Clyde L. Beasley v. Department of Defense
Background
- Appellant Beasley, an GS-3 Sales Store Checker in Vilseck, Germany, was removed for unacceptable conduct toward a customer and rude/disorderly conduct.
- Agency relied on prior discipline, including reprimand and suspensions for similar conduct, to support the removal penalty.
- Beasley challenged the removal, asserting due process defects, age and disability discrimination, and retaliation for whistleblowing.
- Administrative Judge found the agency proved misconduct and that the penalty was reasonable, but failed to address Beasley’s affirmative defenses and burdens of proof.
- Board granted review, vacated the initial decision, and remanded for the administrative judge to inform Beasley of burdens and elements of proof on his defenses, permit discovery, and issue a new decision addressing the defenses while potentially reiterating merits findings if supported by evidence.
- The remand also directs consideration of USERRA and VEOA claims, and notes possible EEO considerations timing for ripe discrimination claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the judge properly instruct on Beasley’s affirmative defenses? | Beasley argues due process, discrimination, and retaliation defenses were not properly disclosed. | Agency contends defenses were not fully before the judge. | Remanded to inform burdens and proof elements; defenses must be adjudicated. |
| Are Beasley’s age/disability discrimination and retaliation claims properly considered? | Beasley claims discrimination and whistleblower retaliation. | Agency challenged these claims but they were not adequately addressed. | Remand to adjudicate these claims with discovery and hearing if requested. |
| Is remand to the regional office appropriate to resolve mixed issues? | Remand necessary to ensure proper due process and defenses. | Remand complies with controlling standards. | Remand ordered; new initial decision may reiterate merits if supported. |
Key Cases Cited
- England v. U.S. Postal Service, 117 M.S.P.R. 255 (2012) (requires apprise burdens of proof on affirmative defenses and related proof elements)
- Wynn v. U.S. Postal Service, 115 M.S.P.R. 146 (2010) (discusses burdens and abandonment of defenses when not properly noticed)
- Varner v. Department of Veterans Affairs, 101 M.S.P.R. 155 (2006) (burden-shifting and notice requirements for defenses)
- Sarratt v. U.S. Postal Service, 90 M.S.P.R. 405 (2001) (notice and waiver considerations for due process claims)
- Kokkinis v. Department of Veterans Affairs, 81 M.S.P.R. 26 (1998) (affirmative defenses not properly heard may be preserved on remand)