                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LEAMON D. BRINSON,                              DOCKET NUMBER
                   Appellant,                        DC-0752-14-1129-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: November 10, 2016
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Steve M. Fesler, Sykesville, Maryland, for the appellant.

           Tracy W. Lin, Esquire, Washington, D.C., for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     sustained his removal.      For the reasons discussed below, we GRANT the
     appellant’s petition for review, VACATE the initial decision, and REMAND the
     case to the regional office for further adjudication in accordance with this Order.



     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                          2

                                       BACKGROUND
¶2         Prior to the appellant’s removal, he served as an Electronics Industrial
     Controls Mechanic with the agency’s Naval Facilities Engineering Command in
     Dahlgren, Virginia. Initial Appeal File (IAF), Tab 1 at 1, Tab 10 at 4, Tab 11
     at 17. In January 2014, the agency suspended the appellant for 30 days based on
     two disrespectful conduct charges and an insubordination charge. IAF, Tab 11
     at 13‑17.   In pertinent part, one of the disrespectful conduct charges and the
     insubordination charge involved the appellant’s interactions with his fifth‑level
     supervisor, Commander J.B. 2 IAF, Tab 10 at 23, Tab 11 at 8‑10.
¶3         The appellant filed a Board appeal challenging his suspension, and the
     administrative judge issued an initial decision sustaining the charges and
     affirming the suspension. Brinson v. Department of the Navy, MSPB Docket No.
     DC-0752-14-0424-I-1, Initial Decision (Oct. 31, 2014). The appellant did not file
     a petition for review of that initial decision, which became final. See 5 C.F.R.
     § 1201.113.
¶4         While the appellant’s Board appeal regarding his suspension was pending,
     the agency removed the appellant based on a single charge of disrespectful
     conduct supported by three specifications, all of which pertained to comments
     that the appellant made while taking Commander J.B.’s deposition during his
     Board appeal. 3 IAF, Tab 10 at 4‑10, 23‑26. The appellant filed a timely Board
     appeal challenging his removal, and requested a hearing. IAF, Tab 1 at 2, 4, 6.

     2
       Among other things, the agency alleged that the appellant: (1) refused to obey
     Commander J.B.’s instructions; (2) told Commander J.B. that he did not care who he
     was; (3) told Commander J.B to get out of his office and to “make like a tree and
     leave”; and (4) told Commander J.B. to “get the hell out of the building” and slammed a
     door in his face. IAF, Tab 11 at 8‑10.
     3
       In specification one, the agency alleged that the appellant called Commander J.B. an
     “outright liar.” IAF, Tab 10 at 23. In specification two, the agency alleged that the
     appellant implied that Commander J.B. had “short man syndrome” and “little man
     syndrome.” Id. at 23‑24. In specification three, the agency alleged that the appellant
     called Commander J.B. a “snake.” Id. at 24.
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     On his initial appeal form the appellant alleged, among other things, that the
     agency removed him in retaliation for filing his prior Board appeal regarding his
     suspension. Id. at 6. In his prehearing submission, the appellant stipulated that
     he had made the comments at issue in the charge, but contended that the agency
     could not discipline him for the comments because he was engaged in protected
     activity when he was taking Commander J.B.’s deposition. IAF, Tab 15 at 5.
¶5        The administrative judge conducted a telephonic prehearing conference and
     the following day, he issued an order summarizing the conference. IAF, Tab 13
     at 4, Tab 17. The prehearing conference order and summary reflected that, during
     the prehearing conference, the appellant withdrew his hearing request.         IAF,
     Tab 17 at 1. The summary further stated that the parties agreed that “the only
     material facts to be decided in this appeal, to the exclusion of all other issues,”
     were whether the agency proved the charge, nexus, and the reasonableness of the
     penalty. Id. The prehearing conference order and summary did not mention any
     affirmative defenses raised by the appellant. IAF, Tab 17.
¶6        The appellant filed a timely objection to the prehearing conference order
     and summary, which solely objected to the manner in which the administrative
     judge characterized certain additional comments that he allegedly made to
     Commander J.B., which were referenced as an aggravating factor in the notice
     proposing his removal.     IAF, Tab 18; see IAF, Tab 10 at 25, Tab 17 at 2.
     However, in a subsequent brief filed prior to the close of the record, the appellant
     continued to argue that the agency could not discipline him for his comments
     during Commander J.B.’s deposition, because he was engaged in protected
     activity when he made them. IAF, Tab 20 at 6‑11.
¶7        Based on the written record, the administrative judge issued an initial
     decision sustaining the appellant’s removal. IAF, Tab 25, Initial Decision (ID).
     In finding that the agency proved the charge, relying primarily on Board cases
     arising under the whistleblower protection provisions, the administrative judge
     found that, although the misconduct at issue “arguably” occurred when the
                                                                                       4

     appellant was engaged in protected activity, this did not immunize him from
     disciplinary action, given the context and manner in which the comments at issue
     were delivered. ID at 7; see ID at 5‑10. He further found that the agency proved
     a nexus between the charge and the efficiency of the service, ID at 10‑11, and
     that the penalty of removal was reasonable, ID at 11‑14. The initial decision
     stated that the appellant had not raised any affirmative defenses. ID at 3 n.2.
¶8        The appellant has filed a petition for review of the initial decision, in which
     he reiterates his arguments that the agency cannot remove him because he was
     engaged in protected activity when he made the comments at issue in the charge.
     Petition for Review (PFR) File, Tab 1 at 4, 7‑16. The agency has responded in
     opposition to the petition for review. PFR File, Tab 5.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶9        Although not raised by either party on review, we find that we must vacate
     the initial decision because the administrative judge failed to advise the appellant
     of the applicable burdens of proving an affirmative defense of retaliation for
     engaging   in   protected   activity.   The    Board   consistently   has   required
     administrative judges to apprise appellants of the applicable burdens of proving
     an affirmative defense, as well as the kind of evidence required to meet those
     burdens. Hall v. Department of Transportation, 119 M.S.P.R. 180, ¶ 4 (2013);
     Wynn v. U.S. Postal Service, 115 M.S.P.R. 146, ¶ 13 (2010). When an appellant
     raises an affirmative defense in an appeal either by checking the appropriate box
     on an appeal form, identifying an affirmative defense by name, or by alleging
     facts that reasonably raise such an affirmative defense, the administrative judge
     must address the affirmative defense in any close of record order or prehearing
     conference summary and order. Hall, 119 M.S.P.R. 180, ¶ 4; Wynn, 115 M.S.P.R.
     146, ¶ 10. Even if an appellant expresses an intention to withdraw an affirmative
     defense, the administrative judge is required, at a minimum, to identify the
     affirmative defense in the close of record order or prehearing conference
                                                                                        5

      summary and order, explain that the Board would no longer consider it when
      deciding the appeal, and give the appellant an opportunity to object to withdrawal
      of the affirmative defense. Wynn, 115 M.S.P.R. 146, ¶ 10.
¶10        We find that the appellant’s allegations that the agency removed him in
      retaliation for filing his prior Board appeal, and that the agency could not remove
      him based on the comments at issue because he was engaged in protected activity
      when taking Commander J.B.’s deposition reasonably raised an affirmative
      defense of retaliation for engaging in protected activity under 5 U.S.C.
      § 2302(b)(9)(A)(ii), which prohibits an agency from taking a personnel action
      based on “the exercise of any appeal, complaint, or grievance right granted by
      any law, rule, or regulation” that does not seek to remedy whistleblowing
      reprisal. 5 U.S.C. § 2302(b)(9)(A)(ii); see IAF, Tab 1 at 6, Tab 15 at 5, Tab 20 at
      6‑11. However, the administrative judge did not address the affirmative defense
      in the prehearing conference summary and order. IAF, Tab 17.
¶11        Furthermore, the record does not clearly indicate that the appellant intended
      to withdraw his affirmative defense.    In a footnote in the initial decision, the
      administrative judge stated that during the prehearing conference, the appellant’s
      union representative “confirmed” that the appellant was not raising an affirmative
      defense in the appeal. ID at 3 n.2. However, this statement was not contained in
      the prehearing conference summary and order. IAF, Tab 17. When, as here, an
      administrative judge did not provide the required notice, the Board will not deem
      an affirmative defense to have been abandoned even when the appellant does not
      raise an objection to a failure to include it in the prehearing conference summary.
      See Potter v. Department of Veterans Affairs, 116 M.S.P.R. 256, ¶ 9 n.3 (2011).
¶12        Moreover, the statement in the initial decision that the appellant confirmed
      that he was not raising an affirmative defense is inconsistent with the appellant’s
      continued and repeated assertions below and on review that the agency could not
      remove him based on his comments because he was engaged in protected activity
      when he was taking Commander J.B.’s deposition. IAF, Tab 20 at 6; PFR File,
                                                                                       6

      Tab 1 at 4, 7‑16. In light of the appellant’s arguments, it appears that he may not
      have understood that his claims that he engaged in protected activity and that the
      agency retaliated against him for exercising his Board appeal rights constituted an
      affirmative defense.
¶13        In addition, neither the initial decision nor the agency’s pleadings apprised
      the appellant of the burden and elements of proving an affirmative defense of
      retaliation for engaging in protected activity under 5 U.S.C. § 2302(b)(9)(A)(ii).
      IAF, Tabs 8‑11, 15, 19, 23; ID at 3‑10; see Easterling v. U.S. Postal
      Service, 110 M.S.P.R. 41, ¶ 11 (2008) (finding that an administrative judge’s
      failure to provide an appellant with proper jurisdictional notice can be cured if
      the initial decision puts the appellant on notice of what he must do to establish
      jurisdiction, thus affording him the opportunity to meet his jurisdictional burden
      on review). The administrative judge’s statement that the fact that the comments
      at issue in the charge were “arguably” made in the context of protected activity
      did not “immunize the appellant from disciplinary action” was insufficient to
      place the appellant on notice of the burden and elements of proving an affirmative
      defense of retaliation for protected activity under 5 U.S.C. § 2302(b)(9)(A)(ii).
      Compare ID at 7, with Mattison v. Department of Veterans Affairs, 123 M.S.P.R.
      492, ¶ 8 (2016) (setting forth the burden and elements of proof for an affirmative
      defense of retaliation for activity protected under 5 U.S.C. § 2302(b)(9)(A)(ii)
      when an appellant does not allege reprisal for equal employment opportunity
      (EEO) activity protected under title VII).
¶14        Furthermore, the administrative judge’s discussion of cases arising under
      the whistleblower protection provisions did not inform the appellant of the burden
      and elements of proving an affirmative defense of retaliation for protected
      activity under 5 U.S.C. § 2302(b)(9)(A)(ii). ID at 5‑7. As an initial matter, the
      initial decision did not clearly set forth the burden and elements of proving an
      affirmative defense of retaliation for whistleblowing. Id. More importantly, the
                                                                                         7

      burden and elements of proving an affirmative defense of retaliation for
      whistleblowing differ from the burden and elements of proving an affirmative
      defense of retaliation for protected activity under 5 U.S.C. § 2302(b)(9)(A)(ii).
      Specifically, an affirmative defense alleging retaliation for whistleblowing must
      be analyzed under the burden-shifting scheme set forth in 5 U.S.C. § 1221(e).
      See 5 U.S.C. § 1221(a), (i); Alarid v. Department of the Army, 122 M.S.P.R. 600,
      ¶ 12 (2015); Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶¶ 19‑20,
      32 (2013).    In contrast, in an affirmative defense of retaliation for activity
      protected under 5 U.S.C. § 2302(b)(9)(A)(ii), when, as here, the appellant does
      not allege reprisal for protected EEO activity, the appellant bears the burden of
      proof and the claim is analyzed under the standard set forth in Warren v.
      Department    of   the   Army,   804   F.2d   654,   656-58   (Fed. Cir. 1986).   See
      Mattison, 123 M.S.P.R. 492, ¶ 8; 5 C.F.R. § 1201.56(b)(2)(i)(C); see also
      Alarid, 122 M.S.P.R. 600, ¶ 15 (finding that the Warren standard is inapplicable
      to claims that are subject to the burden-shifting framework set forth in 5 U.S.C.
      § 1221(e)).
¶15        Additionally, while the administrative judge did a commendable job of
      discussing the “arguably” protected activity in the context of whether the agency
      proved the charge, he did not discuss whether the appellant established an
      affirmative defense to the charge. ID at 7‑10. Even if the agency proved the
      charge by a preponderance of the evidence, the Board cannot sustain the
      appellant’s removal if the appellant demonstrates that a prohibited personnel
      practice described in 5 U.S.C. § 2302(b), including retaliation for exercising
      Board appeal rights under 5 U.S.C. § 2302(b)(9)(A)(ii), was the motivating factor
      for the removal decision.    See 5 U.S.C. § 7701(c)(2)(B); Erkins v. U.S. Postal
      Service, 108 M.S.P.R. 367, ¶ 5 (2008); see also Savage v. Department of the
      Army, 122 M.S.P.R. 612, ¶ 48 (2015) (explaining the meaning of the term “based
      on any prohibited personnel practice” in 5 U.S.C. § 7701(c)(2)(B)); 5 C.F.R.
                                                                                      8

      § 1201.56(b)(1)(ii), (b)(2)(i)(C) (setting forth the burdens of proof for a charge
      and an affirmative defense). Thus, the issue of whether the appellant established
      an affirmative defense of retaliation for exercising his Board appeal rights is
      distinct from the issue of whether the agency proved the charge.
¶16         Finally, the appellant’s pleadings on review do not demonstrate that the
      appellant is aware of the burden and elements of proving an affirmative defense
      under 5 U.S.C. § 2302(b)(9)(A)(ii). PFR File, Tab 1; see Mahaffey v. Department
      of Agriculture, 105 M.S.P.R. 347, ¶¶ 10‑11 (2007) (finding that it was
      unnecessary to remand an appeal when an administrative judge failed to notify the
      appellant of the burden of proving an affirmative defense, given that among other
      things, the agency’s submissions put the appellant on notice of the burden and
      elements of proof necessary to establish the affirmative defense, and the
      appellant’s pleadings reflected that he understood the burden and elements of
      proof).   Instead, the appellant’s pleadings cite the standard for a claim of
      retaliation for protected activity under the Federal Service Labor Management
      Relations Statute (FSLMRS), 5 U.S.C. chapter 71, which differs from the burden
      and elements of proving an affirmative defense of retaliation for protected
      activity under 5 U.S.C. § 2302(b)(9)(A)(ii). PFR File, Tab 1 at 9‑15; compare
      Mattison, 123 M.S.P.R. 492, ¶ 8, with Letterkenny Army Deport & International
      Brotherhood of Police Officers, Local 358, 35 F.L.R.A. 113, 118 (1990) (setting
      forth the burdens and elements for proving a claim of retaliation for protected
      activity under the FSLMRS).
¶17         Accordingly, because the administrative judge did not inform the appellant
      of the applicable burdens of proving an affirmative defense of retaliation for
      protected activity under 5 U.S.C. § 2302(b)(9)(A)(ii), we must vacate the initial
      decision and remand this case for further adjudication. See Hall, 119 M.S.P.R.
      180, ¶ 6; Wynn, 115 M.S.P.R. 146, ¶ 13; see also Viana v. Department of the
      Treasury, 114 M.S.P.R. 659, ¶¶ 1, 8 (2010) (vacating an administrative judge’s
                                                                                              9

      findings that an agency proved the charge, nexus, and penalty where the appeal
      was remanded for further adjudication of the appellant’s affirmative defense).
¶18         On remand, the administrative judge shall inform the appellant of the
      burden and elements of proof regarding an affirmative defense of retaliation for
      protected activity under 5 U.S.C. § 2302(b)(9)(A)(ii), and afford the parties an
      opportunity for further development of the record regarding this issue, including
      an opportunity to conduct discovery, and a hearing on the appellant’s affirmative
      defense, if the appellant requests one. 4       Although the prehearing conference
      summary and order reflects that the appellant orally withdrew his hearing request
      during the prehearing conference, it did not include any discussion of the basis
      for or circumstances surrounding that withdrawal, and the appellant made this
      decision without notice of the applicable burdens of proving his affirmative
      defense.      IAF, Tab 17 at 1, see Perez Peraza v. Office of Personnel
      Management, 114 M.S.P.R. 457, ¶ 15 (2010) (finding that an administrative judge
      should afford an appellant the opportunity for a hearing on remand, when, among
      other things, the appellant made the decision to withdraw his request for a hearing
      without notice of the proper standard to be applied in asserting a claim of
      equitable estoppel).    After conducting additional proceedings on remand, the
      administrative judge shall issue a new initial decision making appropriate
      findings regarding the charge, nexus, and penalty, and addressing the appellant’s
      affirmative                                                                      defense.




      4
        Although, based on the appellant’s petition for review, it does not appear that he
      intends to withdraw his affirmative defense, if he indicates that he wishes to do so after
      being apprised of the applicable burdens and elements of proof, the administrative
      judge shall issue an order identifying the affirmative defense, explaining that the Board
      will no longer consider it in deciding the appeal, and afford the appellant an opportunity
      to object to the withdrawal. See Wynn, 115 M.S.P.R. 146, ¶ 10.
                                                                                   10

                                          ORDER
¶19        For the reasons discussed above, we remand this case to the regional office
      for further adjudication in accordance with this Remand Order.




      FOR THE BOARD:                          ______________________________
                                              Jennifer Everling
                                              Acting Clerk of the Board
      Washington, D.C.
