                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MICHAEL S. LAMBERT,                             DOCKET NUMBER
                   Appellant,                        AT-0752-13-0368-B-1

                  v.

     UNITED STATES POSTAL SERVICE,                   DATE: September 28, 2015
                   Agency.



                  THIS ORDER IS NONPRECEDENTIAL 1

           Norman Jackman, Esquire, Cambridge, Massachusetts, for the appellant.

           Christopher Pearson, Atlanta, Georgia, 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
     dismissed his age discrimination affirmative defense without a hearing. For the
     reasons discussed below, we GRANT the appellant’s petition for review 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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶2         In a previous remand order, we found that although the appellant freely and
     voluntarily entered into a last chance settlement agreement resolving his removal
     appeal, the settlement agreement did not comply with the provisions of the Older
     Workers Benefit Protection Act, and we remanded the appellant’s age
     discrimination affirmative defense to the administrative judge for further
     adjudication. See Lambert v. U.S. Postal Service, MSPB Docket No. AT-0752-
     13-0368-I-1, Remand Order at 3-5 (May 15, 2014) (citing Hinton v. Department
     of Veterans Affairs, 119 M.S.P.R. 129, ¶¶ 7, 9 (2013)).        Upon remand, the
     administrative judge allowed the parties an additional opportunity to conduct
     discovery, and the agency subsequently filed a motion for summary judgment.
     Remand File (RF), Tab 15. After the motion was fully briefed, the administrative
     judge granted summary judgment, finding there was no genuine issue of material
     fact warranting a hearing on the appellant’s claim that he was discriminated
     against on the basis of age. RF, Tab 26, Remand Initial Decision (RID) at 5-8.
¶3         The appellant has filed a petition for review arguing that the administrative
     judge improperly credited the agency’s evidence and that there are sufficient
     factual disputes warranting a hearing. Petition for Review (PFR) File, Tab 1.
     The agency has filed a response in opposition to the petition for review. PFR
     File, Tab 3.
¶4         In her remand initial decision, the administrative judge relied upon Redd v.
     U.S. Postal Service, 101 M.S.P.R. 182, ¶ 5 (2006), for the proposition that an
     appellant does not have an unconditional right to a hearing on his discrimination
     claims. RID at 3. Under the facts of this case, where the only remaining issue
     for the administrative judge’s adjudication was the appellant’s age discrimination
     affirmative defense, we find no error with the administrative judge’s decision to
                                                                                            3

     allow the agency to move for summary judgment under Redd and its progeny. 2
     See Redd, 101 M.S.P.R. 182, ¶ 5; see also Davis v. Department of the
     Interior, 114 M.S.P.R. 527, ¶¶ 9-10 (2010).
¶5        Subsequent to the administrative judge’s remand initial decision, however,
     the Board overruled Redd and found that the Board’s procedures for deciding
     discrimination claims are a matter of civil service law rather than discrimination
     law. See Savage v. Department of the Army, 2015 MSPB 51, ¶¶ 45-46 & n.10. In
     Savage, the Board explained that its appellate procedures do not provide a
     mechanism    for   granting   summary     judgment,     and   that   it   must     decide
     discrimination claims only after the record is complete, in accordance with its
     appellate procedures as defined in Title 5.     Id., ¶ 45.    Importantly, under the
     Board’s appellate procedures, an appellant has a right to a hearing in a chapter 75
     adverse   action   appeal.      See   Pignataro    v.    Department       of     Veterans
     Affairs, 104 M.S.P.R. 563, ¶ 9 (2007) (citing 5 U.S.C. § 7701(a)).
¶6        Thus, pursuant to our decision in Savage, the appellant has a right to a
     hearing on his age discrimination affirmative defense under the Board’s appellate
     procedures. See Savage, 2015 MSPB 51, ¶¶ 46. We accordingly vacate the initial
     decision and remand the appellant’s age discrimination claim for a hearing
     consistent with the standards set forth in Savage. See id., ¶¶ 46, 48-51.




     2
       In making this finding, we express no view on the merits of the agency’s motion for
     summary judgment or the administrative judge’s remand initial decision granting the
     motion.
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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.
