Developments at the MSPB: In a recent decision, Savage v. Department of the Army, 122 M.S.P.R. 612 (2015), the Merit Systems Protection Board (MSPB) revised how it analyzes discrimination claims in federal sector mixed cases.
Discrimination is an affirmative defense to adverse actions which are appealable to the MSPB–a “(b)(1)” Prohibited Personnel Practice (PPP)–as well as a violation of the EEO statutes. As previously discussed in this blog, in “mixed cases” the MSPB defers to the EEOC on issues of discrimination law, but the EEOC defers to the MSPB on issues of civil service law.
Starting in 2006, the MSPB, following EEOC caselaw, permitted MSPB administrative judges to exclude discrimination claims from hearings in a summary judgment-like fashion, even though ordinarily the MSPB is barred from issuing decisions on summary judgment.
In Savage, the MSPB overhauled how it analyzes discrimination claims in mixed cases. Specifically, the MSPB held that its adjudication of “mixed case” claims is not directly under the EEO statutes, but instead is a civil service adjudication of a (b)(1) PPP. The MSPB found itself no longer bound to the EEOC’s adjudication procedures, and thus prohibited summary judgment of discrimination claims in mixed cases. Employees in mixed cases are this guaranteed their ‘day in court’ at the MSPB–unlike EEOC or in federal district court, which allow summary judgment.
The MSPB also rejected the use of the McDonnell Douglas three-step analysis in mixed cases before the MSPB, reasoning that McDonnell Douglas is chiefly a summary judgment analysis. Instead, the MSPB instructed that discrimination claims are to be analyzed under the more flexible Mt. Healthy test. This means that employees are not beholden to proving their case by showing pretext in cases not involving direct evidence. Instead, any combination of relevant evidence (direct evidence, suspicious timing, ambiguous statements, behavior toward or comments directed at other employees in the protected group, evidence showing disparate treatment of those in a protected category, or pretext evidence) may be used to show that discrimination was a motivating factor in the agency’s personnel action.
Finally, the MSPB held that the Supreme Court’s decisions in Nassar and Gross (previously analyzed in this blog) did not apply in MSPB, on the grounds that federal sector discrimination protections fall under different statutory provisions than the provisions at issue in Gross and Nassar. As a result, employees in the MSPB must only show that discrimination was a motivating factor in the personnel action–proof of “but for” causation is not absolutely required.