UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

SHAWN EDMONDS, SR.,

Appellant,

v.

DEPARTMENT OF VETERANS 

AFFAIRS,

Agency.

DOCKET NUMBER

PH-0752-15-0092-I-1

DATE: July 14, 2015

THIS ORDER IS NONPRECEDENTIAL1

Shawn Edmonds, Sr., Willow Grove, Pennsylvania, pro se.

Marcus S. Graham, Esquire, Pittsburgh, Pennsylvania, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

REMAND ORDER

¶1 The agency has filed a petition for review of the initial decision, which 

mitigated the appellant’s removal to a 14-day suspension. Generally, we grant 

petitions such as this one only when: the initial decision contains erroneous 

findings of material fact; the initial decision is based on an erroneous 

 1 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

interpretation of statute or regulation or the erroneous application of the law to 

the facts of the case; the judge’s rulings during either the course of the appeal or 

the initial decision were not consistent with required procedures or involved an 

abuse of discretion, and the resulting error affected the outcome of the case; or 

new and material evidence or legal argument is available that, despite the 

petitioner’s due diligence, was not available when the record closed. See Title 5 

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). For 

the reasons discussed below, we GRANT the agency’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, a Veterans Claims Examiner, on three 

charges of misconduct: threatening bodily injury to management personnel; 

failing to protect personally identifiable information; and redirecting veterans’ 

benefits to other than the intended claimant(s) and improperly altering official 

government documents. Initial Appeal File (IAF), Tab 5 at 6-10. 2

 The appellant 

timely filed a Board appeal, alleging that his removal was taken because “they 

[management] wanted to get rid of me because I am a disabled veteran (100%) 

and black” and “they (management) don’t like black men trying to get ahead.” 

IAF, Tab 1 at 2. When he first filed his appeal, the appellant neither asked for a 

hearing nor requested one within the timeframe set by the administrative judge in 

the acknowledgment order. IAF, Tab 6. 

¶3 In response to the administrative judge’s close of record order, however, the 

appellant did request a hearing, and the administrative judge issued an order 

giving the appellant an opportunity to demonstrate good cause for his belated 

hearing request. IAF, Tabs 7-8. The appellant did not respond to this order. 

 2 The citations to Tab 5 are to the page numbers generated upon the electronic filing of 

the agency file.
3

IAF, Tab 9. After setting a new close of record date, the administrative judge 

issued an initial decision based on the written record and only sustained the 

agency’s charge that the appellant redirected veterans’ benefits to other than the 

intended claimants and improperly altered government documents. IAF, Tab 10, 

Initial Decision (ID) at 3-9. The administrative judge further denied the 

appellant’s affirmative defense of race discrimination, and he mitigated the 

appellant’s removal to a 14-day suspension. ID at 9-10, 12.

¶4 The agency has filed a petition for review arguing that the administrative 

judge did not consider all of the relevant information in mitigating the appellant’s 

removal. Petition for Review (PFR) File, Tab 1 at 5-7. The agency also argues

that the administrative judge employed flawed reasoning in not sustaining the 

appellant’s alleged failure to protect personally identifiable information. Id. 

at 8-9. In his initial decision, the administrative judge found that the record was 

devoid of evidence showing that the appellant emailed files containing personally 

identifiable information to nonagency email accounts, as the agency had alleged. 

ID at 7; IAF, Tab 5 at 6. The administrative judge further explained that although 

the agency offered to provide this evidence to him in camera upon his request, 

this offer did not comport with the Board’s procedures involving the filing of 

sensitive or confidential information, and that the absence of this evidence from 

the record was fatal to the agency’s charge that the appellant failed to protect 

personally identifiable information. ID at 7-8 & n.*. The appellant has filed a 

response in opposition to the petition for review. PFR File, Tab 4. 

¶5 As explained below, we find that this appeal must be remanded to the 

administrative judge for further consideration of two of the agency’s charges of 

misconduct and the appellant’s disparate treatment affirmative defenses.

3

 We 

 3 We see no reason to differ with the administrative judge’s finding that the agency 

failed to prove its charge that the appellant threatened bodily injury to management 

personnel. ID at 4-7. Because we are remanding the appeal for further adjudication, we 

do not address the agency’s challenge to the administrative judge’s decision to mitigate 

the penalty. PFR File, Tab 1 at 5-7.
4

note at the outset, however, that we disagree with the agency’s argument on 

review that the administrative judge erred in not conducting an in camera review 

of certain information. In camera review is a process generally used during 

discovery when a party seeks to avoid the disclosure of documents on the basis of 

privilege. See U.S. v. Zolin, 491 U.S. 554, 568-69 (1989). Under this process, 

the party asserting the privilege objects to the document request and supplies the 

documents to the court for inspection in order for it to determine whether they 

should be turned over. Id. Here, however, the agency did not assert that either 

the withheld documents or information are privileged; rather, the agency asserted 

that the information should not be made public as part of its filing in this case. 

See IAF, Tab 5 at 3. As the administrative judge explained, the Board’s 

procedures provide for the submission of documents under seal or in redacted 

format. ID at 7 n.*; see Social Security Administration v. Doyle, 45 M.S.P.R. 

258, 261-62 (1990); see also U.S. Merit Systems Protection Board Judges’ 

Handbook, Chapter 17 (Oct. 2007). We thus disagree with the agency that certain 

information should have been presented to the administrative judge for in camera

review.

¶6 Although we find no merit to the agency’s argument that the administrative 

judge should have conducted an in camera review of the evidence, we find that 

the record contains other evidence which the administrative judge should have 

considered in determining if the agency proved its charge that the appellant failed 

to protect personally identifiable information. Specifically, in response to the 

agency’s notice of proposed removal, the appellant submitted a written reply

acknowledging that he sent “a copy of the email . . . to my home e-mail because 

of time constraints” and that he usually “scrub[s] any [personally identifiable 

information] from any e-mails. However, in this instance, I wasn’t really 

thinking about the [personally identifiable information] aspect of this e-mail. It 

was an honest oversight mistake.” IAF, Tab 5 at 51. The Board has found that an 

appellant’s admission of a charge of misconduct can suffice as proof of the 
5

charge without additional proof from the agency. See Cole v. Department of the 

Air Force, 120 M.S.P.R. 640, ¶ 9 (2014). Accordingly, upon remand, we leave it 

to the administrative judge to determine whether the appellant’s statements 

constitute sufficient proof of the agency’s charge, and if so, he should consider 

the appellant’s admissions in evaluating the reasonableness of the agency’s 

penalty. See, e.g., Lazenby v. Department of the Air Force, 66 M.S.P.R. 514, 521 

(1995) (an admission of wrongdoing can demonstrate strong rehabilitative 

potential). We thus GRANT the agency’s petition for review, insofar as it

challenges the administrative judge’s decision not to sustain the second charge.

¶7 Upon review of the initial decision, we also find that the administrative 

judge should further consider on remand whether the agency proved its third 

charge that the appellant redirected veterans’ benefits to other than intended 

claimant(s) and improperly altered official government documents. While the 

administrative judge found preponderant evidence in the record establishing that 

the agency proved this charge, he did not specifically address the second 

component of the agency’s charge, viz., whether the appellant improperly altered 

official government documents. See ID at 8-9. Although the agency’s charge is 

based on a single event, the agency charged the appellant with redirecting 

veterans’ benefits and improperly altering official government documents, and we 

find that in order to prove this charge, the agency must prove both aspects of this 

charge as labeled.

4

 See Acox v. U.S. Postal Service, 76 M.S.P.R. 111, 113-14

(1997). An initial decision must identify and resolve all material issues of fact, 

 4 Toward the beginning of his initial decision, the administrative judge explained that 

“where, as here, a charge is based on separate acts of misconduct that are not dependent 

on each other and do not comprise a single inseparable event, each of the aspects may 

stand or fall individually.” ID at 4. We are uncertain if the administrative judge’s 

observation applies to each of the agency’s charges, or solely to its third charge. We 

disagree with the administrative judge insofar as this observation applies to the third 

charge, which we find requires the agency to prove both that the appellant redirected 

veterans benefits and that he altered official government documents. See Otero v. U.S. 

Postal Service, 73 M.S.P.R. 198, 202-03 (1997) (an agency must prove its charge as 

labeled); see also IAF, Tab 5 at 3, 6-7.
6

and must address all material legal issues in a manner that reveals the 

administrative judge’s conclusions of law, legal reasoning, and the authorities on 

which that reasoning rests. Spithaler v. Office of Personnel 

Management, 1 M.S.P.R. 587, 589 (1980). Absent a discussion of whether the 

agency proved by preponderant evidence that the appellant improperly altered 

official government documents, we find that additional consideration of this 

charge is warranted on remand.

¶8 Finally, on remand, we find that the administrative judge also must provide 

the appellant notice of his burden of proof on his affirmative defenses of race,

sex, and disability discrimination. See Qatsha v. Department of 

Defense, 86 M.S.P.R. 121, ¶ 8 (2000). As noted above, the appellant alleged in 

his initial appeal that his removal was motivated by race, sex, and disability 

discrimination. IAF, Tab 1 at 2. The record reflects, however, that the 

administrative judge did not apprise the appellant of the applicable burdens of 

proof on these claims prior to issuing the initial decision, and that he only 

addressed the appellant’s defense of race-based disparate treatment in his initial 

decision. ID at 9-10; IAF, Tabs 6, 9. Under these circumstances, we find that the 

appellant is entitled to notice of the standards of proof for his affirmative 

defenses of race-, sex-, and disability-based disparate treatment, and we find that 

remand of the appeal for further adjudication is warranted.

5 Id.; see Sarratt v. 

U.S. Postal Service, 90 M.S.P.R. 405, ¶ 12 (2001) (Board law requires the 

administrative judge to give the appellant notice of his burden of proof and the 

elements of his affirmative defense).

 5 We recognize that these issues may have been overlooked due to the fact that the 

appellant did not timely request a hearing. Because we find no reason to differ with the 

administrative judge’s conclusion that the appellant did not timely request a hearing, 

the appellant is not entitled to another opportunity to request a hearing on remand. IAF, 

Tab 9.
7

ORDER

For the reasons discussed above, we REMAND this case to the regional 

office for further adjudication in accordance with this Remand Order. After 

apprising the appellant of the elements of his affirmative defenses and giving him 

an additional opportunity to submit evidence on these claims, the administrative 

judge may adjudicate the appeal on the written record and issue a new initial 

decision addressing the two charges discussed above; the appellant’s race, sex,

and disability discrimination affirmative defenses; and whether the appellant’s 

removal should be sustained or whether a lesser penalty should be imposed.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board