Marimekko Allen v. Department of Veterans Affairs ( 2024 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MARIMEKKO ALLEN, DOCKET NUMBER
Appellant, AT-0714-18-0278-I-1
v.
DEPARTMENT OF VETERANS DATE: May 10, 2024
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Wendell J. Echols , Esquire, Tuskegee, Alabama, for the appellant.
Kimberly K. Ward , Decatur, Georgia, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed her removal. For the reasons discussed below, we GRANT the
appellant’s petition for review, VACATE the initial decision, and REMAND the
appeal to the Atlanta Regional Office for further adjudication in accordance with
this Remand 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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
BACKGROUND
¶2 The appellant was employed by the agency as a Certified Nursing Assistant
with the Central Alabama Veterans Health Care System in Tuskegee, Alabama.
Initial Appeal File (IAF), Tab 1 at 6, Tab 5 at 6. Her duties included providing
nursing care for patients and residents, such as maintaining their personal
hygiene, observing and reporting symptoms of distress, and performing complex
treatment. IAF, Tab 5 at 75. After reports from coworkers that she, among other
things, spoke harshly with patients, yelled at coworkers that she would not bathe
patients alone, failed to properly bathe patients, failed to dress a patient as
instructed, and was observed sleeping in unoccupied rooms while on duty, the
agency opened an investigation into the appellant’s alleged misconduct. Id.
at 17-52.
¶3 As a result of the investigation, the agency proposed the appellant’s
removal, pursuant 38 U.S.C. § 714, which codified the relevant provision of the
Department of Veterans Affairs Accountability and Whistleblower Protection Act
of 2017, Pub. L. No. 115-41, § 202(a), 131 Stat. 862, 869-73 (VA Accountability
Act or the Act). IAF, Tab 5 at 14. The proposal was based on four charges:
(1) inappropriate conduct (five specifications); (2) loafing (two specifications);
(3) patient neglect (one specification); and (4) failure to follow instructions (one
specification). 2 Id. at 14-15. The underlying conduct took place between March
and June 2017. Id. The appellant replied to the proposed removal, but she sent
her reply to an agency official other than the deciding official named in the
proposal notice. IAF, Tab 1 at 22-25, Tab 5 at 15-16. On February 6, 2018, the
deciding official issued a final decision finding that the charges were supported
by substantial evidence and removing the appellant from Federal service. IAF,
Tab 5 at 11. At the time she made her decision, the deciding official did not have
2
The notice of proposed removal appears to misnumber the charges, listing charges 1,
2, 4, and 5, and omitting a charge 3. IAF, Tab 5 at 15. This appears to be a
typographical error, as the notice of proposed removal lists four charges. Id. at 14-15.
3
a copy of the appellant’s reply. IAF, Tab 13, Hearing Recording (HR) (testimony
of the deciding official).
¶4 The appellant filed the instant appeal with the Board, challenging the
removal and raising as affirmative defenses reprisal for whistleblower and equal
employment opportunity (EEO) activity, and harmful procedural error. IAF,
Tab 1 at 1, Tab 12 at 2-3. After holding a hearing, the administrative judge
issued an initial decision sustaining all the charges and specifications except for
one specification of the inappropriate conduct charge. IAF, Tab 15, Initial
Decision (ID) at 3-9. She also found that the appellant failed to prove any of her
affirmative defenses, and she affirmed the removal action. ID at 9 -15.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. She does not challenge the administrative judge’s findings regarding
the charges; rather, she reasserts her affirmative defenses that her removal was
the result of retaliation for whistleblower and EEO activity, and that the agency
engaged in harmful procedural error. PFR File, Tab 1 at 3-4. She also argues on
review that the agency failed to engage in settlement discussions, subjected her to
a hostile work environment, and engaged in disparate treatment. Id. She asserts
that the agency was required to consider progressive discipline under the parties’
collective bargaining agreement (CBA). Id. at 3. The agency has filed a
response. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
We sustain the inappropriate conduct charge but do not sustain charges two,
three, and four.
¶6 As noted above and detailed in the notice of proposed removal, the
underlying conduct of the four charges against the appellant took place between
March and June 2017. IAF, Tab 5 at 14-15. Specifically, the instances of
misconduct specified under charge one (inappropriate conduct) occurred on
March 6, 2017; June 6, 2017; June 26, 2017; May 24, 2017; and June 14, 2017.
4
Id. The misconduct underlying charge two (loafing) occurred on June 21 and 22,
2017. Id. at 15. The one incident of misconduct specified under charge three
(patient neglect) occurred on June 22, 2017, and the misconduct specified under
charge four (failure to follow instructions) happened on June 14, 2017. Id. After
a thorough discussion of the alleged misconduct and the agency’s evidence in
support thereof, the administrative judge sustained all the charges. ID at 3-9.
¶7 Following the issuance of the initial decision in this appeal, the U.S. Court
of Appeals for the Federal Circuit (Federal Circuit) issued Sayers v. Department
of Veterans Affairs, 954 F.3d 1370 (Fed. Cir. 2020). In Sayers, the court held that
“[38 U.S.C.] § 714 does not apply to proceedings instituted based on conduct
occurring before its enactment” on June 23, 2017. Harrington v. Department of
Veterans Affairs, 981 F.3d 1356, 1357, 1359 (Fed. Cir. 2020) (citing Sayers,
954 F.3d at 1380-82 (finding that application of section 714 to events occurring
prior to its enactment has “an impermissible retroactive effect”)).
¶8 Here, all of the misconduct underlying charges two through four predate the
VA Accountability Act’s June 23, 2017 enactment. Accordingly, these charges
must be reversed. See Harrington, 981 F.3d at 1357, 1359 (vacating a 38 U.S.C.
§ 714 removal based on pre-enactment conduct); Sayers, 954 F.3d at 1372-73,
1382 (same).
¶9 Turning to charge one (inappropriate conduct), the misconduct alleged in
specifications one, two, four, and five also occurred prior to the enactment of the
VA Accountability Act and, therefore, cannot be sustained. 3 IAF, Tab 5 at 14;
see Harrington, 981 F.3d at 1357, 1359; Sayers, 954 F.3d at 1372-73, 1382.
However, the incident underlying specification three is alleged to have occurred
on or about June 26, 2017, which postdates the Act. IAF, Tab 5 at 14. In Wilson
v. Department of Veterans Affairs, 2022 MSPB 7, ¶¶ 30-33, the Board considered
whether a charge can be sustained based solely on conduct that postdated the VA
3
Because we find that the first specification must be reversed on this basis, we need not
address the administrative judge’s unchallenged determination that the agency failed to
prove this specification on the merits. ID at 3.
5
Accountability Act when that charge includes misconduct that also occurred prior
to the Act. It recognized that an error that affects one charge does not necessarily
require vacating the remaining charges; rather, if the remaining unrelated charges
are untainted by the error, they may be reviewed on the merits. Id., ¶ 30 (citing
Boss v. Department of Homeland Security, 908 F.3d 1278, 1279, 1281-84 (Fed.
Cir. 2018) (holding that an agency’s due process violation as to one charge did
not require an arbitrator to vacate the two remaining charges that were not tainted
by the due process violation and were based on “distinct facts”)).
¶10 Here, the specification at issue alleged that, on or about June 26, 2017, a
nursing assistant witnessed the appellant telling a veteran that he could not tell
her what to do “because he’s been to prison,” or words to that effect. IAF, Tab 5
at 14. The misconduct alleged in the specification occurred on a single date after
the enactment of the VA Accountability Act and does not depend on or
encompass conduct that occurred on any other date. Id. Further, the veteran
involved and the witness to the incident are not referenced elsewhere in the
proposed removal notice. Id. at 14-15. We find that the misconduct is not so
factually interrelated to other alleged misconduct in the charge that it cannot be
fairly separated. See Boss, 908 F.3d at 1282-83 (declining to vacate a removal
based on an error as to one of the three charges “[i]n the absence of evidence
indicating that the procedural defect tainted the decision-making on the other
charges, or circumstances where the charges are so factually interrelated that they
cannot be fairly separated”).
¶11 In the initial decision, the administrative judge credited the testimony of the
nursing assistant who observed the appellant’s conduct. ID at 4. The
administrative judge further stated that she “discerned no reason” why the nursing
assistant would fabricate the event to harm the appellant. ID at 4-5.
Additionally, the administrative judge explained that the appellant made the
statement in front of another patient and that it was inappropriate to discuss that
6
subject in that manner. ID at 5. Accordingly, she found that the agency met its
burden with respect to this specification.
¶12 When an administrative judge has held a hearing and has made credibility
determinations that were, as is the case here, explicitly or implicitly based on
witness demeanor, the Board must defer to those credibility determinations and
may overturn such determinations only when it has “sufficiently sound” reasons
for doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir.
2002). The appellant has not challenged the administrative judge’s credibility
determination on review, or any of her findings relating to this specification, and
we otherwise discern no “sufficiently sound” reason to disturb her credibility
findings. As such, we defer to them here. See id. Further, we agree with the
administrative judge that the appellant’s conduct was inappropriate, as it
demonstrated disrespect towards a patient when the appellant’s position
description specifically requires her to display courtesy in her contacts with
patients. IAF, Tab 5 at 77. When more than one event or factual specification
supports a single charge, proof of one or more, but not all, of the supporting
specifications is sufficient to sustain the charge. Burroughs v. Department of the
Army, 918 F.2d 170, 172 (Fed. Cir. 1990). Accordingly, we decline to disturb the
administrative judge’s decision to sustain the specification, which is sufficient to
sustain the charge.
We remand this appeal for further adjudication consistent with Semenov v.
Department of Veterans Affairs , 2023 MSPB 16.
¶13 Although we ultimately sustain the charge of inappropriate conduct, remand
is still necessary. As noted above, the deciding official applied the substantial
evidence standard to her review of the removal action. IAF, Tab 5 at 11. After
the initial decision in this case was issued, however, the Federal Circuit decided
Rodriguez v. Department of Veterans Affairs, 8 F.4th 1290 (Fed. Cir. 2021). In
Rodriguez, 8 F.4th at 1296-1301, the court found that the agency had erred by
applying the substantial evidence standard of proof to its internal review of a
7
disciplinary action under 38 U.S.C. § 714. The court found that substantial
evidence is the standard of proof to be applied by the Board, not the agency, and
that the agency’s deciding official must apply the preponderance of the evidence
standard to “determine” whether the appellant’s “performance or
misconduct . . . warrants” the action at issue. Semenov v. Department of Veterans
Affairs, 2023 MSPB 16, ¶ 21 (quoting Rodriguez, 8 F4th at 1298-1301 (quoting
38 U.S.C. § 714(a)(1))); see Bryant v. Department of Veterans Affairs, 26 F.4th
1344, 1347 (Fed. Cir. 2022) (agreeing with a petitioner that the agency’s decision
was “legally flawed” when the deciding official found the charge proved merely
by substantial evidence rather than preponderant evidence, as required under
Rodriguez).
¶14 The Federal Circuit’s decision in Rodriguez applies to all pending cases,
regardless of when the events at issue took place. Semenov, 2023 MSPB 16, ¶ 22.
The administrative judge and the parties did not have the benefit of Rodriguez or
the Board’s application of it in Semenov; therefore, we are unable to address its
impact on this appeal. Accordingly, following the return of the appeal to the
administrative judge after the agency issues its penalty redetermination, as
addressed in greater detail below, the administrative judge shall adjudicate
whether the agency’s application of the substantial evidence standard of proof
was harmful error. See id., ¶¶ 22-24 (finding it appropriate to apply the harmful
error standard from 5 U.S.C. § 7701(c)(2) to actions taken under 38 U.S.C.
§ 714).
¶15 We must also remand this appeal on the issue of penalty. When addressing
the penalty of removal, the administrative judge did not address whether the
penalty of removal was reasonable, explaining only that, “[p]ursuant to 38 U.S.C.
§ 714(d)(2)(B), the Board may not mitigate the penalty selected by the agency.”
ID at 14. Following the issuance of the initial decision, however, the Federal
Circuit issued Connor v. Department of Veterans Affairs, 8 F.4th 1319, 1326-27
(Fed. Cir. 2021), wherein it found that the agency and the Board must still apply
8
the Douglas 4 factors to the selection and review of penalties in disciplinary
actions taken under 38 U.S.C. § 714. See Semenov, 2023 MSPB 16, ¶ 49. The
Board’s review of the penalty to determine if it is supported by substantial
evidence is part of its overall review of the agency’s adverse action. Connor,
8 F.4th at 1326. Indeed, the Board’s “longstanding” practice of reviewing the
penalty in adverse actions appeals “avoids absurd, unconstitutional results” such
as a removal over the “theft of a paperclip.” Sayers, 954 F.3d at 1378.
¶16 Although the deciding official appears to have vaguely considered some of
the Douglas factors in the decision notice, IAF, Tab 5 at 11, we need not
determine whether such consideration is sufficient under Connor and Semenov
because the agency has not otherwise shown by substantial evidence that the
penalty of removal is within the tolerable limits of reasonableness for the
sustained conduct. When, as here, not all the charges are sustained, the Board
will consider carefully whether the sustained charges merit the penalty imposed
by the agency. Suggs v. Department of Veterans Affairs, 113 M.S.P.R. 671, ¶ 6
(2010), aff’d per curiam, 415 F. App’x 240 (Fed. Cir. 2011). Here, we have
sustained only one of the four charges, and the sole sustained charge is based on a
single specification. Notably, in the decision notice, the deciding official
emphasized the repeated nature of the appellant’s misconduct, and she considered
the “several incidents” that support the charged misconduct. IAF, Tab 5 at 11.
Given that there is no additional evidence in the record justifying the penalty of
removal in light of the one sustained charge, we find that the agency failed to
prove by substantial evidence that its penalty was within the limits of
reasonableness. See Tyron v. U.S. Postal Service, 108 M.S.P.R. 148, ¶¶ 7, 9
(2008) (concluding that the penalty of removal for one instance of hugging a
customer exceeded the bounds of reasonableness); Smith v. Department of the Air
Force, 48 M.S.P.R. 594, 596-600 (1991) (concluding that a 90-day suspension
4
In Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), the Board
articulated a nonexhaustive list of factors relevant to the penalty determination in
adverse actions.
9
was the maximum reasonable penalty for an appellant’s refusal, for 45 minutes, of
a security police officer’s order to move her car, and her subsequent refusal of the
same officer’s order produce her driver’s license and remain in the agency’s
parking lot to receive a parking citation). However, because the Board cannot
mitigate the penalty in actions taken pursuant to 38 U.S.C. § 714, see 38 U.S.C.
§ 714(d)(2)(B), the administrative judge must remand the appellant’s removal to
the agency “for a redetermination of the penalty,” see Connor, 8 F.4th at 1326-27;
Semenov, 2023 MSPB 16, ¶¶ 49-50.
On remand, the administrative judge should also reconsider the appellant’s
whistleblower reprisal affirmative defense.
¶17 As noted above, the appellant raised an affirmative defense of, among other
things, whistleblower reprisal. IAF, Tab 11 at 3-4, Tab 12 at 2. In order to
prevail on this defense, the appellant must prove by preponderant evidence that
she made a protected disclosure under 5 U.S.C. § 2302(b)(8) or engaged in
protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D), and that the
disclosure or activity was a contributing factor in the agency’s action. 5 U.S.C.
§ 1221(e)(1); Covington v. Department of the Interior, 2023 MSPB 5, ¶ 15.
¶18 Below, the appellant alleged that she made three protected disclosures
relating to the alleged stealing of time by not entering leave, nepotism, and
coworkers’ relationships with patients, and that the agency removed her in
reprisal for those disclosures. IAF, Tab 11 at 3-4, Tab 12 at 2. In the initial
decision, the administrative judge declined to determine whether the disclosures
were protected under 5 U.S.C. § 2302(b)(8) because she found that the appellant
failed to prove that they were a contributing factor in her removal. ID at 12. The
administrative judge relied exclusively on the knowledge/timing test, by which an
appellant can establish the contributing factor element by showing that the
official taking the personnel action knew of the disclosure or activity and that the
personnel action occurred within a period of time such that a reasonable person
could conclude that the disclosure or activity was a contributing factor in the
10
personnel action. ID at 11-12; see Covington, 2023 MSPB 5, ¶ 43. She found
that because there was no evidence that either the proposing or deciding official
were aware of the appellant’s alleged disclosures, the appellant failed to establish
this affirmative defense. ID at 12.
¶19 On review, the appellant does not appear to directly challenge the
administrative judge’s findings. 5 PFR File, Tab 1 at 4. Nonetheless, in light of
our decision to remand this appeal, we find it appropriate to revisit the appellant’s
whistleblower reprisal claim. The respondent in a corrective action appeal is the
agency, not its individual officials; therefore, a lack of actual knowledge by a
single official is not dispositive to the issue of contributing factor. Karnes v.
Department of Justice, 2023 MSPB 12, ¶ 20. Rather, contributing factor can be
established by a showing that an individual with actual or constructive knowledge
of the disclosure influenced the official taking the action. Id. The appellant has
not alleged or proven any such facts here, and therefore, we discern no basis for a
finding of constructive knowledge.
¶20 In any event, the knowledge/timing test is not the only way for an appellant
to satisfy the contributing factor element. Rather, when an appellant fails to meet
this test, the Board will consider other evidence such as evidence pertaining to
the strength or weakness of the agency’s reason for taking the personnel action,
5
In the petition for review, the appellant reiterates her three disclosures. PFR File,
Tab 1 at 4. She asserts that after she made them, she was also subjected to a hostile
work environment. Id. While not entirely clear, it appears that the appellant may be
reasserting her claim, from below, that she disclosed to the investigative board that she
was subjected to “[h]arrassment, bullying, and threats.” IAF, Tab 11 at 4. If she is, we
agree with the administrative judge that this disclosure was not protected. IAF, Tab 12
at 2. The only information the appellant claimed to have specifically disclosed to the
investigative board was her conclusion that she was harassed. IAF, Tab 11 at 3-4, 36.
Disclosures of harassment may be protected. Ayers v. Department of the Army,
123 M.S.P.R. 11, ¶ 13 (2015). However, her general suggestion of a hostile work
environment is too vague and conclusory to constitute a protected disclosure. See Lewis
v. Department of Defense, 123 M.S.P.R. 255, ¶ 12 (2016) (determining that vague and
conclusory allegations of a hostile work environment and mismanagement are
insufficient to merit a finding of Board jurisdiction over an individual right of action
appeal).
11
whether the whistleblowing was personally directed at the proposing or deciding
official, and whether these individuals had a desire or motive to retaliate against
the appellant. Dorney v. Department of the Army, 117 M.S.P.R. 480, ¶ 15 (2012).
Thus, on remand, the administrative judge should consider whether the appellant
established the contributing factor element apart from the knowledge/timing test,
and if so, whether the alleged disclosures were protected under 5 U.S.C.
§ 2302(b)(8).
We discern no basis to disturb the administrative judge’s findings regarding the
appellant’s remaining affirmative defenses.
¶21 As noted, the appellant also asserted below that the agency retaliated
against her because of her EEO activity and committed harmful error when the
deciding official did not review her response to the notice of proposed removal.
IAF, Tab 8 at 2, Tab 9 at 3, Tab 12 at 3. The administrative judge found that the
appellant failed to establish either affirmative defense. ID at 12 -14.
¶22 As to the harmful error argument, we agree with the administrative judge’s
finding that the appellant failed to prove this claim because the record
demonstrates that it was the appellant’s own actions that resulted in the deciding
official not reviewing her response to the notice of proposed removal. 6 ID
6
The appellant’s allegation that the deciding official did not consider her response to
the notice of proposed removal also implicates due process concerns as it relates to her
meaningful opportunity to respond to the charges against her. See Cleveland Board of
Education v. Loudermill, 470 U.S. 532, 546 (1985). The Board has held that an
employee cannot be said to have had a meaningful opportunity to present her side of the
story and to invoke the discretion of the deciding official if the deciding official did not
read the employee’s written response to the proposal notice before issuing a decision.
Hodges v. U.S. Postal Service, 118 M.S.P.R. 591, ¶ 6 (2012). Here, however, the
deciding official’s failure to consider the appellant’s reply is directly derived from the
appellant’s failure to submit it to her and her decision to, instead, submit it to the
agency official responsible for considering step 3 grievances. IAF, Tab 14; PFR File,
Tab 1 at 3. The appellant’s decision to rely on a memorandum to submit her reply to an
agency employee other than the one explicitly named in the proposal notice does not
negate the agency’s effort to provide her with the opportunity to reply. Further, even if
due process required the agency to ensure that the appellant’s reply was eventually
forwarded to the deciding official for consideration, the appellant submitted her reply
on the due date, and the removal decision was issued 8 business days later, leaving the
12
at 13-14; HR (testimony of the appellant). With respect to the appellant’s EEO
reprisal claim, the administrative judge discussed both the motivating factor
standard, citing to Savage v. Department of the Army, 122 M.S.P.R. 612, ¶ 41
(2015), overruled in part on other grounds by Pridgen v. Office of Management
and Budget, 2022 MSPB 31, and the standard applied by the Board for general
reprisal claims, citing to Warren v. Department of the Army, 804 F.2d 654,
656-58 (Fed. Cir. 1986). ID at 12-13. Ultimately, she found that the appellant
did not provide evidence that her EEO activity was a motivating factor in the
decision to remove her, and that she, therefore, did not show that her removal
“was the consequence of illegal retaliation.” ID at 13.
¶23 When an appellant alleges reprisal based on EEO activity, the Title VII
standard applies, not the Warren standard. Pridgen, 2022 MSPB 31, ¶¶ 30-32.
Although the administrative judge discussed the Warren standard in the initial
decision, she nonetheless appropriately found that the appellant failed to prove
that her EEO activity was a motivating factor in her removal, as required under
Title VII. See Pridgen, 2022 MSPB 31, ¶¶ 20-22, 30. We discern no basis to
disturb this finding.
ORDER
¶24 For the reasons discussed above, we remand this case to the Atlanta
Regional Office for further adjudication in accordance with Semenov, 2023 MSPB
16, and this Remand Order. On remand, the administrative judge shall first set a
deadline for the agency to conduct the penalty redetermination, reissue an agency
decision, and notify the administrative judge of that decision.
¶25 After the agency provides the administrative judge with the penalty
redetermination, the administrative judge shall then address whether the agency’s
agency with little time to fulfill such obligation. IAF, Tab 5 at 11, 16. Moreover, the
appellant has not proven, or even alleged, that the deciding official knew or should have
been aware that the appellant had submitted a reply to another agency employee. Based
on the foregoing, we find that the agency met its due process requirement to provide the
appellant with a meaningful opportunity to reply.
13
error in applying the substantial evidence standard of proof to its original action
was harmful, see 5 U.S.C. § 7701(c)(2)(A); Semenov, 2023 MSPB 16, ¶¶ 21-24,
and whether its new penalty is supported by substantial evidence, Connor, 8 F.4th
at 1325-36. In so doing, the administrative judge shall provide the parties with an
opportunity to present evidence and argument addressing these issues. 7
¶26 The administrative judge shall then issue a new initial decision including
her findings on whether the agency committed harmful error in applying the
substantial evidence standard of proof to its action and, if not, whether the new
penalty is supported by substantial evidence. See 5 U.S.C. § 7701(a)(1), (b)(1);
Sayers, 954 F.3d at 1376-77; Semenov, 2023 MSPB 16, ¶¶ 24-25. Regardless of
whether the appellant proves harmful error in the agency’s application of the
substantial evidence standard of proof in its decision, if any argument or evidence
adduced on remand affects the administrative judge’s prior analysis on the
appellant’s affirmative defenses of EEO reprisal and harmful error for failing to
consider her reply to the agency’s notice of proposed removal, she should address
such argument or evidence in the remand initial decision. See Semenov,
2023 MSPB 16, ¶ 25. The remand initial decision should also include additional
analysis of the appellant’s whistleblower reprisal affirmative defense, as set forth
7
The administrative judge shall hold a hearing limited to the issues on remand if one is
requested by the appellant. 5 U.S.C. § 7701(a)(1), (b)(1); see Semenov, 2022 MSPB 16,
¶ 24 (instructing an administrative judge to hold a supplemental hearing addressing
whether the agency’s use of the substantial evidence standard in a 38 U.S.C. § 714removal decision constituted harmful error).
14
above. When issuing a new initial decision on these matters, the administrative
judge may incorporate the findings and conclusions of the prior initial decision,
consistent with this Remand Order, into that new initial decision.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.