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NEWS AND CASE ALERT

July 16th, 2024 | Issue #16-05

TABLE OF CONTENTS

MSPB SUMMARIZES TITLE VII BURDENS OF PROOF

FOURTH CIRCUIT JOINS THE MANY MORTALS WHO FIND MSPB'S DEFINITION OF NONFRIVOLOUS ALLEGATIONS DIFFICULT TO COMPREHEND AND APPLY

SUGGESTED READING

We offer legal reference books and audiovisual training on federal civil service, equal employment, and labor law, for attorneys, unions, arbitrators, managers, and agency personnel offices. A small business for over 39 years.
Read the full archive of over 100+ News and Case Alerts online at: deweypub.com/email

NEW RELEASES

24EEO image

A Guide to Federal Sector Equal Employment Law and Practice

Updated annually, the EEO Guide, written by Natania Davis with Ernie Hadley, Founding Author, offers the most comprehensive analysis of federal sector EEO decisions, litigation practice, statutes, regulations, policies, guidance, and practical advice available to practitioners. (more details)

24CEUP image

Consolidated Federal Sector EEO Update 2004-2024

Updated annually, this comprehensive text digests notable Commission and federal court employment discrimination decisions from 2003 through early 2024 and reviews EEO laws, regulations, and guidance. Major topics include recent trends in the law; bases of discrimination; attorney fees; class actions; compensatory damages; appellate review; evidence; harassment; hearings; mixed cases; procedures; remedies; reprisal; settlement; and sexual harassment. (more details)

MSPB SUMMARIZES TITLE VII BURDENS OF PROOF

A nonprecedential decision summarized the welter of MSPB pronouncements on the burdens of proof applied in Title VII discrimination and reprisal cases—and a welcome summary it is, taken from Siefring v. DOJ, CH-0752-20-0509-I-1 (NP 7/9/2024):


An appellant may establish a violation of 42 U.S.C. § 2000e-16 by showing that his membership in a protected class or her protected Title VII activity was a motivating factor in the agency's action, even if it was not the only reason. Pridgen, 2022 MSPB 31, ¶ 21; Savage, 122 M.S.P.R. 612, ¶ 41; cf. Babb v. Wilkie, 140 S. Ct. 1168, 1171 (2020) (holding that the parallel language of 29 U.S.C. § 633a "demands that personnel actions be untainted by any consideration of age") (emphasis added). However, to obtain full status quo ante relief, including reinstatement, back pay, and damages, the appellant must further show by preponderant evidence that the prohibited discrimination or retaliation was a but-for cause of the action, i.e., that the agency would not have taken the same action in the absence of the discriminatory or retaliatory motive.[9] Pridgen, 2022 MSPB 31, ¶ 22; cf. Babb, 140 S. Ct. at 1171 (holding that, to obtain reinstatement or back pay based on a violation of 29 U.S.C. § 633a, the employee "must show that age discrimination was a but-for cause of the employment outcome").


[9] If an employee proves motivating factor but not but-for causation, in Equal Employment Opportunity Commission (EEOC) proceedings, at least, other forms of relief may be available that do not relate to the end result of the employment action, including declaratory relief, injunctive relief, costs, and attorney fees. Wilson v. Small Business Administration, 2024 MSPB 3, ¶ 18 n.10. For example, the EEOC may order an agency to post notices, provide EEO training, and not discriminate or retaliate against an employee in the future. Id.


Either showing can be made by a variety of methods, alone or in combination. Pridgen, 2022 MSPB 31, ¶ 24 (citing Troupe v. May Department Stores Co., 20 F.3d 734, 736 (7th Cir. 1994)). These include both direct evidence, i.e., evidence that can be interpreted as an acknowledgement of discriminatory intent, and various sorts of circumstantial evidence. Id. Examples of circumstantial evidence include comparator evidence, i.e., evidence that employees outside the protected group but similarly situated in other respects received better treatment, or evidence that the agency's stated reason for its action is unworthy of belief and a mere pretext for discrimination. Id. An appellant may also rely on bits and pieces of evidence that, considered together, may compose a convincing mosaic of discrimination, such as 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 may be drawn. Id.


. . .


While we have found independent grounds for reversing the removal action, namely, the agency's failure to prove its charges, the question remains whether the appellant may be entitled to damages or other status quo ante relief. As to that issue, the Board has held that the burden of proof lies with the appellant to show by preponderant evidence that unlawful retaliation was a but-for cause of the agency's action. Pridgen, 2022 MSPB 31, ¶ 22. . . .


The Board has recognized that there are at least two ways for an appellant to prove but-for causation.[11] Wilson v. Small Business Administration, 2024 MSPB 3, ¶¶ 15-19. First, the appellant may proceed under the evidentiary framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Under that framework, the appellant may establish a prima facie case by showing that he engaged in protected activity, the agency subjected him to an adverse employment action, and the unfavorable action gives rise to an inference of retaliation. See Wilson, 2024 MSPB 3, ¶ 16. The burden then shifts to the agency to articulate a legitimate, nonretaliatory reason for the action. If the agency fails to do so, or if the appellant successfully rebuts the agency's proffered reason as pretext, then the appellant has proven but-for causation. [12] Id., ¶ 17. Second, an appellant may prove but-for causation under the motivating factor framework, by first showing that retaliation was one reason for the challenged employment action, even if it was not the only reason. Id., ¶ 18. The burden will then shift to the agency to prove that it would have taken the same action even absent the retaliatory motive. If the appellant proves motivating factor and the agency does not prove by preponderant evidence that it would have taken the same action in the absence of retaliation, then the appellant has established but-for causation. Id. The appellant may choose to show but-for causation under the McDonnell Douglas framework or under the mixed-motive framework, or by proceeding under both theories simultaneously. Id., ¶ 19.


[11] There may be other ways of proving but-for causation, such as by direct evidence. See Thomas v. Department of State, EEOC Appeal No. 01932717, 1994 WL 733682 at *4 (June 10, 1994).


[12] In cases like this one, where the agency has already articulated a legitimate, nondiscriminatory reason for its actions, the factual inquiry can proceed directly to the third step of the analysis, i.e., the ultimate issue of whether the appellant has shown by preponderant evidence that the agency's reason for its action was a pretext for retaliation. Wilson, 2024 MSPB 3, ¶ 17.


Siefring v. DOJ, CH-0752-20-0509-I-1 (NP 7/9/2024)


https://www.mspb.gov/decisions/nonprecedential/Siefring_Andrew_J_CH-0752-20-0509-I-1__Remand_Order.pdf


Now, just for fun, we put ChatGPT4 to work to give us an analysis of the decision. Take a look. See if you agree with Chat's bullet-point summary:


Violation Establishment:

  • An appellant can show a violation of 42 U.S.C. § 2000e-16 by proving that their membership in a protected class or protected Title VII activity was a motivating factor in the agency's action.
  • This standard holds even if it was not the sole reason for the action (Pridgen, 2022 MSPB 31, ¶ 21; Savage, 122 M.S.P.R. 612, ¶ 41; Babb v. Wilkie, 140 S. Ct. 1168, 1171 (2020)).


Full Relief Requirement:

  • For full status quo ante relief (reinstatement, back pay, damages), the appellant must prove by a preponderance of evidence that the prohibited discrimination or retaliation was the but-for cause of the action.
  • This means the agency would not have taken the same action absent the discriminatory or retaliatory motive (Pridgen, 2022 MSPB 31, ¶ 22; Babb, 140 S. Ct. at 1171).


Alternate Relief:

  • If an employee proves a motivating factor but not but-for causation, other forms of relief may be available, such as declaratory relief, injunctive relief, costs, and attorney fees (Wilson v. Small Business Administration, 2024 MSPB 3, ¶ 18 n.10).
  • The EEOC may order an agency to post notices, provide EEO training, and avoid future discrimination or retaliation.


Methods of Proof:

  • Proof can be made using direct evidence (acknowledgment of discriminatory intent) or circumstantial evidence (comparator evidence, pretext for discrimination, etc.) (Pridgen, 2022 MSPB 31, ¶ 24).
  • A "convincing mosaic" of evidence can include suspicious timing, ambiguous statements, behavior towards other protected group members, and more.


Reversal and Entitlement to Relief:

  • Despite independent grounds for reversing the removal action, the appellant must still prove unlawful retaliation was a bit-for cause to receive damages or other status quo ante relief (Pridgen, 2022 MSPB 31, ¶ 22).


Proving But-For Causation:

  • There are two main ways to prove but-for causation:
  1. McDonnell Douglas Framework: Establish a prima facie case, shift the burden to the agency to provide a nonretaliatory reason, and then prove pretext (Wilson, 2024 MSPB 3, ¶ 16-17).
  2. Motivating Factor Framework: Show retaliation was a reason for the action, then shift the burden to the agency to prove the same action would have occurred absent retaliation (Wilson, 2024 MSPB 3, ¶ 18-19).
  • An appellant can use either framework or both simultaneously.


Direct Evidence:

  • Other methods, like direct evidence, may also be used to prove but-for causation (Thomas v. Department of State, EEOC Appeal No. 01932717, 1994).


Factual Inquiry:

  • When an agency has already articulated a legitimate reason, the inquiry can skip to whether the appellant can prove the reason was a pretext for retaliation (Wilson, 2024 MSPB 3, ¶ 17).


MORE NEW RELEASES

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FOURTH CIRCUIT JOINS THE MANY MORTALS WHO FIND MSPB'S DEFINITION OF NONFRIVOLOUS ALLEGATIONS DIFFICULT TO COMPREHEND AND APPLY

For whistleblower protection, appellants must provide nonfrivolous jurisdictional allegations to the Board. By the regulation, 5 CFR 1201.4(s), we are told by the Board:


(s) Nonfrivolous allegation. A nonfrivolous allegation is an assertion that, if proven, could establish the matter at issue. An allegation generally will be considered nonfrivolous when, under oath or penalty of perjury, an individual makes an allegation that:

(1) Is more than conclusory;

(2) Is plausible on its face; and

(3) Is material to the legal issues in the appeal.


The Fourth Circuit, not taken with the clarity of the regulation, offered:


The second sentence of the definition of "nonfrivolous allegation" inartfully states: "An allegation generally will be considered nonfrivolous when, under oath or penalty of perjury, an individual makes an allegation that" is "more than conclusory," "plausible on its face," and "material to the legal issues in the appeal." § 1201.4(s). This addition to the definition isn’t very helpful. It states neither a necessary nor a sufficient condition for nonfrivolity. It only tells us what is "generally" a nonfrivolous allegation. In other words, it contemplates times when allegations are nonfrivolous even though they fail to satisfy each condition as well as times when allegations are frivolous even though they do. So it amounts to a confusing statement that gives us little to work with. We, therefore, simply treat the last three attributes it mentions—nonconclusory, plausible, and material—as evidence that supports a determination that an allegation is nonfrivolous, because the attributes align with our approach to determining whether allegations are sufficient in other contexts. Cf. Langford v. Joyner, 62 F.4th 122, 124–26 (4th Cir. 2023) (explaining that "well-pleaded allegations" do not include "conclusory statements" or allegations so generalized they become implausible (quotation omitted)).


An allegation being made "under oath or penalty of perjury," of course, would be evidence that the allegation is based in fact. But the MSPB does not rely on this and we will not either. If the clause were read imprecisely, then one could think that it suggests that allegations must be in affidavits or other sworn documents in order to be nonfrivolous. Requiring that, though, would seem to place a burden to prove the allegations on the appellant at the jurisdiction stage. The regulations suggest there is no such burden to prove the allegations rather than merely make them. Compare § 1209.2(a) (stating the jurisdictional requirements for individual right of action appeals without mentioning a burden of proof), with § 1209.2(e) (stating the elements the appellant has the burden of proving "[o]nce jurisdiction has been established"). Casting more doubt on the clause’s utility is the fact that we don’t require sworn allegations in other pleading contexts. Cf. Langford, 62 F.4th at 126. So, while Petitioners here made no allegations under oath or penalty of perjury, that doesn’t prevent their allegations from being nonfrivolous under 5 C.F.R § 1209.4(s).


Jones v. MSPB, ___4th___, n.12 (4th Cir. 2024)


https://www.ca4.uscourts.gov/opinions/231328.P.pdf


The Circuit got it right. The jurisdictional burden for a nonfrivolous allegation should not require evidentiary proof or an affidavit. Look to the allegations alone; they may be supplemented by the appellant's evidence, but that should not be required. The regulation should be revised.

2024 DEWEY PUBLICATIONS PRODUCTS

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Representing Agencies and Complainants Before the EEOC

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UnCivil Servant: Holding Government Employees Accountable for Performance and Conduct

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MSPB Charges & Penalties: A Charging Manual

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MSPB Case Summaries

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Federal Sector Telework: Law and Cases

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A Guide to the Whistleblower Protection Act and Whistleblower Protection Enhancement Act

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SUGGESTED READING

For your summer reading ("there's a lot of good eating on a popsicle stick" [Jan and Dean, "Popsicle Truck" listen to it on YouTube]). Check out the FLRA's Quarterly Digest of its Recent Decisions. Then read about them in Dewey's FLRA Guide.


https://www.flra.gov/decisions/quarterly-digest-authority-decisions


https://www.deweypub.com/flraguide

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Monthly Peter Broida will discuss new decisions from the MSPB, FLRA, their reviewing courts, and occasionally EEOC.

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