                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SHAWN EDMONDS, SR.,                             DOCKET NUMBER
                Appellant,                           PH-0752-15-0092-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: July 14, 2015
       AFFAIRS,
                 Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Shawn Edmonds, Sr., Willow Grove, Pennsylvania, pro se.

           Marcus S. Graham, Esquire, Pittsburgh, Pennsylvania, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The agency has filed a petition for review of the initial decision, which
     mitigated the appellant’s removal to a 14-day suspension. Generally, we grant
     petitions such as this one only when:       the initial decision contains erroneous
     findings of material fact; the initial decision is based on an erroneous


     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     interpretation of statute or regulation or the erroneous application of the law to
     the facts of the case; the judge’s rulings during either the course of the appeal or
     the initial decision were not consistent with required procedures or involved an
     abuse of discretion, and the resulting error affected the outcome of the case; or
     new and material evidence or legal argument is available that, despite the
     petitioner’s due diligence, was not available when the record closed. See Title 5
     of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). For
     the reasons discussed below, we GRANT the agency’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, a Veterans Claims Examiner, on three
     charges of misconduct:      threatening bodily injury to management personnel;
     failing to protect personally identifiable information; and redirecting veterans’
     benefits to other than the intended claimant(s) and improperly altering official
     government documents. Initial Appeal File (IAF), Tab 5 at 6-10. 2 The appellant
     timely filed a Board appeal, alleging that his removal was taken because “they
     [management] wanted to get rid of me because I am a disabled veteran (100%)
     and black” and “they (management) don’t like black men trying to get ahead.”
     IAF, Tab 1 at 2. When he first filed his appeal, the appellant neither asked for a
     hearing nor requested one within the timeframe set by the administrative judge in
     the acknowledgment order. IAF, Tab 6.
¶3         In response to the administrative judge’s close of record order, however, the
     appellant did request a hearing, and the administrative judge issued an order
     giving the appellant an opportunity to demonstrate good cause for his belated
     hearing request. IAF, Tabs 7-8. The appellant did not respond to this order.

     2
       The citations to Tab 5 are to the page numbers generated upon the electronic filing of
     the agency file.
                                                                                           3

     IAF, Tab 9. After setting a new close of record date, the administrative judge
     issued an initial decision based on the written record and only sustained the
     agency’s charge that the appellant redirected veterans’ benefits to other than the
     intended claimants and improperly altered government documents. IAF, Tab 10,
     Initial Decision (ID) at 3-9.       The administrative judge further denied the
     appellant’s affirmative defense of race discrimination, and he mitigated the
     appellant’s removal to a 14-day suspension. ID at 9-10, 12.
¶4         The agency has filed a petition for review arguing that the administrative
     judge did not consider all of the relevant information in mitigating the appellant’s
     removal. Petition for Review (PFR) File, Tab 1 at 5-7. The agency also argues
     that the administrative judge employed flawed reasoning in not sustaining the
     appellant’s alleged failure to protect personally identifiable information.          Id.
     at 8-9. In his initial decision, the administrative judge found that the record was
     devoid of evidence showing that the appellant emailed files containing personally
     identifiable information to nonagency email accounts, as the agency had alleged.
     ID at 7; IAF, Tab 5 at 6. The administrative judge further explained that although
     the agency offered to provide this evidence to him in camera upon his request,
     this offer did not comport with the Board’s procedures involving the filing of
     sensitive or confidential information, and that the absence of this evidence from
     the record was fatal to the agency’s charge that the appellant failed to protect
     personally identifiable information. ID at 7-8 & n.*. The appellant has filed a
     response in opposition to the petition for review. PFR File, Tab 4.
¶5         As explained below, we find that this appeal must be remanded to the
     administrative judge for further consideration of two of the agency’s charges of
     misconduct and the appellant’s disparate treatment affirmative defenses. 3          We

     3
       We see no reason to differ with the administrative judge’s finding that the agency
     failed to prove its charge that the appellant threatened bodily injury to management
     personnel. ID at 4-7. Because we are remanding the appeal for further adjudication, we
     do not address the agency’s challenge to the administrative judge’s decision to mitigate
     the penalty. PFR File, Tab 1 at 5-7.
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     note at the outset, however, that we disagree with the agency’s argument on
     review that the administrative judge erred in not conducting an in camera review
     of certain information.   In camera review is a process generally used during
     discovery when a party seeks to avoid the disclosure of documents on the basis of
     privilege. See U.S. v. Zolin, 491 U.S. 554, 568-69 (1989). Under this process,
     the party asserting the privilege objects to the document request and supplies the
     documents to the court for inspection in order for it to determine whether they
     should be turned over. Id. Here, however, the agency did not assert that either
     the withheld documents or information are privileged; rather, the agency asserted
     that the information should not be made public as part of its filing in this case.
     See IAF, Tab 5 at 3.       As the administrative judge explained, the Board’s
     procedures provide for the submission of documents under seal or in redacted
     format. ID at 7 n.*; see Social Security Administration v. Doyle, 45 M.S.P.R.
     258, 261-62 (1990); see also U.S. Merit Systems Protection Board Judges’
     Handbook, Chapter 17 (Oct. 2007). We thus disagree with the agency that certain
     information should have been presented to the administrative judge for in camera
     review.
¶6        Although we find no merit to the agency’s argument that the administrative
     judge should have conducted an in camera review of the evidence, we find that
     the record contains other evidence which the administrative judge should have
     considered in determining if the agency proved its charge that the appellant failed
     to protect personally identifiable information. Specifically, in response to the
     agency’s notice of proposed removal, the appellant submitted a written reply
     acknowledging that he sent “a copy of the email . . . to my home e-mail because
     of time constraints” and that he usually “scrub[s] any [personally identifiable
     information] from any e-mails.      However, in this instance, I wasn’t really
     thinking about the [personally identifiable information] aspect of this e-mail. It
     was an honest oversight mistake.” IAF, Tab 5 at 51. The Board has found that an
     appellant’s admission of a charge of misconduct can suffice as proof of the
                                                                                           5

     charge without additional proof from the agency. See Cole v. Department of the
     Air Force, 120 M.S.P.R. 640, ¶ 9 (2014). Accordingly, upon remand, we leave it
     to the administrative judge to determine whether the appellant’s statements
     constitute sufficient proof of the agency’s charge, and if so, he should consider
     the appellant’s admissions in evaluating the reasonableness of the agency’s
     penalty. See, e.g., Lazenby v. Department of the Air Force, 66 M.S.P.R. 514, 521
     (1995) (an admission of wrongdoing can demonstrate strong rehabilitative
     potential).   We thus GRANT the agency’s petition for review, insofar as it
     challenges the administrative judge’s decision not to sustain the second charge.
¶7         Upon review of the initial decision, we also find that the administrative
     judge should further consider on remand whether the agency proved its third
     charge that the appellant redirected veterans’ benefits to other than intended
     claimant(s) and improperly altered official government documents.            While the
     administrative judge found preponderant evidence in the record establishing that
     the agency proved this charge, he did not specifically address the second
     component of the agency’s charge, viz., whether the appellant improperly altered
     official government documents. See ID at 8-9. Although the agency’s charge is
     based on a single event, the agency charged the appellant with redirecting
     veterans’ benefits and improperly altering official government documents, and we
     find that in order to prove this charge, the agency must prove both aspects of this
     charge as labeled. 4 See Acox v. U.S. Postal Service, 76 M.S.P.R. 111, 113-14
     (1997). An initial decision must identify and resolve all material issues of fact,

     4
       Toward the beginning of his initial decision, the administrative judge explained that
     “where, as here, a charge is based on separate acts of misconduct that are not dependent
     on each other and do not comprise a single inseparable event, each of the aspects may
     stand or fall individually.” ID at 4. We are uncertain if the administrative judge’s
     observation applies to each of the agency’s charges, or solely to its third charge. We
     disagree with the administrative judge insofar as this observation applies to the third
     charge, which we find requires the agency to prove both that the appellant redirected
     veterans benefits and that he altered official government documents. See Otero v. U.S.
     Postal Service, 73 M.S.P.R. 198, 202-03 (1997) (an agency must prove its charge as
     labeled); see also IAF, Tab 5 at 3, 6-7.
                                                                                             6

     and must address all material legal issues in a manner that reveals the
     administrative judge’s conclusions of law, legal reasoning, and the authorities on
     which     that      reasoning    rests.         Spithaler    v.   Office    of   Personnel
     Management, 1 M.S.P.R. 587, 589 (1980). Absent a discussion of whether the
     agency proved by preponderant evidence that the appellant improperly altered
     official government documents, we find that additional consideration of this
     charge is warranted on remand.
¶8          Finally, on remand, we find that the administrative judge also must provide
     the appellant notice of his burden of proof on his affirmative defenses of race,
     sex,    and      disability   discrimination.       See     Qatsha   v.    Department   of
     Defense, 86 M.S.P.R. 121, ¶ 8 (2000). As noted above, the appellant alleged in
     his initial appeal that his removal was motivated by race, sex, and disability
     discrimination.       IAF, Tab 1 at 2.          The record reflects, however, that the
     administrative judge did not apprise the appellant of the applicable burdens of
     proof on these claims prior to issuing the initial decision, and that he only
     addressed the appellant’s defense of race-based disparate treatment in his initial
     decision. ID at 9-10; IAF, Tabs 6, 9. Under these circumstances, we find that the
     appellant is entitled to notice of the standards of proof for his affirmative
     defenses of race-, sex-, and disability-based disparate treatment, and we find that
     remand of the appeal for further adjudication is warranted. 5 Id.; see Sarratt v.
     U.S. Postal Service, 90 M.S.P.R. 405, ¶ 12 (2001) (Board law requires the
     administrative judge to give the appellant notice of his burden of proof and the
     elements of his affirmative defense).




     5
       We recognize that these issues may have been overlooked due to the fact that the
     appellant did not timely request a hearing. Because we find no reason to differ with the
     administrative judge’s conclusion that the appellant did not timely request a hearing,
     the appellant is not entitled to another opportunity to request a hearing on remand. IAF,
     Tab 9.
                                                                                7

                                    ORDER
     For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order.        After
apprising the appellant of the elements of his affirmative defenses and giving him
an additional opportunity to submit evidence on these claims, the administrative
judge may adjudicate the appeal on the written record and issue a new initial
decision addressing the two charges discussed above; the appellant’s race, sex,
and disability discrimination affirmative defenses; and whether the appellant’s
removal should be sustained or whether a lesser penalty should be imposed.




FOR THE BOARD:                           ______________________________
                                         William D. Spencer
                                         Clerk of the Board
Washington, D.C.
