The opinion
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THIS ORDER IS NONPRECEDENTIAL 1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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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.
4
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.