Federal Sector Retaliation Claims May Be Established Where Retaliation Is a Motivating Factor: MSPB

Practical Law Legal Update 0-618-5945 (Approx. 7 pages)

Federal Sector Retaliation Claims May Be Established Where Retaliation Is a Motivating Factor: MSPB

by Practical Law Labor & Employment

Background

Tommie Savage worked as a Contract Specialist with the US Army Engineer and Support Center. In 2006 and 2007, she reported what she believed to be illegal and improper contracting activities in the program she supported and filed a formal equal employment opportunity (EEO) complaint alleging a hostile work environment. As part of the settlement to her 2007 EEO complaint, she transferred to a Contract Specialist position in the agency's Small Business Office. In August 2008, after disclosing more violations of federal regulations within the Small Business Office and arguing with her first-level supervisor about the issue, Savage went on a leave of absence due to depression and work-related stress.

In April 2009, Savage's first-level supervisor refused to approve requests to extend Savage's leave and provide her leave without pay (LWOP), placing Savage in an absence without leave (AWOL) status. Savage filed an EEO complaint claiming she had been subjected to a hostile work environment based on two prior EEO complaints she filed in 2007 and 2008. Savage's complaint named her first level supervisor and cited his denial of her LWOP request as retaliatory.

In September 2009, Savage's first level supervisor proposed to remove Savage based on her AWOL status and two related charges. In November 2009, the agency removed Savage. Savage filed a whistleblower retaliation appeal and appealed her removal, asserting the following three affirmative defenses:

Retaliation for protected whistleblowing activity.
Retaliation for protected EEO activity.
Discrimination based on:
- race;
- sex; and
- disability.

In an initial decision, an administrative judge sustained all three of the agency's removal charges, finding that:

The agency would have taken most of the challenged personnel actions against her in the absence of her whistleblowing.
Savage failed to establish any of her three affirmative defenses in the removal appeal.

Savage filed a petition for review of the administrative judge's initial decision.

Outcome

The MSPB clarified the applicable standard for Title VII retaliation (or discrimination) claims brought by federal employees, holding that a federal employee asserting retaliation (or discrimination) as an affirmative defense:

May establish that an agency violated Title VII and committed a prohibited personnel practice by showing that retaliation was a motivating factor in the contested personnel action.
Is not required to show that the contested personnel action was only taken because of the agency's retaliatory motive.
May use either direct evidence or circumstantial evidence, including either:
- a convincing mosaic of evidence of discrimination including the agency's suspiciously timed decisions, ambiguous written and oral statements, and behavior or comments directed at employees in a protected group;
- comparator evidence in which similarly situated employees that did not have the employee's protected characteristic were systematically treated better than the employee; or
- pretext evidence in which the agency's stated reason for its contested personnel action defies belief and appears to be merely a pretext for discrimination.

The MSPB remanded, directing the administrative judge to apply the clarified standard to Savage's Title VII claims in the removal appeal. If Savage can show, by a preponderance of direct or any combination of the types of circumstantial evidence, that retaliation was a motivating factor in the agency's removal of Savage (or in other actions Savage claimed were retaliatory), then Savage would establish that the agency violated Title VII's federal sector retaliation provision. At that point, the agency would have to show by a preponderance of evidence that it still would have taken the contested personnel action absent a retaliatory motive.

In a later case, the MSPB clarified that an administrative judge should not separate direct from indirect evidence as if such evidence were subject to different legal standards, and should not require employees to demonstrate a convincing mosaic of discrimination or retaliation. Instead, the dispositive inquiry is whether the employee has shown by preponderance of the evidence that the discrimination or retaliation was the motivating factor in the contested personnel action. (Gardner v. Dep't of Veterans Affairs, MSPB Doc. No. DC-0752-15-0466-I-1 (Oct. 7, 2016).)

The MSPB noted that:

Title VII covers Federal employment in a separate section than private sector employment (compare 42 U.S.C. § 2000e-16 with 42 U.S.C. § 2000e(b), the definition of employer applicable to 42 U.S.C. § 2000e-3(a)).
Title VII's anti-discrimination standard for federal employment provides that federal agencies's personnel actions must be "made free from any discrimination based on" an employee's protected characteristics (42 U.S.C. § 2000e-16(a)).
The language in 42 U.S.C. § 2000e-16 is broad enough to prohibit retaliation in addition to status-based discrimination.
In contrast, Title VII's private sector retaliation provision prohibits employers from retaliating against employees "because" they exercised Title VII rights (42 U.S.C. § 2000e-3(a)).
Because the civil service system governs the way agencies take personnel actions, most adverse actions taken against federal employees often appear to be taken for a mix of prohibited and legitimate reasons.

The MSPB rejected the but-for standard in federal employee Title VII retaliation claims and embraced the "motivating factor" standard, finding that:

The US Supreme Court, in applying a "but for" standard to a private sector plaintiff's Title VII retaliation claim, analyzed the "because of" language of 42 U.S.C. § 2000e-3(a) and the list of specific employment practices in Section 2000e-2(m), which did not include retaliation, but did not discuss the "made free from discrimination" language in 42 U.S.C. § 2000e-16(a) (University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517, 2534 (2013)).
The "motivating factor" standard is consistent with federal court, EEOC and MSPB rulings on analogous anti-discrimination laws like the ADEA. The ADEA private sector statute prohibiting discrimination "because of" age requires a plaintiff to establish "but for" causation, while the federal sector ADEA statute requiring that personnel actions "be made free from" age discrimination only requires a showing that age was a factor in the contested personnel action (compare 29 U.S.C. § 623(a)(1) with 29 U.S.C. § 633a(a); see also Ford v. Mabus, 629 F.3d 198 (D.C. Cir. 2010); Alotta v. Department of Transportation, EEOC Appeal No. 0129903865, (June 17, 2011) and Wingate v. U.S. Postal Service, 118 M.S.P.R. 566, 570, ¶7 (2012)).

The MSPB also asserted that its authority to enforce Title VII and to award remedies like reinstatement and back pay derives from civil service law and not from Title VII itself (5 U.S.C. § 7702(a)(1)(B); 5 U.S.C. § 7701(c)(2)(B)).

The MSPB also addressed Savage's claims that she was constructively suspended and retaliated against for whistleblowing and whether the agency sufficiently proved it would have removed her in the absence of whistleblowing. The MSPB remanded the case to the administrative judge for further adjudication.

Practical Implications

The MSPB's decision in Savage clarifies the applicable standard in Title VII retaliation claims brought by federal employees. At the initial phase employees need only show that retaliation (or discrimination) was a motivating factor in the agency's contested personnel decision, not that the agency would not have taken the contested personnel action but for retaliatory motives. The decision is favorable to federal employees and consistent with the EEOC's decisions on the standards for proving retaliation in federal sector EEO cases.

For more information about federal civil service laws and the federal sector EEO program, see Practice Notes:

Federal Sector Retaliation Claims May Be Established Where Retaliation Is a Motivating Factor: MSPB | Practical Law