Fed. Educ. Ass’n-Stateside Region v. DOD
841 F.3d 1362 (Fed. Cir. 2016)
Authored by Irán García Domenech
Statement of Facts: Ms. Karen Graviss was a preschool teacher for special needs children at Kingsolver Elementary of the Department of Defense and Domestic Dependent Elementary School and Secondary Schools (“DDESS”). On January 22, 2010, Ms. Graviss was reprimanded by Dr. Andrea McClain, the principal at Kingsolver Elementary and Ms. Graviss’s direct supervisor, based on inappropriate interactions with a student and for failure to follow directives. Ms. Graviss was accused of physically carrying a misbehaving student to the principal’s office and of failing to bring the issue directly to Dr. McClain. Later, on March 22, 2010, Ms. Graviss physically restrained a child in an attempt to subdue him. Two of Ms. Graviss’ classroom aides reported the incidents to Dr. McClain. Dr. McClain conducted an interview with Ms. Graviss, and then completed and submitted a Serious Incident Report and Alleged Child Abuse Report to the DOD Education Activity (“DODEA”)’s Family Advocacy Program. On March 26, 2010, Dr. McClain e-mailed the Serious Incident Report (“March 26 e-mail”) to her direct supervisor, Community Superintendent John Todd Curkendall, and his supervisor, District Superintendent Dr. Frank Calvano. Dr. Calvano responded that regardless of his belief that there would be a ruling of no foul play, they should try to terminate Ms. Graviss for repeated use of corporal punishment because it would match a DODEA regulation for a second offense of insubordination and a DODEA regulation on causing bodily harm, both offenses punished by either suspension or removal from the position. On April 12, 2010, Dr. McClain issued a notice of proposed removal for Ms. Graviss. The notice alleged only a single charge of “inappropriate physical contact with a student” and said that Mr. Curkendall would serve as the deciding official. Id.
Procedural History: On June 14, 2010, after considering Ms. Graviss’ submitted replies to the accusations, Mr. Curkendall issued a formal written decision concluding that the proposed removal and charge against Ms. Graviss are fully supported by a preponderance of the evidence, and that the removal is reasonable. On June 16, 2010, Ms. Graviss was removed from her position. On September 9, 2010, The Federal Education Association (“FEA”), Ms. Graviss’ Union, filed a grievance challenging her removal. DDESS denied the grievance and FEA invoked arbitration. In his final decision, the arbitrator rejected Ms. Graviss’ due process claim that the March 26 e-mail should have been disclosed to her at an earlier stage of the proceedings because earlier disclosure would not have eliminated any bias. The arbitrator additionally rejected Ms. Graviss’s claim that the March 26 e-mail constituted an improper ex parte communication under Stone v. Federal Deposit Insurance Corp., 179 F.3d 1368 (Fed. Cir. 1999). Fed. Educ. Ass’n-Stateside Region v. DOD, 841 F.3d 1362, 1365 (Fed. Cir. 2016). The arbitrator held, without discussing any of the Stone factors, that the March 26 e-mail did not contain any new information and that Mr. Curkendall independently decided that Ms. Graviss should be removed from the position. Ms. Graviss petitioned the Federal Circuit for review.
Question Presented: Whether the March 26 e-mail constituted an improper ex parte communication under Stone that violated Ms. Graviss’ pre-termination due process rights under the Fifth Amendment.
Holding: Yes. Ms. Graviss’ pre-termination due process rights were violated because 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.” Fed. Educ. Ass’n-Stateside Region, 841 F.3d at 1366 (citing Stone, 179 F.3d at 1376). The majority reversed the arbitrator’s decision and remanded for further proceedings.
Reasoning: The majority held that substantial evidence does not support the arbitrator’s decision and that an examination of the Stone factors reveals that the March 26 e-mail violated Ms. Graviss’ due process rights. In Stone, the majority articulate three factors to consider when determining whether an ex parte communication violated a person’s due process guarantee of notice and the opportunity to respond: “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.” Fed. Educ. Ass’n-Stateside Region, 841 F.3d at 1366 (citing Stone, 179 F.3d at 1377).
In regards to the first Stone factor, the majority found that the March 26 e-mail introduced new information to the deciding officer, Mr. Curkendall, because it informed him for the first time that his supervisor wanted Ms. Graviss to be removed for insubordination and use of corporal punishment. Thus, the majority held that the first Stone factor was satisfied.
Concerning the second Stone factor, the majority found that Ms. Graviss learned about the March 26 e-mail during the discovery process leading up to the arbitration, “long after [Ms. Graviss’s] opportunity to respond to her proposed termination had closed, the termination decision was made, and she was removed from her position.” Id. at 1368. The majority found that because Ms. Graviss learned about the March 26 e-mail four years after her termination she was not given a constitutionally correct removal procedure. Thus, the majority held that the second Stone factor was satisfied.
As to the third Stone factor, the majority stated that “the fundamental issue is whether there was a substantial potential for undue pressure using the objective standard of Stone.” Fed. Educ. Ass’n-Stateside Region, 841 F.3d at 1369. The third Stone factor directs the inquiry to the type of communication involved, and does not require proof that the ex parte communication actually resulted in undue pressure upon the deciding official to rule in a particular matter. The majority held that the March 26 e-mail was the type of communication likely to result in undue pressure on the deciding official. The language included in the e-mail by Dr. Calvano created a high risk that his subordinate deciding officer, Mr. Curkendall, would have been unduly pressured to terminate Ms. Graviss. Thus, because the undisclosed e-mail was of the type of communication likely to result in undue pressure, the third Stone factor was satisfied.
Dissenting Opinion: Judge Plager dissented from the majority’s conclusion that Ms. Graviss was denied her constitutional rights during her removal. Judge Plager opined that the majority’s decision “has the potential to chill important discussions regarding personnel matters among responsible supervisors, discussions that are essential to well-functioning agency administration.” Id. at 1370. Judge Plager concluded that none of the three Stone factors were satisfied.
Concerning the first Stone factor, Judge Plager said that when the factor invokes the concept of a relevant ex parte communication it is a communication that contains new and material information about the facts and circumstances of the event at issue. Here, Dr. Calvano’s e-mail did not contain any new information about the specifics of the incident described in the report, on which the charges against Ms. Graviss were based. Thus, Judge Plager would have held that the first Stone factor was not met.
Regarding the second Stone factor, Judge Plager opined that the majority opinion is imposing a higher due process standard than that imposed by Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985). Fed. Educ. Ass’n-Stateside Region, 841 F.3d at 1374. In Loudermill, the Supreme Court held that during a termination hearing, a public employee is entitled 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. Judge Plager points to the record of the arbitration proceeding and found that the arbitrator gave Ms. Graviss full opportunity to respond to the implications of the March 26 e-mail. The hearing before the arbitrator, although it occurred after her removal from her position, provided Ms. Graviss with a full opportunity to explore the ramifications of the communication, including the opportunity to confront the administrator who made the decision to remove her. Thus, Judge Plager would have held that the second Stone factor was not met.
As to the third Stone factor, Judge Plager found that the facts and circumstances of this case show that there was no undue pressure on the deciding official. Judge Plager states that the majority should have adopted a more deferential standard of review and should not have overruled the impartial arbitrator’s factual conclusions. The arbitrator had an opportunity to hear from Mr. Curkendall and was convinced that Mr. Curkendall did not feel any pressure regarding how to decide the case. Therefore, Judge Plager would have held that the third Stone factor was not met, and that the arbitrator’s decision should not have been reversed.