UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

NICOLE E. CHILDRESS,

Appellant,

v.

DEPARTMENT OF THE TREASURY,

Agency.

DOCKET NUMBER

CH-0752-14-0190-I-1

DATE: April 19, 2016

THIS ORDER IS NONPRECEDENTIAL1

Nicole E. Childress, Florissant, Missouri, pro se.

Diana R. Stallard, Esquire, Dallas, Texas, 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 her removal. For the reasons discussed below, we AFFIRM the 

administrative judge’s finding that the agency established the charge by 

preponderant evidence based on the appellant’s stipulation to the charged 

misconduct, VACATE the administrative judge’s findings as to nexus and 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

penalty, GRANT the appellant’s petition for review, and REMAND the case to 

the regional office for further adjudication in accordance with this Order. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The agency removed the appellant from the GS-8 seasonal position of 

Contract Representative with the Internal Revenue Service (IRS) based on the 

charge of receiving Government funds to which she was not entitled. Initial 

Appeal File (IAF), Tab 5, Subtabs 4b, 4e. The agency specified that, during 6

separate weeks in 2009, 2010, and 2011, the appellant received unemployment 

benefits to which she was not entitled because of her earnings from the IRS. 2

 Id., 

Subtab 4e. The appellant appealed the agency’s action and, during the course of 

proceedings below, alleged a number of affirmative defenses. IAF, Tabs 1, 27.

¶3 The administrative judge found that the agency proved the charged 

misconduct and that the appellant failed to prove her affirmative defense. IAF, 

Tab 33, Initial Decision (ID) at 3-6, 12-13. Regarding the latter, the 

administrative judge found that, contrary to the appellant’s assertion, the notice 

of proposed removal was in compliance with the Internal Revenue Manual (IRM). 

ID at 13. The administrative judge also found that the agency established nexus 

between the proven misconduct and the efficiency of the service and that the 

removal penalty was within the bounds of reasonableness. ID at 6-12. 

¶4 In her petition for review, the appellant contends that the administrative 

judge erred in her findings regarding nexus and penalty. As explained below, 

given the necessity of further adjudication of the appellant’s affirmative defenses, 

it is premature for the Board to consider whether there is nexus between the 

appellant’s misconduct and the efficiency of the service, and whether the removal 

penalty may be imposed. See Hall v. Department of 

Transportation, 119 M.S.P.R. 180, ¶ 8 (2013). 

 2 During Board proceedings, the agency withdrew one of the specifications. 

IAF, Tab 26 at 13 n.2.
3

¶5 In her prehearing submissions, the appellant, acting pro se, raised the 

affirmative defenses of harmful procedural error, unlawful discrimination, 

potential due process violations, and that the agency action was “not in 

accordance with law.” IAF, Tab 27 at 8-9. As to harmful procedural error, she 

claimed that the agency violated the collective bargaining agreement and, as 

noted above, the IRM when it removed her. Id. After holding the prehearing 

conference, the administrative judge issued an order and summary stating that the 

appellant claimed only one affirmative defense: that the agency committed 

harmful procedural error by violating the IRM when it removed her. IAF, Tab 28 

at 2. The administrative judge further stated that the “appellant did not claim any 

other forms of discrimination nor did she raise any other affirmative defense.” 

Id. The administrative judge instructed that any disagreement with her order and 

summary must be raised no later than at the outset of the hearing, scheduled 

10 days from the date of the order and summary. Id. at 4. 

¶6 The following day, the appellant submitted a pleading in which she 

disagreed with the administrative judge’s summary, claiming, among other things, 

that she raised a claim of discrimination and reiterating that her removal violated 

the collective bargaining agreement, that the agency relied on information not 

included in the proposal notice, and that her removal was predetermined. IAF, 

Tab 29 at 4-5. In addition, the hearing transcript shows that the appellant raised 

her objections prior to the start of the hearing, although the discussion was off the 

record and later summarized by the administrative judge. Hearing Transcript at

3-4. Despite the appellant’s objections to the administrative judge’s 

characterization of the issues, the administrative judge did not consider an 

affirmative defense other than harmful procedural error based on an alleged 

violation of the IRM. 

¶7 As noted, the administrative judge issued an initial decision that affirmed 

the removal and found that the appellant failed to establish her harmful 

procedural error claim. In the initial decision, the administrative judge noted 
4

that, although the appellant objected to her prehearing conference summary and 

order concerning her affirmative defenses prior to the hearing, she did not intend 

to raise the appellant’s legal arguments in that order and summary. ID at 3 n.3.

¶8 Under these circumstances, we find that the administrative judge should 

have provided notice to the appellant of the relevant burdens and elements of 

proof on her discrimination, “not in accordance with law,” and due process 

claims. See Wynn v. U.S. Postal Service, 115 M.S.P.R. 146, ¶ 10 (2010). The 

administrative judge should have allowed for the development of the record 

below on these claims and the appellant’s harmful procedural error claim 

concerning the collective bargaining agreement. Therefore, the case needs to be 

remanded for the development of the record on the appellant’s affirmative 

defenses.

¶9 On remand, the administrative judge shall apprise the parties of the 

applicable burdens and elements of proof on the appellant’s affirmative defenses 

and provide for the development of the record on these claims, including a 

hearing on the claims, if requested. Should the appellant determine that she 

wishes to withdraw any of her defenses after being apprised of the applicable 

burdens and elements of proof, the administrative judge must, at a minimum, 

identify the affirmative defense(s), explain that the Board will no longer consider 

it or them when deciding the appeal, and then give the appellant an opportunity to 

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