                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     NICOLE E. CHILDRESS,                            DOCKET NUMBER
                    Appellant,                       CH-0752-14-0190-I-1

                  v.

     DEPARTMENT OF THE TREASURY,                     DATE: April 19, 2016
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Nicole E. Childress, Florissant, Missouri, pro se.

           Diana R. Stallard, Esquire, Dallas, Texas, 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 her removal.      For the reasons discussed below, we AFFIRM the
     administrative judge’s finding that the agency established the charge by
     preponderant evidence based on the appellant’s stipulation to the charged
     misconduct, VACATE the administrative judge’s findings as to nexus and

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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     penalty, GRANT the appellant’s petition for review, and REMAND the case to
     the regional office for further adjudication in accordance with this Order.

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶2        The agency removed the appellant from the GS-8 seasonal position of
     Contract Representative with the Internal Revenue Service (IRS) based on the
     charge of receiving Government funds to which she was not entitled.           Initial
     Appeal File (IAF), Tab 5, Subtabs 4b, 4e. The agency specified that, during 6
     separate weeks in 2009, 2010, and 2011, the appellant received unemployment
     benefits to which she was not entitled because of her earnings from the IRS. 2 Id.,
     Subtab 4e. The appellant appealed the agency’s action and, during the course of
     proceedings below, alleged a number of affirmative defenses. IAF, Tabs 1, 27.
¶3        The administrative judge found that the agency proved the charged
     misconduct and that the appellant failed to prove her affirmative defense. IAF,
     Tab 33, Initial Decision (ID) at 3-6, 12-13.           Regarding the latter, the
     administrative judge found that, contrary to the appellant’s assertion, the notice
     of proposed removal was in compliance with the Internal Revenue Manual (IRM).
     ID at 13. The administrative judge also found that the agency established nexus
     between the proven misconduct and the efficiency of the service and that the
     removal penalty was within the bounds of reasonableness. ID at 6-12.
¶4        In her petition for review, the appellant contends that the administrative
     judge erred in her findings regarding nexus and penalty. As explained below,
     given the necessity of further adjudication of the appellant’s affirmative defenses,
     it is premature for the Board to consider whether there is nexus between the
     appellant’s misconduct and the efficiency of the service, and whether the removal
     penalty    may      be    imposed.         See     Hall     v.    Department      of
     Transportation, 119 M.S.P.R. 180, ¶ 8 (2013).

     2
       During Board proceedings, the agency withdrew one of the specifications.
     IAF, Tab 26 at 13 n.2.
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¶5          In her prehearing submissions, the appellant, acting pro se, raised the
     affirmative defenses of harmful procedural error, unlawful discrimination,
     potential due process violations, and that the agency action was “not in
     accordance with law.” IAF, Tab 27 at 8-9. As to harmful procedural error, she
     claimed that the agency violated the collective bargaining agreement and, as
     noted above, the IRM when it removed her. Id. After holding the prehearing
     conference, the administrative judge issued an order and summary stating that the
     appellant claimed only one affirmative defense:          that the agency committed
     harmful procedural error by violating the IRM when it removed her. IAF, Tab 28
     at 2. The administrative judge further stated that the “appellant did not claim any
     other forms of discrimination nor did she raise any other affirmative defense.”
     Id. The administrative judge instructed that any disagreement with her order and
     summary must be raised no later than at the outset of the hearing, scheduled
     10 days from the date of the order and summary. Id. at 4.
¶6          The following day, the appellant submitted a pleading in which she
     disagreed with the administrative judge’s summary, claiming, among other things,
     that she raised a claim of discrimination and reiterating that her removal violated
     the collective bargaining agreement, that the agency relied on information not
     included in the proposal notice, and that her removal was predetermined. IAF,
     Tab 29 at 4-5. In addition, the hearing transcript shows that the appellant raised
     her objections prior to the start of the hearing, although the discussion was off the
     record and later summarized by the administrative judge. Hearing Transcript at
     3-4.     Despite   the   appellant’s   objections   to   the   administrative   judge’s
     characterization of the issues, the administrative judge did not consider an
     affirmative defense other than harmful procedural error based on an alleged
     violation of the IRM.
¶7          As noted, the administrative judge issued an initial decision that affirmed
     the removal and found that the appellant failed to establish her harmful
     procedural error claim.    In the initial decision, the administrative judge noted
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     that, although the appellant objected to her prehearing conference summary and
     order concerning her affirmative defenses prior to the hearing, she did not intend
     to raise the appellant’s legal arguments in that order and summary. ID at 3 n.3.
¶8        Under these circumstances, we find that the administrative judge should
     have provided notice to the appellant of the relevant burdens and elements of
     proof on her discrimination, “not in accordance with law,” and due process
     claims. See Wynn v. U.S. Postal Service, 115 M.S.P.R. 146, ¶ 10 (2010). The
     administrative judge should have allowed for the development of the record
     below on these claims and the appellant’s harmful procedural error claim
     concerning the collective bargaining agreement. Therefore, the case needs to be
     remanded for the development of the record on the appellant’s affirmative
     defenses.
¶9        On remand, the administrative judge shall apprise the parties of the
     applicable burdens and elements of proof on the appellant’s affirmative defenses
     and provide for the development of the record on these claims, including a
     hearing on the claims, if requested.    Should the appellant determine that she
     wishes to withdraw any of her defenses after being apprised of the applicable
     burdens and elements of proof, the administrative judge must, at a minimum,
     identify the affirmative defense(s), explain that the Board will no longer consider
     it or them when deciding the appeal, and then give the appellant an opportunity to
     object to the withdrawal. Wynn, 115 M.S.P.R. 146, ¶ 10.
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                                    ORDER
      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:                          ______________________________
                                        William D. Spencer
                                        Clerk of the Board
Washington, D.C.
