The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SHAWN DEVAUGHN, DOCKET NUMBER
Appellant, PH-0752-23-0242-I-1
v.
DEPARTMENT OF VETERANS DATE: March 23, 2026
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Shawn DeVaughn , Wilkinsburg, Pennsylvania, pro se.
Angela Madtes , Esquire, Pittsburgh, Pennsylvania, for the agency.
Diane Tardiff , Bedford, Massachusetts, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
James J. Woodruff II, Member
REMAND ORDER
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. We AFFIRM the initial decision as to the
inappropriate conduct charge. We VACATE the initial decision as to the failure
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
to follow leave procedures, unauthorized absence, and negligent performance of
duties charges and REMAND the appeal to the regional office to further develop
the record as to these three charges and determine whether the appellant proved
his affirmative defense of disability discrimination.
DISCUSSION OF ARGUMENTS ON REVIEW
The appellant, a disabled veteran, was a WS-2 Housekeeping Aid
Supervisor at the Department of Veterans Affairs for 5 years and had been with
the agency for nearly 10 years before the agency removed him from employment
in May 2022. Initial Appeal File (IAF), Tab 1 at 3, 6, Tab 7 at 182, 184,
Tab 23 at 27, 32. On June 25, 2021, the agency approved the appellant’s Family
and Medical Leave Act (FMLA) request and granted him intermittent FMLA
leave between June 10, 2021, and March 18, 2022, which could be used one time
per month lasting 2-3 days per episode. IAF, Tab 7 at 17.
The appellant informed the agency that he desired to expand his use of
FMLA leave beyond 2-3 days per month. Id. at 20. The agency advised him
multiple times that he must submit additional medical information to do so.
Id. at 19-23. On October 8, 2021, the appellant sent an email with the subject
line “INFORMATION REQUESTED” to his agency FMLA liaison. Id. at 23.
The email’s text suggests that medical information from the appellant’s medical
provider for August and September 2021 was attached to the email. Id.
However, the agency’s note below the email message indicates that the appellant
attached two files to the email but neither of them could be opened by the agency.
Id. at 24. The agency then marked the appellant absent without leave 47 times
spanning 376 hours between November 2021 and March 2022 before removing
him from employment on May 4, 2022. Id. at 26-31, 154-60; IAF, Tab 23 at 27.
The case record contains neither these two email attachments nor communications
between the agency FMLA liaison and the appellant after his October 8, 2021
email. Furthermore, during the portion of the hearing when he was scheduled to
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testify, the appellant was not permitted to respond to the agency’s claim that he
did not submit additional medical evidence. IAF, Tab 26-7 at 25:32-26:05.
In these circumstances, we find the information related to the appellant’s
two email attachments to be incomplete. On remand, the administrative judge
should develop the following factual issues: (1) the steps the agency took to try
to open and review the email attachments; (2) the text of the two email
attachments and whether either of them can be considered a medical certification
under 5 U.S.C. § 6383(b); and (3) whether the agency notified the appellant of its
inability to open the attachments and, if so, the appellant’s response to such
notification.
As to the fourth charge, inappropriate conduct, the appellant has provided
no persuasive basis for disturbing the administrative judge’s findings, which we
find to be sound on their face, and we discern no basis to revisit them.
The appellant raised and attempted to pursue an affirmative defense of
disability discrimination. IAF, Tab 1 at 4, 6. The administrative judge did not
provide the appellant notice of his burden to establish a disability discrimination
affirmative defense as he did with the appellant’s affirmative defenses of sex
discrimination and retaliation for prior equal employment opportunity. IAF,
Tab 21 at 3-5. Thus, we find that a remand is necessary to provide the appellant
notice of his burden and an opportunity to address his affirmative defense of
disability discrimination. Wynn v. U.S. Postal Service, 115 M.S.P.R. 146, ¶¶ 10,
12-13 (2010), overruled on other grounds by Thurman v. U.S. Postal Service ,
2022 MSPB 21, ¶ 17.
Therefore, we remand the case to the Northeastern Regional Office to
develop the record as described. See Spithaler v. Office of Personnel
Management, 1 M.S.P.R. 587, 589 (1980) (explaining that 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).
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In the remand initial decision, the administrative judge may incorporate his
findings regarding the merits of the appellant’s affirmative defenses of sex
discrimination and retaliation for prior equal employment opportunity activity,
which the parties do not dispute on review and with which we discern no error.
See id.
ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication under this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.