Clyde L. Beasley v. Department of Defense
Background
- Appellant (GS-3 Sales Store Checker) was removed for unacceptable conduct (inappropriate touching and comments) and rude/disruptive conduct (yelling, interrupting customers), with prior disciplinary history including reprimands and suspensions for similar conduct.
- Appellant alleged due process violation because the deciding official was the store manager he had accused, and asserted age and disability (hearing impairment) discrimination, whistleblower retaliation, USERRA and VEOA claims.
- Administrative judge sustained removal on the merits, finding the agency proved misconduct and the penalty reasonable, and rejected appellant’s affirmative defenses without advising him of burdens of proof for those defenses.
- Board found the AJ failed to apprise appellant of the elements and burdens for his due process, discrimination, and retaliation claims and did not address USERRA/VEOA claims; thus appellant could not be deemed to have abandoned those defenses.
- The Board granted review, vacated the initial decision, and remanded for the regional office/AJ to notify the appellant of burdens, allow discovery on affirmative defenses, hold a hearing if requested limited to those defenses, and issue a new initial decision addressing them (AJ may reiterate prior merits findings if still supported).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether AJ properly informed appellant of burdens for affirmative defenses (due process, discrimination, retaliation) | Appellant argued AJ never explained elements/burdens so he couldn’t meaningfully prosecute those defenses | Agency relied on AJ’s merits findings and did not address notice issue | Board held AJ failed to apprise appellant of burdens; remand required for proper notice, discovery, and adjudication of those defenses |
| Whether removal was supported by preponderant evidence and penalty reasonable | Appellant disputed facts and raised defenses (including that proximity to customers was to hear them) | Agency argued misconduct proven and prior discipline justified removal penalty | Board did not reach merits on review; AJ may reaffirm prior findings on remand if supported by evidence |
| Due process claim re: deciding official (store manager was accused by appellant) | Appellant asserted conflict because deciding official was the manager he accused | Agency did not successfully show AJ addressed/put him on notice regarding this defense | Board required AJ to address this due process claim on remand after giving burdens/evidence guidance |
| Discrimination and retaliation (age, disability, whistleblowing) | Appellant claimed age/disability discrimination and retaliation for reporting unauthorized customers and other protected activity | Agency noted an EEO claim had been filed; did not show these defenses were adjudicated | Board held these defenses must be addressed on remand; age/disability claims now ripe for adjudication given passage of time |
Key Cases Cited
- England v. U.S. Postal Service, 117 M.S.P.R. 255 (discussing requirement that AJs notify appellants of burdens for affirmative defenses and remand when not done)
- Wynn v. U.S. Postal Service, 115 M.S.P.R. 146 (same — appellant cannot be deemed to have abandoned defenses when not apprised of burdens)
- Varner v. Department of Veterans Affairs, 101 M.S.P.R. 155 (noting AJ duties to inform appellants of proof requirements for affirmative defenses)
- Kokkinis v. Department of Veterans Affairs, 81 M.S.P.R. 26 (failure to notify appellant that affirmative defenses would not be heard prevents deeming them abandoned)
- Sarratt v. U.S. Postal Service, 90 M.S.P.R. 405 (AJs must apprise appellants of burdens and elements of proof for affirmative defenses)