UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

MASSOUD N. POUR, Appellant,

v.
DEPARTMENT OF THE AR MY, Agency. DOCKET NUMBER SF

- 0752

- 14

- 0672

- I

- 1

DATE: March 28, 2016



### THIS ORDER IS NONPRECEDENTIAL 1

Minoo Seyedan , Bakersfield, California, for the appellant.

William L. Sims , Monterey, California, for the agency.

BEFORE
Susan Tsui Grundmann, Chairman Mark A. Robbins, Member

REMAND ORDER ¶1 The appellant has filed a petition for r eview of the initial decision, which
affirmed 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 t his 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1 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not require d to follow or distinguish them in any future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 ARGUME NTS ON REVIEW ¶2 On July 8, 2014, the appellant filed an appeal of the agency’s decision to

r emove him from his Assistant Professor position effective June 27, 2014. Initial Appeal File (IAF), Tab 1. He requested a hearing and indicated that he was raising a n affirmative defense of whistleblowing reprisal

. Id

. ¶3 The administrative judge conducted a telephonic prehearing conference on October 2, 2014, and on October 7 , 2014, he issued a written summary of the
conference cal l . IAF, Tab s 19

- 20. In the summary, the administrative judge
related that the appellant had withdrawn his hearing request and moved for a
decision based on the written record. IAF, Tab 20 at 1. The administrative judge
did not specifically mention the appellant’s whistleblowing reprisal claim, but
stated in general terms that the appellant had “confirmed that he is not raising any
affirmative defenses or other claims .” Id . at 2. The administrative judge also informed the parties that “[a]ny excep tions or objections to the summary and
order above must be received in this office within ten calendar dates of the date
of this Order or shall be deemed waived.” Id . at 22. The appellant did not file a
ti mely objection to the summary, but he renewed his request for a hearing in a subsequent pleading

. IAF, Tab 21 at 4

- 5. ¶4 Based on the written record, the administrative judge issued an initial decision sustaining the removal action. IAF, Tab 51, Initial Decision. This petition for review followed. Petition for Review (PFR) File, Tab 3. On review, the appe llant argues, among other things, that the administrative judge “rushed” his representative into making a decision to withdraw the hearing request. Id

. at 28. In particular, he asserts that the administrative judge told his representative at the prehearing conference that the scheduled hearing date could not be chang ed and that the hearing would need to be canceled for an extension of
time t o obtain documents in a pending criminal case. Id . at 4. The appellant also objects that the administrative judge failed to address his whistleblowing retaliation claim, which he describes as “THE MAIN ISSUE” in his appeal. Id . at3

19. The agency has filed a response, to which the appellant has replied. PFR File, Tabs 5, 9. ¶5 We have long held that an appellant’s right to a hearing in a Board a ppeal is of cardinal importance. See Conant v. Office of Personnel Management
, 79 M.S.P.R. 148 , 150 (1998). A n appellant may withdraw his request for a hearing in his appeal, and the effect of such a decision on his part is an adjudication based on the w ritten record. Id

. However , because strong policy considerations favor granting an appellant a hearing on the merits of his case, we have held that an appellant may waiv e the right to a hearing only by clear, unequivocal, and decisive action. Id . Furth er, the waiver must be an informed

one. Id

. An appellant’s waiver of the right to a hearing is informed when he has been fully apprised of the relevant adjudicatory requi rements and options in his case, including the right to request a postponement or co ntinuance of the hearing and a dismissal of the appeal without prejudice to its timely refiling. Id

. at 151. ¶6 During the recorded portion of the October 2, 2014 conference call , the appellant’s r epresentative clearly indicated that the appellant wished to withdraw his request for a hearing and obtain a decision on the written record

. IAF,
Tab 19

. However, the record does not contain audio or written documentation of
the circumstances surrounding the withdrawal of the hearing requ est. IAF,
Tabs 19

- 20. Crucially, the administrative judge did not document that the appellant or his representative , neither of whom is an attorney, was informed of any alternatives to withdrawing the hearing request, such as a postponement or continuance of the hearing or dismissal without prejudice

. IAF, Tabs 19

- 20 ; see Pariseau v. Department of the Air Force
, 113 M.S.P.R. 370
, ¶ 10 (2010) ; Grav es

v. U.S. Postal Service
, 106 M.S.P.R. 224 , ¶ 6 (2007); Conant , 79 M.S.P.R. at 151. Hence, even though the appellant’s decision was clear and unequivocal, the
record does not show that his decision wa s informed. See Pariseau , 113 M.S.P.R.
370 , ¶ 10. Therefore, given the strong policy in favor of granting a heari ng on the merits of his appeal, we must remand the case to provide the appellant the hearing4

he initially requested and evidently still desires. See Pariseau , 113 M.S.P.R. 370 , ¶ 10; Graves , 106 M.S.P.R. 224 , ¶ 6; Conant , 79 M.S.P.R. at 151

- 52. ¶7 Th e record also does not clearly document that the appellant intended to
withdraw his affirmative defense of whistleblowing retaliation. Generally, an appellant is deemed to have abandoned an affirmative defense if it is not included in the list of issues in a prehearing conference summary, and the appellant was afforded an opportunit y to object to the conference summary. Wynn v. U.S.
Postal Service
, 115 M.S.P.R. 146 , ¶ 10 (2010). However, we have held if an appellant expresses an intention to withdraw an affirmative defense, in the close or record order or prehearing conference summary and order, the administrative judge must, at a minimum, identify the affirmative defense, explain that the Board will no longer consid er it when deciding the appeal, and give the appellant an opportunity to object to withdrawal of the affirmative defense. Id

. If the administrative judge does not provide the required notice, the n the Board will not
deem an affirmative defense to have b een abandoned even if the appellant does not object to the summary. See Potter v. Department of Veterans Affairs , 116 M.S.P.R. 256 , ¶ 11 n.3 (2011). ¶8 Here, the administra tive judge stated in the summary of the prehearing conference that the appellant had “confirmed that he is not raising any affirmative
defenses or other claims.” IAF, Tab 20 at 2. He further stated, that no “other” affirmative defenses would be considered “absent a specific timely motion requesting otherwise followed by an order.” Id

. 2 However, the administrative judge did not at any point acknowledge that the appellant had raised a whistleblowing reprisal claim, or indicate that he had withdrawn it

. Id

. Moreover, the recorded portion of the prehearing conference contains no

2 For reasons that are unclear, the administrative judge proce eded to explain at great length the standards and burdens of proof applicable to disability discrimination claim s , among various other affirmative defenses. Id . at 3

‐ 19. In the course of the discussion, t he administrative judge offered only a truncated summary of the burdens of proof applicable to a claim of whistleblowing reprisal u nder 5 U.S.C. § 2302 (b)(8). Id . at 18.5

reference to the appellant’s whistleblowing reprisal claim, his alleged withdrawal
of that claim , or any other issue involv ing affirmative defenses

. IAF, Tab 19. Under these circumstances, we cannot be confident that the appellant intended to
withdraw his whistleblowing reprisal claim. See Wynn , 115 M.S.P.R. 146 , ¶ 10. Accordingly, o n remand , the administrative judge should apprise the appellant of
the burdens of proof applicable to that affirmative defense, as well as the kind of evidence the appellant is required to produce to meet his burden, and either adjudicate the claim or document the appellant’s desir e to withdraw it, as appropriate

. See id

.

ORDER ¶9 For the reasons discussed above, we remand this case to th e regional office for further adjudication in accordance with this Remand Order.

FOR THE BOARD:

Washington, D.C. ______________________________ William D. Spencer Clerk of the Board