Marguerite Pridgen v. Office of Management and Budget ( 2022 )


Menu:
  •                           UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    
    2022 MSPB 31
    Docket No. DC-0432-14-0557-I-1
    Marguerite Pridgen,
    Appellant,
    v.
    Office of Management and Budget,
    Agency.
    September 12, 2022
    Marguerite Pridgen, Washington, D.C., pro se.
    Ashley Darbo and Mide Famuyiwa, Washington, D.C., for the agency.
    BEFORE
    Cathy A. Harris, Vice Chairman
    Raymond A. Limon, Member
    Tristan L. Leavitt, Member
    OPINION AND ORDER
    ¶1         The appellant has filed a petition for review of the initial decision that
    affirmed her performance-based removal under 5 U.S.C. chapter 43.            For the
    reasons discussed below, we GRANT the appellant’s petition for review.           We
    REVERSE IN PART and AFFIRM IN PART the initial decision, REVERSING
    the appellant’s removal. We REMAND the case to the regional office for further
    adjudication of the appellant’s claims of race, color, and disability discrimination,
    and retaliation for protected disclosures and activities, in accordance with this
    Opinion and Order.
    2
    BACKGROUND
    ¶2         The appellant was a GS-15 Policy Analyst for the agency’s Office of
    Federal Financial Management. Initial Appeal File (IAF), Tab 1 at 123, Tab 10
    at 52, 377. 1 This position involves a wide range of duties related to developing
    and implementing budgetary, legislative, and regulatory policy for the agency and
    the President. IAF, Tab 10 at 378, Tab 38 at 3.
    ¶3         Beginning in March 2010, the appellant requested several accommodations
    for her chronic colitis and chronic rhinitis. IAF, Tab 31 at 16-18, 28-31, 39-40,
    Tab 38 at 3. She contacted an equal employment opportunity (EEO) counselor in
    June 2010   to   file   an   informal   complaint,   IAF,   Tab 1   at 109,   and   in
    September 2010, she filed a formal EEO complaint alleging discrimination based
    on race, age, and disability, as well as retaliation for having earlier initiated the
    EEO process.     IAF, Tab 38 at 3.      Meanwhile, after communicating with the
    appellant regarding her needs, the agency provided her with an air purifier and
    constructed a new office space that would meet her medical requirements. IAF,
    Tab 31 at 16-17, 28-31, 34-35, 37, 41. These accommodations were completed
    and made available to the appellant in November 2010. Id. at 16-41.
    ¶4         In April 2011, the appellant filed an appeal with the Board.        Pridgen v.
    Office of Management and Budget, MSPB Docket No. DC-3443-11-0529-I-1,
    Initial Appeal File, Tab 1. She alleged that the agency had tailored a vacancy
    announcement to favor a preferred candidate that effectively discriminated
    against her based on age, race, sex, and personal conduct. Because the appellant
    had not alleged that she first sought corrective action from the Office of Special
    Counsel (OSC), the administrative judge issued an initial decision that dismissed
    the appeal for lack of jurisdiction, and the Board affirmed that finding.
    1
    Because documents in the initial appeal and the agency file have various page
    numbers in the record, we have referred to the page numbers assigned by the Board’s
    e-Appeal Online System. IAF, Tabs 1, 10.
    3
    Pridgen v. Office of Management and Budget, 
    117 M.S.P.R. 665
    , ¶¶ 2, 4, 7-9
    (2012).
    ¶5        In October 2011, the appellant contacted the EEO office to initiate a second
    complaint. IAF, Tab 38 at 4. Based on written statements the appellant provided
    to the EEO office, on November 7, 2011, the agency subsequently placed her on
    administrative leave “until further notice.”    IAF, Tab 1 at 7, 14, 26, 38, 44,
    Tab 10 at 11-12, Tab 38 at 4.      The appellant filed another informal EEO
    complaint on November 17, 2011, and a formal complaint on December 19, 2011.
    IAF, Tab 38 at 4.
    ¶6        The appellant alleged that, meanwhile, after the Government Accountability
    Office (GAO) met with agency officials regarding an initiative to reform how it
    administered grants to comply more fully with the Federal Financial Assistance
    Management Improvement Act of 1999, 
    Pub. L. No. 106-107, 113
     Stat. 1486, she
    reported to GAO in November 2011 that the agency was delaying implementing
    the grant reform agenda.       IAF, Tab 54, Hearing Compact Disc (HCD) 1
    at 26:25-27:20 (testimony of the appellant). Specifically, she said she reported
    that “things were really delayed and things were not getting done that should have
    gotten done and no one was really providing any answers.” 
    Id.
    ¶7        The appellant’s annual performance cycle was supposed to run from the
    beginning of April to the end of March 2012.       IAF, Tab 10 at 77.    However,
    because she was on an extended period of leave and not permitted to return to
    work until May 7, 2012, she missed much of the performance cycle. IAF, Tab 1
    at 10, 22.   In June 2012, the appellant’s first-line supervisor presented the
    appellant with a 90-day performance goals plan, apparently with the intent to
    extend the appellant’s 2011-2012 performance cycle and provide her with a
    performance appraisal for that period.     IAF, Tab 10 at 53-54, 229-33.       The
    appellant expressed concerns with the goals in the plan, id. at 234, and the agency
    shifted to instead incorporate the goals from the 90-day plan into a 2012-2013
    performance plan, id. at 53-54, 130.      On August 29, 2012, the appellant’s
    4
    first-line supervisor issued her the performance appraisal plan, which the
    appellant refused to sign because she believed it contained unrealistic goals. IAF,
    Tab 1 at 23, Tab 10 at 13, 217-27.
    ¶8          Next, the appellant alleged that in June 2012, she disclosed to the Offices of
    Inspector General (OIG) for various unidentified agencies, and to the Office of
    the Deputy Attorney General at the Department of Justice, that the agency
    “would not implement” its requirement to publish guidance on grant fraud
    disclosure under section 872 of         the Duncan Hunter National Defense
    Authorization Act for Fiscal Year 2009 (NDAA for FY 2009), 
    Pub. L. No. 110-417, § 872
    , 
    122 Stat. 4356
    , 4555-57 (2008) (codified as amended at
    
    41 U.S.C. § 2313
    ). IAF, Tab 1 at 16, 41; HCD 1 at 27:51-30:04 (testimony of the
    appellant). She further alleged that, upon informing her first-line supervisor of
    these disclosures on June 29, 2012, her supervisor criticized her, IAF, Tab 1
    at 41, and directed her to set up phone calls with the offices she had contacted so
    the supervisor could retract the allegations, HCD 1 at 27:51-30:04 (testimony of
    the appellant).
    ¶9          On November 1, 2012, the appellant filed a second Board appeal.
    Pridgen v. Office of Management and Budget, MSPB Docket No. DC-3443-13-
    0096-I-1, Initial Appeal File (0096 IAF), Tab 1. The appellant alleged that the
    agency continued to retaliate against her for her prior EEO and OSC complaints.
    0096 IAF, Tab 1 at 3-5. The administrative judge issued a jurisdictional show
    cause order on November 7, 2012. 0096 IAF, Tab 3 at 1. Soon thereafter, she
    communicated to the administrative judge that she was withdrawing her Board
    appeal, and on November 16, 2012, the administrative judge issued a decision,
    dismissing it as withdrawn. 0096 IAF, Tab 4 at 3, Tab 5, Initial Decision.
    ¶10         The appellant asserts that on November 10, 2012, she filed a complaint with
    OSC making the same allegations she raised in her withdrawn appeal. IAF, Tab 1
    at 8, 17, 44, Tab 30 at 10, Tab 38 at 10.      According to the appellant, OSC
    informed her on April 22, 2013, that it had decided to close her case. IAF, Tab 1
    5
    at 8.    Meanwhile, on December 11, 2012, the appellant received a counseling
    letter from her supervisor for unsatisfactory performance. IAF, Tab 38 at 4. In
    March 2013, the appellant asked for dictation software to accommodate her carpal
    tunnel syndrome, which the agency provided. Id. ¶ 12.
    ¶11            The appellant alleges that on June 19, 2013, she filed a second complaint
    with OSC regarding retaliation for her disclosures about section 872 of the
    NDAA for FY 2009. IAF, Tab 1 at 8; HCD 1 at 27:21-27:51 (testimony of the
    appellant).     She also alleges that her June 2013 OSC complaint included a
    disclosure that erroneous 2011 guidance from the agency’s Controller resulted in
    billions of dollars in undisbursed balances not being returned to the Department
    of the Treasury, and that her first-line supervisor tried to have her cover up,
    including through congressional testimony, the fact that the guidance was the
    result of an agency error. IAF, Tab 1 at 8.
    ¶12           On June 26, 2013, the appellant’s first-line supervisor gave the appellant a
    summary performance rating of unsatisfactory for the 2012-2013 performance
    cycle.     IAF, Tab 38 at 4.   On June 28, her supervisor placed the appellant on
    another 90-day performance improvement plan (PIP), this one from July 1 to
    September 30, 2013, during which time the appellant was to complete several
    specific tasks to demonstrate acceptable performance. IAF, Tab 10 at 77-91, 107.
    On January 10, 2014, the appellant’s supervisor notified the appellant that she
    failed to demonstrate acceptable performance during the PIP, and she proposed
    the appellant’s removal on that basis. Id. at 52-75. After the appellant responded
    to the proposal, her second-line supervisor issued a decision removing her
    effective March 7, 2014. Id. at 37-50.
    ¶13           The appellant then filed this Board appeal in which she contested the merits
    of the agency’s action and raised affirmative defenses of discrimination based on
    race, color, national origin, age, and disability, as well as retaliation for her prior
    EEO activity, Board appeals, OSC complaints, and disclosures to other entities
    and OIGs. IAF, Tab 1, Tab 30 at 4-12, Tab 38 at 2, 5-14. During the course of
    6
    the appeal, she filed two motions to compel, which the administrative judge
    denied as untimely. IAF, Tab 23. After holding a hearing, the administrative
    judge issued an initial decision affirming the appellant’s removal and finding that
    she failed to prove her affirmative defenses. IAF, Tab 56, Initial Decision (ID).
    ¶14         The appellant has filed a petition for review, challenging many of the
    administrative judge’s findings.         Petition for Review (PFR) File, Tab 3.
    The agency has filed a response to the petition for review, and the appellant has
    filed a reply to the agency’s response. PFR File, Tabs 7-8.
    ANALYSIS
    The agency failed to present substantial evidence that the appellant’s performance
    was unacceptable in at least one critical element.
    ¶15         At the time the initial decision in this case was issued, the Board required
    an agency issuing a performance-based action under 5 U.S.C. chapter 43 to
    establish by substantial evidence that: (1) the Office of Personnel Management
    approved    the    agency’s    performance      appraisal    system;    (2) the   agency
    communicated to the appellant the performance standards and critical elements of
    her position; (3) the appellant’s performance standards are valid under 
    5 U.S.C. § 4302
    (c)(1); (4) the agency warned the appellant of the inadequacies of her
    performance during the appraisal period and gave her a reasonable opportunity to
    improve; and (5) the appellant’s performance remained unacceptable in at least
    one critical element. 2   White v. Department of Veterans Affairs, 
    120 M.S.P.R. 2
    The administrative judge declined to consider the appellant’s argument disputing the
    agency’s assessment of her performance prior to the PIP. ID at 4. At the time she
    issued the initial decision, her analysis was consistent with the Board’s case law that an
    agency taking an action under chapter 43 was not required to prove that an appellant’s
    pre-PIP performance was unacceptable. E.g., Thompson v. Department of the Navy,
    
    89 M.S.P.R. 188
    , ¶ 19 (2001). After the initial decision was issued in this case, the
    U.S. Court of Appeals for the Federal Circuit (Federal Circuit) issued its decision in
    Santos v. National Aeronautics & Space Administration, 
    990 F.3d 1355
     (Fed. Cir.
    2021). In Santos, the court disagreed with the Board’s precedent on this issue and
    found that an agency taking an action under chapter 43 must prove that the employee’s
    7
    405, ¶ 5 (2013).    In this case, the administrative judge found that the agency
    proved all of these elements. ID at 5-16. As she did below, the appellant argues
    on review that performance tasks on her PIP were not related to her position’s
    critical elements. IAF, Tab 1 at 15; PFR File, Tab 3 at 7-8. We agree.
    ¶16         A “critical element” is “a work assignment or responsibility of such
    importance that unacceptable performance on the element would result in a
    determination that an employee’s overall performance is unacceptable.” 
    5 C.F.R. § 430.203
    . An unsatisfactory rating in even one critical element will necessarily
    result in an unsatisfactory summary rating.            
    5 U.S.C. § 4301
    (3); 
    5 C.F.R. § 430.208
    (b)(1); see Lovshin v. Department of the Navy, 
    767 F.2d 826
    , 834
    (Fed. Cir. 1985) (en banc) (explaining that “unacceptable performance” under
    chapter 43 is a “word of art” that is defined by 
    5 U.S.C. § 4301
    (3) and 
    5 C.F.R. § 430.203
    ).      The    appellant’s    performance     plan   contained     four   “core
    competencies.” IAF, Tab 10 at 218-25. It also contained a varying number of
    “strategic goals.” 
    Id.
     Here, the appellant’s core competencies were equivalent to
    critical elements because an unsatisfactory rating in one core competency would
    result in an unsatisfactory summary rating.        
    Id. at 96, 217-18
    .     However, her
    strategic goals were not critical elements because unsatisfactory performance on a
    single strategic goal would not result in an unsatisfactory summary rating; rather,
    if an employee was rated as unsatisfactory on three or more of those goals, she
    then would receive an unsatisfactory summary rating. 
    Id.
    ¶17         The agency removed the appellant for purportedly failing to achieve
    acceptable performance on tasks associated with two areas listed on her PIP:
    performance before the PIP justified her placement on the PIP. Id. at 1360-61, 1363.
    Neither party has revisited on review the issue of whether the agency failed to prove its
    charge because it did not properly assess the appellant’s performance when it decided to
    place her on a PIP. Because we find, as discussed below, that the agency did not
    otherwise meet its burden to prove the charge of unacceptable performance, we need
    not determine whether the Santos decision impacts the agency’s proof of its charge.
    8
    Grants Workforce Development Initiative and USAspending.gov Data Quality
    Guidance Implementation.       IAF, Tab 10 at 37-40, 52, 79, 86-89, 218, 222-23,
    Tab 32 at 5-10, 14-17. These areas were associated with the appellant’s strategic,
    i.e., noncritical, goals.    Compare IAF, Tab 10 at 79-86 (discussing in the
    appellant’s PIP her 2012-2013 performance year deficiencies on various tasks),
    and id. at 221-23 (listing these tasks under the appellant’s strategic goals in her
    2012-2013 performance plan), with id. at 87-89 (setting new tasks for the same
    strategic goals on the PIP); see HCD 2, Track 1 at 1:56:42-1:58:06 (testimony of
    the appellant’s first-line supervisor).
    ¶18         We find that, because the appellant’s performance was not aligned with any
    core competency, the agency failed to prove by substantial evidence that her
    performance remained unacceptable in at least one critical element.            White,
    
    120 M.S.P.R. 405
    , ¶ 5.      Accordingly, we reverse the appellant’s removal and
    those portions of the initial decision that sustained it. 3 See O’Neal v. Department
    of the Army, 
    47 M.S.P.R. 433
    , 441-42 (1991) (reversing a chapter 43 removal
    when the agency did not prove that the appellant’s performance warranted an
    unacceptable rating on a critical element as a whole).
    In finding that the appellant did not prove race and color discrimination, the
    administrative judge viewed the appellant’s comparator evidence too narrowly.
    ¶19         In her appeal, the appellant raised affirmative defenses of discrimination
    based on race, color, national origin, and age. IAF, Tab 1 at 25-27, Tab 38 at 6-8,
    11. The administrative judge found that the appellant did not prove that these
    were motivating factors in her removal.        ID at 22.    The appellant does not
    challenge the findings concerning her age and national origin discrimination
    claims, and we will not revisit those claims here.
    3
    In light of this finding, we do not reach the appellant’s arguments regarding the
    agency’s burden of proof, the administrative judge’s factual findings as to other
    elements of the unacceptable performance charge, and the agency’s alleged violation of
    the appellant’s due process rights. PFR File, Tab 3 at 8, 13-31.
    9
    ¶20         The substantive standard for Title VII claims in the Federal sector is set
    forth in 42 U.S.C. § 2000e-16, which provides that all personnel actions affecting
    covered employees “shall be made free from any discrimination based on race,
    color, religion, sex, or national origin.” This broad prohibition of discrimination
    is commensurate with the high standards expected of the Federal Government as
    an employer. In Babb v. Wilkie, 
    140 S. Ct. 1168 (2020)
    , the U.S. Supreme Court
    interpreted the identical statutory language in 29 U.S.C. § 633a, which prohibits
    Federal sector age discrimination.         As the Court explained, “the Federal
    Government [is held to] a stricter standard than private employers or state and
    local governments. That is what the statutory language dictates, and if Congress
    had wanted to impose the same standard on all employers, it could have easily
    done so.” Babb, 140 S. Ct. at 1176.
    ¶21         Considering this sweeping statutory language, the Court held that a plaintiff
    may prove a claim of age discrimination by showing that age discrimination
    “play[ed] any part in the way a decision [was] made.” Id. at 1173-74. In other
    words, the statute does not require proof that an employment decision would have
    turned out differently if age had not been taken into account. Id. A finding that
    prohibited discrimination played “any part” in the contested action is the same as
    a finding of “motivating factor.”           See Wingate v. U.S. Postal Service,
    
    118 M.S.P.R. 566
    , ¶ 7 (2012) (finding that a Federal employee may prove a
    violation of 29 U.S.C. § 633a(a) by establishing that age was “a factor” in a
    personnel action, even though it was not a “but-for” causation). 4
    4
    An important distinction between the motivating factor and “but-for” standards is that
    an appellant in a motivating factor regime need not fully rebut the agency’s proffered
    motives as pretext. By contrast, under the “but-for” standard, the burden of persuasion
    always remains with the appellant. See, e.g., Gloetzner v. Lynch, 
    225 F. Supp. 3d 1329
    ,
    1346 (N.D. Fla. 2016) (“The burden of persuasion always remains on the plaintiff in an
    [Age Discrimination in Employment Act (ADEA)] case to proffer evidence sufficient to
    permit a reasonable fact finder to conclude that the discriminatory animus was the
    “but-for” cause of the adverse employment action.”). Therefore, certain courts have
    10
    ¶22        But 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 available under the statute, including status quo ante relief,
    compensatory damages, or other forms of relief related to the end result of an
    employment decision, he “must show that age discrimination was a but-for cause
    of the employment outcome.” Babb, 140 S. Ct. at 1171, 1177-78. The but-for
    causation standard does not require discrimination to be the sole cause of the
    contested action, only a necessary one.     There may be more than one but-for
    cause of a single employment action.      Loberger v. Del-Jen Inc., 
    616 F. App’x 922
    , 930 (11th Cir. 2015) (finding that pretext means both the reason was false,
    and that discrimination was the real reason); Tramp v. Associated Underwriters,
    Inc., 
    768 F.3d 793
    , 801 (8th Cir. 2014) (“This is not to say that age must have
    been the only factor in the employer’s decisionmaking process, but only that, as
    among several factors, age was the factor that made a difference.”); see also
    McDonald v. Santa Fe Trail Transportation Co., 
    427 U.S. 273
    , 282 n.10 (1976).
    ¶23        One may prove discrimination under these different standards of proof by
    various methods. No one method is the exclusive path to a finding of liability.
    We take the opportunity to explain the methods of proof by which an appellant
    may prove discrimination as an affirmative defense, and clarify Savage v.
    Department of the Army, 
    122 M.S.P.R. 612
     (2015), and Gardner v. Department of
    Veterans Affairs, 
    123 M.S.P.R. 647
     (2016), to the extent that they could be read
    to suggest otherwise.
    considered the “but-for” standard to be more “onerous,” often when they compare
    Federal and state law claims. See, e.g., Wojcik v. Costco Wholesale Corporation,
    No. 3:13-CV-2314-D, 
    2015 WL 1511093
     (N.D. Tex. 2015) (granting summary
    judgment on the plaintiff’s ADEA claim but denying for state law claim as motivating
    factor standard was “more lenient”); Bauers-Toy v. Clarence Central School District,
    No. 10-CV-845, 
    2015 WL 13574309
     (W.D.N.Y. 2015) (requiring plaintiff to separate
    age and sex claims because Title VII gender discrimination claim is subject to a more
    lenient motivating factor standard).
    11
    ¶24         The methods by which an appellant may prove a claim of discrimination
    under Title VII are: (1) direct evidence; (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 “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.          Troupe v.
    May Department Stores Co., 
    20 F.3d 734
    , 736 (7th Cir. 1994); see also Ortiz v.
    Werner Enterprises, Inc., 
    834 F.3d 760
    , 764-65 (7th Cir. 2016) (stating that “the
    use of disparate methods and the search for elusive [convincing] mosaics has
    complicated and sidetracked employment-discrimination litigation for many
    years” and explaining that Troupe used “mosaic” as a metaphor that was designed
    to displace the direct and indirect methods, rather than add a separate legal test to
    them). None of the above types of evidence, i.e., direct, “convincing mosaic,”
    comparator, or pretext, will be needed in every case. “Each type of evidence,”
    the Seventh Circuit explained in Troupe, “is sufficient by itself . . . to support a
    judgment for [the employee]; or they can be used together.”           
    Id.
       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
    12
    under each standard. 5 See Alarid v. Department of the Army, 
    122 M.S.P.R. 600
    ,
    ¶ 17 (2015).
    ¶25         In Savage, 
    122 M.S.P.R. 612
    , ¶ 46, the Board held that, because it lacks
    summary judgment authority, the McDonnell Douglas framework has no
    application to Board proceedings. This statement is incorrect, and that aspect of
    Savage is overruled.      The Supreme Court in McDonnell Douglas, 
    411 U.S. at 802-04
    , set forth the “order and allocation of proof” in an employment
    discrimination case, not only during pretrial proceedings but also during trial.
    See Capaci v. Katz & Besthoff, Inc., 
    711 F.2d 647
    , 663 (5th Cir. 1983). Although
    McDonnell Douglas and its progeny outline the order and allocation of proof as a
    three-stage process, presenting evidence of discrimination does not contemplate a
    trifurcated trial, but simply sets forth the proper method of analysis after the
    relevant evidence has been introduced.          Johnson v. Transportation Agency,
    Santa Clara County, California, 
    770 F.2d 752
    , 761 (9th Cir. 1984). “The prima
    facie case method established in McDonnell Douglas was ‘never intended to be
    rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to
    evaluate the evidence in light of common experience as it bears on the critical
    question of discrimination.’” U.S. Postal Service Board of Governors v. Aikens,
    
    460 U.S. 711
    , 715 (1983) (quoting Furnco Construction Corp. v. Waters,
    
    438 U.S. 567
    , 577 (1978)).
    ¶26         Turning to the facts of this case, the appellant, on review, renews her
    argument that the agency favored her “non-disabled, non-African American, [and]
    non-Black” coworker in the assigning and evaluating of work. PFR File, Tab 3
    at 5-7; IAF, Tab 38 at 6. In her initial decision, the administrative judge found
    that this coworker, the only other GS-15 Policy Analyst who reported to the same
    5
    In particular, appellants must be instructed that to obtain the full panoply of relief
    under Title VII, they must prove “but-for” discrimination regarding the end result of an
    employment decision, and it may be proven through any of the methods stated above.
    13
    first-line supervisor as the appellant, was not a valid comparator because the
    supervisor assigned him different tasks. ID at 22 n.11. The appellant argues that
    the administrative judge, in making this finding, defined “similarly situated” too
    narrowly. PFR File, Tab 1 at 5-8. We agree.
    ¶27         As explained above, one way an appellant may establish a discrimination
    claim is through comparator evidence, or evidence relating to the treatment of
    similarly situated employees. See Fox v. Department of the Army, 
    120 M.S.P.R. 529
    , ¶ 37 (2014) (discussing the use of comparator evidence in connection with a
    disability discrimination claim). To be similarly situated, comparators must have
    reported to the same supervisor, been subjected to the same standards governing
    discipline,   and   engaged   in    conduct    similar   to   the   appellant’s   without
    differentiating or mitigating circumstances.       Id., ¶ 37.   The appellant and her
    coworker reported to the same first-line supervisor and had the same core
    competencies and strategic goals.        IAF, Tab 10 at 217-27, Tab 52 at 284-92.
    However, as part of their annual performance plans, the supervisor assigned each
    of them different tasks related to the strategic goals.         IAF, Tab 10 at 220-25,
    Tab 52    at 288-92;   HCD 2,      Track 1    at 1:30:39-1:31:14    (testimony    of   the
    appellant’s first-line supervisor).     According to the supervisor, she assigned
    different tasks to the appellant and her coworker because of the need to divide
    work amongst her small staff. HCD 2, Track 1 at 1:30:39-1:31:14 (testimony of
    the appellant’s first-line supervisor). The administrative judge made no finding
    as to whether the assignments were the result of discrimination.
    ¶28         As set forth above, in a performance-based action, the agency has the
    burden to prove that it provided the appellant with a reasonable opportunity to
    improve. White, 
    120 M.S.P.R. 405
    , ¶ 5. The employee’s right to a reasonable
    opportunity to improve is a substantive right and a necessary prerequisite to all
    chapter 43 actions. Towne v. Department of the Air Force, 
    120 M.S.P.R. 239
    , ¶ 8
    (2013).   In determining whether the agency has afforded the appellant this
    opportunity, relevant factors include the nature of the duties and responsibilities
    14
    of the appellant’s position, including whether assignments of work were made in
    a discriminatory manner.      Id.; see Lee v. Environmental Protection Agency,
    
    115 M.S.P.R. 533
    , ¶ 43 (2010) (considering in a chapter 43 action the appellant’s
    allegations of national origin discrimination that non-Chinese employees in the
    appellant’s position were not required to perform the same types of assignments
    as the appellant).
    ¶29         We find that as an employee in the same position, assigned work by the
    same supervisor and subject to the same general standards governing
    performance, the appellant’s coworker was similarly situated to the appellant for
    purposes of determining whether the tasks assigned to the appellant during the
    PIP period were the product of discrimination.          Therefore, we remand the
    appellant’s claims of discrimination based on race and color to the administrative
    judge to make further findings as to whether the appellant met her burden to
    prove her assignments were the result of discrimination. 6       See Barnes v. U.S.
    Postal Service, 
    49 M.S.P.R. 21
    , 26-27 (1991) (remanding for an administrative
    judge to make credibility determinations regarding discrimination claims). On
    remand, the administrative judge should consider this and any other probative
    evidence of race and color discrimination according to the standards set
    forth above.
    The appellant failed to prove that the agency retaliated against her for her prior
    EEO activity.
    ¶30         Claims of retaliation for opposing discrimination in violation of Title VII
    are analyzed under the same framework used for Title VII discrimination claims.
    Foster v. University of Maryland-Eastern Shore, 
    787 F.3d 243
    , 248-49 (4th Cir.
    6
    On remand, the administrative judge is not required to address the         appellant’s
    argument that “another [unidentified] agency employee” who reported to       a different
    supervisor and allegedly was on a PIP “could have been a comparator.”         PFR File,
    Tab 3 at 6-7; see Fox, 
    120 M.S.P.R. 529
    , ¶ 37 (finding that employees that   reported to
    different supervisors were not similarly situated to the appellant).
    15
    2015). The appellant alleged that her removal was in retaliation for her 2010 and
    2011 EEO complaints, and her 2011 and 2012 Board appeals. 7              IAF, Tab 1
    at 35-36, 43-46, Tab 38 at 8-11. On review, she points to the “suspicious timing”
    of the agency’s actions, such as reducing her responsibility and reassigning her
    work in 2010 and 2011, placing her on administrative leave in 2012, and taking
    performance-based actions beginning in 2012 that culminated in her removal
    effective 2014. PFR File, Tab 3 at 9-13. The administrative judge considered
    these allegations, but ultimately found the appellant’s claims were unproven. For
    example, she found that the agency placed the appellant on administrative leave,
    not due to retaliatory animus, but because of safety reasons since she stated in
    writing to an EEO counselor she might “kill [herself] or someone else.” ID at 20;
    IAF, Tab 10 at 260, 266. The administrative judge found the appellant’s denial
    that she made this statement was not credible. ID at 20.
    ¶31         The administrative judge also found that the appellant’s first-line supervisor
    (the proposing official) credibly denied retaliatory intent despite being named in
    one of the appellant’s EEO complaints.          ID at 22 n.10.     In addition, she
    considered the testimony of the second-line supervisor (the deciding official) and
    concluded he did not retaliate against the appellant based on her reasonable
    accommodation requests. ID at 21-22. However, the administrative judge did not
    make a specific credibility finding as to the deciding official’s motive to retaliate
    against the appellant for her other EEO activity. Nonetheless, we find that she
    implicitly concluded, after considering the appellant’s “circumstantial evidence
    regarding EEO retaliation,” that the appellant did not establish that it was a
    motivating factor in her removal. ID at 22. We afford these explicit and implicit
    credibility-based factual findings deference. Purifoy v. Department of Veterans
    7
    To the extent that the appellant alleges that her prior EEO complaints raised
    allegations of disability discrimination, those claims will be addressed below, in
    connection with her other disability discrimination claims.
    16
    Affairs, 
    838 F.3d 1367
    , 1373 (Fed. Cir. 2016) (explaining that the Board must
    defer not only to an administrative judge’s credibility findings that explicitly rely
    on witness demeanor, but also those that are “intertwined with issues of
    credibility and an analysis of [a witness’s] demeanor at trial”) (citing Haebe v.
    Department of Justice, 
    288 F.3d 1288
    , 1299 (Fed. Cir. 2002) (stating that “the
    [Board] is not free to overturn an administrative judge’s demeanor-based
    credibility findings merely because it disagrees with those findings”)).             The
    appellant’s recitation of the evidence on review does not persuade us otherwise. 8
    PFR File, Tab 3 at 9-13; see Broughton v. Department of Health & Human
    Services, 
    33 M.S.P.R. 357
    , 359 (1987) (observing that merely rearguing factual
    8
    The appellant argued below that her 2012-2013 performance plan and her
    unsatisfactory performance rating for that year were the result of EEO reprisal. IAF,
    Tab 10 at 107, Tab 30 at 8-11, Tab 38 at 10-11. While the administrative judge, in the
    initial decision, generally found the appellant’s claims regarding incidents arising prior
    to her placement on the PIP were not motivated by retaliation or discrimination, she
    did not specifically address the appellant’s claim regarding her previous performance
    plan and rating. ID at 4, 16-17, 19-22. On remand, the administrative judge should
    provide the parties with an opportunity to present additional evidence and argument
    concerning the appellant’s affirmative defenses related to the agency’s determination
    that her pre-PIP performance was unsatisfactory. In Santos, 990 F.3d at 1363-64, the
    Federal Circuit held that the Board must consider this issue in the context of an
    appellant’s affirmative defense when, as here, the validity of the agency’s proffered
    reason for taking the chapter 43 action is a factor in analyzing that affirmative defense.
    See id. at 1363-64 (remanding to the Board the appellant’s claim under the Uniformed
    Services Employment and Reemployment Rights Act of 1994 (codified as amended at
    
    38 U.S.C. §§ 4301-4335
    )); Savage, 
    122 M.S.P.R. 612
    , ¶ 41 (finding that retaliation for
    prior EEO activity is established if a prohibited consideration was a motivating factor in
    the contested personnel action, even if it was not the only reason). The administrative
    judge must develop the record evidence as necessary and appropriate, while considering
    administrative efficiency and fairness to the parties, Ellshoff v. Department of the
    Interior, 
    76 M.S.P.R. 54
    , 74 (1997), and address any argument or evidence regarding
    the appellant’s pre-PIP performance in the remand initial decision, Spithaler v. Office of
    Personnel Management, 
    1 M.S.P.R. 587
    , 589 (1980) (explaining that an initial decision
    must identify all material issues of fact and law, summarize the evidence, resolve issues
    of credibility, and include the administrative judge’s conclusions of law and his legal
    reasoning, as well as the authorities on which that reasoning rests).
    17
    issues already raised and properly resolved by the administrative judge below
    does not establish a basis for review).
    ¶32         The administrative judge separately addressed the appellant’s allegations of
    retaliation for filing prior Board appeals, stating that she was required to show
    that (1) she engaged in protected activity, (2) the accused official knew of the
    activity, (3) the adverse action under review could have been retaliation under the
    circumstances, and (4) there was a genuine nexus between the alleged retaliation
    and the adverse action.     ID at 28 (citing Warren v. Department of the Army,
    
    804 F.2d 654
    , 658 (Fed. Cir. 1986)). This standard applies to alleged retaliation
    for “the exercise of any appeal, complaint, or grievance right granted by any law,
    rule, or regulation” in which an appellant did not allege EEO discrimination or
    retaliation,   or   seek   to   remedy     whistleblower    reprisal.     
    5 U.S.C. § 2302
    (b)(9)(A)(ii); Mattison v. Department of Veterans Affairs, 
    123 M.S.P.R. 492
    , ¶ 8 (2016). The use of this standard was in error, because the appellant’s
    underlying appeals raised claims of discrimination and retaliation for engaging in
    EEO activity. IAF, Tab 38 at 9-10; Pridgen, 
    117 M.S.P.R. 665
    , ¶ 7; 0096 IAF,
    Tab 1 at 5. Therefore, the standard for Title VII discrimination claims applies.
    ¶33         The administrative judge found that the appellant did not prove that the
    agency retaliated against her for filing Board appeals because she failed to prove
    that her first- or second-line supervisors were aware of her 2011 and 2012 Board
    appeals. ID at 28-29; see Wingate, 
    118 M.S.P.R. 566
    , ¶ 6 (determining that there
    was no retaliation for prior EEO activity when the administrative judge found no
    evidence that relevant agency officials knew of the appellant’s EEO activity or
    were influenced by those who did).        Neither party challenges this finding on
    review. We affirm the administrative judge’s findings regarding the appellant’s
    EEO retaliation claims as modified to find that the appellant failed to prove these
    18
    previous Board appeals were motivating factors in her removal. 9 See Nash v. U.S.
    Postal Service, EEOC Appeal No. 01900992, 
    1990 WL 1111738
    , at *2
    (Apr. 26, 1990).
    In finding that the appellant did not prove discrimination under the Americans
    with Disabilities Act (ADA), the administrative judge viewed the appellant’s
    comparator evidence too narrowly.
    ¶34         The appellant raised claims of both disparate treatment disability
    discrimination and retaliation for engaging in activity protected by the
    Rehabilitation Act of 1973 (the Rehabilitation Act). IAF, Tab 38 at 8-9, 11-14;
    ID at 2.   The administrative judge found that the appellant did not meet her
    burden to prove either of these claims. 10 ID at 22. We discuss each of these
    claims in turn.
    The administrative judge should have determined whether the appellant’s
    disability was a motivating factor in her PIP work assignments and, if so,
    whether the agency would have removed the appellant regardless of the
    allegedly discriminatory assignments.
    ¶35         The Board adjudicates claims of disability discrimination raised in
    connection with an otherwise appealable action under the substantive standards of
    section 501 of the Rehabilitation Act. The standards under the ADA, as amended
    by the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), have
    9
    Although not entirely clear, it appears that the appellant also raised a claim of
    retaliation for requesting reasonable accommodation in one of her prior Board appeals.
    0096 IAF, Tab 1 at 5. To the extent that the appellant raised such a claim, it is
    addressed below.
    10
    To the extent that the appellant raises a claim of denial of reasonable accommodation
    for the first time on review, we decline to address it. PFR File, Tab 3 at 9, 11-12; IAF,
    Tab 38 at 11, Tab 44 at 10-12; ID at 18; HCD 1 at 4:55-5:50 (containing a discussion on
    the record as to the nature of the appellant’s disability discrimination claim); see
    Banks v. Department of the Air Force, 
    4 M.S.P.R. 268
    , 271 (1980) (explaining that the
    Board generally will not consider an argument raised for the first time in a petition for
    review absent a showing that it is based on new and material evidence not previously
    available despite the party’s due diligence).
    19
    been incorporated by reference into the Rehabilitation Act, and the Board applies
    them to determine whether there has been a Rehabilitation Act violation.
    
    29 U.S.C. § 791
    (f); Miller v. Department of the Army, 
    121 M.S.P.R. 189
    , ¶ 13 n.3
    (2014).     The ADA originally prohibited discrimination “because of” an
    individual’s disability; Congress changed this language in the ADAAA to prohibit
    discrimination “on the basis of disability.” ADAAA, 
    Pub. L. No. 110-325, § 5
    (a),
    
    122 Stat. 3553
    , 3557. Because the ADAAA went into effect prior to the events in
    this matter, we apply the standards set forth in the ADA as amended.
    ¶36         The administrative judge found that the appellant proved she was regarded
    as disabled, and thus was an individual with a disability for purposes of the ADA.
    ID at 19.    We clarify that the appellant met her burden to prove she was an
    individual with a disability by proving that she was actually disabled.
    ¶37         To prove disability discrimination under the ADA, the appellant must
    establish that she is an individual with a disability as that term is defined in the
    ADA and Equal Employment Opportunity Commission (EEOC) regulations.
    Thome v. Department of Homeland Security, 
    122 M.S.P.R. 315
    , ¶ 24 (2015). She
    may prove that she has a disability by showing that she: (1) has a physical or
    mental impairment that substantially limits one or more major life activities;
    (2) has a record of such impairment; or (3) is regarded as having such an
    impairment. 
    42 U.S.C. § 12102
    (1); Thome, 
    122 M.S.P.R. 315
    , ¶ 24; 
    29 C.F.R. § 1630.2
    (g)(1).        Major life activities include the operation of major bodily
    functions, such as bowel functions.                 
    42 U.S.C. § 12102
    (2)(B); 
    29 C.F.R. § 1630.2
    (i)(1)(ii).      The determination of whether a condition is substantially
    limiting is made by comparing the ability of the allegedly disabled individual to
    the   abilities   of    “most   people   in   the    general   population.”   
    29 C.F.R. § 1630.2
    (j)(1)(ii). The “substantially limits” standard is not “demanding,” and is
    intended to “be construed broadly in favor of expansive coverage.” 
    29 C.F.R. § 1630.2
    (j)(1)(i).
    20
    ¶38         The appellant suffers from colitis, carpal tunnel syndrome, and rhinitis.
    IAF, Tab 31 at 27, 39, Tab 38 at 3-4. Colitis is an inflammation of the colon,
    which is a portion of the bowel.          Stedman’s Medical Dictionary 247, 408
    (28th ed. 2006). The appellant provided undisputed evidence that, as a result of
    her colitis, she had to be within 50 feet of a restroom to accommodate her need to
    use it “frequently.” IAF, Tab 31 at 29, 31, 34, 41. The agency constructed office
    space for the appellant so that she had the necessary proximity to the restroom.
    
    Id. at 41
    . Under these circumstances, we find that the appellant met her burden to
    prove she was an individual with a medical condition that substantially limits her
    bowel function as compared with most people in the general population. As such,
    she is an individual with an actual disability. 11
    ¶39         As with the appellant’s other discrimination claims, the administrative
    judge concluded that the appellant failed to prove that her disability was a
    motivating factor in her removal. ID at 20-22. The appellant appears to dispute
    this finding. PFR File, Tab 3 at 5-7.
    ¶40         The EEOC and Federal circuit courts have disagreed regarding the level of
    causation an employee must meet to prove discrimination “on the basis of
    disability.” See, e.g., Natofsky v. City of New York, 
    921 F.3d 337
    , 350 (2d Cir.
    2019) (“We conclude that ‘on the basis of’ in the ADA requires a but-for
    causation standard.”); Monroe v. Indiana Department of Transportation, 
    871 F.3d 11
    The ADA prohibits disparate treatment discrimination against a “qualified individual
    on the basis of disability.” 
    42 U.S.C. § 12112
    (a). The record reflects that the appellant
    blamed her first-line supervisor and others, rather than her medical conditions, for any
    performance deficiencies while on the PIP. HCD 1 at 1:04:56-1:16:40 (testimony of the
    appellant); IAF, Tab 10 at 44-47, Tab 38 at 11; ID at 18. The agency essentially agreed
    with the appellant that her alleged performance deficiencies were not related to her
    medical conditions. HCD 2, Track 2 at 1:22:44-1:26:24 (testimony of the appellant’s
    second-line supervisor). Therefore, because it appears undisputed that the appellant
    was “qualified,” i.e., that she could perform the essential functions of her position with
    or without reasonable accommodation, 
    42 U.S.C. § 12111
    (8), we do not address that
    issue further here.
    21
    495, 503-04 (7th Cir. 2017) (using the “but-for” causation standard for a case
    arising after the ADAAA); Oehmke v. Medtronic, Inc., 
    844 F.3d 748
    , 757 n.6
    (8th Cir. 2016) (declining to resolve whether a motivating factor or “but-for”
    causation standard applies to disability discrimination claims under the ADA as
    amended); Gentry v. East West Partners Club Management Co., Inc., 
    816 F.3d 228
    , 235-36 (4th Cir. 2016) (applying a “but-for” causation standard to a
    disability discrimination claim); Hoffman v. Baylor Health Care System, 
    597 F. App’x 231
    , 235 n.12 (5th Cir. 2015) (applying a motivating factor causation
    standard); Renee L. v. Department of Commerce, EEOC Appeal No. 0120141032,
    
    2017 WL 1315387
    , at *17 (Mar. 29, 2017) (applying a motivating factor
    causation standard).   The Board generally defers to the EEOC on issues of
    substantive discrimination law unless the EEOC’s decision rests on civil service
    law for its support or is so unreasonable that it amounts to a violation of civil
    service law.   Southerland v. Department of Defense, 
    119 M.S.P.R. 566
    , ¶ 20
    (2013). In light of the split among the circuit courts, we find it appropriate to
    defer to the EEOC’s use of a motivating factor causation standard. However, as
    explained below, to obtain full relief, an appellant must show that disability
    discrimination was a but-for cause of the personnel action.
    ¶41        The administrative judge determined below that the appellant was entitled
    to some relief if she showed that her disability was a motivating factor in her
    removal, even if other factors also motivated the removal. ID at 19, 22. She
    found that the appellant did not meet that burden.       ID at 22.   The appellant
    argues, as discussed above, that her coworker, who she claims was not disabled,
    was treated more favorably for assigning and evaluating work. PFR File, Tab 3
    at 5-7; IAF, Tab 38 at 6.     While we agree with the administrative judge’s
    applying the motivating factor causation standard, as explained above, the
    appellant’s coworker was similarly situated to the appellant because he was
    employed in the same position, assigned work by the same supervisor, and
    subjected to the same general standards governing performance.           See Fox,
    22
    
    120 M.S.P.R. 529
    , ¶ 37. Thus, we must remand for the administrative judge to
    consider the appellant’s claim that she received less favorable assignments than
    her coworker did due to her disability.
    ¶42         In analyzing the appellant’s disparate treatment disability discrimination
    claim, the administrative judge shall apply the same standards of proof set forth
    above regarding the appellant’s Title VII claims, and the appellant may use the
    same methods of proof applicable to such claims. See Hoffman v. Caterpillar,
    Inc., 
    256 F.3d 568
    , 572 (7th Cir. 2001); Davis v. Department of the Treasury,
    EEOC Appeal No. 01A10591, 
    2002 WL 31014612
    , at *2 (Aug. 30, 2002). Also,
    as with Title VII claims, the remedies available for disparate treatment disability
    discrimination will vary based on the level of causation.            When disability
    discrimination is a but-for cause of the personnel action, full relief, including
    reinstatement,   back    pay,   and   damages,    is   available.   When     disability
    discrimination is merely a motivating factor, but not a but-for cause, injunctive or
    other forward-looking relief is available. 12 See Southerland, 
    119 M.S.P.R. 566
    ,
    ¶¶ 23-25; Brenton W. v. Department of Veterans Affairs, EEOC Appeal
    No. 2020000957, 
    2021 WL 3792957
    , at *3 (Aug. 4, 2021); see also 
    42 U.S.C. § 12117
    (a) (incorporating, by reference, the remedy provisions of Title VII into
    the ADA).
    The appellant did not prove that her protected activities of filing disability
    complaints and requesting reasonable accommodation were “but-for”
    causes of her removal.
    ¶43         As to the appellant’s claims of retaliation for engaging in activity protected
    by the Rehabilitation Act, the administrative judge analyzed those claims in
    12
    In this matter, we have already reversed the removal action on other grounds and
    ordered the agency to restore the appellant to her former position and provide her with
    appropriate back pay. However, she may obtain further relief if she proves her
    discrimination claims on remand. See Wrighten v. Office of Personnel Management,
    
    89 M.S.P.R. 163
    , ¶¶ 5-10 (2001).
    23
    conjunction with the appellant’s Title VII claims. ID at 16-22. She concluded
    that the appellant did not meet her burden to prove that her requests for
    reasonable accommodation and EEO complaints were motivating factors in her
    removal. 
    Id.
     On review, the appellant again suggests that the agency’s actions
    were suspiciously close in time to her 2010 requests for accommodation and 2010
    EEO complaint “regarding denied accommodations.”                  PFR File, Tab 3 at 9-13.
    While we disagree with the appellant, we modify the administrative judge’s
    analysis   of     the       appellant’s    retaliation   claim   to    reflect   the   proper
    causation standard.
    ¶44          Separate    from        its   prohibition    on   disparate     treatment   disability
    discrimination, the ADA has an anti-retaliation provision, which prohibits
    discriminating against any individual “because such individual” has engaged in
    protected activity. 
    42 U.S.C. § 12203
    (a); Southerland, 
    119 M.S.P.R. 566
    , ¶ 21.
    Both    requesting      a     reasonable     accommodation       and   opposing    disability
    discrimination are activities protected by the Rehabilitation Act. Southerland,
    
    119 M.S.P.R. 566
    , ¶ 21.
    ¶45          In University of Texas Southwestern Medical Center v. Nassar, 
    570 U.S. 338
    , 351-53 (2013), the U.S. Supreme Court interpreted similar language from
    Title VII’s anti-retaliation provision applicable to private sector claims.
    The Court determined that the requirement to prove the employer’s actions
    occurred “because” of the employee’s protected activity imposed a “but-for”
    causation standard. 
    Id.
     (interpreting 42 U.S.C. § 2000e-3(a)). The Court rejected
    using a mixed-motive analysis, explaining that “but-for” causation “requires
    proof that the unlawful retaliation would not have occurred in the absence of the
    alleged wrongful action or actions of the employer.” 13 Id. at 360-62.
    13
    In Nassar, the U.S. Supreme Court distinguished between the anti-retaliation
    provisions of Title VII, which it determined required “but-for” causation, and the
    disparate treatment discrimination provisions of Title VII, for which it found motivating
    24
    ¶46         We find Nassar provides useful guidance in interpreting the provision at
    issue here.   The language in the ADA’s anti-retaliation provision is virtually
    identical to the language analyzed by the Court in Nassar, including the
    prohibition on discrimination “because” of protected activity.            
    42 U.S.C. § 12203
    (a); see Nassar, 
    570 U.S. at 353-54, 357
     (observing that Congress’s
    decision to enact an anti-retaliation subsection in Title VII separate from the
    subsection prohibiting disparate treatment discrimination required that courts
    apply the standard of causation for retaliation claims stated in the anti-retaliation
    provision, and observing that the ADA has a similar structure).           Thus, like
    Federal circuit courts which have considered this issue, we find that the “but-for”
    standard is applicable to ADA retaliation claims. See T.B. ex rel. Brenneise v.
    San Diego Unified School District, 
    806 F.3d 451
    , 473 (9th Cir. 2015) (finding, in
    light of Nassar, that the “but-for” causation standard applies to ADA retaliation
    claims); Equal Employment Opportunity Commission v. Ford Motor Company,
    
    782 F.3d 753
    , 767 (6th Cir. 2015) (en banc) (citing Nassar for the requirement
    that a plaintiff claiming under the ADA retaliation for filing a disability
    discrimination claim must prove that her protected activity was the “but-for”
    cause of the adverse employment action); Feist v. State of Louisiana, Department
    of Justice, Office of the Attorney General, 
    730 F.3d 450
    , 454 (5th Cir. 2013)
    (explaining that to avoid summary judgment in a retaliation case under the ADA,
    a plaintiff must raise a factual conflict regarding whether retaliation was the
    “but-for” cause of the employer’s action); Palmquist v. Shinseki, 
    689 F.3d 66
    , 68,
    72-77 (1st Cir. 2012) (concluding that a claim of retaliation for activity protected
    under the Rehabilitation Act requires proof of “but-for” causation).
    ¶47         Therefore, we overrule the Board’s finding in Southerland, which was
    issued days before the U.S. Supreme Court issued Nassar, that a lesser standard is
    factor causation to be appropriate.   
    570 U.S. at 343, 360
    .   We follow the Court’s
    findings on these issues.
    25
    appropriate for Rehabilitation Act retaliation claims. Southerland, 
    119 M.S.P.R. 566
    , ¶¶ 18-22 (finding that a mixed-motive analysis applies to claims of disparate
    treatment discrimination under the ADA by relying on an EEOC case applying the
    mixed-motive standard to an ADA retaliation claim).         We also overrule the
    finding that an agency can avoid liability by proving by clear and convincing
    evidence that it would have taken the same action absent an improper motive, id.,
    ¶¶ 23-25, as such a construct would be applicable only for a motivating factor
    analysis. If prior EEO activity is a “but-for” cause of retaliation, by definition,
    there is no other proper reason for that action.       In making its findings in
    Southerland, the Board relied on the EEOC’s interpretation of substantive
    discrimination law. Id., ¶¶ 20-21, 24-25. However, in light of Nassar, we find
    that the Supreme Court has effectively overruled the EEOC’s interpretation.
    ¶48         Returning to the appellant’s argument, we are not persuaded that the timing
    of the appellant’s 2014 removal is sufficient to establish that the agency
    would not have removed her absent her 2010 protected activity. PFR File, Tab 3
    at 9-13.   The administrative judge considered the appellant’s allegations
    regarding the timing of her removal, as well as other events that preceded it. As
    discussed above in connection with the appellant’s Title VII retaliation claims,
    the administrative judge was not persuaded by this evidence of “suspicious
    timing.” ID at 19-22. Other than holding the appellant to the lower motivating
    factor standard, we discern no error in her reasoning. ID at 22. Therefore, we
    affirm the administrative judge’s finding, as modified, to find that the appellant
    did not prove that her protected activity was the “but-for” cause of her removal.
    We find that the appellant made protected disclosures and remand the appellant’s
    claim of reprisal for activity protected by 
    5 U.S.C. § 2302
    (b)(9)(C).
    The Whistleblower Protection Act (WPA) and the burden-shifting
    framework under 
    5 U.S.C. § 1221
    (e) apply to the appellant’s claims of
    reprisal for activities and disclosures in this chapter 43 appeal.
    ¶49         When whistleblower retaliation claims are made in the context of an
    otherwise appealable action, as here, the appellant must prove by preponderant
    26
    evidence that she made a protected disclosure or engaged in protected activity and
    that the disclosure or activity was a contributing factor in the personnel action at
    issue. If the appellant makes this showing, the burden shifts to the agency to
    prove by clear and convincing evidence that it would have taken the personnel
    action absent the protected disclosure or activity.       See 
    5 U.S.C. § 1221
    (e);
    Alarid v. Department of the Army, 
    122 M.S.P.R. 600
    , ¶¶ 13-14 (2015);
    Gonzalez v. Department of Transportation, 
    109 M.S.P.R. 250
    , ¶ 16 (2008)
    (construing a whistleblower reprisal claim in the context of a chapter 43 appeal).
    ¶50        The agency removed the appellant after the December 27, 2012 effective
    date of the Whistleblower Protection Enhancement Act of 2012 (WPEA). 
    Pub. L. No. 112-199, § 202
    , 
    126 Stat. 1465
    , 1476.       However, some of her protected
    activities occurred before that date. As is relevant here, activity under 
    5 U.S.C. § 2302
    (b)(9)(C), namely, disclosures made to OSC or an OIG, was protected prior
    to the passage of the WPEA, but the WPEA amended the WPA to make retaliation
    for such activity appealable to the Board. Corthell v. Department of Homeland
    Security, 
    123 M.S.P.R. 417
    , ¶¶ 7-12 (2016) (recognizing that, following the
    passage of the WPEA, the Board has individual right of action (IRA) jurisdiction
    over a claim of retaliation for activity protected under what is now 
    5 U.S.C. § 2302
    (b)(9)(C)); see WPA, 
    Pub. L. No. 101-12, § 4
    (b), 
    103 Stat. 16
    , 32.
    Therefore, we must determine whether the WPEA’s provisions would impair
    rights a party possessed when he acted, increase a party’s liability for past
    conduct, or impose new duties as to transactions already completed.             See
    Landgraf v. USI Film Products, 
    511 U.S. 244
    , 280 (1994) (setting forth this
    standard for determining whether a statute that is silent as to its application of
    past events applies to matters that occurred before its enactment).
    ¶51        Here, we find that the relevant event in this context is the appellant’s
    removal, which was effected after the WPEA’s effective date.           The agency,
    therefore, knew of the parties’ rights, liabilities, and duties under the WPEA
    when it acted to remove the appellant. Thus, the WPEA should be applied to this
    27
    matter because when the agency removed the appellant, the new right to seek
    relief for violations of 
    5 U.S.C. § 2302
    (b)(9)(C) before the Board was already in
    place. See Landgraf, 
    511 U.S. at 269-72
     (explaining that the presumption against
    statutory retroactivity arises if “the new provision attaches new legal
    consequences to events completed before its enactment”).              Therefore, the
    burden-shifting scheme set forth above applies here as we analyze the appellant’s
    allegations of whistleblowing activity.
    The administrative judge incorrectly concluded that the appellant did not
    make any protected disclosures.
    ¶52         Protected whistleblowing occurs when an appellant makes a disclosure that
    she reasonably believes evidences a violation of law, rule, or regulation, gross
    mismanagement, a gross waste of funds, an abuse of authority, or a substantial
    and specific danger to public health and safety.         
    5 U.S.C. § 2302
    (b)(8); see
    Mudd v. Department of Veterans Affairs, 
    120 M.S.P.R. 365
    , ¶ 5 (2013)
    (discussing this burden at the jurisdictional stage of an IRA appeal). The proper
    test for determining whether an employee had a reasonable belief that her
    disclosures were protected is whether a disinterested observer with knowledge of
    the essential facts known to, and readily ascertainable by, the employee could
    reasonably conclude that the actions evidenced a violation of a law, rule, or
    regulation, or one of the other conditions set forth in 
    5 U.S.C. § 2302
    (b)(8).
    Mudd, 
    120 M.S.P.R. 365
    , ¶ 5.
    ¶53         In the initial decision, the administrative judge found that the appellant
    provided insufficient information to prove that she had a reasonable belief of
    agency wrongdoing concerning her alleged June 2012 disclosure to the Deputy
    Attorney General’s Office that the agency violated section 872(a) of the NDAA
    for FY 2009. 14 ID at 23-24. The appellant argues that the administrative judge
    14
    The administrative judge did not address the filings with various OIGs here, and also
    appears to have conflated these June 2012 disclosures with the appellant’s protected
    28
    erred in requiring “a de minimus [sic] level of specificity” as to this disclosure.
    PFR File, Tab 3 at 32-33.
    ¶54         We disagree with the administrative judge’s determinations.             First, the
    appellant asserted that she made disclosures pertaining to section 872(a) of the
    NDAA for FY 2009.        Section 872(a) provides that, “[s]ubject to the authority,
    direction, and control of the Director of the Office of Management and Budget,
    the Administrator of General Services shall establish . . . and maintain a database
    of information regarding the integrity and performance” of those awarded Federal
    contracts or grants.    
    Pub. L. No. 110-417, § 872
    (a), 
    122 Stat. 4356
    , 4555-56.
    Section 872(f) requires that the Federal Acquisition Regulation be amended
    regarding the requirements for those with more than $10,000,000 in Federal
    agency contracts or grants.      § 872(f), 
    122 Stat. 4557
    .     Both tasks were to be
    completed within 1 year of the law’s October 14, 2008 enactment date.               The
    entire law was to be accompanied by “such regulations as may be necessary to
    carry out” section 872. § 872(g), 
    122 Stat. 4557
    . At the hearing, the appellant
    testified that in 2010, the General Services Administration (GSA) had set up the
    required reporting system for grants (the Federal Awardee Performance and
    Integrity Information System, or FAPIIS). HCD 1 at 29:08-31:18 (testimony of
    the appellant). She disclosed, however, that this particular statute had not been
    implemented and that her agency “was not complying with [F]ederal law
    requiring the [agency] to issue guidance to other agencies so that they do not
    inadvertently make grants to inappropriate grantees.” Id.; IAF, Tab 1 at 16, 41.
    On review, the appellant elaborates that GSA and the Office of General Counsel
    at the appellant’s agency had determined that the authority to promulgate the
    activity of filing a June 2013 complaint with OSC. ID at 23-25. We have separately
    analyzed the appellant’s OSC complaint below because it is a protected activity under
    
    5 U.S.C. § 2302
    (b)(9)(C). Therefore, we modify the initial decision to the extent that it
    referred to the alleged protected disclosure as having been made to OSC.
    29
    implementing regulations rested with the appellant’s agency, not with GSA. PFR
    File, Tab 3 at 32.
    ¶55         Documentation supplied by the agency supports the appellant’s alleged
    belief. Specifically, the agency file includes a March 21, 2012 email from the
    Office of the Deputy Attorney General to the appellant’s agency with the subject
    line “mandatory grant fraud reg” which inquires about the status of the regulation,
    noting an “extensive back-and-forth on this rule.” IAF, Tab 10 at 411. When the
    appellant’s first-line supervisor forwarded the inquiry to the appellant in late
    May 2012, the appellant responded:
    The last email exchange I saw indicated that [agency] senior
    management would not clear and publish the package in response to
    your recommendation to delay indefinitely the issuance of the
    FAPIIS rule.     In those emails your justification ranged from
    budgetary concerns to insufficient FAPIIS usage. Yesterday you
    provided me with a different rationale: It was stalled for inclusion in
    the “Supercircular.”
    Id. at 410.   The appellant made her disclosure to the Office of the Deputy
    Attorney General and various OIGs sometime the following month.
    ¶56         We conclude that the alleged facts in the initial appeal and in the
    appellant’s hearing testimony are sufficiently specific to find that a disinterested
    observer with knowledge of the essential facts known to, and readily
    ascertainable by, the appellant could reasonably conclude that the actions
    evidenced a violation of section 872’s requirement for the promulgation of
    regulatory guidance, and therefore that the appellant had a reasonable belief of
    such. Accordingly, we find that these disclosures to the Office of the Deputy
    Attorney General and various OIGs in June 2012 were protected.
    ¶57         The appellant also alleged that she made a disclosure in November 2011 to
    GAO that the agency delayed implementing reforms under the Federal Financial
    Assistance Management Improvement Act of 1999, more commonly referred to as
    
    Public Law 106-107.
     HCD 1 at 26:25-27:20 (testimony of the appellant). The
    administrative judge found that the appellant’s disclosures about this law were
    30
    “even less specific” than those related to section 872 of the NDAA for FY 2009,
    and thus were not protected under 
    5 U.S.C. § 2302
    (b)(8). ID at 24 n.12. We
    disagree. Among other purposes, 
    Public Law 106-107
     aimed to “facilitate greater
    coordination among those responsible for delivering [federal grant] services.”
    
    Pub. L. No. 106-107, § 3
    , 
    113 Stat. 1486
    , 1486. At the time of the appellant’s
    disclosure, GAO had published four reports on implementation of the measure. 15
    A July 2009 report had recommended that the agency work with the Department
    of Health and Human Services (HHS) to take a number of steps aimed at
    complying with 
    Public Law 106-107. 16
     The most recent report, issued 6 months
    before the appellant’s disclosure, found that HHS’s ability to adopt the remaining
    prior GAO recommendations hinged on the agency’s implementing a new Federal
    grants governance model. 17 The agency took a provisional step 1 month before
    the appellant’s disclosure when it created a new body tasked with overseeing the
    development of Federal grants management policy. 18 However, it is clear from
    later GAO work that, even after creating the new body, many questions remained
    unresolved. 19 The appellant testified that following a meeting GAO held with
    different agency officials about what she called the “grant reform agenda,” she
    contacted GAO to disclose that the agency was delaying its obligations under
    15
    U.S. Gov’t Accountability Off., GAO-05-335, Grants Management: Additional
    Actions Needed to Streamline and Simplify Processes (2005); U.S. Gov’t
    Accountability Off., GAO-06-566, Grants Management: Grantees’ Concerns with
    Efforts to Streamline and Simplify Processes (2006); U.S. Gov’t Accountability Off.,
    GAO-09-589, Grants Management: Grants.gov Has Systemic Weaknesses That Require
    Attention (2009); U.S. Gov’t Accountability Off., GAO-11-478, Grants.gov: Additional
    Action Needed to Address Persistent Governance and Funding Challenges (2011).
    16
    GAO-09-589 at 33-34.
    17
    GAO-11-478 at 23-25.
    18
    U.S. Gov’t Accountability Off., GAO-13-383 at 13, Grants Management: Improved
    Planning, Coordination, and Communication Needed to Strengthen Reform Efforts
    (2013).
    19
    Id. at 14-17.
    31
    
    Public Law 106-107,
     and that despite her seeking answers, agency officials would
    not explain why it was being delayed.            HCD 1 at 22:17-25:14; 26:25-27:51
    (testimony of the appellant).
    ¶58         Although grant law and policy are highly complex, the test of whether a
    disclosure is protected is not whether the administrative judge understands every
    nuance of the law. Here, given the appellant’s particular responsibilities as well
    as GAO’s ongoing work on this specific law, it seems quite clear that those
    involved in making and receiving the disclosure well understood the law’s
    requirements.       We thus find that the appellant had a reasonable belief under
    
    5 U.S.C. § 2302
    (b)(8) that the agency had violated the law, and accordingly, that
    her November 2011 disclosure to GAO was protected.
    ¶59         Finally, the appellant alleged that on June 19, 2013, she filed a complaint
    with OSC disclosing that the agency’s Controller provided erroneous guidance in
    2011 that resulted in billions of dollars in undisbursed balances not being
    returned to the Treasury, and that her first-line supervisor tried to have her cover
    up, including through congressional testimony, the fact that the guidance
    stemmed from an agency error. IAF, Tab 1 at 8. Even though the administrative
    judge did not address this disclosure, we find that the appellant has provided
    sufficient evidence and argument to establish that she had a reasonable belief that
    the agency had violated the law and therefore, that this disclosure was protected.
    ¶60         Because we find that all of the aforementioned disclosures were both made
    and protected, the administrative judge must on remand determine whether any of
    the disclosures was a contributing factor in the agency’s decision to remove
    the appellant. 20
    20
    To the extent it is necessary to do so, we find that the appellant did in fact file two
    complaints with OSC on November 12, 2012, and June 19, 2013, as she asserted. In the
    appeal form that the appellant’s then-attorney signed on the appellant’s behalf, she
    stated that the appellant filed these OSC complaints. By the attorney’s signature, she
    attested to the truth of her statements. IAF, Tab 1 at 2, 40-41. See Chambers v.
    32
    The administrative judge improperly analyzed the appellant’s June 2013
    OSC complaint and failed to fully analyze whether the November 2012 OSC
    complaint was a contributing factor in the appellant’s removal.
    ¶61         The appellant also alleged that her removal was in retaliation for the
    aforementioned protected activities, including her disclosures to various OIGs in
    the summer of 2012, her complaint to OSC in the fall of 2012, and her second
    complaint to OSC in the summer of 2013. The administrative judge found that
    the appellant’s 2012 OSC and OIG disclosures were protected activity under
    
    5 U.S.C. § 2302
    (b)(9)(C). ID at 25. 21 She found that the appellant’s June 2013
    OSC complaint was not protected because it did not contain a protected
    disclosure. ID at 23-24.
    ¶62         As indicated above, we find that the appellant’s disclosures regarding
    
    Public Law 106-107
     and section 872 of the NDAA for FY 2009 were, in fact,
    protected. Further, because “cooperating with or disclosing information to the
    Inspector General . . . of an agency, or the Special Counsel” is protected activity
    under 
    5 U.S.C. § 2302
    (b)(9)(C)—irrespective of whether an individual had a
    reasonable belief that she was disclosing wrongdoing—such a complaint would be
    protected regardless of its content. 22        See Special Counsel v. Hathaway,
    Department of Homeland Security, 
    2022 MSPB 8
    , ¶ 11 n.7 (considering, in the context
    of exhaustion, the evidentiary value of the certification on the MSPB Appeal Form as to
    the statements contained therein, if unrebutted). Additionally, the appellant provided
    testimony regarding her having filed the OSC complaints. HCD 1 at 26:30-27:43;
    27:45-29:12;      1:44:24-1:46:03;       3:09:30-3:09:52;   29:04-30:01;  30:04-31:20;
    1:41:00-1:44:20 (testimony of the appellant). We conclude that this evidence (the
    appellant’s attorney’s attestation and the appellant’s hearing testimony, made under
    oath) suffices to establish that she filed these OSC complaints.
    21
    The administrative judge referred to “the agency’s OIG.” ID at 25. The appellant’s
    agency does not have an OIG. Rather, the appellant alleged that she made disclosures
    to the OIGs of various other agencies.         HCD 1 at 27:51-30:04 (testimony of
    the appellant).
    22
    During the pendency of this appeal, the National Defense Authorization Act for
    Fiscal Year 2018, 
    Pub. L. No. 115-91, 131
     Stat. 1283, was signed into law on
    December 12, 2017.      It expanded the activities protected under 5 U.S.C.
    33
    
    49 M.S.P.R. 595
    , 612 (1991) (finding that section 2302(b)(9)(C) covers
    disclosures to OSC that do not meet the precise terms of actions described in
    section 2302(b)(8)), recons. denied, 
    52 M.S.P.R. 375
    , aff’d, 
    981 F.2d 1237
     (Fed.
    Cir. 1992). Accordingly, the administrative judge must also determine on remand
    whether the appellant’s June 2013 protected activities were a contributing factor
    in the agency’s decision to remove her.
    ¶63         Although the administrative judge found that the appellant’s 2012
    communications with OIGs and OSC constituted protected activity, the
    administrative judge found that the appellant only proved that her alleged OIG
    activity was a contributing factor in her removal, and not the OSC activity. ID
    at 25-26.   The appellant disputes this finding, pointing to the timing of her
    November 2012 OSC complaint in connection with her removal. PFR File, Tab 3
    at 9-13. One way an appellant may establish the contributing factor criterion is
    the knowledge/timing test, under which an employee submits evidence showing
    that the official taking the personnel action knew of the disclosure or activity and
    that the personnel action occurred within a period of time such that a reasonable
    person could conclude that the disclosure or activity was a contributing factor in
    the personnel action. Agoranos v. Department of Justice, 
    119 M.S.P.R. 498
    , ¶ 20
    (2013). The Board has held that personnel actions taken within 1 to 2 years of the
    protected disclosure or activity satisfy the timing prong of the knowledge/timing
    test, but those that take place more than 2 years after the disclosure or activity are
    too remote to satisfy this test. Id., ¶ 21. 23
    § 2302(b)(9)(C) to include cooperating or disclosing information to “any . . . component
    responsible for internal investigations or review.” 
    Pub. L. No. 115-91, § 1097
    (c)(1)(A),
    
    131 Stat. 1283
    , 1618. That expansion does not affect the outcome of this appeal
    because all of the relevant events occurred prior to December 12, 2017. Edwards v.
    Department of Labor, 
    2022 MSPB 9
    , ¶¶ 29-33 (finding that the changes to
    section 2302(b)(9)(C) do not apply retroactively).
    23
    We defer to the administrative judge’s determination on remand as to whether it is
    best to analyze section 2302(b)(8) and section 2302(b)(9)(C) together or separately in
    34
    ¶64         The administrative judge found that the appellant did not prove that her
    first- and second-line supervisors had knowledge of her November 2012 OSC
    complaint.    ID at 26 n.14.    She found the appellant’s testimony that an OSC
    investigator told the appellant she had spoken with agency management generally
    regarding the complaint was not sufficient to prove contributing factor. 
    Id.
     On
    review, the appellant asserts that in 2013, OSC “notifie[d] affected managers of
    [her] 2012 complaint.” PFR File, Tab 3 at 11. We agree with the administrative
    judge’s finding that this allegation is insufficient to establish knowledge of the
    2012 OSC complaint. See Salerno v. Department of the Interior, 
    123 M.S.P.R. 230
    , ¶ 6 (2016); Rebstock Consolidation v. Department of Homeland Security,
    
    122 M.S.P.R. 661
    , ¶ 12 (2015) (concluding that vague, conclusory, and
    unsupported    allegations     do not   meet   even    the   nonfrivolous    allegation
    jurisdictional standard for whistleblower retaliation claims).
    ¶65         If the appellant fails to satisfy the knowledge/timing test, the administrative
    judge shall consider whether the appellant proved contributing factor through
    other evidence, such as that pertaining to the strength or weakness of the agency’s
    reasons for taking the personnel action, whether the whistleblowing or protected
    activity was personally directed at the proposing or deciding officials, and
    whether these individuals had a desire or motive to retaliate against the appellant.
    Powers v. Department of the Navy, 
    69 M.S.P.R. 150
    , 156 (1995).               Here, the
    administrative judge did not do so. ID at 25-26 & n.14. Accordingly, on remand,
    the administrative judge shall consider whether the appellant proved contributing
    factor through this other evidence. See Powers, 69 M.S.P.R. at 156.
    The administrative judge must reevaluate the Carr factors.
    ¶66         The appellant testified that she told her first-line supervisor of her
    disclosures to the OIGs around the time she made them in June 2012. HCD 1
    deciding if one or both was a contributing factor in the agency’s decision to remove the
    appellant.
    35
    at 31:26-32:53 (testimony of the appellant).       Because the administrative judge
    found that this testimony was not “specifically” disputed, she concluded that the
    appellant met the knowledge/timing test as to this activity.       ID at 26.     This
    finding is undisputed on review, and accordingly, we will not disturb it.
    ¶67         The administrative judge found that the agency met its burden to show by
    clear and convincing evidence that it would have removed the appellant absent
    her OIG disclosures. ID at 26-28. This finding must be reassessed based on our
    reversing the removal and remanding for further findings on the appellant’s
    various disclosures and protected activity.
    ¶68         In determining whether an agency has shown by clear and convincing
    evidence that it would have taken the same personnel action in the absence of
    whistleblowing, the Board will consider the following factors: (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 who were involved 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).
    On remand, the administrative judge shall consider whether reversing the sole
    charge of unacceptable performance affects her determination that the agency met
    its burden, particularly as to the first Carr factor.
    ¶69         Regarding the second Carr factor, the administrative judge found there was
    no evidence that the appellant’s first- or second-line supervisors were
    “personally . . . the subject of” the appellant’s disclosures.    ID at 27-28.    As
    indicated above, the administrative judge did not consider the appellant’s
    June 2013 disclosure to OSC that her first-line supervisor asked her to cover up,
    including through congressional testimony, the fact that erroneous 2011 guidance
    from the agency’s Controller resulted in billions of dollars in undisbursed
    balances not being returned to the Treasury.            The appellant’s disclosures
    regarding section 872 of the NDAA for FY 2009 also appear to have implicated
    36
    her first-line supervisor, as the appellant apparently believed one reason the
    agency   failed   to   issue   the   required   regulations   was   this   supervisor’s
    recommendation to “delay indefinitely the issuance of the FAPIIS rule.” IAF,
    Tab 10 at 410. On remand, the administrative judge should consider more closely
    this and any other similar evidence.
    ¶70        The administrative judge also appears to have improperly limited her
    analysis of the agency’s motive to retaliate to whether these officials were
    personal subjects of the appellant’s disclosures. The administrative judge also
    should consider whether the appellant’s disclosures reflect on the appellant’s
    supervisors in their capacities as managers and employees, which may be
    sufficient to establish a substantial retaliatory motive.            HCD 2, Track 1
    at 3:23:02-3:28:59 (testimony of the appellant’s supervisor); see Chavez v.
    Department of Veterans Affairs, 
    120 M.S.P.R. 285
    , ¶ 33 (2013) (finding, in
    analyzing the second Carr factor, that while the appellant’s supervisors were not
    directly implicated by the disclosures, the appellant’s criticisms nonetheless
    reflected on their capacity as managers and employees).
    The administrative judge did not abuse her discretion in denying the appellant’s
    motions to compel.
    ¶71        The Board’s regulations contemplate that parties may serve both initial and
    follow-up discovery requests. 
    5 C.F.R. § 1201.73
    (d)(2). Any follow-up request
    generally must be served within 10 days of the date of service of the prior
    response.   
    Id.
       Any motion for an order to compel must be filed with the
    administrative judge within 10 days of the date of service of the opposing party’s
    response or, if there is no response, within 10 days after the response time has
    expired. 
    5 C.F.R. § 1201.73
    (d)(3). An administrative judge has broad discretion
    in ruling on discovery matters, and absent an abuse of discretion, the Board
    will not find reversible error in such rulings.     Kingsley v. U.S. Postal Service,
    
    123 M.S.P.R. 365
    , ¶ 16 (2016).
    37
    ¶72        In this case, the appellant filed motions to compel on August 4 and 14,
    2014. IAF, Tabs 18, 20. The administrative judge denied the August 4, 2014
    motion as untimely because it was not filed within 10 days of the agency’s
    discovery response.    IAF, Tab 23 at 2-4; see 
    5 C.F.R. § 1201.73
    (d)(3).      She
    denied the August 14 motion because the appellant served the underlying
    follow-up discovery request more than 10 days after the agency’s response to her
    first discovery request. IAF, Tab 23 at 4.
    ¶73        The appellant challenges these rulings on review, arguing that her August 4,
    2014 motion to compel and her follow-up discovery request were timely under the
    terms of a suspension order in which the administrative judge advised the parties
    that any motion to compel must be filed within 10 days of the appeal’s
    reinstatement. PFR File, Tab 3 at 33-34; IAF, Tab 13 at 1-2. However, we agree
    with the administrative judge that, read in context, the suspension order did not
    extend these deadlines. IAF, Tab 23 at 4-5. The administrative judge provided
    that the parties were to “actively engage in discovery” and any motions to compel
    should be filed “during the suspension period.” Id. at 1. She then provided that
    the outside deadline for filing motions to compel was within 10 days after the
    appeal’s reinstatement. Id. at 2. We therefore find that the administrative judge
    did not abuse her discretion in denying the motions to compel.
    ¶74        The appellant also appears to argue that the administrative judge abused her
    discretion in denying the August 14, 2014 motion to compel because she did not
    set a deadline for the end of discovery.     PFR File, Tab 3 at 33.   Because the
    administrative judge denied the motion based on the appellant’s untimely service
    of her follow-up discovery request, and not the deadline for the end of the
    discovery period, we decline to address this argument.
    ¶75        In sum, this case must be remanded to the regional office for further
    adjudication of the appellant’s claims of discrimination based on race, color, and
    38
    disability, and her claims of reprisal for EEO activity, protected disclosures, and
    protected activity under the WPA as amended. 24
    ORDER
    ¶76         Accordingly, the initial decision is REVERSED IN PART, and the case is
    REMANDED for further adjudication.
    ¶77         Notwithstanding the remand proceedings on the appellant’s discrimination
    and retaliation claims, we ORDER the agency to cancel the appellant’s removal
    and restore her retroactive to March 7, 2014. See Kerr v. National Endowment
    for the Arts, 
    726 F.2d 730
     (Fed. Cir. 1984). The agency must accomplish this
    action no later than 20 days after the date of this decision.
    ¶78         We also ORDER the agency to pay the appellant the correct amount of back
    pay, interest on back pay, and other benefits under the Office of Personnel
    Management’s regulations, no later than 60 calendar days after the date of this
    decision. We ORDER the appellant to cooperate in good faith in the agency’s
    efforts to calculate the amount of back pay, interest, and benefits due, and to
    provide all necessary information the agency requests to help it carry out the
    Board’s Order. If there is a dispute about the amount of back pay, interest due,
    and/or other benefits, we ORDER the agency to pay the appellant the undisputed
    amount no later than 60 calendar days after the date of this decision.
    ¶79         We further ORDER the agency to tell the appellant promptly in writing
    when it believes it has fully carried out the Board’s Order and of the actions it has
    taken to carry out the Board’s Order. The appellant, if not notified, should ask
    the agency about its progress. See 
    5 C.F.R. § 1201.181
    (b).
    24
    The Board’s regulations provide that a request for attorney fees must be made within
    60 days after issuance of a final decision, 
    5 C.F.R. § 1201.203
    (d). In this case, the time
    limit for filing such a request will not begin to run until the decision on remand is final.
    See Aldridge v. Department of Agriculture, 
    111 M.S.P.R. 670
    , ¶ 23 n.4 (2009).
    39
    ¶80         No later than 30 days after the agency tells the appellant that it has fully
    carried out the Board’s Order, the appellant may file a petition for enforcement
    with the office that issued the initial decision in this appeal if the appellant
    believes that the agency did not fully carry out the Board’s Order. The petition
    should contain specific reasons why the appellant believes that the agency has not
    fully carried out the Board’s Order, and should include the dates and results of
    any communications with the agency. 
    5 C.F.R. § 1201.182
    (a).
    ¶81         For agencies whose payroll is administered by either the National Finance
    Center of the Department of Agriculture (NFC) or the Defense Finance and
    Accounting Service (DFAS), two lists of the information and documentation
    necessary to process payments and adjustments resulting from a Board decision
    are attached. The agency is ORDERED to timely provide DFAS or NFC with all
    documentation necessary to process payments and adjustments resulting from the
    Board’s decision in accordance with the attached lists so that payment can be
    made within the 60-day period set forth above.
    FOR THE BOARD:
    /s/
    Jennifer Everling
    Acting Clerk of the Board
    Washington, D.C.
    DEFENSE FINANCE AND ACCOUNTING SERVICE
    Civilian Pay Operations
    DFAS BACK PAY CHECKLIST
    The following documentation is required by DFAS Civilian Pay to compute and pay back pay
    pursuant to 
    5 CFR § 550.805
    . Human resources/local payroll offices should use the following
    checklist to ensure a request for payment of back pay is complete. Missing documentation may
    substantially delay the processing of a back pay award. More information may be found at:
    https://wss.apan.org/public/DFASPayroll/Back%20Pay%20Process/Forms/AllItems.aspx.
    NOTE: Attorneys’ fees or other non-wage payments (such as damages) are paid by
    vendor pay, not DFAS Civilian Pay.
    ☐ 1) Submit a “SETTLEMENT INQUIRY - Submission” Remedy Ticket. Please identify the
    specific dates of the back pay period within the ticket comments.
    Attach the following documentation to the Remedy Ticket, or provide a statement in the ticket
    comments as to why the documentation is not applicable:
    ☐ 2) Settlement agreement, administrative determination, arbitrator award, or order.
    ☐ 3) Signed and completed “Employee Statement Relative to Back Pay”.
    ☐ 4) All required SF50s (new, corrected, or canceled). ***Do not process online SF50s
    until notified to do so by DFAS Civilian Pay.***
    ☐ 5) Certified timecards/corrected timecards. ***Do not process online timecards until
    notified to do so by DFAS Civilian Pay.***
    ☐ 6) All relevant benefit election forms (e.g. TSP, FEHB, etc.).
    ☐ 7) Outside earnings documentation. Include record of all amounts earned by the employee
    in a job undertaken during the back pay period to replace federal employment.
    Documentation includes W-2 or 1099 statements, payroll documents/records, etc. Also,
    include record of any unemployment earning statements, workers’ compensation,
    CSRS/FERS retirement annuity payments, refunds of CSRS/FERS employee premiums,
    or severance pay received by the employee upon separation.
    Lump Sum Leave Payment Debts: When a separation is later reversed, there is no authority
    under 
    5 U.S.C. § 5551
     for the reinstated employee to keep the lump sum annual leave payment
    they may have received. The payroll office must collect the debt from the back pay award. The
    annual leave will be restored to the employee. Annual leave that exceeds the annual leave
    ceiling will be restored to a separate leave account pursuant to 
    5 CFR § 550.805
    (g).
    NATIONAL FINANCE CENTER CHECKLIST FOR BACK PAY CASES
    Below is the information/documentation required by National Finance Center to process
    payments/adjustments agreed on in Back Pay Cases (settlements, restorations) or as ordered by
    the Merit Systems Protection Board, EEOC, and courts.
    1. Initiate and submit AD-343 (Payroll/Action Request) with clear and concise information
    describing what to do in accordance with decision.
    2. The following information must be included on AD-343 for Restoration:
    a.   Employee name and social security number.
    b.   Detailed explanation of request.
    c.   Valid agency accounting.
    d.   Authorized signature (Table 63).
    e.   If interest is to be included.
    f.   Check mailing address.
    g.   Indicate if case is prior to conversion. Computations must be attached.
    h.   Indicate the amount of Severance and Lump Sum Annual Leave Payment to be
    collected (if applicable).
    Attachments to AD-343
    1. Provide pay entitlement to include Overtime, Night Differential, Shift Premium, Sunday
    Premium, etc. with number of hours and dates for each entitlement (if applicable).
    2. Copies of SF-50s (Personnel Actions) or list of salary adjustments/changes and amounts.
    3. Outside earnings documentation statement from agency.
    4. If employee received retirement annuity or unemployment, provide amount and address to
    return monies.
    5. Provide forms for FEGLI, FEHBA, or TSP deductions. (if applicable)
    6. If employee was unable to work during any or part of the period involved, certification of the
    type of leave to be charged and number of hours.
    7. If employee retires at end of Restoration Period, provide hours of Lump Sum Annual Leave
    to be paid.
    NOTE: If prior to conversion, agency must attach Computation Worksheet by Pay Period and
    required data in 1-7 above.
    The following information must be included on AD-343 for Settlement Cases: (Lump Sum
    Payment, Correction to Promotion, Wage Grade Increase, FLSA, etc.)
    a. Must provide same data as in 2, a-g above.
    b. Prior to conversion computation must be provided.
    c. Lump Sum amount of Settlement, and if taxable or non-taxable.
    If you have any questions or require clarification on the above, please contact NFC’s
    Payroll/Personnel Operations at 504-255-4630.
    

Document Info

Docket Number: DC-0432-14-0557-I-1

Filed Date: 9/12/2022

Precedential Status: Precedential

Modified Date: 2/22/2023

Authorities (27)

Foster v. University of Maryland-Eastern Shore ( 2015 )

Henry Ortiz v. Werner Enterprises, Incorporat ( 2016 )

Walter A. Warren v. Department of the Army ( 1986 )

Norah Oehmke v. Medtronic, Inc. ( 2016 )

University of Tex. Southwestern Medical Center v. Nassar ( 2013 )

United States Postal Service Board of Governors v. Aikens ( 1983 )

John Edwards v. Department of Labor ( 2022 )

Gloetzner v. Lynch ( 2016 )

Capaci v. Katz & Besthoff, Inc. ( 1983 )

Johnson v. Transportation Agency ( 1984 )

Feist v. Louisiana, Department of Justice, Office of the ... ( 2013 )

John H. Kerr v. National Endowment for the Arts ( 1984 )

Todd R. Haebe v. Department of Justice ( 2002 )

Purifoy v. Department of Veterans Affairs ( 2016 )

Natofsky v. City Of New York ( 2019 )

Dwyne Chambers v. Department of Homeland Security ( 2022 )

T.B. ex rel. Brenneise v. San Diego Unified School District ( 2015 )

Rokki Knee Carr v. Social Security Administration ( 1999 )

Equal Employment Opportunity Commission v. Ford Motor Co. ( 2015 )

McDonnell Douglas Corp. v. Green ( 1973 )

View All Authorities »

Cited By (148)

Rodney Walls v. United States Postal Service ( 2023 )

Cindy Dabner v. Environmental Protection Agency ( 2023 )

Chenshiang Lin v. Department of the Air Force ( 2023 )

George Haas v. Department of Homeland Security ( 2022 )

Joseph Schmitt v. Department of Veterans Affairs ( 2022 )

Christine Hill v. Department of Defense ( 2023 )

Tina Vilca v. Department of Homeland Security ( 2023 )

Crystal Combs v. Department of Homeland Security ( 2023 )

Tredith Knowlin v. Department of Veterans Affairs ( 2023 )

Lionel Washington v. Department of Veterans Affairs ( 2023 )

Elizabeth Barnes v. Department of the Army ( 2023 )

Carla Pablos-Vazira v. Social Security Administration ( 2023 )

Heather Todd v. Department of Veterans Affairs ( 2023 )

Dored Shiba v. Department of Homeland Security ( 2023 )

Barry Bradford v. Department of the Air Force ( 2023 )

Maria de la Cruz MaGowan v. Environmental Protection Agency ( 2023 )

Charles Adams v. Department of Defense ( 2023 )

Joseph Geffrard v. Department of the Treasury ( 2023 )

Mary Jordan v. Department of the Navy ( 2023 )

Sherlena Davis v. Department of the Air Force ( 2023 )

View All Citing Opinions »