Leamon D. Brinson v. Department of the Navy
Background
- Appellant Brinson, an Electronics Industrial Controls Mechanic with the Navy, previously received a 30‑day suspension based on disrespectful conduct and insubordination involving Commander J.B.; that suspension was sustained by the Board and became final.
- While that appeal was pending, the agency removed Brinson for a single charge of disrespectful conduct supported by three specifications based on comments he made while taking Commander J.B.’s deposition in the earlier appeal.
- Brinson timely appealed the removal to the MSPB, alleged the removal was retaliatory for his prior Board appeal, and argued the deposition comments were made during protected activity.
- At a telephonic prehearing conference the appellant reportedly withdrew his hearing request; the prehearing summary did not address any affirmative defenses or the burdens for proving them.
- The administrative judge sustained the removal on the written record, finding the comments were not immunized by protected activity, that nexus and penalty were proven, and stating Brinson had not raised affirmative defenses.
- On petition for review the Board vacated and remanded because the AJ failed to notify Brinson of the burden and elements for proving an affirmative defense of retaliation under 5 U.S.C. § 2302(b)(9)(A)(ii), and did not allow development of that defense.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellant raised an affirmative defense of retaliation for engaging in protected activity | Brinson argued his deposition comments occurred during protected activity and the removal was retaliatory for his prior Board appeal | Agency argued the comments justified removal and that protected activity did not bar discipline | Held: The Board found the allegations reasonably raised an affirmative defense and remanded because the AJ failed to advise Brinson of the burden/elements or allow development of that defense |
| Whether the AJ’s prehearing summary and record sufficed to deem the affirmative defense abandoned | Brinson contended he did not intend to abandon the defense and was not informed of burdens | Agency relied on the prehearing summary and an alleged oral confirmation that the defense was withdrawn | Held: The Board held the record does not clearly show withdrawal; absent required notice, the defense cannot be deemed abandoned |
| Whether the AJ adequately explained the legal standard for protected‑activity retaliation | Brinson cited standards for protected activity and alleged retaliation; he argued he lacked notice of required burdens | Agency relied on AJ’s discussion of similar whistleblower cases to support its decision | Held: The Board held the AJ’s discussion of whistleblower precedents was insufficient because the burden/elements for §2302(b)(9)(A)(ii) differ from whistleblower standards |
| Remedy when AJ fails to advise an appellant of burdens for an affirmative defense | Brinson requested full consideration of his retaliation defense and opportunity for hearing/discovery | Agency opposed remand | Held: Board vacated the initial decision and remanded for the AJ to notify appellant of the burden/elements for §2302(b)(9)(A)(ii), permit development (discovery/hearing), and then issue a new initial decision addressing charge, nexus, penalty, and the affirmative defense |
Key Cases Cited
- Hall v. Department of Transportation, 119 M.S.P.R. 180 (2013) (administrative judges must apprise appellants of burdens and evidence required to prove an affirmative defense)
- Wynn v. U.S. Postal Service, 115 M.S.P.R. 146 (2010) (prehearing orders must address affirmative defenses and consequences of withdrawal)
- Warren v. Department of the Army, 804 F.2d 654 (Fed. Cir. 1986) (standard for proving retaliation where plaintiff bears the burden absent whistleblower/EEO claims)
- Mattison v. Department of Veterans Affairs, 123 M.S.P.R. 492 (2016) (distinguishes burdens for §2302(b)(9)(A)(ii) claims from whistleblower burden‑shifting under 5 U.S.C. §1221)