Gary Thurman v. United States Postal Service
2022 MSPB 21
MSPB2022Background
- Thurman, a USPS PS-4 laborer, was removed for "improper conduct" after allegedly making threatening statements to a coworker about shooting someone if his vehicle was towed, and about having law enforcement follow and harass employees.
- He filed an MSPB appeal and checked an affirmative-defense box alleging retaliation for prior protected activity, including a prior Board appeal challenging an emergency suspension that was settled.
- At hearing the administrative judge (AJ) found the agency proved the misconduct by a preponderance, found a nexus to the efficiency of the service, and upheld removal as reasonable; credibility findings relied on witness demeanor.
- On petition for review Thurman disputed the credibility findings and raised additional arguments (e.g., selective towing under Title VII) that were either not raised below or were vague; the Board declined to consider new issues raised for the first time on review.
- The Board affirmed the initial decision, deferred to the AJ’s credibility determinations, and held Thurman abandoned his previously-asserted retaliation affirmative defense because he failed to develop or pursue it after the initial appeal and did not object to the prehearing summary that stated he was raising no affirmative defenses.
- The Board also overruled Wynn v. U.S. Postal Service to the extent Wynn required a mandatory sua sponte remand whenever an AJ failed to address an affirmative defense; instead the Board adopted a case-specific multi-factor test to determine whether an affirmative defense was waived or abandoned (while retaining procedural duties for AJs to identify affirmative defenses and allow objection).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of proof of misconduct | Thurman: did not make the alleged statements; agency witness not credible | USPS: record testimony and evidence prove the threats and nexus to service efficiency | Board: affirmed AJ — agency proved misconduct and nexus; penalty reasonable |
| Credibility of witness findings | Thurman: AJ erred in crediting agency witness; witness had poor character and inconsistencies | USPS: AJ observed demeanor and properly evaluated credibility under Hillen factors | Board: deferred to AJ’s demeanor-based credibility findings; no reason to disturb |
| Preservation/waiver of retaliation affirmative defense | Thurman: listed retaliation on appeal form and thus preserved the defense | USPS: Thurman failed to pursue or develop the defense and did not object to prehearing summary stating no affirmative defenses | Board: Thurman abandoned the affirmative defense; no remand required |
| Remand rule from Wynn (mandatory remand when AJ fails to address affirmative defense) | Implicitly for Thurman: Wynn might require remand where AJ did not address the defense | USPS/Board: Wynn’s mandatory-remand approach is unworkable; remand not always necessary | Board: overruled Wynn to the extent it required automatic remand; adopted multi-factor test to assess waiver/abandonment; AJs must still identify affirmative defenses in prehearing orders and allow objections |
Key Cases Cited
- Wynn v. U.S. Postal Service, 115 M.S.P.R. 146 (2010) (previously required remand when AJ failed to follow Wynn procedural protections for affirmative defenses)
- Haebe v. Department of Justice, 288 F.3d 1288 (Fed. Cir. 2002) (demeanor-based credibility findings by an AJ are entitled to deference)
- Purifoy v. Department of Veterans Affairs, 838 F.3d 1367 (Fed. Cir. 2016) (reaffirming deference to credibility determinations based on witness demeanor)
- Hillen v. Department of the Army, 35 M.S.P.R. 453 (1987) (factors for assessing witness credibility)
- Erkins v. U.S. Postal Service, 108 M.S.P.R. 367 (2008) (remand for affirmative defenses when the issue was preserved and raised on review)
- Hall v. Department of Transportation, 119 M.S.P.R. 180 (2013) (followed Wynn; subsequently overruled in part by this decision)
- Burgess v. Merit Systems Protection Board, 758 F.2d 641 (Fed. Cir. 1985) (notice requirement regarding burdens when Board jurisdiction is at issue)
- Parker v. Department of Housing & Urban Development, 106 M.S.P.R. 329 (2007) (failure to provide Burgess notice may require remand)