Tysha Holmes v. Department of the Army ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TYSHA S. HOLMES, DOCKET NUMBER
Appellant, AT-0752-11-0263-B-3
v.
DEPARTMENT OF THE ARMY, DATE: April 15, 2022
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Aaron Herreras, Esquire, Washington, D.C., for the appellant.
Robert J. Barham, Fort Jackson, South Carolina, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the remand initial decision,
which sustained her removal and found that she failed to prove her affirmative
defenses. For the reasons discussed below, we GRANT the petition for review,
AFFIRM the administrative judge’s findings concerning the charged misconduct
and the affirmative defense of race discrimination, VACATE the administrative
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
judge’s findings concerning the affirmative defense of whistleblower retaliation
and the penalty, and REMAND the case to the regional office for further
adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The appellant was a Physician Assistant who worked in the Department of
Preventive Medicine (Preventive Medicine) at the agency’s Moncrief Army
Community Hospital (Hospital). Holmes v. Department of the Army, MSPB
Docket No. AT-0752-11-0263-I-2, Appeal File (I-2 AF), Tab 8, Exhibit (Ex.) 28.
Prior to the events underlying this appeal, the appellant had performed as the
Acting Chief of Preventive Medicine. I-2 AF, Tab 8 at 17. When the Chief of
Preventive Medicine position became available, the Hospital’s Deputy
Commander for Clinical Services filled the position with an Army Reserve officer
who was a Registered Nurse instead of promoting the appellant to the position.
Remand Hearing Transcript (RHT) at 46-50. Approximately 15 months after the
new Chief became her supervisor, the agency removed the appellant based on the
following charges: (1) pattern of failing to follow supervisory instructions;
(2) making an offensive remark to and disrespectful behavior towards her
supervisor; (3) insubordination; and (4) unauthorized disclosure of medical
quality assurance information. I-2 AF, Tab 8, Exs. 2, 19. The appellant appealed
her removal to the Board. Holmes v. Department of the Army, MSPB Docket
No. AT-0752-11-0263-I-1, Initial Appeal File (IAF), Tab 1.
¶3 On appeal, the administrative judge issued an initial decision that reversed
the removal action, finding that the deciding official improperly relied upon a
prohibited communication that violated the appellant’s due process rights under
Ward v. U.S. Postal Service, 634 F.3d 1274, 1280 (Fed. Cir. 2011). Holmes v.
Department of the Army, MSPB Docket No. AT-0752-11-0263-I-3, Initial
Decision at 6-7 (Jan. 2, 2013). The agency petitioned for review and the Board
found that the information relied upon by the deciding official was not “new,”
3
and therefore did not violate Ward, and remanded the case for further
adjudication. Holmes v. Department of the Army, MSPB Docket No. AT-0752-
11-0263-I-3, Remand Order at 4, 9 (July 9, 2014).
¶4 On remand, the remand administrative judge 2 affirmed the removal action.
Holmes v. Department of the Army, MSPB Docket No. AT-0752-11-0263-B-3,
Remand Initial Decision (RID) (Apr. 22, 2016). He found all of the charges
except the insubordination charge sustained and that a nexus existed between the
sustained charges and the efficiency of the service. RID at 15-16, 24-26.
Concerning her whistleblower retaliation claim, he found that the appellant’s
disclosures of possible malpractice by a health care provider were protected and
that those disclosures were a contributing factor to her removal under the
knowledge/timing test. RID at 19-20. He further found, however, that the agency
established by clear and convincing evidence that it would have taken the same
action in the absence of the disclosures. RID at 19-22. Concerning her race
discrimination claim, the remand administrative judge found that the appellant
failed to show that race was a motivating factor in her removal. RID at 22-24.
¶5 The appellant has filed a petition for review challenging the remand
administrative judge’s findings concerning her affirmative defenses of
whistleblower retaliation and race discrimination. 3 Remand Petition for Review
(RPFR) File, Tab 9. The agency has filed a response, to which the appellant has
replied. RPFR File, Tabs 11, 13.
2
The administrative judge who heard the case initially retired while the case was
pending before the full Board. On remand, the case was assigned to a different
administrative judge, who we refer to as the remand administrative judge.
3
The appellant does not challenge the administrative judge’s findings concerning the
charged misconduct. After reviewing the administrative judge’s findings and
determinations, we discern no basis upon which to disturb them, and thus, we have not
addressed them on review.
4
DISCUSSION OF ARGUMENTS ON REVIEW
We remand the appellant’s affirmative defense of whist leblower retaliation to the
regional office.
¶6 In an adverse action appeal such as this, an appellant’s claim of
whistleblower retaliation is treated as an affirmative defense. 4 Shibuya v.
Department of Agriculture, 119 M.S.P.R. 537, ¶ 19 (2013). In such instances,
once the agency proves its adverse action case by a preponderance of the
evidence, the appellant must show by preponderant evidence that she made a
protected disclosure under 5 U.S.C. § 2302(b)(8) and that the disclosure was a
contributing factor in the agency’s personnel action. 5 Id.¶7 If an appellant meets this burden, the burden shifts to the agency to
establish by clear and convincing evidence that it would have taken the same
action in the absence of the protected disclosure. Hamilton v. Department of
Veterans Affairs, 115 M.S.P.R. 673, ¶ 25 (2011). In determining whether the
agency has met this burden, the Board will consider the following factors: (1) the
strength of the agency’s evidence in support of its action; (2) the existence and
strength of any motive to retaliate on the part of the agency officials in volved in
the decision; and (3) 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).
4
All of the material events in this matter occurred before the enactment of the
Whistleblower Protection Enhancement Act of 2012 (WPEA), Pub. L. No. 112–199,
126 Stat. 1465, which took effect on December 27, 2012. Thus, we will apply the
pre-WPEA standards to this appeal.
5
The WPEA expanded protection to disclosures made to the alleged wrongdoer and
disclosures made during the normal course of duties. Day v. Department of Homeland
Security, 119 M.S.P.R. 589, ¶¶ 18, 26 (2013). The Board has found that this expansion
constituted a clarification of—rather than a change in—existing law and, therefore,
applied to cases already pending before the Board when it was enacted. Id., ¶ 26.
Based on Day, the remand administrative judge allowed the appellant to raise an
affirmative defense of whistleblower retaliation even though her claim had been struck
previously by the initial administrative judge under pre-WPEA law. RID at 2.
5
The Board does not view these Carr factors as discrete elements, each of which
the agency must prove by clear and convincing evidence, but rather, the Board
will weigh the factors together to determine whether the evidence is clear and
convincing as a whole. Phillips v. Department of Transportation, 113 M.S.P.R.
73, ¶ 11 (2010).
Remand is necessary to address alleged protected disclosures not
considered by the administrative judge.
¶8 The remand administrative judge found that the appellant made protected
disclosures when she filed several incident reports with the Hospital’s Credentials
Committee involving the handling of a human immunodeficiency virus (HIV) 6
case and a tuberculosis case by one of the Hospital’s providers. RI D at 19. He
also found that she made a protected disclosure to her congressman when s he
sought his help in obtaining a copy of a Department of the Army (Army)
Investigation into her allegations, and in the process made the same allegations to
him. Id. The remand administrative judge found that these disclosures were
protected because they concerned a substantial and specific danger to public
health or safety. Id. The parties do not challenge the remand administrative
judge’s findings that these disclosures were protected and we find no basis upon
which to disturb his conclusion in this regard.
¶9 The appellant argues, however, that the remand administrative judge erred
by failing to consider the following protected disclosures that also were raised
before the initial administrative judge: (1) a December 1, 2009 disclosure to the
Office of Special Counsel (OSC) 7 alleging falsification of protected documents by
agency staff; (2) a January 5, 2010 disclosure to the Department of Labor (DOL),
6
HIV is a virus that attacks white blood cells in the human body, damaging the body’s
ability to fight infections. Bragdon v. Abbott, 524 U.S. 624, 633-34 (1998).
7
OSC is authorized to receive disclosures of a violation of any law, rule, or regulation,
or gross mismanagement, gross waste of funds, abuse of authority, or substantial and
specific danger to public health and safety. 5 U.S.C. § 1213(b).
6
Office of Inspector General (OIG) alleging program fraud at the Hospital; and
(3) a January 8, 2010 disclosure to the Army OIG alleging abuse of authority and
whistleblower reprisal by agency management. RPFR File, Tab 9 at 11-13.
¶10 The remand administrative judge ruled below that the appellant would be
allowed to pursue only whistleblowing claims that previously were raised before
the initial administrative judge but were struck based upon valid case law at the
time. Holmes v. Department of the Army, MSPB Docket No. AT-0752-11-0263-
B-2, Remand File (B-2 RF), Tab 10. He also advised the appellant that he
would not allow her to raise any additional claims or defenses on remand. Id.Therefore, it is necessary to determine which claims were raised before the initial
administrative judge.
¶11 When, on appeal, the initial administrative judge provided the appellant the
opportunity to submit copies of her disclosures, she filed documentation showing
that she contacted her congressman, she made complaints to the Army and the
DOL OIGs, and she filed several incident reports with the Hospital’s Credentials
Committee. Holmes v. Department of the Army, MSPB Docket No. AT-0752-11-
0263-I-3, Appeal File (I-3 AF), Tab 13. At least one IG complaint was also
raised in the initial hearing. Initial Hearing Transcrip t at 208. Because the
appellant’s two OIG complaints were raised before the initial administrative
judge, it is unclear why the remand administrative judge did not consider or
address them in his initial decision. As to whether any of the appellant’s alleged
disclosures were protected, the remand administrative judge ruled that he would
permit “bench briefs” on the issue. B-2 RF, Tab 10. However, there is no record
of any bench briefs or any summaries showing what disclosures were raised in the
briefs and which ones were ruled on by the remand administrative judge. While
the remand administrative judge may have ruled on the appellant’s additional
alleged disclosures, there is no record of his rulings. Thus, because they were
raised below, we find that the remand administrative judge should have
7
considered the OIG complaints when he reinstated the appellant’s defense of
whistleblower retaliation.
¶12 Regarding the December 1, 2009 disclosure to OSC, the appellant’s initial
appeal included correspondence with OSC regarding a complaint. I-1 AF, Tab 1
at 17-19. The documents attached to her initial appeal relate to a prohibited
personnel practice (PPP) investigation by OSC, and make no mention of
falsification of documents. 8 Nevertheless, in subsequent correspondence with the
initial administrative judge regarding the whistleblower affirmative defense, the
appellant advised that the OSC complaint had included information related to the
incident reports, and indicated she had also provided OSC with further
information about problems existing in Preventive Medicine. I-3 AF, Tab 13 at 5.
Additionally, in the remand hearing the appellant testified under oath that the
document falsification disclosure was included in her complaint to OSC. RHT
at 374-78. Further, OSC apparently conducted interviews as part of its
investigation of the appellant’s allegations, although it is unclear whether the
document falsification allegations were considered as part of the interviews. 9
IAF, Tab 1 at 19. Thus, we find that the appellant has provided a sufficient basis
for concluding that she exhausted this disclosure before OSC.
¶13 Under the WPEA, the Board has declined to apply 5 U.S.C. § 2302(b)(9)(C)
retroactively when an employee alleges that a personnel action has been taken as
a result of disclosing information to an OIG or to OSC. Colbert v. Department of
8
Falsification of documents is, however, referenced in the Army OIG complaint.
I-3 AF, Tab 4 at 81-82.
9
If OSC received allegations about the falsification of a complainant’s personnel
documents, whether as part of an initial complaint or in the course of a PPP
investigation, OSC could possibly have made a separate referral to its Disclosure Unit
(which receives disclosures under different authority (5 U.S.C. § 1213) than OSC’s
authority to receive and investigate PPPs (5 U.S.C. § 1212(a)(2), 1214(a)(1)(A))) or
simply considered the allegations as part of the PPP investigation. Given the evi dence
the appellant has provided, it seems more likely that the allegations were simply
considered as part of the PPP investigation.
8
Veterans Affairs, 121 M.S.P.R. 677, ¶¶ 6-7 (2014). Nevertheless, the appellant’s
disclosures should have been considered by the remand administrative judge
under 5 U.S.C. § 2302 (b)(8)(B)(i). Id., ¶ 8. Prior to the enactment of the
WPEA, that section of the statute stated, in pertinent part, that it is a prohibited
personnel practice to take or fail to take, or threaten to take or fail to take, a
personnel action concerning any employee “because of . . . any disclosure to the
Special Counsel, or to the Inspector General of any agency” of information that
the employee reasonably believes evidences “a violation of any law, rule, or
regulation.” 5 U.S.C. § 2302(b)(8)(B)(i) (2011); see Colbert, 121 M.S.P.R. 677,
¶ 8. Accordingly, we find that further adjudication is necessary to determine
whether the appellant’s OIG and OSC disclosures were protected under
section 2302(b)(8). Therefore, we remand the appeal to develop the record,
including hearing testimony, concerning the appellant’s OIG and
OSC complaints.
Remand is necessary to conduct a more thorough clear and convincing
evidence analysis.
¶14 On review, the appellant argues that the remand administrative judge
committed numerous adjudicatory errors, many of which pertain to the appellant’s
claim that he did not consider all of the evidence in concluding that the agency
established by clear and convincing evidence that it would have taken the alleged
personnel action at issue absent the appellant’s alleged whistleblowing activity.
RPFR File, Tab 9 at 7-11. We agree and find that the remand administrative
judge did not properly evaluate all of the relevant evidence in reaching his
conclusion that the agency met this high burden of proof.
¶15 The U.S. Court of Appeals for the Federal Circuit in Whitmore v.
Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012), provided guidance
regarding the proper consideration of evidence presented by an agency in
evaluating whether the agency met the burden to prove the clear and convincing
element. The court emphasized that “[e]vidence only clearly and convincingly
9
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.” Id. at 1368. The court further determined that “[i]t is error . . .
to not evaluate all of the pertinent evidence in determining whether an element of
a claim or defense has been proven adequately.” Id. The court found in
Whitmore that the administrative judge had taken an unduly dismissive and
restrictive view on the existence and strength of any motive to retaliate by the
agency and that remand for further fact finding was necessary. Id. at 1370-72,
1377.
¶16 Here, the remand administrative judge identified the appellant’s disclosures
as protected disclosures to the Hospital’s Credentials Committee involving the
mishandling of an HIV case and a tuberculosis case by one of the Hospital’s
providers, and a subsequent letter to her congressman requesting assistance in
obtaining a copy of an Army Investigation into her allegations. RID at 19. The
remand administrative judge then made brief conclusory findings without
mentioning any of the evidence supporting the appellant’s position for the
challenged personnel action at issue. RID at 21-22. He determined, without
discussing any of the evidence or hearing testimony, that the appellant failed to
identify any reason why her supervisor, the proposing official, and the deciding
official “would not have been well pleased by the appellant’s faithful execution
of her job duties in reporting the mishandling of the HIV and tuberculosis cases
to the Credential’s [sic] Committee.” RID at 21. He also concluded that, even
though the appellant argued that the deciding official knew of her disclosure to
her congressman, “there is simply no reason for [the deciding official] to have
been concerned about the two incidents about which the appel lant made
disclosures.” RID at 21 n.14. The remand administrative judge found that the
deciding official “had no motive whatsoever to retaliate again st the appellant.
None of the alleged whistleblower disclosures were against him, directly
impacted him, or appear to have had the potential to impact him.” RID at 21. He
10
then found that the appellant’s disclosures “were clearly of no consequence to
[the deciding official] and the appellant has not suggested why they should have
been.” Id. Concluding, he found that “this was not a close case on the issue of
[the appellant’s] guilt or innocence of the charges, nor on the penalty.” RID
at 22.
¶17 The only evidence relied on by the remand administrative judge in
determining there was “no motive whatsoever to retaliate” by the agency,
however, was the deciding official’s testimony that he could not even recall the
nature of the appellant’s disclosures. RID at 21. Similarly, without any
discussion of the relevant evidence, he relied on the seriousness of the sustained
charges to conclude that the agency proved by clear and convincing evidence that
it would have taken the same action even in the absence of the whistleblowing
activity. RID at 21-22. Thus, the remand initial decision does not reflect that the
administrative judge’s clear and convincing analysis was based on all of the
evidence considered as a whole.
¶18 While we agree with the remand administrative judge that the agency
presented significant evidence in support of the challenged personnel action, th at
finding alone is insufficient to support a finding that the agency proved by clear
and convincing evidence that it would have taken the same a ction in the absence
of the appellant’s protected whistleblowing. See Ryan v. Department of the
Air Force, 117 M.S.P.R. 362, ¶ 15 (2012). Furthermore, we find that, under
Whitmore, the remand administrative judge’s finding that there was no evidence
that the deciding official had a retaliatory motive against the appellant because he
was outside of her chain of command and was not implicated by her
whistleblowing is “an unduly dismissive and restrictive view of Carr factor two.”
11
Whitmore, 680 F.3d at 1372. Additionally, the remand administrative judge made
no findings concerning Carr factor three. 10
¶19 Moreover, although the remand administrative judge reinstated the
appellant’s affirmative defense of whistleblower retaliation due to a change in
law, he denied the appellant’s request to recall the proposing official as a witness
because she already had testified and was cross-examined at length. B-2 RF,
Tab 5 at 8. However, because the appellant’s whistleblower retaliation claim was
excluded by the initial administrative judge during the first hearing, the appellant
had no real opportunity to question this witness concerning her reta liation claim.
The hearing transcript also reflects that the remand administrative judge halted a
line of questioning concerning the appellant’s disclosure to her congressman as
not relevant because she already had established a prima facie case of
whistleblower retaliation. RHT at 392-93. We find that this testimony should not
have been halted and that further fact finding is required concerning whether the
agency met its burden of proof. On remand, the administrative judge should
conduct a Whitmore analysis, making detailed findings concerning the agency’s
motive to retaliate 11 and its treatment of similarly situated nonwhistleblowers.
10
In Whitmore, the court held that “the absence of any evidence relating to Carr factor
three can effectively remove that factor from the analysis,” but that the failure to
produce evidence if it exists “may be at the agency’s peril” and may cause the agency to
fail to meet its clear and convincing burden. Whitmore, 680 F.3d at 1374. Further,
because it is the agency’s burden of proof, when the agency fails to introduce relevant
comparator evidence, the third Carr factor cannot weigh in favor of the agency.
Smith v. General Services Administration, 930 F.3d 1359, 1367 (Fed. Cir. 2019);
Siler v. Environmental Protection Agency, 908 F.3d 1291, 1299 (Fed. Cir. 2018).
11
In evaluating this factor on remand, the administrative judge should fully consider all
of the record evidence relevant to whether there was a motive to retaliate and the extent
of that motive. Whitmore, 680 F.3d at 1368. This includes considering whether a
motive to retaliate can be imputed to the agency officials involved, whether the
disclosure reflects on their capacities as managers, and whether those officials
possessed a “professional retaliatory motive” to retaliate because the whis tleblower’s
disclosures implicated agency officials and employees in general. Id. at 1370-71; see
Robinson v. Department of Veterans Affairs, 923 F.3d 1004, 1019-20 (Fed. Cir. 2019)
12
The appellant did not prove her claim of race discrimination.
¶20 The appellant argues that the remand administrative judge took an unduly
restrictive view on what it means to be similarly situated to the comparator
employee in finding that she failed to prove her discrimination claim. RPFR File,
Tab 9 at 25-26. She asserts that she engaged in the same inappropriate and
unprofessional conduct as the comparator employee and that race was the only
differentiating factor. Id. We find no error with the remand administrative
judge’s analysis of this claim.
¶21 In the remand initial decision, the remand administrative judge identified
the legal standards set forth in Savage v. Department of the Army, 122 M.S.P.R.
612 (2015), discussed various methods of direct and circumstantial evidence,
evaluated comparator evidence (including comparing the appellant with the other
employee involved in the incident resulting in the insubordination charge), and
concluded that the appellant did not prove her race discrimination claim. RID
at 22-24. When the remand administrative judge issued the remand initial
decision, he did not have the benefit of the Board’s decision in Gardner v.
Department of Veterans Affairs, 123 M.S.P.R. 647 (2016). In Gardner, the Board
clarified that Savage does not require administrative judges to separate “direct”
from “indirect” evidence; rather, the Board reaffirmed its holding in Savage that
the dispositive inquiry is whether the appellant has shown by preponderant
evidence that the prohibited consideration was a motivating factor in the
contested personnel action. Id., ¶ 30; Savage, 122 M.S.P.R. 612, ¶ 51.
¶22 Here, the remand administrative judge considered the evidence and
determined that the comparator identified by the appellant is not a proper
comparator because the appellant failed to show that she and the comparator
engaged in similar misconduct without differentiating or mitigating circumstances
that would distinguish their misconduct or the appropriate discipline for it. RID
(considering under the second Carr factor whether there was a professional motive to
retaliate because the disclosures implied ineptitude and deceit within the agency).
13
at 23. The remand administrative judge correctly found that the appellant had
received multiple warnings regarding the consequences of her disobedience and
subsequently was removed based on several charges, including multiple
specifications of failure to follow instructions and the unauthorized disclosure of
medical quality assurance information. In comparison, the other employee would
have faced a single charge of insubordination and there was no evidence showing
that she had received the benefit of multiple warnings. In addition, the remand
administrative judge found that testimony showed that the appellant’s supervisor
considered the comparator to be the victim of the encounter whereas the appellant
was the aggressor, and that the deciding official was unaware of the appellant’s
race when he decided her case. Id. Thus, we find that the remand administrative
judge considered the documentary and testimonial evidence as a whole and
properly concluded that the appellant failed to show that race was a motivating
factor in her removal. Id. Accordingly, we affirm the administrative judge’s
conclusion that the appellant did not prove this affirmative defense. 12
12
The Age Discrimination in Employment Act states that “personnel actions . . . shall
be made free from any discrimination based on age.” 29 U.S.C. § 633a(a). Similarly,
title VII requires that such actions “shall be made free from any discrimination based on
race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). In Savage,
122 M.S.P.R. 612, ¶¶ 48-50, the Board adopted the analytical framework of Mt. Healthy
City School District Board of Education v. Doyle, 429 U.S. 274 (1977), for analyzing
claims arising under title VII. As set forth above, the Board in Savage held that it first
inquires whether the appellant had shown by preponderant evidence that the prohibited
consideration was a motivating factor in the contested personnel action. Savage,
122 M.S.P.R. 612, ¶ 51. Such a showing is sufficient to establish that the agency
violated title VII. Id. If the appellant meets his burden, the Board then inquires
whether the agency has shown by preponderant evidence that it still would have taken
the contested action in the absence of the discriminatory or retaliatory motive. Id. If
the agency makes that showing, its title VII violation will not require reversal of the
action. Id.After Savage was decided, the Supreme Court interpreted the language in 29 U.S.C.
§ 633a(a) in Babb v. Wilkie, 140 S. Ct. 1168 (2020). The Court held that to obtain
“injunctive or other forward-looking relief,” the plaintiff must show that age
discrimination “play[ed] any part in the way a decision [was] made.” Babb, 140 S. Ct.
at 1173-74, 1177-78. However, a plaintiff “must show that age discrimination was a
14
ORDER
For the reasons discussed above, we remand this case to the regional office for
further adjudication in accordance with this Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
but-for cause of the employment outcome” to obtain “reinstatement, backpay, . . . or
other forms of relief related to the end result of an employment decision.” Id.
at 1177-78. Thus, under both Savage and Babb, some relief is available if the
prohibited consideration was a motivating factor in the challenged personnel action, but
full relief is available only if the prohibited consideration was the but -for cause of the
action. Although Savage and Babb appear to diverge on the question of which party has
the burden to prove or disprove but-for causation, we need not decide in this case
whether the analytical framework applied in Savage must be revised in light of Babb.
Because the appellant here failed to prove her initial burden that a prohibited factor
played any part in the agency’s decision, we do not reach the question of whether
discrimination was the but-for cause of that decision.