In a recent decision, the Merit Systems Protection Board (MSPB) tossed out an old standard for affirmative defenses and replaced it with new guidelines. This decision will affect all manner of federal employees. Perhaps most notably, it will affect federal employees who argue their agencies’ disciplinary proposals are retaliatory in nature.
In early July, the MSPB established a new precedent for affirmative defenses. This followed its review of Thurman v. United States Postal Service. It overturns the precedent previously established by Wynn v. U.S. Postal Service.
What is an affirmative defense?
There are different ways that federal employees can defend themselves against wrongful discipline or agency actions. Traditional defenses question the agency’s interpretation of the facts or law. Affirmative defenses work differently. They raise a different set of facts that, if successfully maintained, negate the other claims.
The clearest example is likely the idea that an agency’s discipline is retaliatory. In such a case, an agency may discipline an employee for something such as an outburst. In the case of Thurman v. U.S. Postal Service, the agency dismissed Thurman after he had reportedly threatened a co-worker. The Postal Service argued this was a violation of the prohibition against violent and threatening behavior. However, Thurman claimed the Postal Service was retaliating against him for “prior protected activity.”
If Thurman could show that his dismissal was retaliatory, that would be an affirmative defense. The federal government outlaws retaliation against employees for protected activities. The Postal Service would have to correct any such illegal retaliation.
The new standard and why it matters
Prior to Thurman, the MSPB followed the precedent set by Wynn. As the Board noted, Wynn held:
- Administrative judges must address any affirmative defenses in a close of record order or prehearing conference summary
- If an employee decided to withdraw or abandon an affirmative defense, the administrative judge must take steps to confirm its abandonment
- If an administrative judge did not take all these steps, and the records did not fully address the burdens of proof for the affirmative defense, the MSPB would automatically reconsider the case
However, as the Board noted in Thurman, these standards proved needlessly “inflexible.” They followed from questionable decisions, the MSPB struggled to apply them consistently and they buried the MSPB in automatic actions that had no merit. Meanwhile, the MSPB is working hard at the colossal task of working through thousands of backlogged cases.
In consideration of these factors, the Board used Thurman as a chance to set forth a more reasonable and flexible set of guidelines. These guidelines allow judges to decide when employees have abandoned their affirmative defenses:
- The strength and clarity of the employee’s affirmative defense
- The degree to which the employee continued to pursue the affirmative defense after raising it
- Whether the employee objected to a summary of issues that omitted the affirmative defense and made clear the consequences of failing to include it in the summary
- Whether the employee raised the administrative judge’s review of the affirmative defense argument in the petition for Board review
- Whether the employee had a lawyer or a sufficient level of knowledge about Board proceedings
- The likelihood that the employee’s abandonment of any affirmative defense was the result of confusion or prompted by misleading or incorrect information provided by the employee’s agency or the Board
The Board noted that this list was not exhaustive. Furthermore, the individual importance of these factors could change on a case-by-case basis. But the guidelines clearly reveal the Board will no longer accept affirmative defense appeals as automatic. Employees who want to maintain affirmative defenses must be clear and consistent in their efforts.
What this means for employees claiming retaliation
There is no doubt that many federal employees have experienced retaliation. Many have faced disciplinary actions after whistleblowing or taking other protected actions. That retaliation is still wrong, and employees can still maintain affirmative defenses. However, the Thurman decision raises the bar for affirmative defenses. Employees need to make sure they maintain their focus on their legal arguments from beginning to end.
In Thurman’s case, the Board found he did not maintain a clear focus on his affirmative defense. It was, instead, a hollow argument that was quickly abandoned. Because Thurman and his lawyers failed to meet the standards, the Board decided not to review the affirmative defense on appeal. And because it found no error in the facts from the administrative hearing, the Board maintained Thurman’s removal.
In the end, Thurman and his team made a legal mistake. They dropped the ball on their affirmative defense. Because they didn’t continue to push that argument, the Board chose not to review it. The Board didn’t need to review whether the actions against Thurman were retaliatory; Thurman and his team had failed to argue that they were. Other employees will want to learn from this mistake.