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MSPB Clarifies EEO And Whistleblower Affirmative Defenses

by | Oct 22, 2022 | Discrimination

On September 12, 2022, the Merit Systems Protection Board (MSPB) issued its decision in Pridgen v. Office of Management and Budget2022 MSPB 31.  In that decision, the MSPB revised its standards for affirmative defenses in disciplinary cases, and also clarified it analysis for performance-based adverse actions under 5 U.S.C. Chapter 43.

Ms. Pridgen had been removed on a Chapter 43 performance-based removal.  On appeal to the MSPB, Ms. Pridgen challenged the merits of the removal action, and also raise affirmative defenses of discrimination on bases of race, color, national origin, age and disability, as well as reprisal for prior EEO activity, prior MSPB appeals, prior OSC and OIG activity and prior whistleblowing.  The administrative judge rejected Ms. Pridgen’s arguments after hearing, and Ms. Pridgen then petitioned for review before the Board.

The Board reversed the removal, finding first that the Agency had failed to meet its burden of proof.  On appeal of Chapter 43 actions, an agency has the burden of proof of showing that the appellant had unacceptable performance in at least one critical element in the employee’s performance evaluation.  While an agency’s burden of proof is low on appeal (substantial evidence), here the Agency failed to meet that burden because the alleged performance deficiencies which the Agency based the removal of Ms. Pridgen upon were for were noncritical “strategic goals,” not Ms. Pridgen’s critical elements.  The Board explained that the standard for a critical element is one where the entire performance evaluation is unacceptable if the element is not met; here, Ms. Pridgen would have needed to fail no less than three “strategic goals” to receive an unacceptable performance evaluation, and so the “strategic goals” were not critical elements for Chapter 43 purposes.

The Board found that the administrative judge had improperly failed to consider relevant comparator employees in connection with Ms. Pridgen’s claims that she was being discriminated against. The Board found that the administrative judge had erred in excluding a comparator with the same sort of position under the same rating supervisor on the argument that their assignments differed.  The Board also found that the administrative judge erred in not considering Ms. Pridgen’s prior Board appeals (in which she raised EEO allegations) as a form of protected EEO activity. 

The Board also used the Pridgen decision as a vehicle to update how affirmative defenses are analyzed more generally.  Those appealing disciplinary actions at the MSPB can raise ‘affirmative defenses’ (that is, claims that the disciplinary action should be reversed, even if the charge is otherwise proven (for example, because the disciplinary action at issue was allegedly discriminatory or retaliatory), for which the appellant bears the burden of proof). 

The Board clarified its prior precedent concerning EEO affirmative defenses.  As a result of Pridgen, parties will need to plead EEO retaliation affirmative defenses in a manner different than discrimination affirmative defenses.  One issue was the distinction between arguing discrimination claims based on a ‘but-for’ discrimination analysis versus a ‘motivating factor’ analysis. In ‘motivating factor’ analysis, the employee need only show that the discriminatory intent motivated the employment decision to some extent.  Under a ‘but-for’ analysis, the employee has to show that discrimination was not merely a factor in the employment decision, but one that was necessary to the action occurring.   The standard of proof for a ‘but-for’ analysis is generally considered higher.  However, if discrimination is not proven at the ‘but-for’ level, then the employee may not receive some forms of major personal relief (including, for example, compensatory damages), even if they win the case on a ‘motivating factor’ analysis.  The Board found that employees could raise either ‘but-for’ or ‘motivating factor’ arguments for Title VII discrimination claims (here, race, color and national origin), age discrimination claims and disability discrimination claims.  For retaliation claims under the Rehabilitation Act (which governs disability discrimination issues for federal employees), employees can only raise ‘but-for’ arguments.   The Board also clarified the forms of evidence that it would consider for discrimination affirmative defenses, setting a fairly open standard for forms of permissible evidence, including direct evidence of discriminatory evidence (for example, slurs by the deciding manager connected with their stated reason for the appealed disciplinary action), comparator evidence (for example, evidence that another employee got treated better than the appellant under similar circumstances), pretext evidence (for example, proof that that the Agency’s stated excuse for the disciplinary action was false), and other circumstantial evidence (which looks at suspicious timing and other factual hints suggesting discriminatory motive, under what is referred to as the ‘convincing mosaic’ standard). 

The Board in Pridgen also clarified the standard it set in Savage v. Department of the Army, 122 M.S.P.R. 612 (2015) regarding the McDonnell-Douglas ‘3-step’ analysis (under which the burdens shift between the parties, with the employee first showing a basic ‘prima facie’ case that they were discriminated against, then the agency second stating an alleged legitimate reason for its action, and then third the employee showing that the agency’s excuse was a fiction and pretext for discrimination) actually was valid in MSPB cases, if contextualized as the order of proof for presenting the case.  Under Savage, the Board had rejected McDonnell-Douglas in Board proceedings as often associated with summary judgment motions (which do not exist at the MSPB).  In Pridgen, the Board said that the McDonnell-Douglas ‘3-step’ could be used as way to organize pleading and analysis of discrimination issues, even with no summary judgment at the MSPB.

The Board found that the 2012 Whistleblower Protection Enhancement Act (WPEA)—which was previously analyzed in this blog—applied since the removal occurred after the WPEA’s effective date (even if some of Ms. Pridgen’s alleged protected whistleblowing and related activity predated the WPEA).   The administrative judge further erred in finding that Ms. Pridgen’s disclosure that the Agency had failed to meet two deadlines from an appropriations statute to not be protected whistleblowing disclosures, and also erred by ignoring certain other protected disclosures to the Office of Special Counsel (OSC). The Board also faulted the administrative judge’s finding that Ms. Pridgen’s communications with OSC or the Inspector General would not be protected under 5 U.S.C. § 2302(b)(9)(C) unless the specific communication disclosed wrongdoing; the Board clarified that any such communication with OSC or the Inspector General is protected under the statute irrespective of the content of the communication. 

The Board also remanded for consideration of whether Ms. Pridgen could show whistleblower reprisal even without proving managers’ knowledge of her protected activity prior to the alleged retaliatory actions.  The primary test included in the whistleblower reprisal basic or ‘prima facie’ case involves showing that the alleged retaliating managers learned about the protected whistleblowing, and then took the retaliatory action within 1-2 years of learning of the protected whistleblowing (often referred to as the ‘knowledge-timing’ test).   The Board noted that this ‘knowledge-timing’ test is not the only way to plead a ‘prima facie’ whistleblower reprisal claim.  Instead, an employee can also use other evidence to make that ‘prima facie’ case, including examination of the strength or weakness of the Agency’s rationale for its actions, whether the relevant manager were the recipients of the protected disclosures and whether the managers had a motive to retaliate.  The administrative judge also erred in discounting one of Ms. Pridgen’s protected disclosures when assessing possible retaliatory motive, and also erred in failing to consider—as part of the proof of strength of intent to retaliate—the issue of whether the subject matter of Ms. Pridgen’s whistleblowing disclosures made the alleged retaliating managers look bad, even if they were not the direct target of those whistleblowing disclosures. 

If you are a federal employee facing a proposed disciplinary action, are seeking legal representation any other matter before the Merit Systems Protection Board, or otherwise have questions regarding your legal rights, please consider contacting Gilbert Employment Law, P.C. to request an initial consultation.