Leamon Brinson v. Department of the Navy

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
LEAMON D. BRINSON, DOCKET NUMBER
Appellant, DC-0752-14-1129-B-1
v.
DEPARTMENT OF THE NAVY, DATE: September 8, 2023
Agency.
Steve M. Fesler, Sykesville, Maryland, for the appellant.
Ray Goldstein and Nikki Greenberg, Washington Naval Yard, D.C., for the
agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Vice Chairman Harris issues a separate opinion.
Member Limon issues a separate opinion.
ORDER
¶1 The appellant has filed a petition for review which sustained his removal for
misconduct. The two Board members cannot agree on the disposition of the
petition for review. Therefore, the initial decision now becomes the final
decision of the Merit Systems Protection Board in this appeal. Title 5 of the
Code of Federal Regulations, section 1200.3(b) (5 C.F.R. § 1200.3(b)). This
decision shall not be considered as precedent by the Board in any other case.
5 C.F.R. § 1200.3(d).
2
NOTICE OF APPEAL RIGHTS 1
You may obtain review of the final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of the final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable ti me
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U. S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
1
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
3
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of the final decision—including a disposition of your
discrimination claims—by filing a civil action with an appropriate U.S. district
court (not the U.S. Court of Appeals for the Federal Circuit), within 30 calendar
days after you receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit
Systems Protection Board, 582 U.S. 420 (2017). If you have a representative in
this case, and your representative receives this decision before you do, then you
must file with the district court no later than 30 calendar days after your
representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
4
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
5
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 2 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
2
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of com petent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
6
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
SEPARATE OPINION OF VICE CHAIRMAN CATHY A. HARRIS
in
Leamon D. Brinson v. Department of the Navy
MSPB Docket No. DC-0752-14-1129-B-1
¶1 For the reasons discussed below, I would grant the appellant’s petition for
review, reverse the initial decision, and not sustain his removal.
¶2 The appellant was a WG-11 Electronic Industrial Controls Mechanic whom
the agency suspended for 30 days on charges of insubordination and disrespectful
conduct. Brinson v. Department of the Navy, MSPB Docket No. DC-0752-14-
0424-I-1, Appeal File (0424 AF), Tab 1 at 7-10. The appellant filed a Board
appeal and raised some affirmative defenses, including an affirmative defense of
age discrimination. 0424 AF, Tab 1 at 2, Tab 5 at 3, Tab 19 at 2. During
discovery in those proceedings, the appellant, proceeding pro se, deposed his
fifth-level supervisor, a Navy Commander and Public Works Officer. 0424 AF,
Tab 4 at 3; Brinson v. Department of the Army, MSPB Docket No. DC-0752-14-
1129-I-1, Initial Appeal File (IAF), Tab 1 at 27-37. During the deposition
questioning, the appellant called the Commander “a snake” and “an outright liar,”
and he suggested that the Commander had “short man syndrome” or “little man
syndrome.” IAF, Tab 10 at 33-34, 36.
¶3 While the suspension appeal was still pending, the agency proposed to
remove the appellant for his conduct during the Commander’s deposition. 1 Id.
at 23-26. The proposal was based on a charge of disrespectful conduct, with three
specifications, referring to the “snake,” “outright liar,” and “little man” comments
respectively. Id. at 23-24. The deciding official sustained the charge and
removed the appellant effective August 27, 2014. Id. at 4-10.
1
The administrative judge ultimately affirmed the suspension in an initial decision that
became final when neither party petitioned for review. 0424 AF, Tab 23.
2
¶4 The appellant filed the instant Board appeal, arguing among other things
that the agency was not permitted to remove him for conduct in which he engaged
during the course of protected activity. IAF, Tab 1 at 6, Tab 15 at 5, Tab 20
at 6-11. After the close of the record, the administrative judge issued an initial
decision sustaining the removal. IAF, Tab 25, Initial Decision (ID). He analyzed
the appellant’s argument in the context of the charge and found that the appellant
was not immunized from discipline for his disrespectful conduct merely because
he committed it during litigation before the Board. ID at 5-10.
¶5 The appellant petitioned for review, and the Board remanded the appeal for
the administrative judge to adjudicate the appellant’s argument as an affirmative
defense under 5 U.S.C. § 2302(b)(9)(A)(ii) (reprisal for the exercise of appeal
rights other than with regard to whistleblower reprisal). Brinson v. Department of
the Navy, MSPB Docket No. DC-0752-14-1129-I-1, Petition for Review File,
Tab 1, Tab 6 (Remand Order). On remand, consistent with the Board’s
instructions, the administrative judge advised the appellant of his burden of
proving this affirmative defense under the standard set forth in Warren v.
Department of the Army, 804 F.2d 654, 656-58 (Fed. Cir. 1986). Brinson v.
Department of the Army, MSPB Docket No.DC-0752-14-1129-B-1, Remand File
(RF), Tab 3 at 2. After the close of the record, the administrative judge issued a
new initial decision again sustaining the removal. RF, Tab 20, Remand Initial
Decision (RID). The administrative judge found that the appellant failed to prove
his affirmative defense of retaliation under 5 U.S.C. § 2302(b)(9)(A)(ii), and he
incorporated the remainder of his findings from the previous initial decision. RID
at 6-11.
¶6 The appellant has filed a petition for review, disputing the administrative
judge’s analysis of his retaliation claim and making several additional arguments
about the proceedings on remand. Brinson v. Department of the Army, MSPB
Docket No.DC-0752-14-1129-B-1, Remand Petition for Review (RPFR) File,
Tab 1. The agency has filed a response. RPFR File, Tab 3.
3
¶7 In its Remand Order, the Board identified 5 U.S.C. § 2302(b)(9)(A)(ii) as
the relevant clause under which to consider the appellant’s affirmative defense of
retaliation for his prior Board appeal. Remand Order, ¶¶ 10, 13-17. This was
incorrect. As stated above, the appellant’s suspension appeal contained an
affirmative defense of age discrimination under 5 U.S.C. § 2302(b)(1)(B).
Therefore, his prior Board appeal was protected under that clause, and a claim of
retaliation for filing that appeal is subject to the standards of 29 U.S.C. § 633a.
See Gomez-Perez v. Potter, 553 U.S. 474, 491 (2008) (holding that 29 U.S.C.
§ 633a(a) prohibits retaliation against a Federal employee who complains of age
discrimination); Jones v. Department of Energy, 120 M.S.P.R. 480, ¶ 3 n.2 (2013)
(stating that a claim of retaliation for equal employment opportunity (EEO)
activity is cognizable under 5 U.S.C. § 2302(b)(1)), aff’d, 589 F. App’x 972 (Fed.
Cir. 2014); Davis v. Department of Housing and Urban Development, EEOC
Appeal No. 01903228, 1990 WL 1109796 (Dec. 7, 1990) (holding that a
mixed-case Board appeal with claims of discrimination under Title VII
constituted protected activity for purposes of a Title VII reprisal claim); see also
29 C.F.R. § 1614.101(b) (providing that no person shall be subject to retaliation
for participating in any stage of administrative proceedings und er the Age
Discrimination in Employment Act (ADEA)). To prove a claim of retaliation
under the ADEA, an appellant must show that his protected activity was a
motivating factor in the agency’s action, although he may only be entitled to full
relief if his protected activity was also a but-for cause of that action. Babb v.
Wilkie, 140 S. Ct. 1168, 1173-74, 1177-78 (2020); Pridgen v. Office of
Management and Budget, 2022 MSPB 31, ¶¶ 21-22.
¶8 Although neither party has specifically briefed this issue, the record is fully
developed, the material facts are not in dispute, and the outcome required under
the law is clear. Therefore, in the interests of administrative efficiency, it would
be appropriate to make a ruling on the matter at this time. See Warren v.
Department of Defense, 87 M.S.P.R. 426, ¶ 9 (2001).
4
¶9 The Equal Employment Opportunity Commission (EEOC) has taken the
position that participation in EEO activity, including participation in claims of
age discrimination under the ADEA, enjoys broad protection, and that such
protection is not limited by the content or manner of the participation. EEOC
Enforcement Guidance on Retaliation and Related Issues, Notice 915.004,
2016 WL 4688886, at *5-*7 (Aug. 25, 2016) (Enforcement Guidance). Nothing
in the statute limits protections to participation conducted in a certain manner.
See 29 U.S.C. § 633a(a) (providing that Federal employment “shall be made free
from any discrimination based on age”); cf. 29 U.S.C. § 623(d) (prohibiting
retaliation against private sector employees who have participate d in ADEA
proceedings “in any manner”). The EEOC agrees with the several circuits that
have held that an employer is prohibited from disciplining an employee for
bringing even a false or malicious charge of discrimination or from engaging in
unreasonable conduct during the course of such proceedings. 2 Id.; Jazmine F. v.
Department of Defense, EEOC Petition No. 0320170007, 2023 WL 4653604,
at *6-*7 (July 5, 2023); Verrett v. U.S. Postal Service, EEOC Appeal
No. 01841488, 1985 WL 569353 (Nov. 13, 1985); see, e.g., Glover v. South
Carolina Law Enforcement Division, 170 F.3d 411, 414 (4th Cir. 1999); Merritt v.
Dillard Paper Co., 120 F.3d 1181, 1186-87 (11th Cir. 1997); Sias v. City
Demonstration Agency, 588 F.2d 692, 695 (9th Cir. 1978); Pettway v. American
Cast Iron Pipe Co., 411 F.2d 998, 1007-08 (5th Cir. 1969). The Board must defer
to the EEOC on this matter of substantive discrimination law. See Pridgen,
2022 MSPB 31, ¶ 40. The appellant’s conduct toward the Commander during the
deposition may have been disrespectful, but this does not remove his conduct
2
The U.S. Courts of Appeal for the Seventh and Eighth Circuits have rejected the
EEOC’s position on this issue. E.g., Gilooly v. Missouri Department of Health and
Senior Services, 421 F.3d 734, 740 (8th Cir. 2005); Matson v. Caterpillar, Inc.,
359 F.3d 885 (7th Cir. 2004). Notwithstanding this circuit split, the Board is obliged to
follow the EEOC on this matter of substantive discrimination law. Pridgen,
2022 MSPB 31, ¶ 40.
5
from the broad protections of the statute. 3 We must be mindful that attacks on the
credibility of a witness are an essential aspect of cross examination, are at times
necessary to prove pretext in discrimination and retaliation cases, and are a part
of our adversarial adjudication process. Although there may be more elegant or
effective ways to do so than directly calling a witness a “liar,” the statute still
protects such activity in this context. Furthermore, parties must be permitted to
develop their theories of the case and pursue their own litigation strategies. This
is particularly true for pro se appellants, to whom the Board gene rally affords a
measure of latitude in conducting their appeals.
¶10 The Member would find that the appellant’s statements were not “a
legitimate exercise of his right to vigorously cross examine a witness.”
Member’s Separate Opinion, ¶ 8. However, judgments about the motives of an
appellant’s actions have no place in participation clause jurisprudence. See
Glover, 170 F.3d at 414-16; Jarvis M. v. Department of Health and Human
Services, EEOC Petition No. 0320170006, 2023 WL 4653539, at *4 (July 5,
2023). The Member also cites to several cases for the proposition that an
employer may discipline an employee for the manner in which he conducts
protected activity. Member’s Separate Opinion, ¶ 10. However, I am not
persuaded that any of this case law would support the imposition of discipline
against this appellant. These are mainly opposition clause cases. Rollins v. State
of Fla. Department of Law Enforcement, 868 F.2d 397 (11th Cir. 1989);
Pendleton v. Rumsfeld, 628 F.2d 102 (D.C. Cir. 1980); Rosser v. Laborers’ Int’l
Union Local No. 438, 616 F.2d 221 (5th Cir. 1980); Hochstadt v. Worcester
Foundation for Experimental Biology, 545 F.2d 222 (1st Cir. 1976). Unlike
3
Although the protections afforded by the anti-retaliation laws administered by the
EEOC are “exceptionally broad,” Pettway, 411 F.2d at 1006 n.18, the EEOC has not
held that they are without limit. For instance, we are aware of no case in which the
EEOC or any court has found that an employer was prohibited from taking a personnel
action against an employee who made threats or committed acts of violence during the
course of EEO proceedings.
6
activity protected under the participation clause, activity protected under the
opposition clause must be conducted in a “reasonable” manner. Netter v. Barnes,
908 F.3d 932, 937-38 (4th Cir. 2018); Johnson v. Frost, EEOC Appeal
No. 11980023, 2001 WL 1353704, at *6 (June 28, 2001). Of the two
participation clause cases, one of them concerns the discipline of an EEO
manager for the manner in which he advanced a charge of discrimination.
Whatley v. Metropolitan Atlanta Rapid Transit Authority, 632 F.2d 1325 (5th Cir.
1980). Whatley presents a unique situation not present here, in which
participation and job duties overlap. Notwithstanding the broad sweep of the
participation clause, I would not support an interpretation of the law that would
insulate an EEO specialist from discipline for malfeasance in office, but that does
not change my opinion about how the participation clause should apply to the
facts of the instant appeal. In the other participation clause case, the Board
upheld an appellant’s removal for unlawfully accessing and disclosing employee
records to support his discrimination complaint. Williams v. Social Security
Administration, 101 M.S.P.R. 587, ¶ 13 (2006). I agree that unlawful conduct is
not protected by the ADEA, see Netter, 908 F.3d at 939, but discourtesy toward a
deponent is not unlawful. As far as I can tell, among jurisdictions that have
adopted the Pettway rule, there is no precedent closely resembling the situation
with which the Board is presented here, i.e., disrespectful behavior by a litigant in
the context of pro se representation. The Member and I have, I believe, both
approached this issue correctly by extrapolating from the general principles set
forth in the statutes, case law, and official guidance. Nevertheless, we cannot
reconcile our judgment on the ultimate question of how those principles should
apply to these particular facts.
¶11 To be clear, I do not condone disrespectful behavior by a party or his
representative towards any witness in a Board appeal, whether the appeal involves
a claim of discrimination or not. However, as the EEOC observes, misconduct
during the course of legal proceedings is normally addressed within the context of
7
those proceedings by the tribunal under whose authority the proceedings are
being conducted. Enforcement Guidance, 2016 WL 4688886, at *6. In a Board
appeal, consequences for misbehavior by a party or representative include adverse
rulings and sanctions, up to and including dismissal of the appeal. See 5 C.F.R.
§ 1201.43. In this case, the agency’s representative acted appropriately by
objecting to the manner of the appellant’s questioning and ultimately
threatening to halt the deposition if the appellant continued in this way. IAF,
Tab 10 at 33-34, 36. As the agency did not move for sanctions, this was
apparently sufficient to resolve the issue, and that should have been the end of it.
The agency’s decision to continue the dispute outside the courtroom by taking an
adverse employment action against the appellant was per se retaliation under
29 U.S.C. § 633a(a), which is a prohibited personnel practice under 5 U.S.C.
§ 2302(b)(1). See Pettway, 411 F.2d at 1007-08; Verrett, 1985 WL 569353, at *5.
By the very terms of the agency’s decision letter, the appellant’s protected
activity was a but-for cause of his removal. IAF, Tab 10 at 4-10. For these
reasons, I would not sustain the action. 4 See 5 U.S.C. § 7701(c)(2)(B).
/s/
Cathy A. Harris
Vice Chairman
4
Having decided the appeal on these grounds, I would not reach the remainder of the
appellant’s arguments on review.
SEPARATE OPINION OF MEMBER RAYMOND A. LIMON
in
Leamon D. Brinson v. Department of the Navy
MSPB Docket No. DC-0752-14-1129-B-1
¶1 For the reasons explained below, I agree with the administrative judge’s
initial decision that sustained the appellant’s removal and found that he failed to
prove his affirmative defenses, and I would deny his petition for review.
¶2 The appellant was employed as an Electronics Industrial Controls
Mechanic, WG-2606-11, working for the agency’s Naval Facilities Engineering
Command (NAVFAC) Washington in Dahlgren, Virginia. He worked at the
after-hours trouble desk for the agency’s Public Works Department, where he
responded to requests for maintenance assistance from civilian and military
personnel located at the South Potomac installations in Indian Head, Maryland
and Dahlgren, Virginia.
¶3 Effective February 1, 2014, the agency suspended the appellant for 30 days
based on three charges of misconduct. The charges included seven specifications
of Disrespectful Conduct toward the Commander of NAVFAC Washington’s
South Potomac division, the appellant’s fifth-line supervisor, and two
specifications of Insubordination for willfully and intentionally refusing to obey
the Commander’s orders. Brinson v. Department of the Navy, MSPB Docket
No. DC-0752-14-0424-I-1, Appeal File (0424 AF), Tab 8 at 24-28, 37-43. The
appellant filed a Board appeal, pro se, and raised several affirmative defenses,
including age discrimination. 0424 AF, Tab 15 at 4, Tab 19 at 5. While
conducting discovery during the appeal, the appellant deposed the Commander. It
is undisputed that, during the deposition questioning, the appellant called the
Commander “a snake” and “an outright liar,” and he posed questions suggesting
that the Commander had “short man syndrome” or “little man syndrome.”
2
Brinson v. Department of the Navy, MSPB Docket No. DC-0752-14-1129-I-1,
Initial Appeal File (IAF), Tab 10 at 33-34, 36.
¶4 The agency proposed to remove the appellant for his conduct during the
Commander’s deposition. Id. at 23-26. The proposal was based on a charge of
Disrespectful Conduct for making the specific comments during the deposition
noted above. The deciding official sustained the charge and removed the
appellant effective August 27, 2014. Id. at 4-10. The appellant filed the instant
Board appeal arguing that the agency was not permitted to remove him for
conduct in which he engaged during the course of protected activity. IAF, Tab 1
at 6, Tab 15 at 5, Tab 20 at 6-11. After the close of the record, the administrative
judge issued an initial decision sustaining the removal. IAF, Tab 25, Initial
Decision (ID). He found that the appellant was not immunized from discipline
for his disrespectful conduct merely because he committed it during litigation
before the Board. ID at 5-10.
¶5 The appellant petitioned for review and the Boa rd remanded the appeal,
finding that the administrative judge must adjudicate the appellant’s argument
that he could not be disciplined for conduct that occurred during protected
activity as an affirmative defense under 5 U.S.C. § 2302(b)(9)(A)(ii) (reprisal for
the exercise of appeal rights other than with regard to whistleblower reprisal).
Brinson v. Department of the Navy, MSPB Docket No. DC-0752-14-1129-I-1,
Petition for Review File, Tab 1, Tab 6 (Remand Order). On remand, consistent
with the Board’s instructions, the administrative judge advised the appellant of
his burden of proving this affirmative defense under the standard set forth in
Warren v. Department of the Army, 804 F.2d 654, 656-58 (Fed. Cir. 1986).
Brinson v. Department of the Army, MSPB Docket No. DC-0752-14-1129-B-1,
Remand File (RF), Tab 3 at 2. After the close of the record, the administrative
judge issued a new initial decision, again sustaining the removal. RF, Tab 20,
Remand Initial Decision (RID). The administrative judge found that the appellant
failed to prove his affirmative defense of retaliation under 5 U.S.C.
3
§ 2302(b)(9)(A)(ii), and he incorporated the remainder of his findings from the
previous initial decision. RID at 6-11.
¶6 In his petition for review of the new initial decision, the appellant as serts
that the administrative judge erred in ruling that he could be removed for his
comments made while engaging in protected activity. Brinson v. Department of
the Army, MSPB Docket No. DC-0752-14-1129-B-1, Remand Petition for Review
(RPFR) File, Tab 1. 1 The agency has filed a response to the petition. RPFR File,
Tab 3.
¶7 First, for the reasons stated in the Vice Chairman’s separate opinion, I agree
that the appellant’s allegation that the agency’s removal action was taken in
retaliation for his prior Board appeal should have been adjudicated as a claim of
retaliation for raising age discrimination. Accordingly, in order to obtain full
relief for a claim of retaliation for protected activity under the Age
Discrimination in Employment Act, the appellant must show that the protected
activity was a but-for cause of the removal action. Pridgen v. Office of
Management and Budget, 2022 MSPB 31, ¶¶ 21-22.
¶8 I further agree with the Vice Chairman that participation in claims arising
under employment discrimination statutes generally enjoys broad protection, and
that employees engaging in such protected activity must be allowed leeway for
robust advocacy, including a full and fair opportunity to challenge the credibility
of witnesses. Nonetheless, I am not convinced that under the facts of this case
the appellant’s conduct during his deposition of the Commander falls within this
broad protection, nor do I believe the charged conduct can be characterized as a
legitimate exercise of his right to vigorously cross examine a witness while
1
The appellant also makes several other arguments in his petition, including that the
administrative judge failed to rule on his motion to enter into evidence the Board’s
record from his appeal of the 30-day suspension and that the administrative judge was
biased against him. RPFR File, Tab 1. I have considered these arguments and would
find that they provide no basis to disturb the Remand Initial Decision.
4
prosecuting his appeal. In this regard, I would find that the conduct at issue in
this case, including calling him a “snake” or suggesting that the Commander had
“short man syndrome” or “little man syndrome,” was not protected by any
anti-discrimination or anti-retaliation statute.
¶9 As pointed out by the Vice Chairman, the Equal Employment Opportunity
Commission (EEOC) has not held that the protections afforded by the
anti-retaliation laws it administers are without limit. Moreover, the courts have
recognized that misconduct committed during litigation alleging employment
discrimination is not protected under the anti-retaliation laws despite the fact that
it occurred while the employee was engaging in protected activity. In Benes v.
A.B. Data, Ltd., 724 F.3d 752, 753-54 (7th Cir. 2013), for example, the plaintiff
alleged that his firing was in retaliation for his prior sex discrimination claim
because the action was based on his behavior during an EEOC-arranged
mediation session. The court rejected this argument, finding that participation in
protected activity “doesn’t insulate an employee from being discharged for
conduct that, if it occurred outside [that activity], would warrant termination.”
Id. at 754 (citing Hatmaker v. Memorial Medical Center, 619 F.3d 741, 745 (7th
Cir. 2010)).
¶10 In Whatley v. Metropolitan Atlanta Rapid Transit Authority, 632 F.2d 1325,
1328-29 (5th Cir. 1980), the plaintiff alleged that he was asked to resign from his
Equal Opportunity Compliance Officer position in retaliation for his protected
activity, which consisted of filing a charge of discrimination with the Federal
agency funding the defendant’s operations on behalf of an employee of the
defendant. 2 The court affirmed the trial court’s determination that the defendant
had articulated a valid business reason for the action, i.e., that the action was
based on the manner in which the plaintiff had handled the discrimination
2
The plaintiff’s supervisor had instructed him to inform the employee that she could
file a discrimination claim with the EEOC or mail it to the funding agency. Whatley,
632 F.2d at 1327.
5
complaint and not the fact that he had processed it. Id. The court concluded that
the plaintiff’s conduct was not protected from consequence by the anti -retaliation
laws. Id. at 1329. A number of other circuit court and Board decisions stand for
the same proposition. See, e.g., Rosser v. Laborers’ Int’l Union Local No. 438,
616 F.2d 221, 223 (5th Cir. 1980); Rollins v. State of Fla. Department of Law
Enforcement, 868 F.2d 397, 401 (11th Cir. 1989); Pendleton v. Rumsfeld,
628 F.2d 102, 108 (D.C. Cir. 1980); Hochstadt v. Worcester Foundation for
Experimental Biology, 545 F.2d 222, 231 (1st Cir. 1976). See also Williams v.
Social Security Administration, 101 M.S.P.R. 587, ¶ 13 (2006) (finding that the
anti-retaliation provisions of Title VII do not shield an employee from discipline
for improperly obtaining and disclosing confidential documents for use in an
EEOC proceeding); Bonanova v. Department of Education, 49 M.S.P.R. 294, 300
(1991) (stating that not all conduct related to an employee’s opposition to
discrimination is immune from discipline).
¶11 I believe that the type of conduct at issue in this case, name-calling and
goading of a management official, similarly falls outside of the statutory
protections. I agree with the administrative judge’s determination that the
appellant is not immune from discipline simply because his transgressions
occurred while he was examining the Commander during a deposition. The
administrative judge gave careful and thorough consideration to the evidence
bearing on the appellant’s retaliation claim and made appropriate credibility
determinations, and I agree with his finding that the appellan t failed to refute the
evidence that the removal action was taken because of the charged conduct, and
not because it was committed while the appellant was participating in protected
activity. Although the administrative judge analyzed the retaliation clai m under
the Warren test, instead of considering it under the but-for standard set out in
Pridgen, his conclusion that the appellant failed to show that the agency removed
him because of his participation in protected activity is fully supported by the
6
record, and I would find that he failed to show that his protected activity was a
but-for cause of the agency’s action.
¶12 For the reasons stated above, I would affirm the initial decision, sustain the
appellant’s removal, and deny his affirmative defenses.
/s/
Raymond A. Limon
Member