UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

LEAMON D. BRINSON,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

DC-0752-14-1129-I-1

DATE: November 10, 2016

THIS ORDER IS NONPRECEDENTIAL1

Steve M. Fesler, Sykesville, Maryland, for the appellant.

Tracy W. Lin, Esquire, Washington, D.C., 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 his removal. For the reasons discussed below, we GRANT the 

appellant’s petition for review, VACATE the initial decision, 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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

BACKGROUND

¶2 Prior to the appellant’s removal, he served as an Electronics Industrial 

Controls Mechanic with the agency’s Naval Facilities Engineering Command in 

Dahlgren, Virginia. Initial Appeal File (IAF), Tab 1 at 1, Tab 10 at 4, Tab 11 

at 17. In January 2014, the agency suspended the appellant for 30 days based on 

two disrespectful conduct charges and an insubordination charge. IAF, Tab 11 

at 13‐17. In pertinent part, one of the disrespectful conduct charges and the 

insubordination charge involved the appellant’s interactions with his fifth‐level

supervisor, Commander J.B. 2

 IAF, Tab 10 at 23, Tab 11 at 8‐10. 

¶3 The appellant filed a Board appeal challenging his suspension, and the 

administrative judge issued an initial decision sustaining the charges and 

affirming the suspension. Brinson v. Department of the Navy, MSPB Docket No. 

DC-0752-14-0424-I-1, Initial Decision (Oct. 31, 2014). The appellant did not file 

a petition for review of that initial decision, which became final. See 5 C.F.R. 

§ 1201.113. 

¶4 While the appellant’s Board appeal regarding his suspension was pending, 

the agency removed the appellant based on a single charge of disrespectful 

conduct supported by three specifications, all of which pertained to comments 

that the appellant made while taking Commander J.B.’s deposition during his 

Board appeal. 3 IAF, Tab 10 at 4‐10, 23‐26. The appellant filed a timely Board 

appeal challenging his removal, and requested a hearing. IAF, Tab 1 at 2, 4, 6. 

 2 Among other things, the agency alleged that the appellant: (1) refused to obey 

Commander J.B.’s instructions; (2) told Commander J.B. that he did not care who he 

was; (3) told Commander J.B to get out of his office and to “make like a tree and 

leave”; and (4) told Commander J.B. to “get the hell out of the building” and slammed a 

door in his face. IAF, Tab 11 at 8‐10. 

3 In specification one, the agency alleged that the appellant called Commander J.B. an 

“outright liar.” IAF, Tab 10 at 23. In specification two, the agency alleged that the 

appellant implied that Commander J.B. had “short man syndrome” and “little man 

syndrome.” Id. at 23‐24. In specification three, the agency alleged that the appellant 

called Commander J.B. a “snake.” Id. at 24.
3

On his initial appeal form the appellant alleged, among other things, that the 

agency removed him in retaliation for filing his prior Board appeal regarding his 

suspension. Id. at 6. In his prehearing submission, the appellant stipulated that 

he had made the comments at issue in the charge, but contended that the agency 

could not discipline him for the comments because he was engaged in protected 

activity when he was taking Commander J.B.’s deposition. IAF, Tab 15 at 5.

¶5 The administrative judge conducted a telephonic prehearing conference and 

the following day, he issued an order summarizing the conference. IAF, Tab 13 

at 4, Tab 17. The prehearing conference order and summary reflected that, during 

the prehearing conference, the appellant withdrew his hearing request. IAF, 

Tab 17 at 1. The summary further stated that the parties agreed that “the only 

material facts to be decided in this appeal, to the exclusion of all other issues,” 

were whether the agency proved the charge, nexus, and the reasonableness of the 

penalty. Id. The prehearing conference order and summary did not mention any 

affirmative defenses raised by the appellant. IAF, Tab 17. 

¶6 The appellant filed a timely objection to the prehearing conference order 

and summary, which solely objected to the manner in which the administrative 

judge characterized certain additional comments that he allegedly made to 

Commander J.B., which were referenced as an aggravating factor in the notice 

proposing his removal. IAF, Tab 18; see IAF, Tab 10 at 25, Tab 17 at 2. 

However, in a subsequent brief filed prior to the close of the record, the appellant 

continued to argue that the agency could not discipline him for his comments 

during Commander J.B.’s deposition, because he was engaged in protected 

activity when he made them. IAF, Tab 20 at 6‐11. 

¶7 Based on the written record, the administrative judge issued an initial 

decision sustaining the appellant’s removal. IAF, Tab 25, Initial Decision (ID). 

In finding that the agency proved the charge, relying primarily on Board cases 

arising under the whistleblower protection provisions, the administrative judge 

found that, although the misconduct at issue “arguably” occurred when the 
4

appellant was engaged in protected activity, this did not immunize him from 

disciplinary action, given the context and manner in which the comments at issue 

were delivered. ID at 7; see ID at 5‐10. He further found that the agency proved 

a nexus between the charge and the efficiency of the service, ID at 10‐11, and 

that the penalty of removal was reasonable, ID at 11‐14. The initial decision 

stated that the appellant had not raised any affirmative defenses. ID at 3 n.2. 

¶8 The appellant has filed a petition for review of the initial decision, in which 

he reiterates his arguments that the agency cannot remove him because he was 

engaged in protected activity when he made the comments at issue in the charge. 

Petition for Review (PFR) File, Tab 1 at 4, 7‐16. The agency has responded in 

opposition to the petition for review. PFR File, Tab 5. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶9 Although not raised by either party on review, we find that we must vacate 

the initial decision because the administrative judge failed to advise the appellant 

of the applicable burdens of proving an affirmative defense of retaliation for 

engaging in protected activity. The Board consistently has required 

administrative judges to apprise appellants of the applicable burdens of proving 

an affirmative defense, as well as the kind of evidence required to meet those 

burdens. Hall v. Department of Transportation, 119 M.S.P.R. 180, ¶ 4 (2013); 

Wynn v. U.S. Postal Service, 115 M.S.P.R. 146, ¶ 13 (2010). When an appellant 

raises an affirmative defense in an appeal either by checking the appropriate box 

on an appeal form, identifying an affirmative defense by name, or by alleging 

facts that reasonably raise such an affirmative defense, the administrative judge 

must address the affirmative defense in any close of record order or prehearing 

conference summary and order. Hall, 119 M.S.P.R. 180, ¶ 4; Wynn, 115 M.S.P.R. 

146, ¶ 10. Even if an appellant expresses an intention to withdraw an affirmative 

defense, the administrative judge is required, at a minimum, to identify the 

affirmative defense in the close of record order or prehearing conference 
5

summary and order, explain that the Board would no longer consider it when 

deciding the appeal, and give the appellant an opportunity to object to withdrawal 

of the affirmative defense. Wynn, 115 M.S.P.R. 146, ¶ 10. 

¶10 We find that the appellant’s allegations that the agency removed him in 

retaliation for filing his prior Board appeal, and that the agency could not remove 

him based on the comments at issue because he was engaged in protected activity

when taking Commander J.B.’s deposition reasonably raised an affirmative 

defense of retaliation for engaging in protected activity under 5 U.S.C. 

§ 2302(b)(9)(A)(ii), which prohibits an agency from taking a personnel action 

based on “the exercise of any appeal, complaint, or grievance right granted by 

any law, rule, or regulation” that does not seek to remedy whistleblowing 

reprisal. 5 U.S.C. § 2302(b)(9)(A)(ii); see IAF, Tab 1 at 6, Tab 15 at 5, Tab 20 at 

6‐11. However, the administrative judge did not address the affirmative defense 

in the prehearing conference summary and order. IAF, Tab 17. 

¶11 Furthermore, the record does not clearly indicate that the appellant intended 

to withdraw his affirmative defense. In a footnote in the initial decision, the 

administrative judge stated that during the prehearing conference, the appellant’s 

union representative “confirmed” that the appellant was not raising an affirmative 

defense in the appeal. ID at 3 n.2. However, this statement was not contained in 

the prehearing conference summary and order. IAF, Tab 17. When, as here, an 

administrative judge did not provide the required notice, the Board will not deem 

an affirmative defense to have been abandoned even when the appellant does not 

raise an objection to a failure to include it in the prehearing conference summary. 

See Potter v. Department of Veterans Affairs, 116 M.S.P.R. 256, ¶ 9 n.3 (2011).

¶12 Moreover, the statement in the initial decision that the appellant confirmed 

that he was not raising an affirmative defense is inconsistent with the appellant’s 

continued and repeated assertions below and on review that the agency could not 

remove him based on his comments because he was engaged in protected activity 

when he was taking Commander J.B.’s deposition. IAF, Tab 20 at 6; PFR File, 
6

Tab 1 at 4, 7‐16. In light of the appellant’s arguments, it appears that he may not 

have understood that his claims that he engaged in protected activity and that the 

agency retaliated against him for exercising his Board appeal rights constituted an 

affirmative defense.

¶13 In addition, neither the initial decision nor the agency’s pleadings apprised 

the appellant of the burden and elements of proving an affirmative defense of 

retaliation for engaging in protected activity under 5 U.S.C. § 2302(b)(9)(A)(ii). 

IAF, Tabs 8‐11, 15, 19, 23; ID at 3‐10; see Easterling v. U.S. Postal 

Service, 110 M.S.P.R. 41, ¶ 11 (2008) (finding that an administrative judge’s 

failure to provide an appellant with proper jurisdictional notice can be cured if 

the initial decision puts the appellant on notice of what he must do to establish 

jurisdiction, thus affording him the opportunity to meet his jurisdictional burden 

on review). The administrative judge’s statement that the fact that the comments 

at issue in the charge were “arguably” made in the context of protected activity 

did not “immunize the appellant from disciplinary action” was insufficient to 

place the appellant on notice of the burden and elements of proving an affirmative 

defense of retaliation for protected activity under 5 U.S.C. § 2302(b)(9)(A)(ii). 

Compare ID at 7, with Mattison v. Department of Veterans Affairs, 123 M.S.P.R. 

492, ¶ 8 (2016) (setting forth the burden and elements of proof for an affirmative 

defense of retaliation for activity protected under 5 U.S.C. § 2302(b)(9)(A)(ii) 

when an appellant does not allege reprisal for equal employment opportunity 

(EEO) activity protected under title VII). 

¶14 Furthermore, the administrative judge’s discussion of cases arising under 

the whistleblower protection provisions did not inform the appellant of the burden 

and elements of proving an affirmative defense of retaliation for protected 

activity under 5 U.S.C. § 2302(b)(9)(A)(ii). ID at 5‐7. As an initial matter, the 

initial decision did not clearly set forth the burden and elements of proving an 

affirmative defense of retaliation for whistleblowing. Id. More importantly, the 
7

burden and elements of proving an affirmative defense of retaliation for 

whistleblowing differ from the burden and elements of proving an affirmative 

defense of retaliation for protected activity under 5 U.S.C. § 2302(b)(9)(A)(ii). 

Specifically, an affirmative defense alleging retaliation for whistleblowing must 

be analyzed under the burden-shifting scheme set forth in 5 U.S.C. § 1221(e). 

See 5 U.S.C. § 1221(a), (i); Alarid v. Department of the Army, 122 M.S.P.R. 600, 

¶ 12 (2015); Shibuya v. Department of Agriculture, 119 M.S.P.R. 537, ¶¶ 19‐20, 

32 (2013). In contrast, in an affirmative defense of retaliation for activity 

protected under 5 U.S.C. § 2302(b)(9)(A)(ii), when, as here, the appellant does 

not allege reprisal for protected EEO activity, the appellant bears the burden of 

proof and the claim is analyzed under the standard set forth in Warren v. 

Department of the Army, 804 F.2d 654, 656-58 (Fed. Cir. 1986). See

Mattison, 123 M.S.P.R. 492, ¶ 8; 5 C.F.R. § 1201.56(b)(2)(i)(C); see also

Alarid, 122 M.S.P.R. 600, ¶ 15 (finding that the Warren standard is inapplicable 

to claims that are subject to the burden-shifting framework set forth in 5 U.S.C. 

§ 1221(e)). 

¶15 Additionally, while the administrative judge did a commendable job of 

discussing the “arguably” protected activity in the context of whether the agency 

proved the charge, he did not discuss whether the appellant established an 

affirmative defense to the charge. ID at 7‐10. Even if the agency proved the 

charge by a preponderance of the evidence, the Board cannot sustain the 

appellant’s removal if the appellant demonstrates that a prohibited personnel 

practice described in 5 U.S.C. § 2302(b), including retaliation for exercising 

Board appeal rights under 5 U.S.C. § 2302(b)(9)(A)(ii), was the motivating factor 

for the removal decision. See 5 U.S.C. § 7701(c)(2)(B); Erkins v. U.S. Postal 

Service, 108 M.S.P.R. 367, ¶ 5 (2008); see also Savage v. Department of the 

Army, 122 M.S.P.R. 612, ¶ 48 (2015) (explaining the meaning of the term “based 

on any prohibited personnel practice” in 5 U.S.C. § 7701(c)(2)(B)); 5 C.F.R. 
8

§ 1201.56(b)(1)(ii), (b)(2)(i)(C) (setting forth the burdens of proof for a charge 

and an affirmative defense). Thus, the issue of whether the appellant established 

an affirmative defense of retaliation for exercising his Board appeal rights is 

distinct from the issue of whether the agency proved the charge. 

¶16 Finally, the appellant’s pleadings on review do not demonstrate that the 

appellant is aware of the burden and elements of proving an affirmative defense

under 5 U.S.C. § 2302(b)(9)(A)(ii). PFR File, Tab 1; see Mahaffey v. Department 

of Agriculture, 105 M.S.P.R. 347, ¶¶ 10‐11 (2007) (finding that it was 

unnecessary to remand an appeal when an administrative judge failed to notify the 

appellant of the burden of proving an affirmative defense, given that among other 

things, the agency’s submissions put the appellant on notice of the burden and 

elements of proof necessary to establish the affirmative defense, and the 

appellant’s pleadings reflected that he understood the burden and elements of 

proof). Instead, the appellant’s pleadings cite the standard for a claim of 

retaliation for protected activity under the Federal Service Labor Management 

Relations Statute (FSLMRS), 5 U.S.C. chapter 71, which differs from the burden

and elements of proving an affirmative defense of retaliation for protected 

activity under 5 U.S.C. § 2302(b)(9)(A)(ii). PFR File, Tab 1 at 9‐15; compare

Mattison, 123 M.S.P.R. 492, ¶ 8, with Letterkenny Army Deport & International 

Brotherhood of Police Officers, Local 358, 35 F.L.R.A. 113, 118 (1990) (setting 

forth the burdens and elements for proving a claim of retaliation for protected 

activity under the FSLMRS). 

¶17 Accordingly, because the administrative judge did not inform the appellant 

of the applicable burdens of proving an affirmative defense of retaliation for 

protected activity under 5 U.S.C. § 2302(b)(9)(A)(ii), we must vacate the initial 

decision and remand this case for further adjudication. See Hall, 119 M.S.P.R. 

180, ¶ 6; Wynn, 115 M.S.P.R. 146, ¶ 13; see also Viana v. Department of the 

Treasury, 114 M.S.P.R. 659, ¶¶ 1, 8 (2010) (vacating an administrative judge’s 
9

findings that an agency proved the charge, nexus, and penalty where the appeal 

was remanded for further adjudication of the appellant’s affirmative defense). 

¶18 On remand, the administrative judge shall inform the appellant of the 

burden and elements of proof regarding an affirmative defense of retaliation for 

protected activity under 5 U.S.C. § 2302(b)(9)(A)(ii), and afford the parties an 

opportunity for further development of the record regarding this issue, including 

an opportunity to conduct discovery, and a hearing on the appellant’s affirmative 

defense, if the appellant requests one.

4

 Although the prehearing conference 

summary and order reflects that the appellant orally withdrew his hearing request 

during the prehearing conference, it did not include any discussion of the basis 

for or circumstances surrounding that withdrawal, and the appellant made this 

decision without notice of the applicable burdens of proving his affirmative 

defense. IAF, Tab 17 at 1, see Perez Peraza v. Office of Personnel 

Management, 114 M.S.P.R. 457, ¶ 15 (2010) (finding that an administrative judge 

should afford an appellant the opportunity for a hearing on remand, when, among 

other things, the appellant made the decision to withdraw his request for a hearing 

without notice of the proper standard to be applied in asserting a claim of 

equitable estoppel). After conducting additional proceedings on remand, the 

administrative judge shall issue a new initial decision making appropriate 

findings regarding the charge, nexus, and penalty, and addressing the appellant’s 

affirmative defense.

 4 Although, based on the appellant’s petition for review, it does not appear that he 

intends to withdraw his affirmative defense, if he indicates that he wishes to do so after 

being apprised of the applicable burdens and elements of proof, the administrative 

judge shall issue an order identifying the affirmative defense, explaining that the Board 

will no longer consider it in deciding the appeal, and afford the appellant an opportunity 

to object to the withdrawal. See Wynn, 115 M.S.P.R. 146, ¶ 10.
10

ORDER

¶19 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:

Washington, D.C.

______________________________

Jennifer Everling

Acting Clerk of the Board