The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NICOLE E. CHILDRESS, DOCKET NUMBER
Appellant, CH-0752-14-0190-I-1
v.
DEPARTMENT OF THE TREASURY, DATE: April 19, 2016
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Nicole E. Childress, Florissant, Missouri, pro se.
Diana R. Stallard, Esquire, Dallas, Texas, 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 her removal. For the reasons discussed below, we AFFIRM the
administrative judge’s finding that the agency established the charge by
preponderant evidence based on the appellant’s stipulation to the charged
misconduct, VACATE the administrative judge’s findings as to nexus 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
penalty, GRANT the appellant’s petition for review, and REMAND the case to
the regional office for further adjudication in accordance with this Order.
DISCUSSION OF ARGUMENTS ON REVIEW
¶2 The agency removed the appellant from the GS-8 seasonal position of
Contract Representative with the Internal Revenue Service (IRS) based on the
charge of receiving Government funds to which she was not entitled. Initial
Appeal File (IAF), Tab 5, Subtabs 4b, 4e. The agency specified that, during 6
separate weeks in 2009, 2010, and 2011, the appellant received unemployment
benefits to which she was not entitled because of her earnings from the IRS. 2 Id.,
Subtab 4e. The appellant appealed the agency’s action and, during the course of
proceedings below, alleged a number of affirmative defenses. IAF, Tabs 1, 27.
¶3 The administrative judge found that the agency proved the charged
misconduct and that the appellant failed to prove her affirmative defense. IAF,
Tab 33, Initial Decision (ID) at 3-6, 12-13. Regarding the latter, the
administrative judge found that, contrary to the appellant’s assertion, the notice
of proposed removal was in compliance with the Internal Revenue Manual (IRM).
ID at 13. The administrative judge also found that the agency established nexus
between the proven misconduct and the efficiency of the service and that the
removal penalty was within the bounds of reasonableness. ID at 6-12.
¶4 In her petition for review, the appellant contends that the administrative
judge erred in her findings regarding nexus and penalty. As explained below,
given the necessity of further adjudication of the appellant’s affirmative defenses,
it is premature for the Board to consider whether there is nexus between the
appellant’s misconduct and the efficiency of the service, and whether the removal
penalty may be imposed. See Hall v. Department of
Transportation, 119 M.S.P.R. 180, ¶ 8 (2013).
2
During Board proceedings, the agency withdrew one of the specifications.
IAF, Tab 26 at 13 n.2.
3
¶5 In her prehearing submissions, the appellant, acting pro se, raised the
affirmative defenses of harmful procedural error, unlawful discrimination,
potential due process violations, and that the agency action was “not in
accordance with law.” IAF, Tab 27 at 8-9. As to harmful procedural error, she
claimed that the agency violated the collective bargaining agreement and, as
noted above, the IRM when it removed her. Id. After holding the prehearing
conference, the administrative judge issued an order and summary stating that the
appellant claimed only one affirmative defense: that the agency committed
harmful procedural error by violating the IRM when it removed her. IAF, Tab 28
at 2. The administrative judge further stated that the “appellant did not claim any
other forms of discrimination nor did she raise any other affirmative defense.”
Id. The administrative judge instructed that any disagreement with her order and
summary must be raised no later than at the outset of the hearing, scheduled
10 days from the date of the order and summary. Id. at 4.
¶6 The following day, the appellant submitted a pleading in which she
disagreed with the administrative judge’s summary, claiming, among other things,
that she raised a claim of discrimination and reiterating that her removal violated
the collective bargaining agreement, that the agency relied on information not
included in the proposal notice, and that her removal was predetermined. IAF,
Tab 29 at 4-5. In addition, the hearing transcript shows that the appellant raised
her objections prior to the start of the hearing, although the discussion was off the
record and later summarized by the administrative judge. Hearing Transcript at
3-4. Despite the appellant’s objections to the administrative judge’s
characterization of the issues, the administrative judge did not consider an
affirmative defense other than harmful procedural error based on an alleged
violation of the IRM.
¶7 As noted, the administrative judge issued an initial decision that affirmed
the removal and found that the appellant failed to establish her harmful
procedural error claim. In the initial decision, the administrative judge noted
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that, although the appellant objected to her prehearing conference summary and
order concerning her affirmative defenses prior to the hearing, she did not intend
to raise the appellant’s legal arguments in that order and summary. ID at 3 n.3.
¶8 Under these circumstances, we find that the administrative judge should
have provided notice to the appellant of the relevant burdens and elements of
proof on her discrimination, “not in accordance with law,” and due process
claims. See Wynn v. U.S. Postal Service, 115 M.S.P.R. 146, ¶ 10 (2010). The
administrative judge should have allowed for the development of the record
below on these claims and the appellant’s harmful procedural error claim
concerning the collective bargaining agreement. Therefore, the case needs to be
remanded for the development of the record on the appellant’s affirmative
defenses.
¶9 On remand, the administrative judge shall apprise the parties of the
applicable burdens and elements of proof on the appellant’s affirmative defenses
and provide for the development of the record on these claims, including a
hearing on the claims, if requested. Should the appellant determine that she
wishes to withdraw any of her defenses after being apprised of the applicable
burdens and elements of proof, the administrative judge must, at a minimum,
identify the affirmative defense(s), explain that the Board will no longer consider
it or them when deciding the appeal, and then give the appellant an opportunity to
object to the withdrawal. Wynn, 115 M.S.P.R. 146, ¶ 10.
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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.