Affirmative defenses at the Merit Systems Protection Board (“MSPB” or “the Board”) are a set of facts that, if proven, require reversal of an Agency’s adverse personnel action. The appellant (the employee who filed the appeal) has the burden to prove affirmative defenses by a preponderance of the evidence, or by more than 50%. If the appellant does this, then the Board is required to reverse the agency’s adverse action, even if the agency has met its evidentiary burden with respect to the misconduct charges that gave rise to the adverse personnel action. There are three categories of affirmative defenses which an appellant may assert on an adverse action appeal to the Board: 1) harmful error in the application of the agency’s procedures in arriving at its decision; 2) that the decision was based on any prohibited personnel practice described in 5 U.S.C. 2302(b) (discrimination or whistleblower retaliation are the most frequently raised); 3) that the Agency’s decision was not in accordance with law.
A harmful error is a procedural error involving statutes or regulations where the outcome was affected by the agency’s failure to follow the required procedures. An agency’s error is harmful only where the record shows that the procedural error was likely to have caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error. Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 681, 685 (1991).
There are fourteen prohibited personnel practices (“PPPs”) described in 5 U.S.C. 2302(b) that can serve as the basis of an affirmative defense. However, some of the most commonly alleged PPPs include: 1) discrimination based on race, color, religion, sex, national origin, age, disability, marital status or political affiliation; 2) whistleblower reprisal for reporting what an employee reasonably believes evidences a violation of law, rule or regulation or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety; and 3) reprisal for exercising any appeal, complaint or grievance right granted by any law, rule or regulation (as well as testifying and assisting another individual in exercising their right, and cooperating with or disclosing information to the Inspector General, Special Counsel, or other component responsible for internal investigations).
Lastly, Agency actions that are “not in accordance with the law” include other unlawful actions where the Agency committed a due process violation or has no legal authority for the action (but not statutory and regulatory procedural errors, which are covered under harmful error). Appellants can also raise Uniformed Services Employment and Reemployment Rights Act (“USERRA”) violations and the Veterans Employment Opportunities Act (“VEOA”) violations under this category. USERRA prohibits an employer from discriminating against an employee, including denying an employee retention in employment or any other benefit of employment, because of the employee’s past, present, or future military service. 38 USC § 4311(a). The VEOA provides certain federal employees and applicants with a means of redress in the event that a federal executive agency violates an employee’s or applicant’s veterans’ preference rights. 5 U.S.C. §§ 3330a -3330b.
How do you raise Affirmative Defenses?
An affirmative defense should be raised at the time the employee files an MSPB appeal. However, often times an employee may not discover that there is a basis to allege an affirmative defense until they obtain new and material information about the proposing and/or deciding official’s motivations and actions via discovery or even through their testimony at the hearing. For instance, an appellant may raise an allegation of discrimination at any time during the Board’s consideration of the appeal of the agency’s action, including on petition for review, if the appellant did not know of the existence of a basis for the allegation at the time that the petition for appeal was filed. Weslowski v. Department of the Army, 80 MSPR 585, 591, aff’d, No. 99–3168, 1999 WL 820447 (Fed. Cir. 1999). An appellant must raise a discrimination claim when she has sufficient knowledge of facts and circumstances to form a reasonable suspicion that prohibited discrimination has occurred. Weslowski, 80 MSPR at 591. The Board will not consider an allegation of harmful procedural error raised for the first time in a PFR unless there is new and material evidence. Kline v. DHHS, 22 MSPR 326, 328 (1984). In most cases, an appellant should be prepared to identify any affirmative defenses by the time they file their pre-hearing submission, where the parties are required to identify any issues that must be resolved at the hearing.
How do you prove Affirmative Defenses at the MSPB?
The way an appellant can establish an affirmative defense depending on the particular burden of proof required for the affirmative defense. Harmful error is proven by showing that the agency’s action would not have been sustained if the procedural error had not occurred.
A PPP involving a claim discrimination can be proved through either direct evidence (i.e., evidence that can be interpreted as an acknowledgment of discriminatory intent) circumstantial evidence (i.e. suspicious timing, ambiguous oral or written statements, behavior toward or comments directed at other employees in the protected group, and other bits and pieces that composed a “convincing mosaic” from which an inference of discriminatory intent might be drawn, and comparator evidence that other similarly situated employees outside of appellant’s protected categories are treated better). In A whistleblower reprisal affirmative defense if proven by showing the appellant disclosed a violations of law, rule or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. The appellant must also prove the disclosure was a “contributing factor” in the agency personnel decision. Once this burden is met, the agency must demonstrate by clear and convincing evidence it would have taken the personnel action absent the whistleblower activity.
Proving a due process violation depends on the nature of the violation. In general, an appellant must show that the deciding official relied on new information in making the decision that was not provided to the appellant prior to the decision. The law requires that employees be given a meaningful opportunity to reply to any proposed adverse action, and that reply can only be meaningful if the employee is provided all of the evidence and information used by the deciding official in making the decision. For additional information on due process violations, see a federal lawyer in Virginia today.
Thanks to The Federal Practice Group for their insight into affirmative defenses for adverse action.