# Carmencita Wilson v. Small Business Administration

> Merit Systems Protection Board · January 25, 2024 · 2024 MSPB 3

URL: https://www.frixlaw.com/law-library/cases/9927251

## Case

- **Court:** Merit Systems Protection Board
- **Decided:** January 25, 2024
- **Citations:** 2024 MSPB 3
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 35 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9927251

## How later opinions describe it (automated extraction)

- explaining that in order to prove that discrimination was the but-for cause of an agency’s action using the burden-shifting framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973), an employee must first present at least some circumstantial evidence of discr…
- holding that, if an appellant proves motivating factor and the agency does not prove that it would have taken the same action in the absence of discrimination, the appellant has established but-for causation and will be eligible for full relief under the statute
- explaining that, 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
- finding that an employee appointed under 10 U.S.C. § 10508 (b) may file “an administrative complaint, grievance, claim or action” challenging a Title 5 adverse action
- stating that “behavior toward or comments directed at other employees in the protected group” may constitute circumstantial evidence of discrimination

## Opinion text

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2024 MSPB 3
Docket No. DC-0752-20-0420-I-1

Carmencita Wilson,
Appellant,
v.
Small Business Administration,
Agency.
January 25, 2024

Carmencita Wilson , McDonough, Georgia, pro se.

Claudine Landry , Esquire, and Kenneth M. Bledsoe , Esquire, Washington,
D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member

OPINION AND ORDER

¶1 The appellant has filed a petition for review of the initial decision that
sustained her removal. For the reasons discussed below, we GRANT the petition
for review, VACATE the initial decision, CLARIFY the burdens of proof in
Title VII disparate treatment discrimination cases, and REMAND the appeal to
the regional office for further adjudication in accordance with this Opinion and
Order.

BACKGROUND
¶2 The appellant occupied a GS-14 Supervisory Administrative Specialist
position with the agency’s Office of Disaster Assistance, Administrative Services
2

Center, in Herndon, Virginia. Initial Appeal File (IAF), Tab 6 at 35. On May 21,
2019, the appellant suffered a compensable injury and began a prolonged leave of
absence. Id. at 37. She had surgery on June 19, 2019, and continued to receive
follow-up care. IAF, Tab 30 at 4. On September 3, 2019, the appellant’s
physician cleared her to return to work with restrictions. IAF, Tab 9 at 41.
¶3 However, the appellant did not return to duty. The appellant requested a
reasonable accommodation. IAF, Tab 30 at 5. She also requested various
combinations of sick leave, annual leave, and leave without pay (LWOP) to cover
her absences, but in each case her supervisor denied her requests, apart from
requests to cover scheduled appointments. IAF, Tab 11 at 51-77, Tab 30 at 5. By
the time the appellant returned to work on January 6, 2020, she had accumulated
400 hours of absence without leave (AWOL) on the following dates:
September 9, 13, 23, 25-26, and 30, 2019; October 5, 7, 9, 11, 14-18, 21-25, and
28-31, 2019; November 1, 5-6, 8, 12-15, 18-20, 22, 25, and 29, 2019;
December 5-6, 11, 13, 16, 26-27 and 30, 2019; and January 3, 2020. IAF, Tab 11
at 51-77, Tab 30 at 5.
¶4 On March 2, 2020, the agency removed the appellant based on charges of:
(1) delay, failure, or refusal to follow the legal instruction or direction of the
supervisor or other agency manager in authority; and (2) AWOL. IAF, Tab 7
at 58-61, Tab 8 at 11-19. Both charges contained nine specifications, broken
down by pay period, and were based on the same dates listed above. IAF, Tab 8
at 12-18.
¶5 The appellant filed a Board appeal raising numerous affirmative defenses,
including discrimination based on disability (both reasonable accommodation and
disparate treatment theories), sex, and race, whistleblower reprisal, and retaliation
for filing equal employment opportunity (EEO) and Office of Inspector General
(OIG) complaints. IAF, Tab 1 at 3, 5, Tab 14 at 5-7. After a hearing, the
administrative judge issued an initial decision sustaining the appellant’s removal.
IAF, Tab 34, Initial Decision (ID). The administrative judge merged the two
3

charges into a single charge of AWOL and found that the agency met its burden
on the issues of the charge, nexus, and the penalty. 1 ID at 7, 12-13, 25-27. The
administrative judge further found that the appellant did not prove disability
discrimination, race or sex discrimination, retaliation for EEO activity, or
retaliation for filing an OIG complaint and a grievance. ID at 14-25.
¶6 The appellant has filed a petition for review disputing the administrative
judge’s analysis of several issues and submitting evidence concerning some of her
claimed protected activity. Petition for Review (PFR) File, Tab 1. The agency
has filed a response. PFR File, Tab 3.

ANALYSIS

This appeal is remanded for further adjudication of the charge.

¶7 The Board has generally stated that, in order to prove a charge of AWOL,
an agency must show “that the appellant was absent, and that [her] absence was
not authorized, or that [her] request for leave was properly denied.” E.g., Little v.
Department of Transportation, 112 M.S.P.R. 224, ¶ 6 (2009) (emphasis added);
see Rojas v. U.S. Postal Service, 74 M.S.P.R. 544, 548 (1997), aff’d, 152 F.3d
940 (Fed. Cir. 1998) (Table). However, the Board has also cautioned that this
formulation is imprecise and open to misinterpretation. See Savage v.
Department of the Army, 122 M.S.P.R. 612, ¶ 28 n.5 (2015), overruled on other
grounds by Pridgen v. Office of Management and Budget , 2022 MSPB 31. On a
literal reading, the use of the word “or” suggests that an agency could prove an
AWOL charge merely by showing that it did not authorize an employee’s
absences, even if the employee made a request for leave that the agency did not
properly deny. See id. However, in a case such as this, where the employee
1
The agency initially objected to the merger of the charges, but later withdrew that
objection. IAF, Tab 16 at 4. For the reasons explained by the administrative judge, we
agree that merger was proper. IAF, Tab 13 at 3; see Alvarado v. Department of the Air
Force, 103 M.S.P.R. 1, ¶ 18 (2006) (holding that, when two charges are based on the
same facts and proof of one charge automatically constitutes proof of the other, the
charges should be merged).
4

requested leave to cover her absences, an AWOL charge will be sustained only if
the agency establishes that it properly denied those leave requests. Id., ¶ 28; see,
e.g., Thom v. Department of the Army, 114 M.S.P.R. 169, ¶ 5 (2010) (holding that
an AWOL charge resulting from the denial of sick leave will not be sustained if
an appellant presents administratively acceptable evidence to show that she was
incapacitated for duty during the relevant time and she had sufficient sick leave to
cover her absences); Joyner v. Department of the Navy, 57 M.S.P.R. 154, 159
(1993) (holding that, when disciplinary action results because LWOP is denied
and the employee is placed on AWOL, the Board will review the circumstances to
determine if the denial was reasonable).
¶8 Here, the administrative judge sustained the AWOL charge solely on the
grounds that “the appellant was scheduled to work, she was absent, and the
appellant’s absence was not authorized.” ID at 13. She further stated that the
appellant “did not seem to dispute” that the agency could prove the charge. Id.
However, as discussed above, the agency must also establish that it properly
denied the appellant’s requests for leave. See, e.g., Dobert v. Department of the
Navy, 74 M.S.P.R. 148, 150 (1997) (holding that the Board will review an
agency’s denial of a request for annual leave in connection with an AWOL
charge); Benally v. Department of the Interior, 71 M.S.P.R. 541-42 (1996)
(considering the expected length of the absence and its impact on the workplace
in assessing an agency’s denial of annual leave). Whether the agency properly
denied the appellant’s leave requests—which included requests for sick leave,
annual leave, and LWOP—is a matter in dispute. To the extent the appellant
contends that the denial of her leave requests was the result of a prohibited
personnel practice under 5 U.S.C. § 2302(b), and thus improper, further
adjudication is needed to determine the merits of the prohibited personnel
practice claims for the reasons discussed below. 2 Furthermore, the question of
2
In this regard, an appeal of a removal based on an AWOL charge is analogous to an
appeal of a removal based on a failure to accept a direct reassignment, wherein the
agency bears the burden of showing that the reassignment was for a legitimate
5

whether the agency properly denied the appellant’s leave requests may turn in
part on the credibility of hearing testimony, which the administrative judge is in
the best position to decide in the first instance. Accordingly, on remand, the
administrative judge must make new findings on the AWOL charge.

The appeal is remanded for adjudication of the appellant’s affirmative defenses.

¶9 As set forth above, the appellant raised claims of discrimination based on
disability, sex, and race, reprisal for whistleblowing, and retaliation for filing
EEO and OIG complaints. 3 The administrative judge issued an Order and
Summary of Status Conference explaining that a violation of Title VII is
established if an appellant shows that discrimination or retaliation was a
motivating factor in the contested personnel action, noting that the Board has
addressed the differences between direct and circumstantial evidence, and
ordering the parties to submit “specific evidence and argument” in support of
their respective burdens. IAF, Tab 13 at 4-5. The order did not, however, set

management reason. In such a case, the agency fails to prove its charge if the appellant
shows that the directed reassignment constituted a prohibited personnel practice, and
was therefore not based on a legitimate management reason. See Richard v. Department
of Defense, 66 M.S.P.R. 146, 158-59 (1995) (remanding for a determination of whether
the appellant’s evidence regarding her allegation of EEO retaliation was sufficient to
cast doubts on the bona fides of the reassignment), modified on other grounds by
Buckler v. Federal Retirement Thrift Investment Board , 73 M.S.P.R. 476, 497 (1997);
Umshler v. Department of the Interior, 44 M.S.P.R. 628, 629, 634 (1990) (vacating and
remanding an initial decision sustaining a removal for failure to accept a directed
reassignment when, among other things, the administrative judge failed to address the
appellant’s assertions that his reassignment constituted a prohibited personnel practice);
Craighead v. Department of Agriculture , 6 M.S.P.R. 159, 161-62 (1981) (considering
the appellant’s claim of marital status discrimination in determining whether the
agency-directed reassignment was based on legitimate management reasons).
3
The appellant’s September 8, 2019 email to the EEO office, in which she specifically
asked to “file a formal EEO complaint” against her supervisor, constitutes protected
activity under 42 U.S.C. § 2000e-16, regardless of whether the agency processed a
formal EEO complaint as the appellant requested. IAF, Tab 15 at 23-24. The fact that
this pro se appellant used the terms “grievance” and “complaint” interchangeably does
not yield a different result. The email also shows that, contrary to the initial decision,
the appellant’s contact with the EEO office was separate from the administrative
grievance she filed against her supervisor. See id. at 24.
6

forth the kind of evidence required to meet those burdens. It also did not set forth
the standards and burdens of proof for claims of disability discrimination and
reprisal for whistleblowing or filing an OIG complaint. Id. at 3-5; see IAF, Tab
20. Although the agency explained in its response to the appellant’s submission
why it believed that she did not prove her affirmative defenses, it too did not
comprehensively set forth the applicable burdens and the kind of evidence
required to meet those burdens. IAF, Tab 29.
¶10 The Board has required its administrative judges to apprise appellants of the
applicable burdens of proving a particular affirmative defense, as well as the kind
of evidence required to meet those burdens. E.g., Alarid v. Department of the
Army, 122 M.S.P.R. 600, ¶ 7 (2015); Hulett v. Department of the Navy,
120 M.S.P.R. 54, ¶ 10 (2013). Because the administrative judge did not fully
inform the appellant of her burdens of proof and the means by which she could
prove her affirmative defenses, the appellant did not receive a fair and just
adjudication of her affirmative defenses. Miles v. Department of the Navy,
102 M.S.P.R. 316, ¶ 15 (2006); see Pridgen v. Office of Management and Budget,
2022 MSPB 31, ¶ 24 (“When an appellant raises an affirmative defense of
disparate treatment discrimination under Title VII, the administrative judge
should notify her of the various standards and methods of proof, including the
respective levels of relief available under each standard.”). Thus, this case must
be remanded. See Viana v. Department of the Treasury, 114 M.S.P.R. 659, ¶ 8
(2010); Miles, 102 M.S.P.R. 316, ¶¶ 15-18. On remand, the administrative judge
must advise the parties of the applicable burdens of proving all of the appellant’s
affirmative defenses, including the standards set forth in Pridgen, 2022 MSPB 31,
¶¶ 20-25, 30-33, which was issued after the issuance of the initial decision. The
administrative judge should also provide the parties with an opportunity to
present evidence and argument, hold a supplemental hearing on the appellant’s
affirmative defenses to permit the parties to address the applicable standards, and
7

apply those standards in the remand initial decision. 4 See Lin v. Department of
the Air Force, 2023 MSPB 2, ¶ 25.

The burdens of proof in Title VII disparate treatment discrimination claims
are clarified.
¶11 We also take this opportunity to clarify the burdens of proof in Title VII
disparate treatment discrimination claims that arise before the Board. As
explained in Pridgen, 2022 MSPB 31, ¶ 20, the substantive standard for Title VII
claims in the Federal sector provides that all personnel actions affecting covered
employees “shall be made free from any discrimination based on race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-16. The Board in Pridgen
noted that the Supreme Court in Babb v. Wilkie, 140 S. Ct. 1168, 1173-74 (2020),
interpreted the identical statutory language in the context of a Federal sector age
discrimination claim and held that a plaintiff may prove such a claim by showing
that discrimination played any part in the way a decision was made. Pridgen,
2022 MSPB 31, ¶ 21. The Board held that such a finding is the same as a finding
of “motivating factor.” Id. Proof that discrimination was a motivating factor in
an appealable action is a violation even if the agency would have made the same
decision in the absence of the discriminatory motive. Id. Relying on Babb, the
Board further held that, while an appellant who proves motivating factor and
nothing more may be entitled to injunctive or other “forward-looking relief,” to
obtain the full measure of relief under the statute, including status quo ante relief,
compensatory damages, or other forms of relief related to the end result of an
employment decision, the appellant must show that discrimination was a but-for
cause of the action. 5 Id., ¶ 22. Thus, there are two standards for proving

4
In connection with the appellant’s claim of disability discrimination, the
administrative judge was unable to assess the sufficiency of the September 28, 2019
medical certification the appellant provided to the agency in support of her request for
leave under the Family and Medical Leave Act. ID at 16. The parties did not submit
that document into the record and were not advised of the need to do so. We encourage
the parties to provide that document on remand.
8

Title VII disparate treatment discrimination: motivating factor and but-for
causation.

Methods of Proving Discrimination
¶12 An appellant may prove discrimination under either of those different
standards of proof by various methods, and no one method is the exclusive path to
a finding of liability. Pridgen, 2022 MSPB 31, ¶ 23. The Board in Pridgen set
forth those methods, which may include: (1) direct evidence 6 ; (2) circumstantial
evidence, which may include (a) evidence 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,” also known as a “convincing
mosaic”; (b) 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”; (c) evidence that the agency’s
stated reason for its action is “unworthy of belief, a mere pretext for
discrimination” (i.e., the burden-shifting standard under McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-04 (1973)); and (3) some combination of direct
and indirect evidence. Id., ¶ 24. Thus, an appellant may proceed by showing that
discrimination was a motivating factor in the agency’s action or by showing that
discrimination was a but-for cause of the agency’s action. Pridgen, 2022 MSPB
31, ¶¶ 21-25. An appellant may also proceed under both standards
simultaneously. See id., ¶¶ 29, 42 (directing the administrative judge to consider
on remand evidence of discrimination “according to the standards set forth
5
Babb arose in the context of a claim of discrimination brought by a plaintiff in U.S.
district court. 140 S. Ct. at 1171-72. The Board did not address in Pridgen whether the
applicable statutes permit the Board to award such injunctive or other forward-looking
relief. We need not, however, resolve that question at this time.
6
Direct evidence may be any statement by an employer that reflects directly the alleged
discriminatory attitude and bears directly on the contested employment discrimination.
Doe v. Pension Benefit Guaranty Corporation, 117 M.S.P.R. 579, ¶ 40 (2012).
9

above,” and noting that the remedies available to the appellant will vary based on
the level of causation).

There is no burden shifting if an appellant is only trying to prove
that discrimination was a motivating factor in the appealed action
¶13 Given the “sweeping statutory language” of 42 U.S.C. § 2000e-16, id., ¶ 21,
as well as the Court’s holding in Babb that a plaintiff may prove discrimination
simply by showing that such discrimination played any part in the way a decision
was made, there is no basis for applying shifting burdens in determining whether
an appellant proved that discrimination was a motivating factor in an appealable
action. In other words, the McDonnell Douglas or any other shifting-burden
framework does not apply in determining whether discrimination was a
motivating factor in an employment decision. See Pridgen, 2022 MSPB 31, ¶ 21
n.4 (holding that “an appellant in a motivating factor regime need not fully rebut
the agency’s proffered motives as pretext”); see also Babb v. Department of
Veterans Affairs, 992 F.3d 1193, 1204 (11th Cir. 2021).

There is the potential for burden shifting if an appellant is trying to
prove that discrimination was a but-for cause of the appealed action
¶14 Nevertheless, shifting burdens, i.e., either the agency articulating or
producing a legitimate, nondiscriminatory reason for the action under McDonnell
Douglas, or the agency proving that it would have taken the same action absent
the discrimination, may still be used in determining but-for causation. Pridgen,
2022 MSPB 31, ¶¶ 24-25; see Ford v. DeJoy, No. 4:20-cv-00778-NAD, at 10,
2021 WL 6113657 (N.D. Ala. 2021) (“Because full relief requires a showing of
but-for causation, the McDonnell Douglas frameworks . . . still apply in
determining whether circumstantial evidence is sufficient to support a finding that
a plaintiff is entitled to full relief under § 2000e-16(a).”). The Board noted in
Pridgen, 2022 MSPB 31, ¶ 25, for example, that the McDonnell Douglas
framework is a sensible, orderly way to evaluate the relevant evidence that has
been introduced. Similarly, the Equal Employment Opportunity Commission
10

(EEOC) has held that the Supreme Court’s decision in Babb “does not state that
the McDonnell Douglas standard does not apply to [Age Discrimination in
Employment Act of 1967 (ADEA)] cases,” and the EEOC therefore has continued
to apply that standard in age discrimination and Title VII disparate treatment
cases. See Dortha G. v. Social Security Administration , EEOC Appeal
No. 2022003175, 2022 WL 18280366, at *4 (Dec. 19, 2022); Marguerite L. v.
Social Security Administration, EEOC Appeal No. 2021002765, 2022 WL
1631452, at *5 (Apr. 27, 2022). We defer to the EEOC on this matter of
substantive discrimination law. See Pridgen, 2022 MSPB 31, ¶ 40. As explained
below, the Board will apply the proof frameworks that the EEOC and the courts
generally use to determine but-for causation in Title VII Federal sector disparate
treatment discrimination cases.

Frameworks for proving but-for causation
¶15 The “but-for” standard generally requires a showing that the harm would
not have occurred in the absence of—that is, but for—the discriminatory conduct.
University of Texas Southwest Medical Center v. Nassar , 570 U.S. 338, 346-47
(2013). Accordingly, an employee may proceed in at least one of two ways to
establish but-for causation. Ford v. Mabus, 629 F.3d 198, 207 (D.C. Cir. 2010).
¶16 First, in cases involving at least some circumstantial evidence, an employee
may use the McDonnell Douglas evidentiary framework to establish that a
Title VII-protected characteristic was a but-for cause of the challenged personnel
action. Ford, 629 F.3d at 201, 207. Under that framework, the employee has the
initial burden of proving a prima facie case of discrimination based on disparate
treatment. 7 See Hodges v. Department of Justice, 121 M.S.P.R. 337, ¶ 19 (2014);
7
Establishing a prima facie case under the McDonnell Douglas test is not the same as
proving that discrimination was a motivating factor in an action. See Green v.
Department of Energy, EEOC Appeal No. 0120121775, 2013 WL 874672, at *1
(Feb. 28, 2013) (rejecting the complainant’s assertion that the Commission erred in
applying the three-part McDonnell Douglas analysis and should have instead applied a
“motivating factor” standard for disparate treatment cases). In fact, the Supreme Court
has noted that the motivating factor test was not introduced into Title VII practice until
11

Marguerite L., 2022 WL 1631452, at *3. To establish a prima facie case, an
employee must generally show that (1) she is a member of a protected class,
(2) she suffered an adverse employment action, and (3) the unfavorable action
gives rise to an inference of discrimination. Fox v. Department of the Army,
120 M.S.P.R. 529, ¶ 35 (2014). Although the necessary elements of a prima facie
case of prohibited discrimination may vary according to the particular facts and
circumstances at issue, an appellant may establish a prima facie case by
presenting facts that, if unexplained, reasonably give rise to an inference that the
action was based on an impermissible criterion. Lee v. Environmental Protection
Agency, 115 M.S.P.R. 533, ¶ 41 (2010). The methods of proving discrimination
set forth above, such as comparator evidence, may be one way of establishing a
prima facie case. Id. 8
¶17 Once the appellant has made out a prima facie case, the agency bears the
burden of articulating a nondiscriminatory explanation for the action. Ford,
629 F.3d at 201. The appellant, however, bears the ultimate burden of proving,
throughout the analysis, that discriminatory animus was a determining, or but -for,
cause of the personnel action. Id.; see Emerita v. Department of Homeland
Security, EEOC Appeal No. 2021005082, 2022 WL 18280308, at *3 (Dec. 13,
2022). An appellant may satisfy this burden by showing that the employer’s
reason is pretextual or by showing that it was more likely than not that the agency
was motivated by discrimination. Ford, 629 F.3d at 201. This approach has been

years after McDonnell Douglas, and that McDonnell Douglas therefore does not
mention the motivating factor test let alone endorse its use. Comcast Corp. v. Nat’l
Assoc. of African American-Owned Media, 140 S. Ct. 1009, 1018-19 (2020).
8
We note that in cases involving only direct evidence, there is no longer the need to
prove a prima facie case or facts from which an inference of discrimination can be
drawn. Past v. Department of Homeland Security , EEOC Appeal No. 01A60565, 2006
WL 1725425, at *3 n.2 (June 16, 2006) (citing Trans World Airlines, Inc. v. Thurston,
469 U.S. 111, 121 (1985)). Direct evidence eliminates the need to apply the McDonnell
Douglas shifting burdens of proof. Trans World Airlines, Inc. v. Thurston, 469 U.S.
at 121.
12

described as the “single motive” or “pretext” theory 9 of discrimination, Ponce v.
Billington, 679 F.3d 840, 844 (D.C. Cir. 2012), whereby proof of pretext is
equated with but-for causation, McDonald v. Santa Fe Trail Transportation Co.,
427 U.S. 273, 282 n.10 (1976); Foster v. University of Maryland-Eastern Shore,
787 F.3d 243, 249, 252 (4th Cir. 2015) (stating that the McDonnell Douglas
framework “already incorporates a but-for causation analysis”). The established
order of analysis for this proof framework need not, however, be followed in all
cases. When an agency has articulated a legitimate, nondiscriminatory reason for
its actions, the factual inquiry can proceed directly to the third step of the
analysis, i.e., the ultimate issue of whether the appellant has shown by
preponderant evidence that the agency’s reason for its action was a pretext for
discrimination, and therefore motivated by discrimination. Hodges, 121 M.S.P.R.
337, ¶ 19; Marguerite L., 2022 WL 1631452, at *3-4.
¶18 Second, an employee may prevail even when the employer acted with mixed
motives, i.e., when there is evidence that discrimination was one of multiple
motivating factors for an employment action such that the employer acted on the
bases of both lawful and unlawful reasons. Ford, 629 F.3d at 203; see Ward B. v.
U.S. Postal Service, EEOC Appeal No. 2022002280, 2023 WL 4294818, at *2
(June 12, 2023). The Supreme Court has held that the “motivating factor”
standard is “more forgiving” than the but-for standard, and that “liability can
sometimes follow even if [the protected characteristic] wasn’t a but-for cause of
the employer’s challenged decision.” Bostock v. Clayton County, 140 S. Ct.
1731, 1740 (2020). Under this approach, even if an employee shows that
discrimination was a motivating factor in an employment decision, she will not be

9
Courts have used the “pretext” and “single-motive” labels interchangeably. However,
the term “single-motive” is something of a misnomer. The Supreme Court has
explained that events often have multiple but-for causes, and these can be deduced by
changing one thing at a time and seeing whether the outcome changes. Bostock v.
Clayton County, Georgia, 140 S. Ct.1731, 1739 (2020). This is so regardless of
whether the plaintiff proceeds under a mixed-motive or pretext theory. Id. As
explained below, either theory will offer an avenue for proving but-for causation.
13

entitled to damages or status quo ante relief if the employer proves that it would
have made the same decision absent the discrimination. Ford, 629 F.3d
at 203-04; see Sean T. v. U.S. Postal Service, EEOC Appeal No. 0120150928,
2017 WL 6422301, at *4 (Dec. 5, 2017); Tellez v. Department of the Army, EEOC
Request No. 05A41133, 2005 WL 689373, at *6 (Mar. 18, 2005). The purpose of
this inquiry, which asks if the employer would have taken the same action absent
the discriminatory animus, is to determine whether the discriminatory animus was
a but-for cause, or real reason, for the decision. The Supreme Court in Babb did
not elaborate on the method or methods of proving but-for causation under
42 U.S.C. § 2000e-16, and thus did not identify whether the burden of persuasion
shifts to the agency under this mixed-motive framework. Deferring to the EEOC,
however, we find that it does. See Jarvis M. v. Department of Health and Human
Services, EEOC Petition No. 0320170006, 2023 WL 4653539, at *5 (July 5,
2023); Tellez, 2005 WL 689373, at *6. Thus, if an appellant proves motivating
factor and the agency does not prove by preponderant evidence that it would have
taken the same action in the absence of discrimination, the appellant has
established but-for causation and will be eligible for full relief under the statute,
including status quo ante relief and damages. Jazmine F. v. Department of
Defense, EEOC Petition No. 0320170007, 2023 WL 4653604, at *8-9 (July 5,
2023). If an agency proves its same action defense under the mixed-motive
framework, however, the action is not reversed and the appellant may not receive
reinstatement, back pay, or damages. 10 Pridgen, 2022 MSPB 31, ¶ 22.
¶19 An appellant may choose to show but-for causation under the pretext
framework or under the mixed-motive framework, or by proceeding under both
theories simultaneously. Ponce, 679 F.3d at 845; see Jones v. Department of the
10
In EEOC proceedings, at least, other forms of relief may be available that do not
relate to the end result of the employment action, including declaratory relief,
injunctive relief, costs, and attorney fees. See Ward B., 2023 WL 4294818, at *2. For
example, the EEOC may order an agency to post notices, provide EEO training, and not
discriminate or retaliate against an employee in the future. See, e.g., Sean T., 2017 WL
6422301, at *6.
14

Army, 68 M.S.P.R. 398, 403 (1995) (recognizing that discrimination claims may
be proven under a “pretext” or “mixed-motive” framework). Although selecting
among all of the options set forth in this decision may assist an appellant in
presenting a claim of discrimination before the Board, making and articulating
such a selection is not required, nor is it binding. An appellant who is raising a
claim of disparate treatment discrimination under Title VII should submit for the
Board’s consideration all of the types of evidence set forth above in support of
such a claim. Not all of those types of evidence will be needed in every case.
Pridgen, 2022 MSPB 31, ¶ 24. Each type of evidence may be sufficient by itself
to support a judgment for the employee, or they can be used together. Id. Upon
consideration of all of the relevant evidence, the administrative judge and the
Board, if a party files a petition for review of an initial decision, will apply the
appropriate proof framework(s) and adjudicate the claim. See Nuskey v.
Hochberg, 730 F. Supp. 2d 1, 4 (D. D.C. 2010) (“The question of whether the
evidence presented supports only a ‘single motive’ theory or a ‘mixed motive’
theory (or possibly both) need not be finally resolved until after both sides have
presented their cases to the jury and the Court has evaluated the evidence.”).
15

ORDER
¶20 Accordingly, we remand this appeal to the regional office for further
adjudication consistent with this Opinion and Order. 11

Jennifer Everling
Acting Clerk of the Board
Washington, D.C.

11
The administrative judge may adopt her previous finding that the agency’s delay in
providing the appellant with a copy of the table of penalties did not constitute harmful
procedural error under 5 U.S.C. § 7701(c)(2)(A). See Stephen v. Department of the Air
Force, 47 M.S.P.R. 672, 681, 685 (1991) (holding that an agency’s procedural error is
harmful only where the record shows that it was likely to have caused the agency to
reach a conclusion different from the one it would have reached in the absence or cure
of the error).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9927251. Public record. Not legal advice.