Marguerite Pridgen v. Office of Management and Budget

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2022 MSPB 31Docket 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.
2The 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
11The 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.