                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     PAMELA D. TUCKER,                               DOCKET NUMBER
                  Appellant,                         CH-0752-13-0421-I-1

                  v.

     DEPARTMENT OF VETERANS                          DATE: August 15, 2014
       AFFAIRS,
                 Agency.



                       THIS ORDER IS NONPRECEDENTIAL 1

           Pamela D. Tucker, Fontana, California, pro se.

           Demetrious A. Harris, Esquire, Dayton, Ohio, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed the agency’s removal action.        For the reasons discussed below, we
     GRANT the appellant’s petition for review, VACATE the initial decision, 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
                                                                                          2

          REMAND the case to the regional office for further adjudication in accordance
          with this Order.

                                           BACKGROUND
¶2              The agency removed the appellant effective March 10, 2013, based on the
          sole charge of failure to follow instructions. Initial Appeal File (IAF), Tab 8,
          Subtabs 4A, 4B.       The charge consisted of five specifications involving the
          appellant’s failure to report to her assigned work area on December 17-19, and
          31, 2012, and January 22, 2013. IAF, Tab 8, Subtab 4B. The appellant appealed
          her removal to the Board and requested a hearing. IAF, Tab 1 at 3. She raised
          affirmative defenses of whistleblower reprisal, disability and age discrimination,
          and retaliation for prior equal employment opportunity (EEO) activity.       IAF,
          Tab 1 at 7, Tab 3 at 1, 3, 9.
¶3              After holding the requested hearing, the administrative judge issued an
          initial decision affirming the removal action. IAF, Tab 38, Initial Decision (ID)
          at 1. He found the charge sustained and the penalty of removal appropriate. ID
          at 3, 5.   He also found that the appellant failed to establish her affirmative
          defenses of whistleblower reprisal, disability discrimination, and retaliation for
          prior EEO activity.     ID at 3-5.   The administrative judge did not address the
          appellant’s age discrimination claim.
¶4              The appellant has filed a petition for review in which she claims the
          administrative judge ignored or failed to consider the evidence she presented
          below regarding the charged conduct and her affirmative defenses. Petition for
          Review (PFR) File, Tab 2. She also challenges several findings of fact made by
          the administrative judge as well as his account of the hearing testimony. Id. The
          agency has filed a response in opposition. PFR File, Tab 4.
                             DISCUSSION OF ARGUMENTS ON REVIEW
     ¶5         The Board has held that an administrative judge must inform an appellant of
          the burdens and elements of proof on her affirmative defenses. See Sarratt v.
                                                                                       3

     U.S. Postal Service, 90 M.S.P.R. 405, ¶ 12 (2001); Burge v. Department of the
     Air Force, 82 M.S.P.R. 75, ¶¶ 28-29 (1999); see also Burgess v. Merit Systems
     Protection Board, 758 F.2d 641, 643-44 (Fed. Cir. 1985) (an appellant must
     receive explicit information on what is required to establish an appealable
     jurisdictional issue). Here, although the appellant raised affirmative defenses of
     whistleblower reprisal, disability and age discrimination, and retaliation for prior
     EEO activity, IAF, Tab 1 at 7, Tab 3 at 1, 3, 9, the administrative judge did not
     provide the appellant the required notice regarding her claims and the required
     notice does not appear elsewhere in the record. Therefore, remand is necessary.
     See Warner v. Department of the Interior, 115 M.S.P.R. 281, ¶ 7 (2010). On
     remand, the administrative judge shall fully apprise the appellant of the burdens
     and elements of proof on the affirmative defenses she raised below, and afford
     the appellant an opportunity for additional discovery and a supplemental hearing
     on these affirmative defenses if requested. See Sarratt, 90 M.S.P.R. 405, ¶ 13;
     Burge, 82 M.S.P.R. 75, ¶ 29.
¶6        In addition, although an administrative judge’s failure to mention all of the
     evidence of record does not mean that he did not consider it in reaching his
     decision, Marques v. Department of Health & Human Services, 22 M.S.P.R. 129,
     132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985) (Table), an initial decision
     must identify all material issues of fact and law, summarize the evidence, resolve
     issues of credibility, and include the administrative judge’s conclusions of law
     and his legal reasoning, as well as the authorities on which that reasoning rests,
     Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980). If
     any of these items is missing or substantially incomplete, the Board will remand
     the appeal to the administrative judge for modification. Miller v. U.S. Postal
     Service, 117 M.S.P.R. 557, ¶ 14 (2012).
¶7        Here, the administrative judge, without explanation, made several findings
     of fact regarding the charged conduct and the appellant’s affirmative defenses
     that were either contested below or appear contrary to the written record. ID
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at 2-5. For instance, the administrative judge found that the appellant failed to
supply    medical    documentation     to   support   her   request   for   reasonable
accommodation due to her alleged inability to work in her assigned office. ID
at 2-3. However, the record reflects that the appellant supplied letters from her
primary care provider at the Cincinnati Veterans Affairs (VA) Medical Center to
the agency requesting accommodation, but that the agency found the letters to be
insufficient. 2 IAF, Tab 3 at 51, 100-03, Tab 8, Subtabs 4C, 4D. Further, the
appellant argued that, in any event, she was not obligated under agency policy to
supply additional medical documentation because she was a disabled veteran and
her disabilities were on file with the agency. 3 IAF, Tab 34 at 4-5, Tab 3 at 69.
Additionally, the administrative judge appears to have found that the appellant
failed to establish that she had a disability for purposes of her disability
discrimination claim. ID at 3. The record reflects, however, that the appellant is
a 30% disabled veteran based on her diagnoses of ventricular arrhythmias and
limited flexion of knee.      IAF, Tab 3 at 69.       The administrative judge also
determined that the appellant’s claim regarding mold in her office was
unfounded.     ID at 2, 4-5.     The appellant alleged, however, and the record
reflects, that the agency never performed a test for mold in her assigned office as
she had requested. 4    IAF, Tab 3 at 51, 100, 109.         Finally, in sustaining the
charge, the administrative judge found that the appellant failed to report to her
regular work station on the dates specified in the notice of proposed removal. ID
2
  The appellant’s primary care provider is a Nurse Practitioner and had been providing
care to the appellant for over 10 years. IAF, Tab 3 at 63, 100. The agency informed
the appellant that it required medical documentation from a “qualified physician that
specifically specializes in the field” in order to consider her request for a reasonable
accommodation. IAF, Tab 8, Subtab 4F.
3
  Although the administrative judge acknowledged a portion of the appellant’s argument
in the initial decision, he did not make any findings in this regard. ID at 2.
4
  The appellant alleged that she probably would have been approved for a non-VA
consult with a qualified physician, and thus would have been able to secure the
requested medical documentation from a medical doctor, had the agency conducted the
proper testing in her assigned office as requested. IAF, Tab 3 at 41.
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          at 2. The administrative judge, however, did not acknowledge either that she had
          reported for duty on those dates (but not to the assigned office) or that her
          requests for leave under the Family and Medical Leave Act of 1993 on those
          dates were denied. IAF, Tab 34 at 8, Tab 3 at 25-29, 84-85.
     ¶8        Under the circumstances, we vacate the initial decision in its entirety. In
          the remand initial decision, the administrative judge shall summarize the
          pertinent evidence, including the relevant agency policies regarding reasonable
          accommodations, and support his findings with citations to the record and
          applicable case law. See Spithaler, 1 M.S.P.R. at 589. On issues that involve
          credibility determinations, the administrative judge shall state which version he
          believes and explain in detail why he found the chosen version more credible.
          See Hillen v. Department of the Army, 35 M.S.P.R. 453, 458 (1987).

                                              ORDER
¶9             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.
