviss worked in the Fort
Knox Educational Development Intervention Services Program at
Ireland Army Hospital. In 2008, DDESS hired Ms. Graviss as a
pre-school teacher for special needs children at Kingsolver
Elementary, part of Fort Knox Schools, where she worked until
her removal on June 16, 2010. At Kingsolver Elementary, Ms.
Graviss taught three- and four-year-old children with
disabilities such as autism.
events precipitating Ms. Graviss's removal are recounted
in detail in the arbitrator's decision. See J.A.
804-90. For purposes of this appeal, we provide only a brief
summary. Special education teachers must make difficult
judgment calls in determining how to handle the behavior of
their special needs students. This case has its genesis in
divergent approaches to that problem.
January 22, 2010, Dr. Andrea McClain, Kingsolver
Elementary's principal and Ms. Graviss's direct
supervisor, issued Ms. Graviss a letter of reprimand based on
an "inappropriate interaction with a student" and
"failure to follow directives." J.A. 691.
Specifically, the letter stated that, on January 15, 2010,
Ms. Graviss and her aide had physically carried-"under
his arms" and "under his knees"-a misbehaving
general education pre-school student who "wouldn't
come to [the principal's] office" on his own.
Id. The letter also stated that Ms. Graviss had
emailed concerns to Dennis Labriola, the director of special
education, when Dr. McClain had previously directed Ms.
Graviss to "bring all issues directly to [her] attention
as the building principal." Id. FEA filed a
grievance concerning the letter.
on March 22, 2010, one of Ms. Graviss's students had an
episode, which manifested in his repeatedly flailing his
arms, kicking, and screaming. While the other students were
out at recess, Ms. Graviss employed two methods of physical
restraint on the child in an attempt to subdue him. First,
Ms. Graviss sat the child in a bean bag chair next to a wall
and rolled the chair over itself toward the wall with the
student inside. Second, after another outburst approximately
three hours later, Ms. Graviss sat the child in a chair,
pressed into the back of the chair with her knee, and pulled
on the child's crossed arms from behind. Ms. Graviss does
not appear to materially dispute the factual record of the
events described, but contends that such methods of restraint
were not improper. Two of Ms. Graviss's classroom aides
who were present at the time later reported the incidents via
email to Dr. McClain. Dr. McClain then conducted an interview
with Ms. Graviss in the presence of an FEA representative.
After the interview, Dr. McClain completed and submitted a
Family Advocacy Program Department of Defense Education
Activity ("DoDEA") Serious Incident Report and
Alleged Child Abuse Report to the Family Advocacy Program,
which operates like Child Protective Services for the
military and investigates institutional child abuse.
March 26, 2010, Dr. McClain forwarded the Serious Incident
Report via email to her direct supervisor, Community
Superintendent John Todd Curkendall, who would later serve as
the deciding official in Ms. Graviss's removal
proceedings, and his supervisor, District Superintendent Dr.
Frank Calvano. In response to this email, District
Superintendent Dr. Calvano replied to both Dr. McClain and
Mr. Curkendall ("the March 26 email"), stating,
"I think this is going to come back with a ruling of no
fowl [sic]. Regardless, we need to try and
terminate her for repeated use of corporeal [sic]
punishment and for insubordination . . . ."
J.A. 630 (emphasis added). Dr. McClain quickly replied to
both Dr. Calvano and Mr. Curkendall, stating, "Luckily,
we have the two witnesses. I strongly support termination.
This would match the DoDEA 1435.1 reg for a second offense of
insubordination and the one on causing bodily harm. The
second offenses on those both say suspension or
April 12, 2010, Dr. McClain issued a notice of proposed
removal for Ms. Graviss. J.A. 708-09. The notice alleged a
single charge of "inappropriate physical contact with a
student" based on the instances of physical restraint
discussed above. The notice did not charge Ms. Graviss with
either of the more serious charges of corporal punishment or
insubordination discussed by Dr. Calvano in the March 26
email. Id. The notice informed Ms. Graviss that she
could reply both in writing and orally to Mr. Curkendall, who
would serve as the deciding official. J.A. 709. Ms. Graviss,
represented by FEA as her union representative, responded
both in writing and orally to Mr. Curkendall. Neither Ms.
Graviss nor FEA was informed at the time about the March 26
email correspondence between Dr. McClain, Dr. Calvano, and
14, 2010, after considering Ms. Graviss's submitted
replies, Mr. Curkendall issued a formal written decision
concluding that "the proposed removal and the charge of
inappropriate physical contact with a student are fully
supported by a preponderance of the evidence. . . . [The
removal] is reasonable and promotes the efficiency of the
service." J.A. 797. Ms. Graviss was removed from her
position effective June 16, 2010.
filed a grievance challenging Ms. Graviss's removal on
September 9, 2010. DDESS denied the grievance, and FEA
invoked arbitration. During discovery proceedings leading up
to the arbitration, Ms. Graviss learned for the first time
about the March 26 email when DDESS produced a copy in
discovery. The arbitrator then held a hearing on October 22
and 23, 2014, at which he heard testimony from many
witnesses, including Mr. Curkendall and Dr. Calvano. Mr.
Curkendall testified that, although he considered
"everything relative to this case" in making his
decision, his direct supervisor Dr. Calvano "did not
direct him how to rule in this matter" in the March 26
email. J.A. 826. Mr. Curkendall further testified that he had
issued recent disciplinary decisions contrary to Dr.
Calvano's views-including, in this case, imposing lesser
punishment than Dr. Calvano had suggested. See J.A. 861.
Calvano similarly testified that he "never issued a
directive or an order on how Mr. Curkendall should rule on a
case, " including with respect to Ms. Graviss. J.A. 827.
Dr. Calvano further testified that "I'm responsible
for everything and sometimes I make direct decisions and give
direct orders and sometimes I opine on matters with respect
to sharing my views with proposing officials or deciding
officials .... Sometimes folks agree with me and sometimes
they don't." J.A. 861. Dr. Calvano explained that
typically, when he does "opine on proposed discipline,
" he communicates his opinion to Nancy Gilley, the labor
relations specialist. J.A. 827-28. He testified that "I
typically, if you will, am overridden by Nancy Gilley ....
She and I oftentimes agree; sometimes we don't."
J.A. 828. On cross-examination, it became apparent that Nancy
Gilley, unlike Mr. Curkendall, does not report to Dr.
Calvano. See J.A. 861-62.
final written decision, the arbitrator rejected Ms.
Graviss's first due process argument that the March 26
email should have been disclosed to her at an earlier stage
of the proceedings. The arbitrator held that the argument
"lacks logic" because even if the March 26 email
had been disclosed at an earlier stage, the disclosure would
not have eliminated the alleged bias. J.A. 863. The
arbitrator also rejected Ms. Graviss's due process
argument that the March 26 email constituted an improper
ex parte communication under Stone v. Federal
Deposit Insurance Corp., 179 F.3d 1368 (Fed. Cir. 1999).
The arbitrator explained, "[i]f Calvano's email was
intended to be influential on the proposing or deciding
official it was wholly ineffective. Were those officials
influenced by the email they would have had ample opportunity
and ability to modify the charges, to rewrite the unwritten,
as yet, Notice of Proposed Removal, which they did not
do." J.A. 863. The arbitrator then held, without any
detailed analysis of the three Stone factors
discussed below, that "unlike in Stone, the
Calvano statement contains no 'new and material
information.'" Id. The arbitrator found
that the evidence "do[es] not show Curkendall was not
the decider in this matter. The full record shows Curkendall
was the independent decider required under case law."
Graviss petitions for review in our court. We have
jurisdiction under 28 U.S.C. § 1295(a)(9); see
also 5 U.S.C. §§ 7121(b)(2)(B), 7703(b)(1). In
reviewing the arbitration award, we apply the same standard
that is applied to appeals from the Merit Systems Protection
Board ("Board"). 5 U.S.C. § 7121(f); Young
v. Dep't of Hous. & Urban Dev., 706 F.3d 1372,
1375 (Fed. Cir. 2013). Under that standard, we must affirm
the arbitrator's decision unless it is (1) arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law; (2) obtained without procedures required
by law, rule, or regulation having been followed; or (3)
unsupported by substantial evidence. 5 U.S.C. § 7703(c);
Young, 706 F.3d at 1375-76. "In addition, we
must reverse an arbitrator's decision if it is not in
accordance with the requirements of the Due Process Clause of
the Fifth Amendment or any other constitutional
provision." Young, 706 F.3d at 1376 (citing
Ward v. U.S. Postal Serv., 634 F.3d 1274, 1278 (Fed.
employees like Ms. Graviss possess a constitutionally
protected property right in their continued employment.
See, e.g., Arnett v. Kennedy, 416 U.S. 134, 155
(1974); Stone, 179 F.3d at 1374. In Cleveland
Board of Education v. Loudermill, the Supreme Court held
that pre-deprivation due process is required in public
employee discharge cases, stating,
[w]e have described the root requirement of the Due Process
Clause as being that an individual be given an opportunity
for a hearing before he is deprived of any
significant property interest. This principle requires some
kind of a hearing prior to the discharge of an employee.
470 U.S. 532, 542 (1985) (internal quotation marks, footnote,
and citations omitted). "[W]here a serious procedural
curtailment mars an adverse personnel action which deprives
the employee of pay, . . . the defect divests the removal ...
of legality .... In that situation, the merits of the adverse
action are wholly disregarded." Sullivan v.
Dep't of Navy, 720 F.2d 1266, 1274 (Fed. Cir. 1983)
(quoting Ryder v. United States, 585 F.2d 482,
487-88 (Ct. CI. 1978)).
decision in Stone v. Federal Deposit Insurance Corp.
sets forth the constitutional due process requirements that
apply to cases such as this involving ex parte
communications to the deciding official. 179 F.3d at 1376. In
fact, Stone involved nearly identical circumstances
to those of this case, as the government largely concedes.
Mr. Stone was removed from his federal position, and he
appealed to the Board. Id. at 1372. During the
discovery process, Mr. Stone learned for the first time that
the deciding official had received an ex parte
memorandum from the proposing official and another ex
parte memorandum from a third government employee, both
urging that Mr. Stone be removed. Id. at 1372-73. In
an affidavit, the deciding official stated that he would have
concluded that Mr. Stone should be removed "whether or
not he had seen" the ex parte memorandum from
the proposing official. Id. at 1373. The Board
denied Mr. Stone's appeal, and he petitioned for review
in our court. Id.
that "[t]he introduction of new and material information
by means of ex parte communications to the deciding
official undermines the public employee's constitutional
due process guarantee of notice (both of the charges and of
the employer's evidence) and the opportunity to
respond." Id. at 1376. Accordingly, it is
"constitutionally impermissible to allow a deciding
official to receive additional material information that may
undermine the objectivity required to protect the fairness of
the process." Id. We went on to explain,
however, that "not every ex parte communication
is a procedural defect so substantial and so likely to cause
prejudice that it undermines the due process guarantee and
entitles the claimant to an entirely new administrative
proceeding." Id. at 1376-77. Rather, only
ex parte communications that "introduce new and
material information to the deciding official"
contravene due process. Id. at 1377. The key,
therefore, is determining whether the ex parte
communication contained "new and material
articulated three relevant factors: whether (1) the ex
parte communication merely introduces
'cumulative' information or new information";
(2) "the employee knew of the error and had a chance to
respond to it"; and (3) the communications were "of
the type likely to result in undue pressure upon the deciding
official to rule in a particular manner." Id.
Ultimately, the inquiry is "whether 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." Id. Finally, we made clear
that, if new and material information has been conveyed by
the ex parte communication, "then a due process
violation has occurred and the former employee is entitled to
a new constitutionally correct removal procedure .... [W]hen
a procedural due process violation has occurred because of
ex parte communications, such a violation is not
subject to the harmless error test." Id. at
1377. Accordingly, we reversed and remanded for the Board to
consider the above factors and make a determination as to
whether the ex parte communications introduced new
and material information such that Mr. Stone's due
process rights had been violated. Id. Similarly, in
Sullivan we held that "improper ex
parte communications were not only unfair, but also
denied petitioner his rights under the due process clause of
the Constitution" and "further that they tainted
the investigation, voided the entire proceeding, and rendered
[the] removal decision a nullity." 720 F.2d at 1274.
the arbitrator here, Ms. Graviss argued that Stone
required a finding that her due process rights had been
violated. See J.A. 946. The arbitrator did not
undertake any detailed analysis of the Stone
factors, but instead summarily concluded that "unlike in
Stone, the Calvano statement contains no 'new
and material information.'" J.A. 863. Substantial
evidence, therefore, does not support the arbitrator's
decision in this respect. Even a brief examination of the
Stone factors reveals that Ms. Graviss's due
process rights were violated by the March 26 email.
government first argues that the Stone factors do
not apply at all here because the communication occurred
before removal proceedings had been brought against Ms.
Graviss. The government contends that improper ex
parte communications can only occur once the removal
proceeding had actually begun-in this case, when the notice
of proposed removal had been issued. To be sure, as we
discuss below, not all ex parte communications
before the initiation of a proceeding will violate due
process. But we see no basis for a distinction between pre-
and post-initiation communications when the ex parte
communication occurred at a time, as is the case here, when
an adjudicatory proceeding was contemplated. The risk of
creating undue pressure in such circumstances is just as
great when ex parte contact occurs before the
proceeding begins as when it occurs after the proceeding
it is clear that a proceeding was contemplated; indeed, that
was the very purpose of the email, and it does not matter for
the purposes of constitutional due process whether the ex
parte communication occurred before or after formal
proceedings had been initiated. Notably, under the
Administrative Procedure Act, ex parte
communications in the formal adjudication context are
prohibited when "the person responsible for the
communication has knowledge [the proceeding] will be
noticed." 5 U.S.C. § 557(d)(1)(E). The Board itself
follows this rule. See 5 C.F.R. § 1201.102
(prohibiting ex parte communications "from the
time the persons ...