Leamon Brinson v. Department of the Navy

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

LEAMON D. BRINSON, DOCKET NUMBER

Appellant, DC-0752-14-1129-B-1

v.

DEPARTMENT OF THE NAVY, DATE: September 8, 2023

Agency.

Steve M. Fesler, Sykesville, Maryland, for the appellant.

Ray Goldstein and Nikki Greenberg, Washington Naval Yard, D.C., for the

agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Vice Chairman Harris issues a separate opinion.

Member Limon issues a separate opinion.

ORDER

¶1 The appellant has filed a petition for review which sustained his removal for

misconduct. The two Board members cannot agree on the disposition of the

petition for review. Therefore, the initial decision now becomes the final

decision of the Merit Systems Protection Board in this appeal. Title 5 of the

Code of Federal Regulations, section 1200.3(b) (5 C.F.R. § 1200.3(b)). This

decision shall not be considered as precedent by the Board in any other case.

5 C.F.R. § 1200.3(d).

2

NOTICE OF APPEAL RIGHTS 1

You may obtain review of the final decision. 5 U.S.C. § 7703(a)(1). By

statute, the nature of your claims determines the time limit for seeking such

review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).

Although we offer the following summary of available appeal rights, the Merit

Systems Protection Board does not provide legal advice on which option is most

appropriate for your situation and the rights described below do not represent a

statement of how courts will rule regarding which cases fall within their

jurisdiction. If you wish to seek review of the final decision, you should

immediately review the law applicable to your claims and carefully follow all

filing time limits and requirements. Failure to file within the applicable ti me

limit may result in the dismissal of your case by your chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U. S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

1

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

3

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of the final decision—including a disposition of your

discrimination claims—by filing a civil action with an appropriate U.S. district

court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar

days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit

Systems Protection Board, 582 U.S. 420 (2017). If you have a representative in

this case, and your representative receives this decision before you do, then you

must file with the district court no later than 30 calendar days after your

representative receives this decision. If the action involves a claim of

discrimination based on race, color, religion, sex, national origin, or a disabling

condition, you may be entitled to representation by a court-appointed lawyer and

4

to waiver of any requirement of prepayment of fees, costs, or other security. See

42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

5

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 2 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

2

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of com petent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

6

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

Contact information for the courts of appeals can be found at their

respective websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

FOR THE BOARD: /s/ for

Jennifer Everling

Acting Clerk of the Board

Washington, D.C.

SEPARATE OPINION OF VICE CHAIRMAN CATHY A. HARRIS

in

Leamon D. Brinson v. Department of the Navy

MSPB Docket No. DC-0752-14-1129-B-1

¶1 For the reasons discussed below, I would grant the appellant’s petition for

review, reverse the initial decision, and not sustain his removal.

¶2 The appellant was a WG-11 Electronic Industrial Controls Mechanic whom

the agency suspended for 30 days on charges of insubordination and disrespectful

conduct. Brinson v. Department of the Navy, MSPB Docket No. DC-0752-14-

0424-I-1, Appeal File (0424 AF), Tab 1 at 7-10. The appellant filed a Board

appeal and raised some affirmative defenses, including an affirmative defense of

age discrimination. 0424 AF, Tab 1 at 2, Tab 5 at 3, Tab 19 at 2. During

discovery in those proceedings, the appellant, proceeding pro se, deposed his

fifth-level supervisor, a Navy Commander and Public Works Officer. 0424 AF,

Tab 4 at 3; Brinson v. Department of the Army, MSPB Docket No. DC-0752-14-

1129-I-1, Initial Appeal File (IAF), Tab 1 at 27-37. During the deposition

questioning, the appellant called the Commander “a snake” and “an outright liar,”

and he suggested that the Commander had “short man syndrome” or “little man

syndrome.” IAF, Tab 10 at 33-34, 36.

¶3 While the suspension appeal was still pending, the agency proposed to

remove the appellant for his conduct during the Commander’s deposition. 1 Id.

at 23-26. The proposal was based on a charge of disrespectful conduct, with three

specifications, referring to the “snake,” “outright liar,” and “little man” comments

respectively. Id. at 23-24. The deciding official sustained the charge and

removed the appellant effective August 27, 2014. Id. at 4-10.

1

The administrative judge ultimately affirmed the suspension in an initial decision that

became final when neither party petitioned for review. 0424 AF, Tab 23.

2

¶4 The appellant filed the instant Board appeal, arguing among other things

that the agency was not permitted to remove him for conduct in which he engaged

during the course of protected activity. IAF, Tab 1 at 6, Tab 15 at 5, Tab 20

at 6-11. After the close of the record, the administrative judge issued an initial

decision sustaining the removal. IAF, Tab 25, Initial Decision (ID). He analyzed

the appellant’s argument in the context of the charge and found that the appellant

was not immunized from discipline for his disrespectful conduct merely because

he committed it during litigation before the Board. ID at 5-10.

¶5 The appellant petitioned for review, and the Board remanded the appeal for

the administrative judge to adjudicate the appellant’s argument as an affirmative

defense under 5 U.S.C. § 2302(b)(9)(A)(ii) (reprisal for the exercise of appeal

rights other than with regard to whistleblower reprisal). Brinson v. Department of

the Navy, MSPB Docket No. DC-0752-14-1129-I-1, Petition for Review File,

Tab 1, Tab 6 (Remand Order). On remand, consistent with the Board’s

instructions, the administrative judge advised the appellant of his burden of

proving this affirmative defense under the standard set forth in Warren v.

Department of the Army, 804 F.2d 654, 656-58 (Fed. Cir. 1986). Brinson v.

Department of the Army, MSPB Docket No.DC-0752-14-1129-B-1, Remand File

(RF), Tab 3 at 2. After the close of the record, the administrative judge issued a

new initial decision again sustaining the removal. RF, Tab 20, Remand Initial

Decision (RID). The administrative judge found that the appellant failed to prove

his affirmative defense of retaliation under 5 U.S.C. § 2302(b)(9)(A)(ii), and he

incorporated the remainder of his findings from the previous initial decision. RID

at 6-11.

¶6 The appellant has filed a petition for review, disputing the administrative

judge’s analysis of his retaliation claim and making several additional arguments

about the proceedings on remand. Brinson v. Department of the Army, MSPB

Docket No.DC-0752-14-1129-B-1, Remand Petition for Review (RPFR) File,

Tab 1. The agency has filed a response. RPFR File, Tab 3.

3

¶7 In its Remand Order, the Board identified 5 U.S.C. § 2302(b)(9)(A)(ii) as

the relevant clause under which to consider the appellant’s affirmative defense of

retaliation for his prior Board appeal. Remand Order, ¶¶ 10, 13-17. This was

incorrect. As stated above, the appellant’s suspension appeal contained an

affirmative defense of age discrimination under 5 U.S.C. § 2302(b)(1)(B).

Therefore, his prior Board appeal was protected under that clause, and a claim of

retaliation for filing that appeal is subject to the standards of 29 U.S.C. § 633a.

See Gomez-Perez v. Potter, 553 U.S. 474, 491 (2008) (holding that 29 U.S.C.

§ 633a(a) prohibits retaliation against a Federal employee who complains of age

discrimination); Jones v. Department of Energy, 120 M.S.P.R. 480, ¶ 3 n.2 (2013)

(stating that a claim of retaliation for equal employment opportunity (EEO)

activity is cognizable under 5 U.S.C. § 2302(b)(1)), aff’d, 589 F. App’x 972 (Fed.

Cir. 2014); Davis v. Department of Housing and Urban Development, EEOC

Appeal No. 01903228, 1990 WL 1109796 (Dec. 7, 1990) (holding that a

mixed-case Board appeal with claims of discrimination under Title VII

constituted protected activity for purposes of a Title VII reprisal claim); see also

29 C.F.R. § 1614.101(b) (providing that no person shall be subject to retaliation

for participating in any stage of administrative proceedings und er the Age

Discrimination in Employment Act (ADEA)). To prove a claim of retaliation

under the ADEA, an appellant must show that his protected activity was a

motivating factor in the agency’s action, although he may only be entitled to full

relief if his protected activity was also a but-for cause of that action. Babb v.

Wilkie, 140 S. Ct. 1168, 1173-74, 1177-78 (2020); Pridgen v. Office of

Management and Budget, 2022 MSPB 31, ¶¶ 21-22.

¶8 Although neither party has specifically briefed this issue, the record is fully

developed, the material facts are not in dispute, and the outcome required under

the law is clear. Therefore, in the interests of administrative efficiency, it would

be appropriate to make a ruling on the matter at this time. See Warren v.

Department of Defense, 87 M.S.P.R. 426, ¶ 9 (2001).

4

¶9 The Equal Employment Opportunity Commission (EEOC) has taken the

position that participation in EEO activity, including participation in claims of

age discrimination under the ADEA, enjoys broad protection, and that such

protection is not limited by the content or manner of the participation. EEOC

Enforcement Guidance on Retaliation and Related Issues, Notice 915.004,

2016 WL 4688886, at *5-*7 (Aug. 25, 2016) (Enforcement Guidance). Nothing

in the statute limits protections to participation conducted in a certain manner.

See 29 U.S.C. § 633a(a) (providing that Federal employment “shall be made free

from any discrimination based on age”); cf. 29 U.S.C. § 623(d) (prohibiting

retaliation against private sector employees who have participate d in ADEA

proceedings “in any manner”). The EEOC agrees with the several circuits that

have held that an employer is prohibited from disciplining an employee for

bringing even a false or malicious charge of discrimination or from engaging in

unreasonable conduct during the course of such proceedings. 2 Id.; Jazmine F. v.

Department of Defense, EEOC Petition No. 0320170007, 2023 WL 4653604,

at *6-*7 (July 5, 2023); Verrett v. U.S. Postal Service, EEOC Appeal

No. 01841488, 1985 WL 569353 (Nov. 13, 1985); see, e.g., Glover v. South

Carolina Law Enforcement Division, 170 F.3d 411, 414 (4th Cir. 1999); Merritt v.

Dillard Paper Co., 120 F.3d 1181, 1186-87 (11th Cir. 1997); Sias v. City

Demonstration Agency, 588 F.2d 692, 695 (9th Cir. 1978); Pettway v. American

Cast Iron Pipe Co., 411 F.2d 998, 1007-08 (5th Cir. 1969). The Board must defer

to the EEOC on this matter of substantive discrimination law. See Pridgen,

2022 MSPB 31, ¶ 40. The appellant’s conduct toward the Commander during the

deposition may have been disrespectful, but this does not remove his conduct

2

The U.S. Courts of Appeal for the Seventh and Eighth Circuits have rejected the

EEOC’s position on this issue. E.g., Gilooly v. Missouri Department of Health and

Senior Services, 421 F.3d 734, 740 (8th Cir. 2005); Matson v. Caterpillar, Inc.,

359 F.3d 885 (7th Cir. 2004). Notwithstanding this circuit split, the Board is obliged to

follow the EEOC on this matter of substantive discrimination law. Pridgen,

2022 MSPB 31, ¶ 40.

5

from the broad protections of the statute. 3 We must be mindful that attacks on the

credibility of a witness are an essential aspect of cross examination, are at times

necessary to prove pretext in discrimination and retaliation cases, and are a part

of our adversarial adjudication process. Although there may be more elegant or

effective ways to do so than directly calling a witness a “liar,” the statute still

protects such activity in this context. Furthermore, parties must be permitted to

develop their theories of the case and pursue their own litigation strategies. This

is particularly true for pro se appellants, to whom the Board gene rally affords a

measure of latitude in conducting their appeals.

¶10 The Member would find that the appellant’s statements were not “a

legitimate exercise of his right to vigorously cross examine a witness.”

Member’s Separate Opinion, ¶ 8. However, judgments about the motives of an

appellant’s actions have no place in participation clause jurisprudence. See

Glover, 170 F.3d at 414-16; Jarvis M. v. Department of Health and Human

Services, EEOC Petition No. 0320170006, 2023 WL 4653539, at *4 (July 5,

2023). The Member also cites to several cases for the proposition that an

employer may discipline an employee for the manner in which he conducts

protected activity. Member’s Separate Opinion, ¶ 10. However, I am not

persuaded that any of this case law would support the imposition of discipline

against this appellant. These are mainly opposition clause cases. Rollins v. State

of Fla. Department of Law Enforcement, 868 F.2d 397 (11th Cir. 1989);

Pendleton v. Rumsfeld, 628 F.2d 102 (D.C. Cir. 1980); Rosser v. Laborers’ Int’l

Union Local No. 438, 616 F.2d 221 (5th Cir. 1980); Hochstadt v. Worcester

Foundation for Experimental Biology, 545 F.2d 222 (1st Cir. 1976). Unlike

3

Although the protections afforded by the anti-retaliation laws administered by the

EEOC are “exceptionally broad,” Pettway, 411 F.2d at 1006 n.18, the EEOC has not

held that they are without limit. For instance, we are aware of no case in which the

EEOC or any court has found that an employer was prohibited from taking a personnel

action against an employee who made threats or committed acts of violence during the

course of EEO proceedings.

6

activity protected under the participation clause, activity protected under the

opposition clause must be conducted in a “reasonable” manner. Netter v. Barnes,

908 F.3d 932, 937-38 (4th Cir. 2018); Johnson v. Frost, EEOC Appeal

No. 11980023, 2001 WL 1353704, at *6 (June 28, 2001). Of the two

participation clause cases, one of them concerns the discipline of an EEO

manager for the manner in which he advanced a charge of discrimination.

Whatley v. Metropolitan Atlanta Rapid Transit Authority, 632 F.2d 1325 (5th Cir.

1980). Whatley presents a unique situation not present here, in which

participation and job duties overlap. Notwithstanding the broad sweep of the

participation clause, I would not support an interpretation of the law that would

insulate an EEO specialist from discipline for malfeasance in office, but that does

not change my opinion about how the participation clause should apply to the

facts of the instant appeal. In the other participation clause case, the Board

upheld an appellant’s removal for unlawfully accessing and disclosing employee

records to support his discrimination complaint. Williams v. Social Security

Administration, 101 M.S.P.R. 587, ¶ 13 (2006). I agree that unlawful conduct is

not protected by the ADEA, see Netter, 908 F.3d at 939, but discourtesy toward a

deponent is not unlawful. As far as I can tell, among jurisdictions that have

adopted the Pettway rule, there is no precedent closely resembling the situation

with which the Board is presented here, i.e., disrespectful behavior by a litigant in

the context of pro se representation. The Member and I have, I believe, both

approached this issue correctly by extrapolating from the general principles set

forth in the statutes, case law, and official guidance. Nevertheless, we cannot

reconcile our judgment on the ultimate question of how those principles should

apply to these particular facts.

¶11 To be clear, I do not condone disrespectful behavior by a party or his

representative towards any witness in a Board appeal, whether the appeal involves

a claim of discrimination or not. However, as the EEOC observes, misconduct

during the course of legal proceedings is normally addressed within the context of

7

those proceedings by the tribunal under whose authority the proceedings are

being conducted. Enforcement Guidance, 2016 WL 4688886, at *6. In a Board

appeal, consequences for misbehavior by a party or representative include adverse

rulings and sanctions, up to and including dismissal of the appeal. See 5 C.F.R.

§ 1201.43. In this case, the agency’s representative acted appropriately by

objecting to the manner of the appellant’s questioning and ultimately

threatening to halt the deposition if the appellant continued in this way. IAF,

Tab 10 at 33-34, 36. As the agency did not move for sanctions, this was

apparently sufficient to resolve the issue, and that should have been the end of it.

The agency’s decision to continue the dispute outside the courtroom by taking an

adverse employment action against the appellant was per se retaliation under

29 U.S.C. § 633a(a), which is a prohibited personnel practice under 5 U.S.C.

§ 2302(b)(1). See Pettway, 411 F.2d at 1007-08; Verrett, 1985 WL 569353, at *5.

By the very terms of the agency’s decision letter, the appellant’s protected

activity was a but-for cause of his removal. IAF, Tab 10 at 4-10. For these

reasons, I would not sustain the action. 4 See 5 U.S.C. § 7701(c)(2)(B).

/s/

Cathy A. Harris

Vice Chairman

4

Having decided the appeal on these grounds, I would not reach the remainder of the

appellant’s arguments on review.

SEPARATE OPINION OF MEMBER RAYMOND A. LIMON

in

Leamon D. Brinson v. Department of the Navy

MSPB Docket No. DC-0752-14-1129-B-1

¶1 For the reasons explained below, I agree with the administrative judge’s

initial decision that sustained the appellant’s removal and found that he failed to

prove his affirmative defenses, and I would deny his petition for review.

¶2 The appellant was employed as an Electronics Industrial Controls

Mechanic, WG-2606-11, working for the agency’s Naval Facilities Engineering

Command (NAVFAC) Washington in Dahlgren, Virginia. He worked at the

after-hours trouble desk for the agency’s Public Works Department, where he

responded to requests for maintenance assistance from civilian and military

personnel located at the South Potomac installations in Indian Head, Maryland

and Dahlgren, Virginia.

¶3 Effective February 1, 2014, the agency suspended the appellant for 30 days

based on three charges of misconduct. The charges included seven specifications

of Disrespectful Conduct toward the Commander of NAVFAC Washington’s

South Potomac division, the appellant’s fifth-line supervisor, and two

specifications of Insubordination for willfully and intentionally refusing to obey

the Commander’s orders. Brinson v. Department of the Navy, MSPB Docket

No. DC-0752-14-0424-I-1, Appeal File (0424 AF), Tab 8 at 24-28, 37-43. The

appellant filed a Board appeal, pro se, and raised several affirmative defenses,

including age discrimination. 0424 AF, Tab 15 at 4, Tab 19 at 5. While

conducting discovery during the appeal, the appellant deposed the Commander. It

is undisputed that, during the deposition questioning, the appellant called the

Commander “a snake” and “an outright liar,” and he posed questions suggesting

that the Commander had “short man syndrome” or “little man syndrome.”

2

Brinson v. Department of the Navy, MSPB Docket No. DC-0752-14-1129-I-1,

Initial Appeal File (IAF), Tab 10 at 33-34, 36.

¶4 The agency proposed to remove the appellant for his conduct during the

Commander’s deposition. Id. at 23-26. The proposal was based on a charge of

Disrespectful Conduct for making the specific comments during the deposition

noted above. The deciding official sustained the charge and removed the

appellant effective August 27, 2014. Id. at 4-10. The appellant filed the instant

Board appeal arguing that the agency was not permitted to remove him for

conduct in which he engaged during the course of protected activity. IAF, Tab 1

at 6, Tab 15 at 5, Tab 20 at 6-11. After the close of the record, the administrative

judge issued an initial decision sustaining the removal. IAF, Tab 25, Initial

Decision (ID). He found that the appellant was not immunized from discipline

for his disrespectful conduct merely because he committed it during litigation

before the Board. ID at 5-10.

¶5 The appellant petitioned for review and the Boa rd remanded the appeal,

finding that the administrative judge must adjudicate the appellant’s argument

that he could not be disciplined for conduct that occurred during protected

activity as an affirmative defense under 5 U.S.C. § 2302(b)(9)(A)(ii) (reprisal for

the exercise of appeal rights other than with regard to whistleblower reprisal).

Brinson v. Department of the Navy, MSPB Docket No. DC-0752-14-1129-I-1,

Petition for Review File, Tab 1, Tab 6 (Remand Order). On remand, consistent

with the Board’s instructions, the administrative judge advised the appellant of

his burden of proving this affirmative defense under the standard set forth in

Warren v. Department of the Army, 804 F.2d 654, 656-58 (Fed. Cir. 1986).

Brinson v. Department of the Army, MSPB Docket No. DC-0752-14-1129-B-1,

Remand File (RF), Tab 3 at 2. After the close of the record, the administrative

judge issued a new initial decision, again sustaining the removal. RF, Tab 20,

Remand Initial Decision (RID). The administrative judge found that the appellant

failed to prove his affirmative defense of retaliation under 5 U.S.C.

3

§ 2302(b)(9)(A)(ii), and he incorporated the remainder of his findings from the

previous initial decision. RID at 6-11.

¶6 In his petition for review of the new initial decision, the appellant as serts

that the administrative judge erred in ruling that he could be removed for his

comments made while engaging in protected activity. Brinson v. Department of

the Army, MSPB Docket No. DC-0752-14-1129-B-1, Remand Petition for Review

(RPFR) File, Tab 1. 1 The agency has filed a response to the petition. RPFR File,

Tab 3.

¶7 First, for the reasons stated in the Vice Chairman’s separate opinion, I agree

that the appellant’s allegation that the agency’s removal action was taken in

retaliation for his prior Board appeal should have been adjudicated as a claim of

retaliation for raising age discrimination. Accordingly, in order to obtain full

relief for a claim of retaliation for protected activity under the Age

Discrimination in Employment Act, the appellant must show that the protected

activity was a but-for cause of the removal action. Pridgen v. Office of

Management and Budget, 2022 MSPB 31, ¶¶ 21-22.

¶8 I further agree with the Vice Chairman that participation in claims arising

under employment discrimination statutes generally enjoys broad protection, and

that employees engaging in such protected activity must be allowed leeway for

robust advocacy, including a full and fair opportunity to challenge the credibility

of witnesses. Nonetheless, I am not convinced that under the facts of this case

the appellant’s conduct during his deposition of the Commander falls within this

broad protection, nor do I believe the charged conduct can be characterized as a

legitimate exercise of his right to vigorously cross examine a witness while

1

The appellant also makes several other arguments in his petition, including that the

administrative judge failed to rule on his motion to enter into evidence the Board’s

record from his appeal of the 30-day suspension and that the administrative judge was

biased against him. RPFR File, Tab 1. I have considered these arguments and would

find that they provide no basis to disturb the Remand Initial Decision.

4

prosecuting his appeal. In this regard, I would find that the conduct at issue in

this case, including calling him a “snake” or suggesting that the Commander had

“short man syndrome” or “little man syndrome,” was not protected by any

anti-discrimination or anti-retaliation statute.

¶9 As pointed out by the Vice Chairman, the Equal Employment Opportunity

Commission (EEOC) has not held that the protections afforded by the

anti-retaliation laws it administers are without limit. Moreover, the courts have

recognized that misconduct committed during litigation alleging employment

discrimination is not protected under the anti-retaliation laws despite the fact that

it occurred while the employee was engaging in protected activity. In Benes v.

A.B. Data, Ltd., 724 F.3d 752, 753-54 (7th Cir. 2013), for example, the plaintiff

alleged that his firing was in retaliation for his prior sex discrimination claim

because the action was based on his behavior during an EEOC-arranged

mediation session. The court rejected this argument, finding that participation in

protected activity “doesn’t insulate an employee from being discharged for

conduct that, if it occurred outside [that activity], would warrant termination.”

Id. at 754 (citing Hatmaker v. Memorial Medical Center, 619 F.3d 741, 745 (7th

Cir. 2010)).

¶10 In Whatley v. Metropolitan Atlanta Rapid Transit Authority, 632 F.2d 1325,

1328-29 (5th Cir. 1980), the plaintiff alleged that he was asked to resign from his

Equal Opportunity Compliance Officer position in retaliation for his protected

activity, which consisted of filing a charge of discrimination with the Federal

agency funding the defendant’s operations on behalf of an employee of the

defendant. 2 The court affirmed the trial court’s determination that the defendant

had articulated a valid business reason for the action, i.e., that the action was

based on the manner in which the plaintiff had handled the discrimination

2

The plaintiff’s supervisor had instructed him to inform the employee that she could

file a discrimination claim with the EEOC or mail it to the funding agency. Whatley,

632 F.2d at 1327.

5

complaint and not the fact that he had processed it. Id. The court concluded that

the plaintiff’s conduct was not protected from consequence by the anti -retaliation

laws. Id. at 1329. A number of other circuit court and Board decisions stand for

the same proposition. See, e.g., Rosser v. Laborers’ Int’l Union Local No. 438,

616 F.2d 221, 223 (5th Cir. 1980); Rollins v. State of Fla. Department of Law

Enforcement, 868 F.2d 397, 401 (11th Cir. 1989); Pendleton v. Rumsfeld,

628 F.2d 102, 108 (D.C. Cir. 1980); Hochstadt v. Worcester Foundation for

Experimental Biology, 545 F.2d 222, 231 (1st Cir. 1976). See also Williams v.

Social Security Administration, 101 M.S.P.R. 587, ¶ 13 (2006) (finding that the

anti-retaliation provisions of Title VII do not shield an employee from discipline

for improperly obtaining and disclosing confidential documents for use in an

EEOC proceeding); Bonanova v. Department of Education, 49 M.S.P.R. 294, 300

(1991) (stating that not all conduct related to an employee’s opposition to

discrimination is immune from discipline).

¶11 I believe that the type of conduct at issue in this case, name-calling and

goading of a management official, similarly falls outside of the statutory

protections. I agree with the administrative judge’s determination that the

appellant is not immune from discipline simply because his transgressions

occurred while he was examining the Commander during a deposition. The

administrative judge gave careful and thorough consideration to the evidence

bearing on the appellant’s retaliation claim and made appropriate credibility

determinations, and I agree with his finding that the appellan t failed to refute the

evidence that the removal action was taken because of the charged conduct, and

not because it was committed while the appellant was participating in protected

activity. Although the administrative judge analyzed the retaliation clai m under

the Warren test, instead of considering it under the but-for standard set out in

Pridgen, his conclusion that the appellant failed to show that the agency removed

him because of his participation in protected activity is fully supported by the

6

record, and I would find that he failed to show that his protected activity was a

but-for cause of the agency’s action.

¶12 For the reasons stated above, I would affirm the initial decision, sustain the

appellant’s removal, and deny his affirmative defenses.

/s/

Raymond A. Limon

Member