                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     CLYDE L. BEASLEY,                               DOCKET NUMBER
                   Appellant,                        DC-0752-15-1025-I-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: December 12, 2016
                 Agency.




                  THIS ORDER IS NONPRECEDENTIAL 1

           Elson D. Nowell, Nuremberg, Germany, for the appellant.

           Wendy S. Comp, Esquire, Fort Lee, Virginia, 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




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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     case to the Board’s regional office for further adjudication in accordance with
     this Order.
¶2         The agency removed the appellant from the GS-3 position of Sales Store
     Checker at the agency’s Vilseck Commissary in Vilseck, Germany, based on
     charges of unacceptable conduct toward a customer and rude and disorderly
     conduct. Initial Appeal File (IAF), Tab 5 at 18, 21, 62. 2 Specifically, regarding
     the charge of unacceptable conduct, the agency charged that the appellant
     inappropriately touched a customer and made inappropriate comments to her.
     Regarding the charge of disruptive conduct, the agency charged that the appellant
     was rude to a customer and, when the customer responded with profanity, the
     appellant came to the manager’s office, interrupting all transactions at the
     self-checkout counters and shouting for those present to be witnesses to the
     customer’s behavior. The appellant allegedly also yelled at the store manager,
     accusing him of not properly handling the situation with the customer. Id. at 62.
     In imposing the removal penalty, the agency relied on the appellant’s prior
     discipline, a reprimand for inappropriately touching a female customer and
     yelling at a coworker in front of customers, a 3-day suspension for
     inappropriately touching a female customer, and a 10 -day suspension for being
     inappropriately close and rude to a female customer and raising his voice t o his
     supervisor. Id. at 63.
¶3         The appellant appealed the agency’s action, alleging that the agency
     violated his due process rights by naming as the deciding official the store
     manager whom the appellant accused of not properly handling the situation with
     the customer and asserting that the agency discriminated against him on the bases
     of age and disability, a hearing impairment, and retaliated against him for


     2
       In the notice of proposed removal, the agency listed the second charge initially as
     “rude and disorderly conduct,” (emphasis added) and then “Rude and Disruptive
     Conduct” (emphasis added). IAF, Tab 5 at 62. In the decision letter, the agency
     labeled the charge as “rude and disorderly conduct” (emphasis added). Id. at 21.
                                                                                          3

     whistleblowing. 3 He alleged that he stood close to customers to better hear them
     and that he did not allow a third party to pay for the customer’s purchases
     because to do so was a violation of law. He alleged that the agency’s action was
     retaliation for his revealing that unauthorized customers were attempting to
     purchase goods in the commissary in violation of the Status of Forces and
     Customs Agreement with Germany.
¶4         In an initial decision, the administrative judge found that the agency proved
     the appellant’s misconduct by preponderant evidence, that the penalty was within
     the bounds of reasonableness, and that the appellant failed to prove any of his
     affirmative defenses. IAF, Tab 17, Initial Decision.
¶5         The Board has consistently required administrative judges to apprise
     appellants of the applicable burdens of proving a particular affi rmative defense,
     as well as the kind of evidence required to meet those burdens, and to address
     those defenses. England v. U.S. Postal Service, 117 M.S.P.R. 255, ¶ 8 (2012);
     Wynn v. U.S. Postal Service, 115 M.S.P.R. 146, ¶¶ 10, 13 (2010); Varner v.
     Department of Veterans Affairs, 101 M.S.P.R. 155, ¶ 9 (2006). Here, at no time
     did the administrative judge apprise the appellant of the burdens and elements of
     proof on his due process, discrimination, and retaliation claims, as he was
     required to do. See Sarratt v. U.S. Postal Service, 90 M.S.P.R. 405, ¶ 12 (2001).
     Neither the acknowledgment order, nor the close of record order mentioned the
     appellant’s allegation of a due process violation, his age and disability
     discrimination claims, or his claim of retaliation for whistleblowing .           IAF,
     Tabs 2, 15.


     3
       The appellant also alleges that the agency’s action was in violation of the Uniformed
     Services Employment and Reemployment Rights Act of 1994 (codified as amended at
     38 U.S.C. §§ 4301-4335) (USERRA) and the Veterans Employment Opportunities Act
     of 1998 (VEOA). IAF, Tab 1, Attachments A-B. The administrative judge did not
     acknowledge or address these claims. The Washington Regional Office should review
     the USERRA and VEOA claims for the appellant and adjudicate them either together or
     docket them separately from this appeal.
                                                                                        4

¶6           In light of the foregoing, we find that the administrative judge failed to
     apprise the appellant of the applicable burdens of proving the affirmative
     defenses that he raised, as well as the kind of evidence required to meet those
     burdens. Under these circumstances, he cannot be deemed to have abandoned
     them.     See Wynn, 115 M.S.P.R. 146, ¶ ¶ 10, 13; Kokkinis v. Department of
     Veterans    Affairs,   81 M.S.P.R.   26,   ¶ 13 (1998) (finding   that,   when    an
     administrative judge fails to put the appellant on notice that her affirmative
     defenses would not be heard, the appellant cannot be deemed to have abandoned
     those affirmative defenses).
¶7           For these reasons, we remand this case to the regional office for further
     adjudication.    See England, 117 M.S.P.R. 255, ¶¶ 11, 12, 14 (remanding the
     appeal for the administrative judge to inform the appellant of his burdens of proof
     regarding his affirmative defenses and to adjudicate those affirmative defenses).
     On remand, the administrative judge shall apprise the appellant of his burdens
     and the elements of proof regarding his due process, discrimination, and
     retaliation claims.     The administrative judge shall afford the parties an
     opportunity for discovery on these affirmative defenses and conduct a hearing,
     limited to the affirmative defenses, if requested by the appellant.              The
     administrative judge then shall issue a new initial decision that addresses the
     appellant’s due process, discrimination, and retaliation claims, and shall provide
     the appellant with notice of his mixed-case appeal rights. Regarding the merits of
     the agency’s removal action, the administrative judge may reiterate the findings
     in the vacated initial decision in the new initial decision, if he finds that the
     findings are still supported by preponderant evidence.
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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. 4




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




4
  In the agency’s response, it states that the appellant filed an equal employment
opportunity (EEO) claim on July 2, 2015, on the same issues raised in this appeal. IAF,
Tab 5 at 16. It is unclear from the agency’s statement whether the appellant filed a
formal complaint of discrimination. However, even if he filed a formal EEO complaint,
because more than 120 days have passed since the date that the agency indicates that
the appellant filed an EEO claim, his claims of age and disability discrimination are
now ripe for adjudication in accordance with 5 C.F.R. § 1201.154(b)(2).
