The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2015 MSPB 50
Docket No. SF-0752-14-0256-I-1
Douglas A. Alarid,
Appellant,
v.
Department of the Army,
Agency.
August 21, 2015
Paul E. Carreras, Santa Rosa, California, for the appellant.
Douglas W. Hales and David Michael Tucker, Fort Hunter Liggett,
California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed his removal. For the reasons discussed below, we GRANT the petition
for review, VACATE the initial decision, and REMAND the case to the regional
office for further adjudication in accordance with this Opinion and Order.
BACKGROUND
¶2 The appellant served as a Police Officer at all times relevant to this appeal.
Initial Appeal File (IAF), Tab 5 at 18. The agency removed the appellant from
Federal service based on two charges of misconduct: conspiracy to purchase and
2
distribute an unauthorized Federal police badge; and manufacture and distribution
of an unauthorized Federal police identification card. Id. at 20-29. The appellant
filed a timely appeal of his removal and raised an affirmative defense of reprisal
based upon his participation in union activity. IAF, Tab 1 at 7. In his prehearing
submission, moreover, the appellant raised affirmative defenses of retaliation for
whistleblowing and a due process violation. IAF, Tab 8 at 9, 15-17.
¶3 The administrative judge held a prehearing conference and entered an order
suspending case processing to allow the parties an opportunity to explore
settlement. IAF, Tab 9. In his prehearing conference summary and order, the
administrative judge noted that the appellant was “raising the affirmative
defenses of retaliation for protected whistleblowing and union activity,” but the
administrative judge offered no explanation of the applicable burdens of proof
governing such claims. Id. After the first case processing suspension period
expired, the administrative judge entered a second order suspending case
processing. IAF, Tab 13. In that order, the administrative judge stated that the
appellant had raised “affirmative defenses of retaliation for protected [equal
employment opportunity (EEO)] activity and whistleblowing activity,” and he
cited Warren v. Department of the Army, 804 F.2d 654 (Fed. Cir. 1986), for the
applicable burden of proof “to prevail on a contention of illegal retaliation.”
IAF, Tab 13. Neither party objected to the administrative judge’s summary of the
defenses raised by the appellant.
¶4 The administrative judge subsequently held another prehearing conference.
IAF, Tab 20. In his summary of that prehearing conference, the administrative
judge again cited Warren for the applicable burden of proof concerning the
appellant’s affirmative defenses. Id. In this order, however, the administrative
judge stated that “[i]t was determined that [the appellant’s] originally asserted
whistleblowing retaliation claim pertained exclusively to his protected EEO
activity.” Id. at n.1. The administrative judge offered no explanation for this
determination, did not acknowledge the appellant’s affirmative defenses of
3
reprisal for participation in union activity or a due process violation, and did not
explain the effects of withdrawing or abandoning any of his affirmative defenses.
Id. Although the administrative judge provided the parties 10 days to file
objections to this order, neither party did so.
¶5 Following a hearing, the administrative judge issued an initial decision
sustaining both of the agency’s charges, finding the penalty of removal
reasonable, and finding that the appellant failed to prove that his removal was the
result of reprisal for EEO activity. IAF, Tab 41, Initial Decision (ID). In
adjudicating the appellant’s affirmative defense, the administrative judge
indicated that he had previously determined that “the appellant’s originally
asserted whistleblowing retaliation claim pertained exclusively to his protected
EEO activity.” ID at 13 n.11. The administrative judge acknowledged that both
parties “briefly touched on other affirmative defenses in their closing briefs,” 1 but
declined to reach those issues because neither party objected to his prehearing
conference summary within 7 days, 2 and because the appellant only presented
evidence concerning his claim of reprisal for EEO activity. Id.
¶6 The appellant filed a petition for review challenging several of the
administrative judge’s credibility determinations and arguing that the
administrative judge erred in denying his affirmative defense of reprisal for union
activity. Petition for Review (PFR) File, Tab 1 at 6-8, 10-11. The agency filed a
1
The agency argued in its closing brief that the appellant failed to prove that his
removal was the result of whistleblower reprisal, IAF, Tab 31 at 6, and the appellant
alleged in his closing brief that he was terminated in reprisal for protected union
activity, IAF, Tab 30 at 4. Neither party specifically addressed allegations of EEO
reprisal.
2
The record reflects that the administrative judge gave the parties 10 days, rather than
7 days, to object to his prehearing conference summary. See IAF, Tab 20 at 2. It is
undisputed, however, that neither party objected to the prehearing conference summary
and order.
4
response in opposition to the petition for review, and the appellant filed a reply. 3
PFR File, Tabs 4-5.
ANALYSIS
The appeal must be remanded for further adjudication of the appellant’s
whistleblower reprisal and due process claims.
¶7 Upon our review of the parties’ submissions and the administrative judge’s
orders, we find that the administrative judge did not fully identify all of the
affirmative defenses the appellant raised in response to his removal. See Gath v.
U.S. Postal Service, 118 M.S.P.R. 124, ¶ 11 (2012) (citing Wynn v. U.S. Postal
Service, 115 M.S.P.R. 146, ¶ 10 (2010)). As explained below, the appellant
raised an affirmative defense based upon his participation in union activity under
5 U.S.C. § 2302(b)(9)(B), but the administrative judge failed to outline the
relevant burdens for proving such a claim under the Whistleblower Protection
Enhancement Act of 2012 (WPEA), Pub. L. No. 112-199, 126 Stat. 1465.
See 5 U.S.C. § 1221(e), (i). Additionally, the appellant raised allegations of
whistleblower reprisal under 5 U.S.C. § 2302(b)(8) and a due process violation.
The administrative judge also failed to apprise the appellant of his burdens of
proof on these claims or to document whether the appellant withdrew or
abandoned either of these affirmative defenses prior to hearing. See Gath,
118 M.S.P.R. 124, ¶ 10. Accordingly, we remand the appeal to the administrative
judge for further adjudication of the appellant’s affirmative defenses.
3
After the record closed on petition for review, the appellant filed a supplemental
response in further support of his petition for review. PFR File, Tab 6. The Board’s
regulations only provide for the filing of a petition for review, an opposition in
response, and a reply. See 5 C.F.R. § 1201.114(a). Because we are remanding the
appeal for further development of the record, the appellant will have an opportunity to
supplement the record before the administrative judge. We have not considered the
appellant’s supplemental response in the course of granting his petition for review.
5
The appellant’s allegation of reprisal based upon his participation in union
activity is a prohibited personnel practice affirmative defense under
5 U.S.C. § 2302(b)(9)(B).
¶8 As explained above, in his initial decision, the administrative judge
indicated that he had determined previously that the “appellant’s originally
asserted whistleblowing retaliation claim pertained exclusively to his protected
EEO activity,” and that he would adjudicate the affirmative defense as a claim of
EEO reprisal. 4 ID at 13 n.11; IAF, Tab 20 at 1 n.1. The administrative judge,
however, did not address the appellant’s specific assertions that his removal was
based on his participation in union-related activities on behalf of other
employees.
¶9 Upon our review of the record, we find that the administrative judge should
have considered the appellant’s allegations as a claim of reprisal under
section 2302(b)(9)(B), rather than as a claim of reprisal for EEO activity. An
employee’s participation in union activity generally does not constitute protected
activity for purposes of establishing a claim of EEO retaliation. See Gath,
118 M.S.P.R. 124, ¶ 12 (clarifying that retaliation for EEO activity and union
activity are separate claims); McLaurin v. U.S. Postal Service, EEOC Appeal No.
0120070899, 2008 WL 3890478, at *1 (Aug. 14, 2008) (finding that union
participation generally does not form the basis of a claim for reprisal based on
EEO activity). In his initial appeal, the appellant asserted that his removal was
motivated by his role as a union vice president. IAF, Tab 1. In his prehearing
submission, the appellant alleged that he had been involved in numerous
4
The administrative judge did not provide an explanation for this conclusion in either
his prehearing conference summary and order or his initial decision. See IAF, Tab 20;
ID at 13 n.11. The appellant, moreover, did not specifically raise a claim of EEO
retaliation in his initial appeal or in either his pre- or post-hearing submissions. See
IAF, Tabs 1, 8, 30. Because the appellant never specifically raised an affirmative
defense based on retaliation for EEO activity, the administrative judge should not have
adjudicated such a claim.
6
grievances against the agency and that the former chief of police sought to
dissuade him from pursuing grievance matters by accusing him of misconduct.
IAF, Tab 8 at 7-9. Finally, both parties addressed whether the appellant
established reprisal based on his participation in union activity in their
post-hearing submissions, and the appellant has argued on review that his
removal was the result of his role as a union official. PFR File, Tab 1 at 11; IAF,
Tab 31 at 8-9, Tab 30 at 4.
¶10 Based on the appellant’s factual assertions, we find that he raised an
affirmative defense of reprisal for participating in union activity under
section 2302(b)(9)(B). Section 2302(b)(9)(B) makes it unlawful for an individual
to take, fail to take, or threaten to take or fail to take a personnel action because
of the employee “testifying for or otherwise lawfully assisting any individual in
the exercise of any right referred to in [5 U.S.C. § 2302(b)(8)(A)](i) or (ii).”
5 U.S.C. § 2302(b)(9)(B). Performing union-related duties, such as filing
grievances and representing other employees in the grievance process, are
protected activities under section 2302(b)(9). See Wooten v. Department of
Health & Human Services, 54 M.S.P.R. 143, 146 (1992), superseded on other
grounds by statute as stated in Carney v. Department of Veterans Affairs,
121 M.S.P.R. 446, ¶ 5 (2014).
¶11 We also find that, under Wynn, the administrative judge should have
apprised the appellant of the burdens to prove a prohibited personnel practice
under section 2302(b)(9)(B), and that he should have identified this defense in his
prehearing conference summary. See Gath, 118 M.S.P.R. 124, ¶¶ 11-12.
Consistent with the burdens of proof established by the WPEA discussed below,
we remand this affirmative defense to the administrative judge for further
adjudication.
7
The appellant’s affirmative defense under 5 U.S.C. § 2302(b)(9)(B) is subject to
the standards set forth in 5 U.S.C. § 1221(e).
¶12 Under the WPEA, a prohibited personnel practice affirmative defense
asserted in a chapter 75 appeal that independently could form the basis of an
individual right of action (IRA) appeal must be analyzed under the
burden-shifting scheme set forth in 5 U.S.C. § 1221(e). See 5 U.S.C.
§ 1221(e)(1)-(2), (i) (subsections 1221(a)–(h) shall apply in chapter 75 appeals
where a prohibited personnel practice under sections 2302(b)(8) and (b)(9)(A)(i),
(B), (C), or (D) is alleged); Shibuya v. Department of Agriculture, 119 M.S.P.R.
537, ¶¶ 19-20, 32 (2013). Importantly, the WPEA expanded the grounds on
which an IRA appeal may be filed with the Board. See Hooker v. Department of
Veterans Affairs, 120 M.S.P.R. 629, ¶ 9 (2014). Prior to the enactment of the
WPEA, an appellant could only file an IRA appeal with the Board based on
allegations of whistleblower reprisal under section 2302(b)(8). See Wooten,
54 M.S.P.R. at 146. Following the WPEA’s enactment, however, an appellant
also may file an IRA appeal with the Board concerning alleged reprisal based on
certain other classes of protected activity as defined in 5 U.S.C.
§ 2302(b)(9)(A)(i), (B), (C), and (D). See 5 U.S.C. § 1221(a); Hooker,
120 M.S.P.R. 629, ¶ 9. Important to the allegations raised in this appeal, the
appellant may now file an IRA appeal with the Board under section 2302(b)(9)(B)
alleging reprisal based on his lawfully assisting another individual in the exercise
of any appeal, complaint, or grievance right granted by any law, rule, or
regulation. 5 See 5 U.S.C. § 1221(a); Carney, 121 M.S.P.R. 446, ¶ 5.
5
Differing from section 2302(b)(9)(A)(i), which bars reprisal for an appellant’s
personal exercise of any appeal, complaint, or grievance right granted by law, rule, or
regulation concerning an alleged violation of section 2302(b)(8), section 2302(b)(9)(B)
bars reprisal for assisting another individual in the exercise of any appeal, complaint, or
grievance right granted by law, rule, or regulation, and such a proceeding need not
concern remedying a violation of whistleblower reprisal under section 2302(b)(8). See
Carney, 121 M.S.P.R. 446, ¶ 6 n.3.
8
Accordingly, an affirmative defense of reprisal for participating in union
grievance activity under section 2302(b)(9)(B) raised in a chapter 75 appeal must
be analyzed under the burden-shifting standards set forth in section 1221(e). See
5 U.S.C. § 1221(a), (i); Hooker, 120 M.S.P.R. 629, ¶ 9; Shibuya, 119 M.S.P.R.
537, ¶¶ 19-20, 32.
¶13 Because the appellant has alleged reprisal for activity allegedly covered by
section 2302(b)(9)(B), on remand, the administrative judge must adjudicate this
defense under the following framework. First, the administrative judge must
determine whether the appellant has established by preponderant evidence that he
was involved in protected activity under 2302(b)(9)(B). See Shibuya,
119 M.S.P.R. 537, ¶ 20. An appellant can establish that he was involved in such
protected activity by proving that he testified or assisted another employee in any
appeal, complaint, or grievance right granted by any law, rule, or regulation. See
Carney, 121 M.S.P.R. 446, ¶ 5. Next, the administrative judge must determine
whether the appellant’s participation in the protected activity was a contributing
factor in the challenged personnel action at issue. See 5 U.S.C.
§ 1221(e)(1)(A)-(B); Shibuya, 119 M.S.P.R. 537, ¶ 22. One way of proving that
an appellant’s prior protected activity was a contributing factor in a personnel
action is the “knowledge/timing” test. See Shibuya, 119 M.S.P.R. 537, ¶ 22.
Under this test, an appellant can establish that his prior protected activity was a
contributing factor in the challenged action by showing that the deciding official
knew of the protected activity and took the personnel action within a period of
time such that a reasonable person could conclude that the protected activity was
a contributing factor in the action. 6 See id.
6
The Board also has found that an appellant may establish contributing factor by
providing other evidence, such as that pertaining to the strength or weakness of the
agency’s reasons for taking the personnel action, whether the protected activity was
personally directed at the proposing or deciding officials, and whether those individuals
9
¶14 If the appellant makes both of these showings by preponderant evidence,
the burden of persuasion shifts to the agency to prove by clear and convincing
evidence that it would have taken the same action in the absence of the
appellant’s protected activity. 5 U.S.C. § 1221(e)(2); Shannon v. Department of
Veterans Affairs, 121 M.S.P.R. 221, ¶ 24 (2014). In determining whether the
agency has met this burden, the Board will consider all the relevant factors,
including the following: (1) the strength of the agency’s evidence in support of
its action; (2) the existence and strength of any motive to retaliate on the part of
the agency officials involved in the decision; and (3) any evidence that the
agency takes similar actions against employees who did not engage in such
protected activity, but who are otherwise similarly situated. Carr v. Social
Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). The Board does
not view these factors as discrete elements, each of which the agency must prove
by clear and convincing evidence, but rather weighs these factors together to
determine whether the evidence is clear and convincing as a whole. Lu v.
Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015). In assessing
whether the agency has met its burden by clear and convincing evidence, the
Board must consider all the pertinent evidence in the record, and it must not
exclude or ignore countervailing evidence by only looking at the evidence that
supports the agency’s position. See Herman v. Department of Justice,
119 M.S.P.R. 642, ¶ 15 (2013) (citing Whitmore v. Department of Labor,
680 F.3d 1353, 1367-70 (Fed. Cir. 2012)).
¶15 The administrative judge cited the Warren standard for retaliation claims in
both the prehearing summary and initial decision. IAF, Tab 20 at 1-2; ID at 13. 7
had a motive to retaliate against the appellant. See Rumsey v. Department of Justice,
120 M.S.P.R. 259, ¶ 26 (2013).
7
Under Warren, to prevail on a claim of retaliation, an appellant must show that:
(1) he engaged in protected activity; (2) the accused official knew of the activity;
(3) the adverse action under review could have been retaliation under the
10
However, the Warren standard is inapplicable to claims that are subject to the
burden-shifting framework set forth in 5 U.S.C. § 1221(e), such as the appellant’s
allegation of reprisal for participating in union activity under
section 2302(b)(9)(B). See 5 U.S.C. § 1221(e)(2). Although Warren has not
been overruled by the Federal Circuit, the statutory changes of the WPEA
significantly narrow the scope of cases to which it applies.
The administrative judge did not inform the appellant of the burdens of proof on
his affirmative defenses, and the record does not demonstrate that the appellant
abandoned or withdrew any of his affirmative defenses.
¶16 In his original prehearing conference summary and order, the
administrative judge determined that the appellant had raised affirmative defenses
of reprisal for whistleblowing and union activity. IAF, Tab 9. In a subsequent
summary of a telephonic prehearing conference, however, the administrative
judge indicated that the appellant only raised an affirmative defense of retaliation
for EEO activity. IAF, Tab 20. The administrative judge did not explain this
conclusion other than writing that “[i]t was determined that [the appellant’s]
originally asserted whistleblowing retaliation claim pertained exclusively to his
protected EEO activity.” Id. In that summary, the administrative judge did not
refer to the appellant’s claim of retaliation for union activity. In the initial
decision, the administrative judge noted that although the parties addressed other
affirmative defenses besides retaliation for EEO activity in their closing briefs, he
would not consider them because neither party filed an exception to his summary
of telephonic prehearing conference. ID at 13 n.11.
¶17 The record below does not reflect any intention by the appellant to abandon
his whistleblower or union activity affirmative defenses. See, e.g., IAF, Tab 8
at 7-9. The appellant, moreover, argued below that his removal violated due
circumstances; and (4) there was a genuine nexus between the alleged retaliation and
the adverse action. See Warren, 804 F.2d at 656-58.
11
process. 8 Id. at 15-17. The administrative judge, however, did not acknowledge
this argument in any of his orders or his initial decision. See generally ID; IAF,
Tab 20. Because the appellant raised his affirmative defenses on appeal, under
Wynn, the administrative judge should have informed the appellant of the
applicable burdens to prove such claims. See Gath, 118 M.S.P.R. 124, ¶¶ 11-12
(remanding for notice of the burden to prove an affirmative defense of reprisal for
union activity where there was no indication that the appellant withdrew or
abandoned the claim); Hulett v. Department of the Navy, 120 M.S.P.R. 54, ¶ 10
(2013) (remanding for notice of the burden to prove a due process violation).
The administrative judge failed to notify the parties of their respective burdens as
to the appellant’s affirmative defense claims. Under these circumstances, we
cannot conclude that the appellant’s failure to file an exception to the
teleconference summary was fatal to his affirmative defenses and we find it
appropriate to remand all of the affirmative defenses raised by the appellant to
the administrative judge for an explanation of the applicable burdens of proof
under Wynn.
ORDER
¶18 Based on the foregoing, we REMAND the appellant’s affirmative defenses
of reprisal for union activity, reprisal for whistleblowing, and due process
violations to the administrative judge for further adjudication consistent with the
standards discussed above. On remand, the administrative judge should apprise
the appellant of the different burdens of proof he must meet to prove his defenses,
8
There are several types of due process violations. Among the most commonly alleged
are those concerning a biased deciding official, a lack of notice and a meaningful
opportunity to respond, and a decision maker’s consideration of ex parte information.
See, e.g., Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985); Lange
v. Department of Justice, 119 M.S.P.R. 625, ¶¶ 8-9 (2013). We leave it to the
administrative judge to determine the nature of the appellant’s due process claim in the
first instance.
12
afford the parties an additional opportunity to conduct discovery on these issues,
and hold a supplemental hearing addressing these defenses, if requested. If the
appellant does not prevail on any of the affirmative defenses on remand, the
administrative judge may adopt his prior findings concerning the agency’s
charges, nexus, and the reasonableness of the appellant’s removal in his remand
initial decision. See Viana v. Department of the Treasury, 114 M.S.P.R. 659, ¶ 8
(2010).
FOR THE BOARD:
______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.