UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

MICHAEL S. LAMBERT,

Appellant,

v.

UNITED STATES POSTAL SERVICE,

Agency.

DOCKET NUMBER

AT-0752-13-0368-B-1

DATE: September 28, 2015

THIS ORDER IS NONPRECEDENTIAL1

Norman Jackman, Esquire, Cambridge, Massachusetts, for the appellant.

Christopher Pearson, Atlanta, Georgia, 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 

dismissed his age discrimination affirmative defense without a hearing. For the 

reasons discussed below, we GRANT the appellant’s petition for review 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 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 In a previous remand order, we found that although the appellant freely and 

voluntarily entered into a last chance settlement agreement resolving his removal 

appeal, the settlement agreement did not comply with the provisions of the Older 

Workers Benefit Protection Act, and we remanded the appellant’s age 

discrimination affirmative defense to the administrative judge for further 

adjudication. See Lambert v. U.S. Postal Service, MSPB Docket No. AT-0752-

13-0368-I-1, Remand Order at 3-5 (May 15, 2014) (citing Hinton v. Department 

of Veterans Affairs, 119 M.S.P.R. 129, ¶¶ 7, 9 (2013)). Upon remand, the 

administrative judge allowed the parties an additional opportunity to conduct 

discovery, and the agency subsequently filed a motion for summary judgment. 

Remand File (RF), Tab 15. After the motion was fully briefed, the administrative 

judge granted summary judgment, finding there was no genuine issue of material 

fact warranting a hearing on the appellant’s claim that he was discriminated 

against on the basis of age. RF, Tab 26, Remand Initial Decision (RID) at 5-8.

¶3 The appellant has filed a petition for review arguing that the administrative 

judge improperly credited the agency’s evidence and that there are sufficient 

factual disputes warranting a hearing. Petition for Review (PFR) File, Tab 1. 

The agency has filed a response in opposition to the petition for review. PFR 

File, Tab 3.

¶4 In her remand initial decision, the administrative judge relied upon Redd v. 

U.S. Postal Service, 101 M.S.P.R. 182, ¶ 5 (2006), for the proposition that an 

appellant does not have an unconditional right to a hearing on his discrimination 

claims. RID at 3. Under the facts of this case, where the only remaining issue 

for the administrative judge’s adjudication was the appellant’s age discrimination 

affirmative defense, we find no error with the administrative judge’s decision to 
3

allow the agency to move for summary judgment under Redd and its progeny.

2

 

See Redd, 101 M.S.P.R. 182, ¶ 5; see also Davis v. Department of the 

Interior, 114 M.S.P.R. 527, ¶¶ 9-10 (2010).

¶5 Subsequent to the administrative judge’s remand initial decision, however, 

the Board overruled Redd and found that the Board’s procedures for deciding 

discrimination claims are a matter of civil service law rather than discrimination 

law. See Savage v. Department of the Army, 2015 MSPB 51, ¶¶ 45-46 & n.10. In 

Savage, the Board explained that its appellate procedures do not provide a 

mechanism for granting summary judgment, and that it must decide 

discrimination claims only after the record is complete, in accordance with its 

appellate procedures as defined in Title 5. Id., ¶ 45. Importantly, under the 

Board’s appellate procedures, an appellant has a right to a hearing in a chapter 75 

adverse action appeal. See Pignataro v. Department of Veterans 

Affairs, 104 M.S.P.R. 563, ¶ 9 (2007) (citing 5 U.S.C. § 7701(a)).

¶6 Thus, pursuant to our decision in Savage, the appellant has a right to a 

hearing on his age discrimination affirmative defense under the Board’s appellate 

procedures. See Savage, 2015 MSPB 51, ¶¶ 46. We accordingly vacate the initial 

decision and remand the appellant’s age discrimination claim for a hearing 

consistent with the standards set forth in Savage. See id., ¶¶ 46, 48-51.

 2 In making this finding, we express no view on the merits of the agency’s motion for 

summary judgment or the administrative judge’s remand initial decision granting the 

motion.
4

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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board