The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2015 MSPB 51
Docket Nos. AT-0752-11-0634-I-2
AT-1221-12-0591-W-1
Tommie G. Savage,
Appellant,
v.
Department of the Army,
Agency.
September 3, 2015
Felipe Bohnet-Gomez and Michael D. Kohn, Esquire, Washington, D.C.,
for the appellant.
Nancy Washington Vaughn and Ryan Andrew Black, Huntsville, Alabama,
for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The appellant has petitioned for review of the February 7, 2014 initial
decision that affirmed her removal and the February 6, 2014 initial decision that
granted in part her request for corrective action under the Whistleblower
Protection Act (WPA). For the reasons discussed below, we JOIN the two
appeals 1 and REMAND the joined appeal for further adjudication.
1
Joinder of two or more appeals filed by the same appellant is appropriate where doing
so would expedite case processing and will not adversely affect the parties’ interests.
2
BACKGROUND
¶2 The appellant formerly was employed as a Contract Specialist with the U.S.
Army Engineer and Support Center in Huntsville, Alabama. From 1993, when
she began full-time employment, through 2006, she received excellent
performance ratings and was promoted regularly. Savage v. Department of the
Army, MSPB Docket No. AT-0752-11-0634-I-2, Refiled Appeal File (RAF),
Tab 64, Exhibits (Exs.) A-P, AD. In 2006, she was designated as the contracting
officer for the “Ranges Program,” which generally concerns the design and
implementation of agency training facilities. See RAF, Tab 13 at 4.
¶3 Beginning in late 2006, and continuing into 2007, the appellant reported
what she claimed were illegal and improper contracting activities in the Ranges
Program. RAF, Tab 64, Exs. AE, AG. These disclosures mainly involved
allegations that a contractor employee (F.H.) was making key contracting
decisions that should have been made by government officials, particularly
program manager M.F. Essentially, the appellant claimed that a close personal
relationship between F.H. and M.F. constituted a conflict of interest that
explained and accounted for the liberties that F.H. was permitted within the
Ranges Program. See id. The appellant’s disclosures were a factor in the
initiation of several command-directed inquiries into the Ranges Program,
including an internal audit that resulted in a May 24, 2007 draft report, which
essentially validated the appellant’s legal concerns, as well as an Army
Regulation (AR) 15-6 investigation that resulted in a written report dated
August 9, 2007. Id., Exs. AK, EQ. The latter report identified the appellant by
name as a source of the allegations of wrongdoing. Id., Ex. EQ at 14.
¶4 Meanwhile, in June 2007, the appellant filed a formal equal employment
opportunity (EEO) complaint, in which she alleged, inter alia, that she had been
Davis v. U.S. Postal Service, 119 M.S.P.R. 22, ¶ 1 n.1 (2012); 5 C.F.R. § 1201.36(a),
(b). We find that these criteria are satisfied here.
3
subjected to harassment and a hostile work environment because of her race and
sex. See RAF, Tab 64, Ex. BE. On October 17, 2007, the appellant and the
agency entered into a negotiated settlement agreement that resolved the EEO
complaint and provided, inter alia, that the appellant would be reassigned “to a
position comparable with her current grade and salary” with the agency’s Small
Business Office in Huntsville. Id. Effective November 11, 2007, the appellant
was reassigned, with no reduction in pay, from her YC-1102-02 Supervisory
Contract Specialist position to a nonsupervisory YA-1102-02 Contract Specialist
position with the Small Business Office. Id., Exs. BE, BG. Subsequently, in
December 2007, the appellant received a performance appraisal with an overall
rating of 3 out of 5, far less favorable than her previous appraisals. RAF, Tab 52,
Ex. EC; see RAF, Tab 64, Exs. A-H, K-P, AD.
¶5 Beginning in June 2008, the appellant made additional disclosures
concerning what she believed to be a violation of Federal acquisition regulations
in the office’s failure to utilize DD Form 2579, Small Business Coordination
Record. On August 17, 2008, the appellant and her new first-level supervisor,
Deputy Commander D.B., had a heated discussion concerning the DD Form 2579
issue. The following day, August 18, 2008, the appellant visited a psychologist,
Dr. B.M., who recommended an 8-week leave of absence due to “intensifying
depression, anxiety and work[] caused stress.” RAF, Tab 8, Subtab 4hh. D.B.
granted the appellant’s request for leave through October 20, 2008. Id.,
Subtabs 4ff-4gg.
¶6 On October 18, 2008, Dr. B.M. recommended that the appellant’s leave of
absence be extended until December 22, 2008. Id., Subtab 4ee. D.B. initially
denied the appellant’s additional leave request, but after requesting and receiving
additional documentation from Dr. B.M., he granted the request for sick leave
until December 5, 2008. Id., Subtabs 4z-4cc. The appellant then submitted a
leave request under the Family and Medical Leave Act (FMLA), with a
certification from Dr. B.M. Id., Subtab 4x. D.B. granted the appellant’s request
4
for FMLA leave from December 8, 2008, through March 5, 2009. Id., Subtab 4w.
Meanwhile, in December 2008, D.B. issued the appellant a performance
appraisal, with an overall rating of 3 out of 5. RAF, Tab 52, Ex. EB.
¶7 By letter dated March 4, 2009, Dr. B.M. recommended that the appellant’s
return-to-work date tentatively be changed from March 5, 2009, to May 4, 2009,
and the appellant requested an additional leave of absence in accordance with
those instructions. RAF, Tab 8, Subtabs 4u-4v. By letter dated March 5, 2009,
D.B. denied the request in large part, but approved the appellant’s use of accrued
sick leave through noon on March 12, 2009. Id., Subtab 4t. On March 11, 2009,
the appellant requested advanced sick leave through May 4, 2009. Id., Subtab 4s.
That same day, D.B. denied the request, citing the appellant’s “previous inability
to return to work according to [her] psychologist’s estimates.” Id., Subtab 4r.
However, D.B. noted that he had miscalculated the appellant’s annual leave
balance and informed her that she was expected to return to work at noon on
March 26, 2009, when all of her accrued leave was exhausted. Id. The appellant
requested reconsideration and submitted a March 13, 2009 letter from Dr. B.M.,
who again recommended a return date of May 4, 2009. Id., Subtabs 4p-4q. D.B.
again denied the appellant’s request. Id., Subtab 4o. The appellant then made a
request for leave without pay (LWOP), which D.B. also denied, again noting that
Dr. B.M. had already provided multiple return dates and that the appellant had
not been able to return to work on any of those dates. Id., Subtabs 4n-4o. On
April 3, 2009, D.B. informed the appellant that her leave was exhausted and that
she therefore would be placed in an absence without leave (AWOL) status
effective March 27, 2009. Id., Subtab 4l. The effective date of her AWOL status
was later changed to April 2, 2009, to reflect the final sick and annual leave hours
she had accrued. Id., Subtab 4d. 2
2
On April 22, 2009, the appellant filed an appeal with the Board’s regional office
contesting the agency’s decision to place her on AWOL status. That appeal was
5
¶8 On April 3, 2009, the appellant filed another formal EEO complaint, in
which she alleged that she had been subjected to a hostile work environment,
based on reprisal for the settled 2007 EEO complaint, as well as another EEO
complaint she had filed in 2008. See Savage v. Department of the Army, MSPB
Docket No. AT-0752-11-0634-I-1, Initial Appeal File (I-1 IAF), Tab 4. She
named D.B. as the discriminating official and cited his denial of her request for
LWOP, among other alleged retaliatory actions. Id. The agency ultimately
issued a final agency decision (FAD) finding no discrimination as to the
allegations in her April 3, 2009 complaint. Id.
¶9 In a May 6, 2009 letter, Dr. B.M. related that the appellant briefly reported
to work on May 4, 2009, but became physically ill and left after approximately an
hour. RAF, Tab 8, Subtab 4k. Based on that incident, Dr. B.M. recommended
September 1, 2009, as a new tentative return-to-work date. Id. In an email dated
May 11, 2009, the appellant submitted a copy of the May 4 letter from Dr. B.M.
and requested that her AWOL status be converted to LWOP or advanced sick
leave. Id., Subtab 4j. In response to that request, D.B. asked for additional
information from Dr. B.M. and also scheduled the appellant for an appointment
with a second psychologist, Dr. J.H. Id., Subtabs 4h-4i. Dr. B.M. did not
respond to D.B.’s request. The appellant met with Dr. J.H. on July 8, 2009, and
in a memorandum dated July 19, 2009, Dr. J.H. opined that it was unlikely that
the appellant would be able to return to her job in the next 6 to 12 months. Id.,
Subtab 4g. He further stated, “There is considerable doubt in the mind of the
undersigned that she will ever return to the currently assigned workplace, but
continued treatment might be helpful in bringing that about or assisting [the
appellant] to the point that she could work for the Corps in some other capacity.”
Id.
dismissed for lack of jurisdiction. Savage v. Department of the Army, MSPB Docket
No. AT-3443-09-0577-I-1, Initial Decision (Aug. 12, 2009).
6
¶10 By notice dated September 14, 2009, D.B. proposed to remove the
appellant based on three charges: (1) AWOL; (2) Excessive Absences; and
(3) Unavailability to Report for Duty with No Foreseeable End. RAF, Tab 8,
Subtab 4d. The appellant did not respond to the notice. By letter dated
November 3, 2009, the deciding official, Colonel N.T., removed the appellant
effective November 6, 2009. Id., Subtab 4b. The appellant filed another formal
EEO complaint concerning her removal, and on April 8, 2011, the agency issued
a FAD finding no discrimination. Id., Subtab 3.
¶11 The appellant filed a timely appeal of her removal on May 6, 2011. I-1
IAF, Tab 1. In her appeal, she contended that her removal was the ultimate result
of the agency creating a hostile work environment where she could not perform
her duties and responsibilities, which in turn led to her extended absences. Id.
She further contended that the hostile work environment was created following
the settlement of her June 2007 EEO complaint. Id. In September 2011, she
requested that her appeal be dismissed without prejudice to allow her additional
time to file a whistleblowing retaliation complaint with the Office of Special
Counsel (OSC). I-1 IAF, Tab 20. The administrative judge granted her request
and dismissed the appeal without prejudice to refiling. I-1 IAF, Tab 22, Initial
Decision.
¶12 On October 11, 2011, the appellant filed a complaint with OSC. See RAF,
Tab 1; Savage v. Department of the Army, MSPB Docket No. AT-1221-12-0591-
W-1, (W-1) File, Tab 1. In her complaint, she alleged that agency officials had
taken various personnel actions, including her removal, in retaliation for
reporting contract fraud to auditors, investigators, the Federal Bureau of
Investigation, and the Criminal Investigation Command, and for participating in
the AR 15-6 investigation. See W-1 File, Tab 1. By letter dated May 27, 2012,
OSC notified the appellant that it had closed its investigation and informed her of
her right to file an individual right of action (IRA) appeal with the Board. Id.
7
¶13 Subsequently, the appellant filed a timely IRA appeal and also refiled her
removal appeal. Id. The administrative judge joined the two appeals for hearing.
RAF, Tab 3. In the IRA appeal, the administrative judge determined that the
appellant had established jurisdiction concerning the following personnel actions
taken against her: (1) the November 2007 reassignment; (2) the December 2007
performance appraisal; (3) the failure to confer a monetary award to her
following a Small Business Office conference in 2008; (4) the December 2008
performance appraisal; (5) the refusal to extend her return-to-work date in
March 2008; (6) the denial of her advanced sick leave request in March 2008;
(7) the denial of her LWOP request in March 2008; and (8) an alleged
constructive suspension based on the creation of a hostile work environment that
compelled her to be absent from work from mid-August 2008, until her removal
in November 2009. RAF, Tab 55. In the removal appeal, the appellant raised
affirmative defenses of retaliation for protected whistleblowing activity,
retaliation for protected EEO activity, and discrimination based on race
(African-American), sex (female), and disability. Id.
¶14 Following a hearing on December 10 and 11, 2012, the administrative
judge issued separate initial decisions in the IRA and removal appeals. In the
IRA appeal, the administrative judge determined that the appellant had made
protected disclosures concerning the Ranges Program, and also had shown that
they were a contributing factor in all personnel actions at issue, except for the
alleged constructive suspension. W-1 File, Tab 6, Initial Decision (W-1 ID)
at 6-13. He noted that the appellant also had alleged a protected disclosure
concerning the DD Form 2579, but found that she had not exhausted her OSC
remedy regarding that disclosure. W-1 ID at 8. The administrative judge then
found that the agency had shown by clear and convincing evidence that it would
have taken some of the alleged retaliatory actions in the absence of the
appellant’s whistleblowing activity, but had failed to meet that burden as to the
December 2007 and December 2008 performance evaluations, and the failure to
8
provide a monetary award for the appellant’s participation in a Small Business
Office conference. W-1 ID at 13-21. Finally, the administrative judge concluded
that the appellant had failed to establish that she was constructively suspended.
W-1 ID at 21-24.
¶15 In the removal appeal, the administrative judge sustained all three charges
and found that the agency had met its burden of proof regarding nexus and
penalty. RAF, Tab 71, Initial Decision (RAF ID) at 4-12. He further found that
the appellant had failed to establish her affirmative defenses. RAF ID at 12-18.
Accordingly, the administrative judge sustained the removal action. RAF ID
at 18. The appellant filed timely petitions for review of both initial decisions.
Savage v. Department of the Army, MSPB Docket No. AT-0752-11-0634-I-2,
Petition for Review File, Tab 5; Savage v. Department of the Army, MSPB
Docket No. AT-1221-12-0591-W-1, Petition for Review (W-1 PFR) File, Tab 5.
ANALYSIS
MSPB Docket No. AT-1221-12-0591-W-1
The appellant’s constructive suspension claim is remanded for further
adjudication as a chapter 75 appeal.
¶16 On petition for review, the appellant contends that the administrative judge
erred in requiring her to establish OSC exhaustion concerning her constructive
suspension claim. W-1 PFR File, Tab 1 at 20. In support of her argument, she
cites Covarrubias v. Social Security Administration, 113 M.S.P.R. 583 (2010),
overruled by Colbert v. Department of Veterans Affairs, 121 M.S.P.R. 677
(2014), in which we held that an IRA appeal is limited to alleged personnel
actions that are not otherwise appealable to the Board and that the involuntary
retirement claim raised by the appellant in that case therefore was outside the
scope of her IRA appeal. Id., ¶ 9 n.2. She reasons that, under Covarrubias, her
constructive suspension claim is subject to chapter 75 jurisdictional standards,
rather than the jurisdictional standards for IRA appeals, and that it is unnecessary
9
to prove OSC exhaustion to establish an affirmative defense of whistleblowing
retaliation in an adverse action appeal.
¶17 While the appellant’s reasoning was sound when she filed her petition for
review, Covarrubias has since been overruled. Colbert, 121 M.S.P.R. 677, ¶ 12
n.5. The holding of Covarrubias was based on our previous decision in
Massimino v. Department of Veterans Affairs, 58 M.S.P.R. 318 (1993), abrogated
by 5 U.S.C. § 7121(g), in which we held that when an individual who was
affected by an action that is directly appealable to the Board files a whistleblower
retaliation complaint with OSC, the jurisdictional basis for a subsequent appeal to
the Board is the “true nature” of the agency’s action. Id. at 322-23. After
Covarrubias was issued, however, we recognized that Massimino had been
abrogated by the 1994 amendments to the WPA, in particular, the new section at
5 U.S.C. § 7121(g). See Agoranos v. Department of Justice, 119 M.S.P.R. 498,
¶ 18 (2013). Under 5 U.S.C. § 7121(g), an employee who claims to have suffered
whistleblowing reprisal regarding an action may elect no more than one of the
following remedies: a direct appeal to the Board; a negotiated grievance
procedure pursuant to 5 U.S.C. § 7121; or a request for corrective action under
5 U.S.C. chapter 12, subchapters II and III, i.e., an OSC complaint, potentially to
be followed by an IRA appeal. Ordinarily, an individual who first requests
corrective action from OSC will be deemed to have made a binding election to
proceed in that forum. 5 U.S.C. § 7121(g)(4)(C). In such a case, the
jurisdictional requirements for an IRA appeal apply, even if the contested
personnel action would have been directly appealable to the Board. See
Agoranos, 119 M.S.P.R. 498, ¶ 14. This principle applies equally to alleged
constructive actions. See Colbert, 121 M.S.P.R. 677, ¶ 12 n.5.
¶18 However, we also have held that an election under 5 U.S.C. § 7121(g) is
binding only if made knowingly and voluntarily. Agoranos, 119 M.S.P.R. 498,
¶ 16. Here, neither the agency, nor the administrative judge, advised the
appellant that contesting her alleged constructive suspension in an OSC complaint
10
would preclude a subsequent chapter 75 appeal before the Board. See id., ¶ 18.
Moreover, while the express language of 5 U.S.C. § 7121(g) negates Massimino
and Covarrubias, the Board had not yet recognized this when the OSC complaint
was filed, and the appellant and her attorney could have reasonably relied on
those cases. See Agoranos, 119 M.S.P.R. 498, ¶¶ 17-18. 3 We therefore find that
the appellant’s decision to contest her alleged constructive suspension before
OSC was not a binding election and did not preclude her from filing an adverse
action appeal before the Board. Because the appellant has expressly indicated
that she wishes for her constructive suspension claim to be adjudicated outside
the scope of her IRA appeal, we will consider her claim as an adverse action
appeal under chapter 75.
¶19 Like involuntary resignations, removals, and reductions in pay or grade,
involuntary leaves of absence may be appealable under chapter 75. Bean v. U.S.
Postal Service, 120 M.S.P.R. 397, ¶ 8 (2013). The Board has found jurisdiction
over constructive suspensions in a variety of situations. See Brown v. U.S. Postal
Service, 115 M.S.P.R. 88, ¶ 8 (2010). Although various fact patterns may give
rise to an appealable constructive suspension, all constructive suspension claims
(and indeed all constructive action claims), have two things in common:
(1) the employee lacked a meaningful choice in the matter; and (2) it was the
agency’s wrongful actions that deprived the employee of that choice. Bean,
120 M.S.P.R. 397, ¶ 8. Assuming that the jurisdictional requirements of a
3
The administrative judge also appears not to have recognized the effect of 5 U.S.C.
§ 7121(g), as evidenced by his decision to dismiss the removal appeal without prejudice
to permit the appellant to file an OSC complaint. Ordinarily, under 5 U.S.C. § 7121(g),
the appellant’s removal would not have been properly before OSC, as she had already
appealed it to the Board. To the extent the administrative judge may have erred in
granting the appellant’s request for dismissal without prejudice, or to the extent OSC
may have erred in including the removal in the scope of its investigation, these errors
have no effect on the outcome of this appeal.
11
chapter 75 appeal are otherwise met, as is the case here, proof of these two things
is sufficient to establish Board jurisdiction. Id.
¶20 Here, the appellant alleges that her absences beginning on August 18, 2008,
were the result of psychological damage caused by intolerable working
conditions. To establish jurisdiction over a constructive suspension on the basis
of intolerable working conditions, an appellant must show that a reasonable
person would have felt compelled to absent herself under the conditions and that
the agency was culpable for these conditions. Peoples v. Department of the Navy,
83 M.S.P.R. 216, ¶ 5 (1999). Because no employee is entitled to leave work and
remain absent without explanation, the appellant must inform the agency of the
existence of the objectionable conditions and request assistance or remediation
from the agency. Id., ¶ 8. The agency also must be notified of the specific nature
of the conditions and the employee’s inability to cope with them before the
agency can be expected to investigate, attempt remediation of the conditions if
necessary, or to consider finding other duties or positions for the employee
pending resolution of the complaint. Id., ¶ 9.
¶21 Here, the administrative judge concluded that, because the appellant did
not request reassignment as a reasonable accommodation for her medical
restrictions, she had a meaningful choice as to her absences, and therefore had not
been constructively suspended. W-1 ID at 24. However, a medical absence may
be attributable to intolerable working conditions regardless of whether the
employee subsequently requests accommodation under the Rehabilitation Act. If
the conditions are such that a reasonable person would feel compelled to absent
herself, and the agency is culpable for those conditions, to constitute a
nonfrivolous allegation of involuntary absence from duty, it is sufficient for the
appellant to notify the agency that she is medically incapable of returning to duty
in her current work environment. See Peoples, 83 M.S.P.R. 216, ¶ 11.
¶22 Accordingly, we remand the appellant’s constructive suspension claim for
adjudication as a chapter 75 appeal under the standard set forth in Peoples. If the
12
administrative judge finds that the appellant suffered a constructive suspension,
he should consider not only whether the appellant received due process
concerning that action, but also whether it was taken in retaliation for
whistleblowing activity, including the DD Form 2579 disclosure. See Jenkins v.
Environmental Protection Agency, 118 M.S.P.R. 161, ¶ 13 (2012) (finding that
reversal of removal action on due process grounds did not render the appeal moot
where the appellant could obtain further relief based on her whistleblowing
reprisal claim).
The appellant’s claim of a hostile work environment is an alleged personnel
action.
¶23 Regardless of whether the appellant establishes that her absences amounted
to a constructive suspension, the creation of a hostile work environment is itself a
personnel action for purposes of the WPA. The statute defines “personnel action”
to include, among other listed actions, “any other significant change in duties,
responsibilities, or working conditions.” 5 U.S.C. § 2302(a)(2)(A)(xii). The
legislative history of the 1994 amendment to the WPA indicates that the term
“any other significant change in duties, responsibilities, or working conditions”
should be interpreted broadly, to include “any harassment or discrimination that
could have a chilling effect on whistleblowing or otherwise undermine the merit
system.” Roach v. Department of the Army, 82 M.S.P.R. 464, ¶ 24 (1999)
(quoting 140 Cong. Rec. H11, 421 (daily ed. Oct. 7, 1994) (statement of Rep.
McCloskey)). Although the appellant alleged before both OSC and the Board
that the agency subjected her to a hostile work environment in retaliation for her
protected disclosures concerning the Ranges Program, the administrative judge
did not address that alleged personnel action, except to the extent it also was
implicated in the appellant’s constructive suspension claim. Accordingly, the
administrative judge should determine on remand whether the appellant
established prohibited whistleblowing retaliation regarding the alleged creation of
a hostile work environment.
13
Further adjudication is needed to determine whether the agency established by
clear and convincing evidence that it would have taken the remaining actions in
the absence of the appellant’s whistleblowing activity.
¶24 The administrative judge found that, while the appellant’s protected
disclosures were a contributing factor in the remaining personnel actions, the
agency established by clear and convincing evidence that it would have taken
some, but not all, of those actions in the absence of her whistleblowing activity.
Specifically, the administrative judge found that the agency met its burden as to
the appellant’s November 2007 reassignment, 4 the refusal to extend her
return-to-work date in March 2009, the refusal to grant advanced sick leave in
March 2009, and the refusal to grant LWOP in March 2009. See W-1 ID
at 14-15, 18-21. For the reasons discussed below, we find that the administrative
judge’s analysis of the clear and convincing standard in these actions was
incomplete.
¶25 In determining whether an agency has shown by clear and convincing
evidence that it would have taken the same personnel action in the absence of
whistleblowing, the Board will consider the following factors: the strength of the
agency’s evidence in support of its action; the existence and strength of any
4
The appellant describes her reassignment as a “constructive demotion,” on the theory
that she entered the settlement agreement of her EEO claim without knowing that she
would be reassigned to a nonsupervisory position with a lower pay cap. See RAF,
Tab 52, Exs. EB-EC; RAF, Tab 64, Ex. BG. However, neither a reduction in
responsibility, nor a possible loss of future pay, constitutes an appealable demotion,
constructive or otherwise. McEnery v. Merit Systems Protection Board, 963 F.2d 1512,
1514-15 (Fed. Cir. 1992). The constructive demotion doctrine is limited to cases in
which the employee: (1) was reassigned from a position which, due to issuance of a
new classification standard or correction of a classification error, was worth a higher
grade; (2) met the legal and qualification requirements for promotion to the higher
grade; and (3) was permanently reassigned to a position classified at a grade level lower
than the grade level to which she would otherwise have been promoted. Russell v.
Department of the Navy, 6 M.S.P.R. 698, 711 (1981); see Hogan v. Department of the
Navy, 218 F.3d. 1361, 1364 (Fed. Cir. 2000). These elements are not present here.
Nonetheless, a reassignment is a personnel action for purposes of the WPA. See
5 U.S.C. § 2302(a)(2)(A)(iv).
14
motive to retaliate on the part of the agency officials who were involved in the
decision; and any evidence that the agency takes similar actions against
employees who are not whistleblowers but who are otherwise similarly situated.
Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999).
Our reviewing court has further clarified that “[e]vidence only clearly and
convincingly supports a conclusion when it does so in the aggregate considering
all the pertinent evidence in the record, and despite the evidence that fairly
detracts from that conclusion.” Whitmore v. Department of Labor, 680 F.3d
1353, 1368 (Fed. Cir. 2012).
¶26 In finding that the agency met its burden as to the appellant’s
November 2007 reassignment, the administrative judge relied entirely on his
finding that the reassignment was consistent with the terms of the October 2007
settlement agreement. W-1 ID at 13-14. The record reflects that the agency
complied with the agreement insofar as it provided for the appellant’s
reassignment “to a position comparable with her current grade and salary” with
the Small Business Office. RAF, Tab 64, Ex. BE. However, that fact alone does
not amount to clear and convincing evidence that the agency would have effected
that particular reassignment—which resulted in the removal of the appellant’s
supervisory duties and a reduction in pay cap—in the absence of her
whistleblowing activity. To determine whether that is so, it is necessary to
consider evidence beyond the settlement agreement, including evidence, if any,
tending to show that the agency would have otherwise effected another
reassignment consistent with the agreement. See Whitmore, 680 F.3d at 1368.
¶27 Regarding the agency’s refusal in March 2009, to extend the appellant’s
return-to-work date or grant her requests for advanced sick leave or LWOP, the
administrative judge again relied solely on evidence tending to support the
agency’s actions. W-1 ID at 18-21. It is true that these actions may have been
reasonable, given the appellant’s failure to return to work on the previous dates
projected by Dr. B.M. However, in determining whether the agency would have
15
taken the actions in the absence of the whistleblowing activity, the administrative
judge did not consider the possibility that the appellant’s extended absences
might never have occurred but for the agency’s alleged retaliatory actions in
creating a hostile work environment. See Whitmore, 680 F.3d at 1376. On
remand, the administrative judge should consider this possibility and examine any
supporting evidence. See id.
MSPB Docket No. AT-0752-11-0634-I-2
Charges
¶28 As to the AWOL charge, is undisputed that the appellant was absent on all
the dates and for all the hours for which she was charged AWOL and that the
agency did not authorize those absences. However, where an employee has
requested leave to cover her absences, an AWOL charge will be sustained only if
the agency establishes that her requests were properly denied. Ferguson v.
Department of the Navy, 43 M.S.P.R. 143, 144 (1990). 5 If the employee
requested LWOP for the periods when she was placed in an AWOL status, the
Board will examine the record as a whole to determine if the denial of LWOP was
reasonable under the circumstances. Joyner v. Department of the Navy,
57 M.S.P.R. 154, 159 (1993).
¶29 Ordinarily, when an employee who is incapacitated for duty has exhausted
all of her leave, an agency may properly deny her LWOP request where there is
no foreseeable end in sight to her absences and where those absences are a burden
5
To prove an AWOL charge, an agency must establish “that the employee was absent,
and that his absence was not authorized or that his request for leave was properly
denied.” Little v. Department of Transportation, 112 M.S.P.R. 224, ¶ 6 (2009)
(emphasis added); see Wesley v. U.S. Postal Service, 94 M.S.P.R. 277, ¶ 14 (2003)
(same). Read literally, this phrasing would suggest that an agency could prove an
AWOL charge merely by showing that it did not authorize the employee’s absences,
even if the employee made a request for leave that was not properly denied. This is not
the case. See Ferguson, 43 M.S.P.R. at 144. More precisely, to prove an AWOL
charge, an agency must demonstrate that the employee was absent without authorization
and, if the employee requested leave, that the request was properly denied.
16
on the agency. Id. In this case, however, the appellant contends that she was
constructively suspended during the period she was charged with AWOL. If so,
this would entail not only that she had no meaningful choice concerning those
absences, but also that her lack of choice was the result of the agency’s wrongful
actions. See Bean, 120 M.S.P.R. 397, ¶ 8. We find that it would be inherently
unreasonable for an agency to deny LWOP to cover absences for which the
agency was culpable. Accordingly, should the administrative judge determine on
remand that the appellant was constructively suspended during the period for
which she was charged AWOL, the charge must be reversed.
¶30 We next turn to the charge of excessive absences. In the specification
under that charge, the agency cited the entire period of the appellant’s absences
from August 18, 2008, through August 14, 2009. These absences include
1,192 hours of approved leave, of which 480 were covered by the FMLA, as well
as the 800 AWOL hours with which she was separately charged. RAF, Tab 9,
Subtab 4d. As a general rule, an agency may not take an adverse action based on
an employee’s use of approved leave. Bair v. Department of Defense,
117 M.S.P.R. 374, ¶ 5 (2012). However, an exception may exist where the
following criteria are met: (1) the employee was absent for compelling reasons
beyond her control so that agency approval or disapproval of leave was
immaterial because she could not be on the job; (2) the absences continued
beyond a reasonable time, and the agency warned the employee that an adverse
action could be taken unless she became available for duty on a regular full-time
or part-time basis; and (3) the agency showed that the position needed to be filled
by an employee available for duty on a regular, full-time or part-time basis. Cook
v. Department of the Army, 18 M.S.P.R. 610, 611-12 (1984). This exception is
applicable only under unusual circumstances, i.e., where the employee is unable
to return to duty because of the continuing effects of illness or injury. Id. In
addition, we have held that an employee may not be disciplined for use of leave
17
covered by the FMLA. McCauley v. Department of the Interior, 116 M.S.P.R.
484, ¶ 11 (2011).
¶31 Of the 1,192 hours of approved leave cited in the proposal notice,
480 hours were covered by the FMLA, and therefore cannot support the charge.
See id. As for the remainder, we find that the agency failed to establish element
(2) of the Cook exception. The record reflects that D.B. notified the appellant on
several occasions that failure to come to work when not in an approved leave
status would result in her placement in an AWOL status, which in turn could lead
to an adverse action. RAF, Tab 8, Subtabs 4m, 4o, 4r. Yet, it was not until
April 3, 2009, that D.B. warned the appellant that she could be removed not only
for AWOL, but also for “excessive absenteeism,” which might be understood to
include approved leave. Id., Subtab 4l. That warning came too late, though, for
by then the agency had ceased to approve additional leave, and the appellant was
in an AWOL status in any event. Under these circumstances, we find that the
appellant did not receive the notice required for the Cook exception to apply. See
Fox v. Department of the Army, 120 M.S.P.R. 529, ¶ 32 (2014). Thus, the
excessive absences charge cannot be sustained as to any of her approved
absences.
¶32 Regarding the 800 hours of AWOL, it has been suggested in dicta that
periods of AWOL may be included in a charge of excessive absences. McCauley,
116 M.S.P.R. 484, ¶ 10. 6 However, while it is true that AWOL is a type of
absence, the Cook holding was based on provisions of the Federal Personnel
Manual (FPM) specifically concerned with excessive use of approved leave. See
Cook, 18 M.S.P.R. at 611-12. Although the FPM was abolished in 1993, the
Cook holding has survived for decades since, and we see no grounds for revising
6
The excessive absences charge in McCauley did not include the AWOL periods with
which the appellant in that case was separately charged. McCauley, 116 M.S.P.R. 484,
¶ 2.
18
it now. Accordingly, to the extent that periods of AWOL are included within a
charge of excessive absences, we will not consider those periods under the Cook
standard, but instead will consider them as an AWOL charge. Here, the
800 AWOL hours cited in the excessive absences charge, when construed as a
charge of AWOL, are entirely duplicative of the first charge, and we therefore
give them no further consideration. In sum, the second charge is not sustained.
¶33 In addressing the agency’s final charge, unavailability for duty with no
foreseeable end, the administrative judge again stated the Cook elements. See
RAF ID at 9. This is understandable, as the term “unavailability for duty” may
suggest a charge of excessive absences, to which the Cook standard would apply.
See Edwards v. Department of Transportation, 109 M.S.P.R. 579, ¶ 14 (2008).
However, after reviewing the proposal notice and decision letter, we conclude
that the third charge was not based on the appellant’s past absences, but rather
her continuing inability to return to work. See id.
¶34 An agency may remove an employee if she is unable, because of a medical
condition, to perform the duties of her position. Id., ¶ 15. In finding removal
warranted based on an employee’s inability to work due to incapacitation, the
Board has relied on the absence of any foreseeable end to the unavailability. Id.,
¶ 17. Here, it is undisputed that the appellant was medically unable to return to
the workplace. Furthermore, considering the appellant’s repeated failure to
return to work on the dates projected by Dr. B.M., and Dr. J.H.’s doubt that she
would ever return to work in the same capacity, we find that the agency has
shown by preponderant evidence that there was no foreseeable end to the
appellant’s medical inability to perform her duties. The third charge therefore is
sustained.
Title VII Claims
¶35 The appellant contends that the agency removed her based on race and sex
discrimination and in retaliation for her protected EEO activity, including the
April 2009 complaint in which she named D.B. as the discriminating official.
19
I-1 IAF, Tab 4. During the pendency of this appeal, the U.S. Supreme Court
issued its decision in University of Texas Southwestern Medical Center v. Nassar,
133 S. Ct. 2517, 2534 (2013), in which it held that a plaintiff claiming prohibited
retaliation under 42 U.S.C. § 2000e-3(a) must show that the contested personnel
action would not have occurred but for the retaliatory motive. The administrative
judge did not address Nassar in the initial decision, and the Board has not yet
issued a precedential decision addressing the possible effect of Nassar on our
proceedings. Accordingly, we take this opportunity to clarify the standards and
procedures governing our adjudication of Title VII claims, including (but not
limited to) retaliation.
42 U.S.C. § 2000e-16 prohibits retaliation as well as status-based
discrimination.
¶36 The Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261,
86 Stat. 111 (1972), extended Title VII to cover Federal employment, adding a
new section 717, codified at 42 U.S.C. § 2000e-16. The basic anti-discrimination
standard for Federal employment is set forth at subsection (a), which broadly
provides that personnel actions taken by Federal agencies “shall be made free
from any discrimination based on race, color, religion, sex, or national origin.”
42 U.S.C. § 2000e-16(a); see West v. Gibson, 527 U.S. 212, 214 (1999). The
courts, the Equal Employment Opportunity Commission (EEOC or Commission),
and the Board have long assumed that section 2000e-16(a) incorporated the
existing provision at 42 U.S.C. § 2000e-3(a), which prohibits private sector
employers from retaliating against employees or applicants “because” of the
exercise of Title VII rights. See Hale v. Marsh, 808 F.2d 616, 619 (7th Cir.
1986); Ayon v. Sampson, 547 F.2d 446, 449-50 (9th Cir. 1976); Martin v.
Department of the Air Force, 73 M.S.P.R. 590, 594 (1997); Algarin v.
Department of the Navy, EEOC Appeal No. B01780106, 1980 WL 351765, at *1
(Mar. 4, 1980). However, the Supreme Court has clarified that 42 U.S.C.
§ 2000e-16 does not in fact incorporate 42 U.S.C. § 2000e-3(a). Gomez-Perez v.
20
Potter, 553 U.S. 474, 487-88, 488 n.4 (2008). The Federal sector provision
instead “contains a broad prohibition of ‘discrimination,’ rather than a list of
specific prohibited personnel practices.” Id. at 487. Hence, EEO retaliation
claims in the Federal sector do not implicate the statute at issue in Nassar.
¶37 The Court did not have occasion in Gomez-Perez to definitively state
whether 42 U.S.C. § 2000e-16 itself prohibits retaliation in addition to
status-based discrimination. However, the Court did consider that question
regarding the parallel Federal sector provision of the Age Discrimination in
Employment Act (ADEA), found at 29 U.S.C. § 633a(a). That statute, which the
Court found to have been patterned directly after 42 U.S.C. § 2000e-16(a),
similarly provides that personnel actions by Federal agencies “shall be made free
from any discrimination based on age.” 29 U.S.C. § 633a(a); see Gomez-Perez,
553 U.S. at 487-88. The Court held that the requirement that such actions “be
made free” from age discrimination is itself sufficiently broad to prohibit
retaliation against an employee who complained of age discrimination.
Gomez-Perez, 553 U.S. at 491. We conclude the same is true of 42 U.S.C.
§ 2000e-16.
A violation of 42 U.S.C. § 2000e-16 is established where discrimination or
retaliation is a motivating factor in the contested personnel action.
¶38 The next question to be considered is whether an appellant alleging a
violation of 42 U.S.C. § 2000e-16 must show that improper consideration was the
“but for” cause of the contested personnel action, as would be the case in a
private sector retaliation claim under 42 U.S.C. § 2000e-3(a), or whether a less
stringent causation standard should apply. This question is of particular
importance given that most adverse actions against Federal employees are at least
ostensibly taken for cause. Not infrequently, this leads to a dual motivation
scenario in which the contested action may appear to have been taken for both
prohibited reasons and legitimate reasons, such as sustained misconduct.
21
¶39 Again, we may draw a useful analogy to the ADEA. In Gross v. FBL
Financial Services, Inc., 557 U.S. 167 (2009), the Court considered whether a
“but for” causation requirement should apply to claims of age discrimination
arising under 29 U.S.C. § 623(a)(1), which prohibits discrimination “because of
age” in private sector employment. Examining the text of 29 U.S.C. § 623(a)(1),
the Court reasoned that “the ordinary meaning . . . of ‘because of’ age is that age
was the ‘reason’ that the employer decided to act.” Id. at 176. Accordingly, the
Court held, the prohibition against employment discrimination “because of age”
should be read as requiring the plaintiff to demonstrate “but for” causation. Id.
¶40 However, as noted above, Federal sector ADEA claims are governed by a
different statute, 29 U.S.C. § 633a(a), which does not include the term “because
of,” but instead broadly provides that personnel actions “shall be made free from
any discrimination based on age.” In Ford v. Mabus, 629 F.3d 198 (D.C. Cir.
2010), the U.S. Court of Appeals for the District of Columbia Circuit
distinguished Gross on those grounds and concluded that a Federal sector
employee could prove a violation of 29 U.S.C. § 633a(a) merely by showing that
age was a factor in the contested personnel action, even if it were not the “but
for” cause. Id. at 205-06. The court further found that, given the statute’s
sweeping language, it was unnecessary to look for “a particular quantum of
influence,” such as “substantial” evidence, but rather for “the existence of any
influence at all.” Id. at 206. This is so, the court reasoned, because “any amount
of discrimination tainting a personnel action, even if not substantial, means that
the action was not ‘free from any discrimination based on age.’ ‘Any,’ after all,
means any.” Id. (citing United States v. Gonzales, 520 U.S. 1, 5 (1997)). Shortly
thereafter, in Alotta v. Department of Transportation, EEOC Appeal No.
0129903865, 2011 WL 2515244 (June 17, 2011), the EEOC reached the same
22
conclusion on similar grounds, albeit in dicta. 7 In Wingate v. U.S. Postal Service,
118 M.S.P.R. 566 (2012), we endorsed the reasoning of Alotta, again concluding
that a Federal employee may prove age discrimination by showing that age was “a
factor” in the personnel action, even if it was not the “but for” cause. Id., ¶ 7.
¶41 The requirement of 42 U.S.C. § 2000e-16 that personnel actions by
agencies “be made free from any discrimination based on race, color, religion,
sex, or national origin” is analogous to the ADEA provision at issue in Ford,
Alotta, and Wingate. We therefore conclude that, to establish a violation of
42 U.S.C. § 2000e-16, an appellant need only demonstrate that a prohibited
consideration was a factor in the contested personnel action. Moreover, because
a prohibition against retaliation is inherent in the same statute, the same causation
standard also applies to Title VII retaliation claims in the Federal sector. Hence,
as with status-based discrimination cases, a violation of 42 U.S.C. § 2000e-16 is
established if a prohibited consideration was a motivating factor in the contested
personnel action, even if it was not the only reason. Accord Petitioner v.
Department of Interior, EEOC Appeal No. 0320110050, 2014 WL 3788011,
at *10 n.6 (July 16, 2014), concurred in and adopted by Davis v. Department of
the Interior, MSPB Docket No. AT-0752-09-0860-E-1, Final Order at 4-6
(Aug. 15, 2014).
An appellant may establish a violation of 42 U.S.C. § 2000e-16 using
direct evidence or any of three types of circumstantial evidence:
“convincing mosaic,” comparator, or pretext.
¶42 In Troupe v. May Department Stores Company, 20 F.3d 734 (7th Cir.
1994), a case involving a claim of pregnancy discrimination, the U.S. Court of
Appeals for the Seventh Circuit provided a useful taxonomy of the “[d]ifferent
kinds and combinations of evidence” that may support an inference that
7
Despite its finding, the EEOC did not undertake a mixed-motive analysis in Alotta, but
instead applied the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), which does require an ultimate showing of “but for” causation.
23
intentional discrimination or retaliation was a motivating factor in an employment
action. Id. at 736. One kind is direct evidence, i.e., “evidence that can be
interpreted as an acknowledgment of discriminatory intent[.]” Id. In addition to
direct evidence, the court identified and distinguished three types of
circumstantial evidence. The first kind “consists of suspicious timing, ambiguous
statements oral or written, behavior toward or comments directed at other
employees in the protected group, and other bits and pieces from which an
inference of discriminatory intent might be drawn.” Id. Considered together, the
court explained, such bits and pieces may compose “a convincing mosaic of
discrimination.” Id. at 737. The second kind of circumstantial evidence is
comparator evidence, consisting of “evidence, whether or not rigorously
statistical, that employees similarly situated to the plaintiff other than in the
characteristic . . . on which an employer is forbidden to base a difference in
treatment received systematically better treatment.” Id. at 736. The third kind
consists of evidence that the agency’s stated reason for its action is “unworthy of
belief, a mere pretext for discrimination.” Id. The court stressed that none of the
aforementioned types of evidence, i.e., direct, “convincing mosaic,” comparator,
or pretext, will be needed in every case. “Each type of evidence,” the court
explained, “is sufficient by itself . . . to support a judgment for [the employee]; or
they can be used together.” Id.
¶43 In FitzGerald v. Department of Homeland Security, 107 M.S.P.R. 666
(2008), we erroneously stated that to establish an EEO reprisal claim using
circumstantial evidence, the appellant must provide evidence showing a
“convincing mosaic” of retaliation against her. Id., ¶ 20. That holding was based
on a misreading of Troupe, and the Seventh Circuit has itself clarified that “it was
not the intention in Troupe to promulgate a new standard, whereby circumstantial
evidence in a discrimination or retaliation case must . . . have a mosaic-like
character.” Sylvester v. SOS Children’s Villages Illinois, Inc., 453 F.3d 900, 904
(7th Cir. 2006); see Petitioner v. Department of the Interior, EEOC Appeal
24
No. 0320110050, 2014 WL 3788011, at *10 n.6 (citing Sylvester, 453 F.3d
at 903). To the extent we erroneously imposed a “convincing mosaic”
requirement, FitzGerald and its progeny are hereby overruled. 8
The Board’s authority to enforce 42 U.S.C. § 2000e-16 derives from civil
service law.
¶44 While 42 U.S.C. § 2000e-16 sets forth the substantive standard for Title
VII claims in the Federal sector, it does not itself authorize the Board to enforce
that standard. Subsection (b) of the statute grants the EEOC the authority to
enforce the standard through appropriate remedies, including reinstatement and
back pay. 42 U.S.C. § 2000e-16(b). In addition, the statute contains provisions
concerning the courts’ enforcement authority. Subsection (c) provides that, after
an agency or the EEOC takes final action on a complaint, or fails to take action
within a certain time, the aggrieved employee may bring a “civil action,” with the
department head named as the defendant. 42 U.S.C. § 2000e-16(c). Section (d)
further provides that such civil actions shall be governed by the provisions of
42 U.S.C. § 2000e-5(f) through (k), “as applicable.” 42 U.S.C. § 2000e-16(d).
Those incorporated provisions in turn assign jurisdiction to an appropriate district
court, see 42 U.S.C. § 2000e-5(f)(3), and provide that the court may, subject to
certain restrictions, award remedies including injunctive relief, reinstatement,
back pay, and attorney fees, see 42 U.S.C. § 2000e-5(g), (k).
8
Subsequent cases erroneously imposing a “convincing mosaic” requirement include
Quinlan v. Department of Homeland Security, 118 M.S.P.R. 362 (2012); Rhee v.
Department of the Treasury, 117 M.S.P.R. 640 (2012); Agbaniyaka v. Department of the
Treasury, 115 M.S.P.R. 130 (2010), aff’d, 484 F. App’x 545 (Fed. Cir. 2012); Crump v.
Department of Veterans Affairs, 114 M.S.P.R. 224 (2010); Marshall v. Department of
Veterans Affairs, 111 M.S.P.R. 5 (2008); and Kohler v. Department of the Navy,
108 M.S.P.R. 510 (2008).
25
¶45 By contrast, there is no comparable provision in the statute—or, for that
matter, anywhere else in Title VII—granting enforcement authority to the Board. 9
The Board’s authority to adjudicate and remedy alleged violations of 42 U.S.C.
§ 2000e-16 is instead a matter of civil service law. One source of that authority
is 5 U.S.C. § 7702(a)(1)(B), which provides that in any case where an appellant
affected by an action appealable to the Board alleges that a basis for the action
was discrimination prohibited by 42 U.S.C. § 2000e-16, the Board shall “decide
both the issue of discrimination and the appealable action[.]” The statute further
specifies that the issues are to be decided “in accordance with the Board’s
appellate procedures under [5 U.S.C. §§ 7701 and 7702].” 5 U.S.C.
§ 7702(a)(1)(B) (emphasis added). Hence, while the substantive “issue of
discrimination” is defined by the standard set forth by 42 U.S.C. § 2000e-16(a), it
is civil service law that defines the procedures by which we decide whether a
violation of that statute has taken place.
¶46 Significantly, the Board’s procedures do not provide for summary
judgment. Crispin v. Department of Commerce, 732 F.2d 919, 922 (Fed. Cir.
1984); see 5 U.S.C. § 7701(a)(1) (providing that an appellant “shall have the right
to a hearing”). 10 In determining if summary judgment is appropriate in a case
where the plaintiff alleges that the contested personnel action is motivated solely
by discrimination, the courts and the EEOC have traditionally followed the
burden-shifting scheme of McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-04 (1973). However, because the Board has no authority to grant summary
9
Indeed, it was the intent of Congress in passing the Equal Employment Opportunity
Act of 1972 to transfer to the EEOC the enforcement authority formerly vested in the
Board’s predecessor agency, the Civil Service Commission. See H.R. Rep. No. 92-238,
at 2158-60, reprinted in 1972 U.S.C.A.A.N. 2137, 2160.
10
In Redd v. U.S. Postal Service, 101 M.S.P.R. 182, ¶¶ 10-12 (2006), we declined to
follow Crispin based on the erroneous assumption that our procedures for deciding
discrimination claims were a matter of substantive discrimination law. Redd is hereby
overruled.
26
judgment, and decides discrimination claims only after the record is complete, the
McDonnell Douglas framework has no application to our proceedings in this or
any other appeal. See Jackson v. U.S. Postal Service, 79 M.S.P.R. 46, 51-52
(1998).
¶47 As for remedies, our authority to award reinstatement and back pay derives
from 5 U.S.C. § 7701(c)(2)(B), which provides that the Board will not sustain an
agency’s decision if the appellant “shows that the decision was based on any
prohibited personnel practice described in section 2302(b) of this title.”
Section 2302(b)(1) in turn provides, inter alia, that an agency employee with
“authority to take, direct others to take, recommend, 11 or approve any personnel
action, shall not, with respect to such authority . . . discriminate for or against
any employee or applicant for employment . . . on the basis of race, color,
religion, sex, or national origin, as prohibited under [42 U.S.C. § 2000e-16].”
Accordingly, if an appellant proves that the action on appeal was “based” on a
violation of 42 U.S.C. § 2000e-16, which constitutes a prohibited personnel
action under 5 U.S.C. § 2302(b)(1), the Board will order the agency to cancel the
action and return the appellant to the status quo ante. See 5 U.S.C. § 1204(a)
(granting the Board the authority to adjudicate and take final action on matters
within its jurisdiction and to order compliance with its actions).
A violation of 42 U.S.C. § 2000e-16 warrants reversal under 5 U.S.C.
§ 7701(c)(2)(B) only if the agency would not have taken the action in the
absence of the discriminatory or retaliatory motive.
¶48 The term “based,” as used in 5 U.S.C. § 7701(c)(2)(B), “connotes that the
matter referred to is the most important element.” Gerlach v. Federal Trade
Commission, 9 M.S.P.R. 268, 273 (1981). Accordingly, 5 U.S.C. § 7701(c)(2)(B)
mandates reversal of the agency’s action only where the Board has determined
11
Because a proposing official is an agency employee with authority to “recommend” a
personnel action, we agree with the appellant that the administrative judge erred in
failing to consider whether D.B. had a retaliatory motive.
27
that a prohibited personnel practice was the “motivating factor” or “real reason”
for the action. Id. at 274. Hence, while the Board will find a violation of
42 U.S.C. § 2000e-16, and consequently a prohibited personnel practice under
5 U.S.C. § 2302(b)(1), if the appellant shows that a discriminatory or retaliatory
motive was a factor in the contested action, such a finding will not necessarily
result in reversal. Rather, the Board will reverse the action on that basis if the
prohibited personnel practice was the “but for” cause of the action, i.e., if the
agency would not have taken the same action in the absence of the discriminatory
or retaliatory motive. See Dorsey v. Department of the Air Force, 78 M.S.P.R.
439, 450-51 (1998); Madison v. Department of the Air Force, 32 M.S.P.R. 465,
477 (1987); cf. Gerlach, 9 M.S.P.R. at 270, 273 (concerning alleged retaliation
for filing a grievance). 12
In determining whether relief is appropriate under 5 U.S.C.
§ 7701(c)(2)(B), the Board will apply the Mt. Healthy test.
¶49 For cases involving allegations of discrimination and retaliation not
covered by the WPA, the Board has adopted the analytical framework of
Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274
(1977), for determining whether reversal of the action is warranted under
5 U.S.C. § 7701(c)(2)(B). Gerlach, 9 M.S.P.R. at 276; see Dorsey, 78 M.S.P.R.
at 450-51; Madison, 32 M.S.P.R. at 477. In Mt. Healthy, a case involving a claim
of retaliation for protected First Amendment activity, the Court enunciated a
two-part test to be applied in determining whether remedial action was justified.
429 U.S. at 287. First, the Court explained, the employee must show that the
protected conduct was a substantial or motivating factor in the contested action.
Id. If the employee carries that burden, then the burden shifts to the employer to
12
To the extent a retaliation for protected EEO activity claim also may be construed as
a prohibited personnel practice under 5 U.S.C. § 2302(b)(9)(A)(ii), the same standard
applies. See Gerlach, 9 M.S.P.R. at 273.
28
prove by a preponderance of the evidence that it would have taken the same
action even if the protected conduct had not taken place. Id.
¶50 The Mt. Healthy test assures that an employee who belongs to a protected
group or has engaged in protected activity is not thereby granted immunity from
the ordinary consequences of misconduct or poor performance. Mt. Healthy,
429 U.S. at 285-86; see Gerlach, 9 M.S.P.R. at 275. In keeping with that aim, the
allocation of the burdens under Mt. Healthy is both equitable and reasonable.
Accordingly, we reaffirm that the Board will adhere to the Mt. Healthy test in
cases involving discrimination or retaliation allegations under 42 U.S.C.
§ 2000e-16. See Dorsey, 78 M.S.P.R. at 450-51; Madison, 32 M.S.P.R. at 477. 13
¶51 In sum, when an appellant asserts an affirmative defense of discrimination
or retaliation under 42 U.S.C. § 2000e-16, the Board first will inquire whether the
appellant has shown by preponderant evidence that the prohibited consideration
was a motivating factor in the contested personnel action. Such a showing is
sufficient to establish that the agency violated 42 U.S.C. § 2000e-16, thereby
13
The application of the Mt. Healthy test to discrimination and retaliation claims under
42 U.S.C. § 2000e-16 is in some respects analogous to the burden-shifting scheme for
status-based Title VII discrimination claims in the private sector. Under 42 U.S.C.
§ 2000e-2(m), “an unlawful employment practice is established when the complaining
party demonstrates that color, religion, sex, or national origin was a motivating factor
in any employment practice, even though other factors also motivated the practice.”
Upon that showing, the burden then shifts to the employer to demonstrate that it “would
have taken the same action in the absence of the impermissible motivating factor,” in
which case the plaintiff will not receive damages or a reinstatement order, but may
nonetheless receive a limited remedy including declaratory relief, injunctive relief, and
some attorney fees. 42 U.S.C. § 2000e-5(g)(2)(B). However, the scheme set forth at
42 U.S.C. §§ 2000e-2(m) and 2000e-5(g)(2)(B) does not apply to our adjudication of
claims under 42 U.S.C. § 2000e-16. First, because 42 U.S.C. § 2000e-16 broadly
prohibits discrimination without incorporating specific prohibited practices, such as the
ban on retaliation at 42 U.S.C. § 2000e-3(a), see Gomez-Perez, 553 U.S. at 487, it does
not (and need not) incorporate 42 U.S.C. § 2000e-2(a) and (m). Moreover, as discussed
above, the enforcement provisions incorporated by 42 U.S.C. § 2000e-16, including
42 U.S.C. § 2000e-5(g)(2)(B), do not control our proceedings, which are instead
governed by the appellate procedures set forth at 5 U.S.C. §§ 7701 and 7702.
29
committing a prohibited personnel practice under 5 U.S.C. § 2302(b)(1). In
making her initial showing, an appellant may rely on direct evidence or any of the
three types of circumstantial evidence described in Troupe, either alone or in
combination. If the appellant meets her burden, we then will inquire whether the
agency has shown by preponderant evidence that the action was not based on the
prohibited personnel practice, i.e., that it still would have taken the contested
action in the absence of the discriminatory or retaliatory motive. If we find that
the agency has made that showing, its violation of 42 U.S.C. § 2000e-16 will not
require reversal of the action. On remand, the administrative judge should
consider the appellant’s Title VII claims consistent with the above analysis.
Whistleblowing Reprisal
¶52 The appellant’s affirmative defense of whistleblowing reprisal also will
require further consideration. First, the administrative judge did not consider the
appellant’s disclosure concerning the DD Form 2579. Although the appellant did
not address that disclosure in her OSC complaint, there is no exhaustion
requirement concerning her whistleblowing retaliation defense in the removal
appeal, and the DD Form 2579 disclosure therefore should have been considered
in that context. Furthermore, in finding that the agency showed by clear and
convincing evidence that it would have removed the appellant in the absence of
her disclosures, the administrative judge essentially relied on his finding that all
three charges were proven. RAF ID at 17-18. We do not sustain the excessive
absences charge, however, and the disposition of the AWOL charge depends upon
the outcome of the appellant’s constructive suspension claim. Moreover, the
administrative judge did not address the possibility that the appellant’s
incapacitation, which ultimately led to her removal, was itself the product of
whistleblowing reprisal. See Whitmore, 680 F.3d at 1376. Accordingly, the
administrative judge should consider again on remand whether, in light of all
pertinent record evidence, the agency showed by clear and convincing evidence
30
that it would have removed the appellant in the absence of her protected
whistleblowing activity.
ORDER
¶53 The joined appeal is remanded to the regional office for further
adjudication consistent with this Opinion and Order.
FOR THE BOARD:
______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.