The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TAMICA J. SMITHSON, DOCKET NUMBER
Appellant, DC-0752-24-0192-I-3
v.
DEPARTMENT OF DEFENSE, DATE: June 10, 2026
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Tamica J. Smithson , Noblesville, Indiana, pro se.
Jonathan A. Beyer and Richard Kelly , APO, Armed Forces Europe,
the Middle East, and Canada, for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
James J. Woodruff II, Member
REMAND ORDER
The appellant has filed a petition for review of the initial decision, which
sustained her removal for medical inability to perform duties. For the reasons
discussed below, we GRANT the appellant’s petition for review. We AFFIRM
the initial decision’s findings that the agency proved its charge of medical
inability and that the appellant did not prove her affirmative defenses of disability
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
discrimination based on her status as disabled and the agency’s failure to
reasonably accommodate her, retaliation for prior equal employment opportunity
(EEO) activity and requesting reasonable accommodations, and harmful
procedural error. We VACATE the findings on nexus and penalty, and we
REMAND the case to the regional office for adjudication of the appellant’s
affirmative defense of whistleblower retaliation under 5 U.S.C. § 2302(b)(9)(C),
in accordance with this Remand Order.
DISCUSSION OF ARGUMENTS ON REVIEW
We supplement the administrative judge’s analysis that the appellant did not
establish her affirmative defense of reprisal for her protected EEO activity of
opposing discrimination and requesting reasonable accommodations.
On review, the appellant challenges the administrative judge’s finding that
the appellant failed to establish her affirmative defense of reprisal for her EEO
activity of opposing disability discrimination and requesting reasonable
accommodations. Petition for Review (PFR) File, Tab 1 at 19; Smithson v.
Department of Defense, MSPB Docket No. DC-0752-24-0192-I-3, Appeal File
(I-3 AF), Tab 24, Initial Decision (ID) at 15. Specifically, she argues that the
administrative judge did not consider evidence that the agency’s August 28, 2023
notice of temporary reassignment was retaliatory, in that it imposed an
unwarranted restriction prohibiting her from communicating with students, staff,
or parents despite her having no record of misconduct. PFR File, Tab 1 at 19.
She also argues that the administrative judge did not consider the suspicious
timing between her October 4, 2023 amendment of her pending EEO complaint
and the agency’s issuance of her proposed removal on October 6, 2023. Id.
While we ultimately agree with the administrative judge’s finding that the
appellant failed to establish her affirmative defense, we supplement his analysis
here.
The Americans with Disabilities Act prohibits discriminating against any
individual because such individual has engaged in protected activity. Pridgen v.
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Office of Management and Budget, 2022 MSPB 31, ¶ 44. An employee proves a
claim of retaliation for requesting a reasonable accommodation or opposing
disability discrimination by showing that the employment action would not have
occurred but for the employee’s protected activity. Id., ¶¶ 44-47. Under a but-for
causation standard, an agency “cannot avoid liability just by citing some other
factor that contributed to its challenged employment decision.” Bostock v.
Clayton County, 590 U.S. 644, 656 (2020) (emphasis in original). An employer is
liable if the prohibited consideration “was one but-for cause of [its] decision.”
Id.
We agree with the administrative judge’s finding that the direct cause of
the appellant’s removal was her worsening medical conditions, which caused her
to be unable to safely and efficiently perform her core teaching duties. ID at 15.
The record shows that the appellant made reasonable accommodation requests,
which were granted by the agency, and that she made EEO complaints prior to the
agency issuing her the notice of temporary reassignment and the proposed
removal. See e.g., Smithson v. Department of Defense, MSPB Docket No.
DC-0752-24-0192-I-1, Initial Appeal File (IAF), Tab 3 at 11, 134, Tab 11
at 10-12. Indeed, the record reflects that, throughout her last 13 years of
employment at Vilseck High School, the appellant consistently engaged in
protected activities of opposing discrimination and requesting accommodations,
and that the agency continued to grant her accommodations that gave her some
flexibility while still ensuring that she could perform her position. IAF, Tab 3
at 11, 35, 134, Tab 11 at 10-12; I-3 AF, Tab 9 at 4-5, Tab 12 at 14.
Further, as the administrative judge explained in the initial decision, the
agency has consistently maintained that in-person attendance has been, and
continues to be, an essential function of the appellant’s position. ID at 5-10. In
2018, well before the appellant engaged in the protected activities at issue here
and before the officials involved in her removal had arrived at Vilseck High
School, the then-principal denied her request to not attend in -person in the
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morning because he determined that full-day in-person attendance was an
essential function of her teaching position. IAF, Tab 11 at 11-12. The fact that
the agency temporarily allowed the appellant and other teachers detailed to
Department of Defense Education Activity (DoDEA) Virtual High School to work
from home during the COVID-19 pandemic does not suggest retaliation. To the
contrary, the agency demonstrated that it accommodated the appellant’s
COVID-19 vulnerability with remote work when there was increased demand in
full-time virtual school enrollment for students who needed online instruction due
to their own health vulnerabilities. I-3 AF, Tab 12 at 14, Tab 13 at 4. Based on
the above, we agree with the administrative judge’s finding that the appellant did
not establish her affirmative defense of retaliation for her protected EEO activity
of opposing disability discrimination and requesting reasonable accommodations.
Remand is necessary for adjudication of the appellant’s whistleblower retaliation
affirmative defense under section 2302(b)(9)(C).
On review, the appellant argues that although the administrative judge
acknowledged her protected EEO activity, he erred in not addressing her claim of
whistleblower retaliation under 5 U.S.C. § 2302(b)(9). 2 PFR File, Tab 1 at 18-21.
Specifically, in her initial appeal and pleadings below, the appellant alleged that
2
In the order and summary of the prehearing conference, the administrative judge first
assigned to the appeal excluded the appellant’s whistleblower retaliation defense,
finding that appellant’s argument was “part of the appellant’s disability discrimination
and retaliation claim.” IAF, Tab 16 at 4. After the appellant withdrew her hearing
request, the newly assigned administrative judge issued an order and summary of the
close of record conference, which also excluded the appellant’s whistleblower reprisal
affirmative defense among the issues to be decided in the appeal. I-3 AF, Tab 7 at 3,
Tab 8 at 3. Although the pro se appellant did not expressly object to the order, she filed
a close of record submission in which she continued to raise the affirmative defense of
whistleblower retaliation under 5 U.S.C. § 2302(b)(9). I-3 AF, Tab 15 at 13, Tab 19
at 14. She also raised the defense in her petition for review. PFR File, Tab 1 at 18-21.
Therefore, based on the above circumstances, we find that the appellant did not waive
her defense of whistleblower retaliation under 5 U.S.C. § 2302(b)(9). See Thurman v.
U.S. Postal Service, 2022 MSPB 21, ¶¶ 17-28 (discussing a list of nonexhaustive factors
the Board will consider in determining whether an appellant waived an affirmative
defense).
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the agency removed her in retaliation for her EEO activity and disclosures to the
agency’s EEO Programs office that the agency was not properly processing her
request for a reasonable accommodation, and that she “exposed” the agency’s
“underdeveloped process for requesting reasonable accommodations.” See e.g.,
IAF, Tab 1 at 2, Tab 16 at 4; I-3 AF, Tab 15 at 13.
Under 5 U.S.C. § 2302(b)(9)(C), it is a prohibited personnel practice to
take a personnel action against an employee in reprisal for “cooperating with or
disclosing information to the Inspector General (or any other component
responsible for internal investigation or review) of an agency, or the Special
Counsel, in accordance with applicable provisions of law.” The Board has
recently held that section 2302(b)(9)(C), unlike section 2302(b)(8), is devoid of
explicit content-based limitations. See Holman v. Department of the Army,
2025 MSPB 2, ¶ 12; Reese v. Department of the Navy, 2025 MSPB 1, ¶ 46.
Furthermore, the agency’s EEO Programs office, which processed the appellant’s
EEO complaint, appears to be a component responsible for internal investigation
or review. IAF, Tab 3 at 11, 131-34. We therefore conclude that, regardless of
the specific allegations the appellant made in her EEO complaint, her
whistleblower retaliation claim is cognizable under section 2302(b)(9)(C) and
distinct from her claim of retaliation under Title VII. See Holman, 2025 MSPB 2,
¶¶ 12-13 (finding that an agency EEO office constituted an agency “component
responsible for internal investigation or review,” such that filing a complaint with
the EEO office is protected activity under 5 U.S.C. § 2302(b)(9)(C)).
The Board has required its administrative judges to apprise appellants of
the applicable burdens of proving a particular affirmative defense, as well as the
kind of evidence required to meet those burdens. Erkins v. U.S. Postal Service,
108 M.S.P.R. 367, ¶ 8 (2008). When an administrative judge fails to inform the
parties of their burdens and methods of proof, and the appellant has not
withdrawn or abandoned the affirmative defense, the Board typically remands the
appeal so the administrative judge can afford such notice and an opportunity to
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submit evidence and argument under the proper standard. Id.; see, e.g., Alarid v.
Department of the Army, 122 M.S.P.R. 600, ¶ 7 (2015). Here, the administrative
judge did not provide the parties with notice of their respective burdens of proof
regarding the appellant’s section 2302(b)(9)(C) claim.
Accordingly, we remand the appeal for further development of the record
and a finding on the merits of that defense. Upon remand, the administrative
judge should apprise the parties of their burdens of proof, afford the parties the
opportunity to conduct discovery on the issue, and allow for supplemental
briefing on the issue. He first must determine whether the appellant established
that she engaged in such protected activity, then consider whether that activity
was a contributing factor in the removal at issue in this appeal. See Clay v.
Department of the Army, 123 M.S.P.R. 245, ¶ 11 (2016). If the appellant
establishes those factors by preponderant evidence, then the administrative judge
must consider whether the agency met its burden by clear and convincing
evidence that it would have taken the same action in the absence of the
appellant’s protected activity. Id.
In the remand initial decision, the administrative judge may adopt his
previous findings regarding the charge and the appellant’s affirmative defenses of
disability discrimination based on her status as disabled and the agency’s failure
to reasonably accommodate her, retaliation for prior EEO activity and requesting
a reasonable accommodation, and harmful procedural error. If the appellant fails
to prove her affirmative defense of whistleblower retaliation under
section 2302(b)(9)(C), the administrative judge may adopt his original findings
regarding nexus and the penalty, if appropriate. However, if any argument or
evidence on the appellant’s affirmative defense affects the administrative judge’s
analysis of the nexus and the penalty, he should address such argument or
evidence in the remand initial decision.
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ORDER
For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.