Developments at the MSPB: On August 21, 2015, the Merit Systems Protection Board (MSPB) issued its decision in Alarid v. Dept. of the Army, 2015 MSPB 50. The MSPB reversed its administrative judge, finding a failure to explain below Mr. Alarid’s burdens for proving his affirmative defenses. The MSPB also explained its standards for analyzing new protections for certain union activity deriving from the Whistleblower Protection Enhancement Act of 2012 (WPEA), as previously analyzed in this blog.
Mr. Alarid was a police officer who was removed for alleged misconduct. Before his removal, Mr. Alarid had also served as a union vice president, and in that role had assisted union members with their grievances. On appeal, Mr. Alarid claimed that the removal was retaliation for his protected whistleblowing and protected union activity. The administrative judge failed to properly brief Mr. Alarid on the elements of those claims and their burdens of proof, and further construed Mr. Alarid’s whistleblower reprisal claim as an EEO reprisal claim without explanation. After the removal was upheld, Mr. Alarid then appealed to the MSPB.
The MSPB reversed the administrative judge’s decision and remanded for further adjudication. The MSPB faulted the administrative judge for failing to explain to Mr. Alarid his burdens of proving his affirmative defenses, and for failing to document whether Mr. Alarid had chosen to abandon certain claims.
The MSPB took the opportunity to explain its analysis of Mr. Alarid’s union reprisal claim. The WPEA strengthened several retaliation claims, which now can be raised as Independent Right of Action (IRA) appeals, including the claim of retaliation caused by assisting others in their claims and grievances. Mr. Alarid’s assistance on others’ grievances as union vice president fell within the scope of this strengthened retaliation claim, allowing Mr. Alarid to raise this affirmative defense. The MSPB held that these strengthened retaliation claims should be analyzed under the permissive analytic framework for whistleblower reprisal claims, previously analyzed by Passman & Kaplan in connection with the long-running Chambers case.