UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2015 MSPB 50

Docket No. SF-0752-14-0256-I-1

Douglas A. Alarid,

Appellant,

v.

Department of the Army,

Agency.

August 21, 2015

Paul E. Carreras, Santa Rosa, California, for the appellant.

Douglas W. Hales and David Michael Tucker, Fort Hunter Liggett, 

California, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

OPINION AND ORDER

¶1 The appellant has filed a petition for review of the initial decision, which 

affirmed his removal. For the reasons discussed below, we GRANT the petition 

for review, VACATE the initial decision, and REMAND the case to the regional 

office for further adjudication in accordance with this Opinion and Order.

BACKGROUND

¶2 The appellant served as a Police Officer at all times relevant to this appeal. 

Initial Appeal File (IAF), Tab 5 at 18. The agency removed the appellant from 

Federal service based on two charges of misconduct: conspiracy to purchase and 
2

distribute an unauthorized Federal police badge; and manufacture and distribution 

of an unauthorized Federal police identification card. Id. at 20-29. The appellant 

filed a timely appeal of his removal and raised an affirmative defense of reprisal 

based upon his participation in union activity. IAF, Tab 1 at 7. In his prehearing 

submission, moreover, the appellant raised affirmative defenses of retaliation for 

whistleblowing and a due process violation. IAF, Tab 8 at 9, 15-17.

¶3 The administrative judge held a prehearing conference and entered an order

suspending case processing to allow the parties an opportunity to explore 

settlement. IAF, Tab 9. In his prehearing conference summary and order, the 

administrative judge noted that the appellant was “raising the affirmative 

defenses of retaliation for protected whistleblowing and union activity,” but the 

administrative judge offered no explanation of the applicable burdens of proof 

governing such claims. Id. After the first case processing suspension period 

expired, the administrative judge entered a second order suspending case 

processing. IAF, Tab 13. In that order, the administrative judge stated that the 

appellant had raised “affirmative defenses of retaliation for protected [equal 

employment opportunity (EEO)] activity and whistleblowing activity,” and he 

cited Warren v. Department of the Army, 804 F.2d 654 (Fed. Cir. 1986), for the 

applicable burden of proof “to prevail on a contention of illegal retaliation.” 

IAF, Tab 13. Neither party objected to the administrative judge’s summary of the 

defenses raised by the appellant. 

¶4 The administrative judge subsequently held another prehearing conference. 

IAF, Tab 20. In his summary of that prehearing conference, the administrative 

judge again cited Warren for the applicable burden of proof concerning the 

appellant’s affirmative defenses. Id. In this order, however, the administrative 

judge stated that “[i]t was determined that [the appellant’s] originally asserted 

whistleblowing retaliation claim pertained exclusively to his protected EEO 

activity.” Id. at n.1. The administrative judge offered no explanation for this 

determination, did not acknowledge the appellant’s affirmative defenses of 
3

reprisal for participation in union activity or a due process violation, and did not 

explain the effects of withdrawing or abandoning any of his affirmative defenses. 

Id. Although the administrative judge provided the parties 10 days to file 

objections to this order, neither party did so.

¶5 Following a hearing, the administrative judge issued an initial decision 

sustaining both of the agency’s charges, finding the penalty of removal 

reasonable, and finding that the appellant failed to prove that his removal was the 

result of reprisal for EEO activity. IAF, Tab 41, Initial Decision (ID). In 

adjudicating the appellant’s affirmative defense, the administrative judge 

indicated that he had previously determined that “the appellant’s originally 

asserted whistleblowing retaliation claim pertained exclusively to his protected 

EEO activity.” ID at 13 n.11. The administrative judge acknowledged that both 

parties “briefly touched on other affirmative defenses in their closing briefs,” 1 but 

declined to reach those issues because neither party objected to his prehearing 

conference summary within 7 days, 2 and because the appellant only presented 

evidence concerning his claim of reprisal for EEO activity. Id. 

¶6 The appellant filed a petition for review challenging several of the 

administrative judge’s credibility determinations and arguing that the 

administrative judge erred in denying his affirmative defense of reprisal for union 

activity. Petition for Review (PFR) File, Tab 1 at 6-8, 10-11. The agency filed a 

 

1 The agency argued in its closing brief that the appellant failed to prove that his 

removal was the result of whistleblower reprisal, IAF, Tab 31 at 6, and the appellant 

alleged in his closing brief that he was terminated in reprisal for protected union 

activity, IAF, Tab 30 at 4. Neither party specifically addressed allegations of EEO 

reprisal.

2 The record reflects that the administrative judge gave the parties 10 days, rather than 

7 days, to object to his prehearing conference summary. See IAF, Tab 20 at 2. It is 

undisputed, however, that neither party objected to the prehearing conference summary 

and order.
4

response in opposition to the petition for review, and the appellant filed a reply. 3 

PFR File, Tabs 4-5.

ANALYSIS

The appeal must be remanded for further adjudication of the appellant’s 

whistleblower reprisal and due process claims.

¶7 Upon our review of the parties’ submissions and the administrative judge’s 

orders, we find that the administrative judge did not fully identify all of the 

affirmative defenses the appellant raised in response to his removal. See Gath v. 

U.S. Postal Service, 118 M.S.P.R. 124, ¶ 11 (2012) (citing Wynn v. U.S. Postal 

Service, 115 M.S.P.R. 146, ¶ 10 (2010)). As explained below, the appellant 

raised an affirmative defense based upon his participation in union activity under 

5 U.S.C. § 2302(b)(9)(B), but the administrative judge failed to outline the 

relevant burdens for proving such a claim under the Whistleblower Protection 

Enhancement Act of 2012 (WPEA), Pub. L. No. 112-199, 126 Stat. 1465. 

See 5 U.S.C. § 1221(e), (i). Additionally, the appellant raised allegations of 

whistleblower reprisal under 5 U.S.C. § 2302(b)(8) and a due process violation. 

The administrative judge also failed to apprise the appellant of his burdens of 

proof on these claims or to document whether the appellant withdrew or 

abandoned either of these affirmative defenses prior to hearing. See Gath, 

118 M.S.P.R. 124, ¶ 10. Accordingly, we remand the appeal to the administrative 

judge for further adjudication of the appellant’s affirmative defenses.

 

3 After the record closed on petition for review, the appellant filed a supplemental 

response in further support of his petition for review. PFR File, Tab 6. The Board’s 

regulations only provide for the filing of a petition for review, an opposition in 

response, and a reply. See 5 C.F.R. § 1201.114(a). Because we are remanding the 

appeal for further development of the record, the appellant will have an opportunity to 

supplement the record before the administrative judge. We have not considered the 

appellant’s supplemental response in the course of granting his petition for review.
5

The appellant’s allegation of reprisal based upon his participation in union 

activity is a prohibited personnel practice affirmative defense under

5 U.S.C. § 2302(b)(9)(B).

¶8 As explained above, in his initial decision, the administrative judge 

indicated that he had determined previously that the “appellant’s originally 

asserted whistleblowing retaliation claim pertained exclusively to his protected 

EEO activity,” and that he would adjudicate the affirmative defense as a claim of 

EEO reprisal. 4

 ID at 13 n.11; IAF, Tab 20 at 1 n.1. The administrative judge, 

however, did not address the appellant’s specific assertions that his removal was 

based on his participation in union-related activities on behalf of other 

employees. 

¶9 Upon our review of the record, we find that the administrative judge should 

have considered the appellant’s allegations as a claim of reprisal under 

section 2302(b)(9)(B), rather than as a claim of reprisal for EEO activity. An 

employee’s participation in union activity generally does not constitute protected 

activity for purposes of establishing a claim of EEO retaliation. See Gath, 

118 M.S.P.R. 124, ¶ 12 (clarifying that retaliation for EEO activity and union 

activity are separate claims); McLaurin v. U.S. Postal Service, EEOC Appeal No. 

0120070899, 2008 WL 3890478, at *1 (Aug. 14, 2008) (finding that union 

participation generally does not form the basis of a claim for reprisal based on 

EEO activity). In his initial appeal, the appellant asserted that his removal was 

motivated by his role as a union vice president. IAF, Tab 1. In his prehearing 

submission, the appellant alleged that he had been involved in numerous 

 

4 The administrative judge did not provide an explanation for this conclusion in either 

his prehearing conference summary and order or his initial decision. See IAF, Tab 20; 

ID at 13 n.11. The appellant, moreover, did not specifically raise a claim of EEO 

retaliation in his initial appeal or in either his pre- or post-hearing submissions. See

IAF, Tabs 1, 8, 30. Because the appellant never specifically raised an affirmative 

defense based on retaliation for EEO activity, the administrative judge should not have 

adjudicated such a claim.
6

grievances against the agency and that the former chief of police sought to 

dissuade him from pursuing grievance matters by accusing him of misconduct. 

IAF, Tab 8 at 7-9. Finally, both parties addressed whether the appellant 

established reprisal based on his participation in union activity in their 

post-hearing submissions, and the appellant has argued on review that his 

removal was the result of his role as a union official. PFR File, Tab 1 at 11; IAF, 

Tab 31 at 8-9, Tab 30 at 4. 

¶10 Based on the appellant’s factual assertions, we find that he raised an 

affirmative defense of reprisal for participating in union activity under 

section 2302(b)(9)(B). Section 2302(b)(9)(B) makes it unlawful for an individual 

to take, fail to take, or threaten to take or fail to take a personnel action because 

of the employee “testifying for or otherwise lawfully assisting any individual in 

the exercise of any right referred to in [5 U.S.C. § 2302(b)(8)(A)](i) or (ii).” 

5 U.S.C. § 2302(b)(9)(B). Performing union-related duties, such as filing 

grievances and representing other employees in the grievance process, are 

protected activities under section 2302(b)(9). See Wooten v. Department of 

Health & Human Services, 54 M.S.P.R. 143, 146 (1992), superseded on other 

grounds by statute as stated in Carney v. Department of Veterans Affairs, 

121 M.S.P.R. 446, ¶ 5 (2014). 

¶11 We also find that, under Wynn, the administrative judge should have 

apprised the appellant of the burdens to prove a prohibited personnel practice

under section 2302(b)(9)(B), and that he should have identified this defense in his 

prehearing conference summary. See Gath, 118 M.S.P.R. 124, ¶¶ 11-12. 

Consistent with the burdens of proof established by the WPEA discussed below, 

we remand this affirmative defense to the administrative judge for further 

adjudication.
7

The appellant’s affirmative defense under 5 U.S.C. § 2302(b)(9)(B) is subject to 

the standards set forth in 5 U.S.C. § 1221(e).

¶12 Under the WPEA, a prohibited personnel practice affirmative defense 

asserted in a chapter 75 appeal that independently could form the basis of an 

individual right of action (IRA) appeal must be analyzed under the 

burden-shifting scheme set forth in 5 U.S.C. § 1221(e). See 5 U.S.C. 

§ 1221(e)(1)-(2), (i) (subsections 1221(a)–(h) shall apply in chapter 75 appeals 

where a prohibited personnel practice under sections 2302(b)(8) and (b)(9)(A)(i), 

(B), (C), or (D) is alleged); Shibuya v. Department of Agriculture, 119 M.S.P.R. 

537, ¶¶ 19-20, 32 (2013). Importantly, the WPEA expanded the grounds on 

which an IRA appeal may be filed with the Board. See Hooker v. Department of 

Veterans Affairs, 120 M.S.P.R. 629, ¶ 9 (2014). Prior to the enactment of the 

WPEA, an appellant could only file an IRA appeal with the Board based on 

allegations of whistleblower reprisal under section 2302(b)(8). See Wooten, 

54 M.S.P.R. at 146. Following the WPEA’s enactment, however, an appellant 

also may file an IRA appeal with the Board concerning alleged reprisal based on 

certain other classes of protected activity as defined in 5 U.S.C. 

§ 2302(b)(9)(A)(i), (B), (C), and (D). See 5 U.S.C. § 1221(a); Hooker, 

120 M.S.P.R. 629, ¶ 9. Important to the allegations raised in this appeal, the

appellant may now file an IRA appeal with the Board under section 2302(b)(9)(B) 

alleging reprisal based on his lawfully assisting another individual in the exercise 

of any appeal, complaint, or grievance right granted by any law, rule, or 

regulation. 5

 See 5 U.S.C. § 1221(a); Carney, 121 M.S.P.R. 446, ¶ 5. 

 

5 Differing from section 2302(b)(9)(A)(i), which bars reprisal for an appellant’s 

personal exercise of any appeal, complaint, or grievance right granted by law, rule, or 

regulation concerning an alleged violation of section 2302(b)(8), section 2302(b)(9)(B) 

bars reprisal for assisting another individual in the exercise of any appeal, complaint, or 

grievance right granted by law, rule, or regulation, and such a proceeding need not 

concern remedying a violation of whistleblower reprisal under section 2302(b)(8). See

Carney, 121 M.S.P.R. 446, ¶ 6 n.3.
8

Accordingly, an affirmative defense of reprisal for participating in union 

grievance activity under section 2302(b)(9)(B) raised in a chapter 75 appeal must 

be analyzed under the burden-shifting standards set forth in section 1221(e). See

5 U.S.C. § 1221(a), (i); Hooker, 120 M.S.P.R. 629, ¶ 9; Shibuya, 119 M.S.P.R. 

537, ¶¶ 19-20, 32.

¶13 Because the appellant has alleged reprisal for activity allegedly covered by 

section 2302(b)(9)(B), on remand, the administrative judge must adjudicate this 

defense under the following framework. First, the administrative judge must 

determine whether the appellant has established by preponderant evidence that he 

was involved in protected activity under 2302(b)(9)(B). See Shibuya, 

119 M.S.P.R. 537, ¶ 20. An appellant can establish that he was involved in such 

protected activity by proving that he testified or assisted another employee in any 

appeal, complaint, or grievance right granted by any law, rule, or regulation. See

Carney, 121 M.S.P.R. 446, ¶ 5. Next, the administrative judge must determine 

whether the appellant’s participation in the protected activity was a contributing 

factor in the challenged personnel action at issue. See 5 U.S.C. 

§ 1221(e)(1)(A)-(B); Shibuya, 119 M.S.P.R. 537, ¶ 22. One way of proving that 

an appellant’s prior protected activity was a contributing factor in a personnel 

action is the “knowledge/timing” test. See Shibuya, 119 M.S.P.R. 537, ¶ 22. 

Under this test, an appellant can establish that his prior protected activity was a 

contributing factor in the challenged action by showing that the deciding official 

knew of the protected activity and took the personnel action within a period of 

time such that a reasonable person could conclude that the protected activity was 

a contributing factor in the action. 6

 See id. 

 

6 The Board also has found that an appellant may establish contributing factor by 

providing other evidence, such as that pertaining to the strength or weakness of the 

agency’s reasons for taking the personnel action, whether the protected activity was 

personally directed at the proposing or deciding officials, and whether those individuals 
9

¶14 If the appellant makes both of these showings by preponderant evidence, 

the burden of persuasion shifts to the agency to prove by clear and convincing 

evidence that it would have taken the same action in the absence of the 

appellant’s protected activity. 5 U.S.C. § 1221(e)(2); Shannon v. Department of 

Veterans Affairs, 121 M.S.P.R. 221, ¶ 24 (2014). In determining whether the 

agency has met this burden, the Board will consider all the relevant factors, 

including the following: (1) the strength of the agency’s evidence in support of 

its action; (2) the existence and strength of any motive to retaliate on the part of 

the agency officials involved in the decision; and (3) any evidence that the 

agency takes similar actions against employees who did not engage in such 

protected activity, but who are otherwise similarly situated. Carr v. Social 

Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). The Board does 

not view these factors as discrete elements, each of which the agency must prove 

by clear and convincing evidence, but rather weighs these factors together to 

determine whether the evidence is clear and convincing as a whole. Lu v. 

Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015). In assessing 

whether the agency has met its burden by clear and convincing evidence, the 

Board must consider all the pertinent evidence in the record, and it must not 

exclude or ignore countervailing evidence by only looking at the evidence that

supports the agency’s position. See Herman v. Department of Justice, 

119 M.S.P.R. 642, ¶ 15 (2013) (citing Whitmore v. Department of Labor, 

680 F.3d 1353, 1367-70 (Fed. Cir. 2012)).

¶15 The administrative judge cited the Warren standard for retaliation claims in 

both the prehearing summary and initial decision. IAF, Tab 20 at 1-2; ID at 13.7

 

 

had a motive to retaliate against the appellant. See Rumsey v. Department of Justice, 

120 M.S.P.R. 259, ¶ 26 (2013).

7 Under Warren, to prevail on a claim of retaliation, an appellant must show that: 

(1) he engaged in protected activity; (2) the accused official knew of the activity; 

(3) the adverse action under review could have been retaliation under the 
10

However, the Warren standard is inapplicable to claims that are subject to the 

burden-shifting framework set forth in 5 U.S.C. § 1221(e), such as the appellant’s 

allegation of reprisal for participating in union activity under 

section 2302(b)(9)(B). See 5 U.S.C. § 1221(e)(2). Although Warren has not 

been overruled by the Federal Circuit, the statutory changes of the WPEA 

significantly narrow the scope of cases to which it applies.

The administrative judge did not inform the appellant of the burdens of proof on 

his affirmative defenses, and the record does not demonstrate that the appellant 

abandoned or withdrew any of his affirmative defenses.

¶16 In his original prehearing conference summary and order, the 

administrative judge determined that the appellant had raised affirmative defenses 

of reprisal for whistleblowing and union activity. IAF, Tab 9. In a subsequent 

summary of a telephonic prehearing conference, however, the administrative 

judge indicated that the appellant only raised an affirmative defense of retaliation 

for EEO activity. IAF, Tab 20. The administrative judge did not explain this 

conclusion other than writing that “[i]t was determined that [the appellant’s] 

originally asserted whistleblowing retaliation claim pertained exclusively to his 

protected EEO activity.” Id. In that summary, the administrative judge did not 

refer to the appellant’s claim of retaliation for union activity. In the initial 

decision, the administrative judge noted that although the parties addressed other 

affirmative defenses besides retaliation for EEO activity in their closing briefs, he 

would not consider them because neither party filed an exception to his summary 

of telephonic prehearing conference. ID at 13 n.11. 

¶17 The record below does not reflect any intention by the appellant to abandon 

his whistleblower or union activity affirmative defenses. See, e.g., IAF, Tab 8 

at 7-9. The appellant, moreover, argued below that his removal violated due 

 

circumstances; and (4) there was a genuine nexus between the alleged retaliation and 

the adverse action. See Warren, 804 F.2d at 656-58. 
11

process. 8 Id. at 15-17. The administrative judge, however, did not acknowledge 

this argument in any of his orders or his initial decision. See generally ID; IAF, 

Tab 20. Because the appellant raised his affirmative defenses on appeal, under

Wynn, the administrative judge should have informed the appellant of the 

applicable burdens to prove such claims. See Gath, 118 M.S.P.R. 124, ¶¶ 11-12 

(remanding for notice of the burden to prove an affirmative defense of reprisal for 

union activity where there was no indication that the appellant withdrew or 

abandoned the claim); Hulett v. Department of the Navy, 120 M.S.P.R. 54, ¶ 10 

(2013) (remanding for notice of the burden to prove a due process violation). 

The administrative judge failed to notify the parties of their respective burdens as 

to the appellant’s affirmative defense claims. Under these circumstances, we 

cannot conclude that the appellant’s failure to file an exception to the 

teleconference summary was fatal to his affirmative defenses and we find it

appropriate to remand all of the affirmative defenses raised by the appellant to 

the administrative judge for an explanation of the applicable burdens of proof 

under Wynn.

ORDER

¶18 Based on the foregoing, we REMAND the appellant’s affirmative defenses 

of reprisal for union activity, reprisal for whistleblowing, and due process 

violations to the administrative judge for further adjudication consistent with the 

standards discussed above. On remand, the administrative judge should apprise 

the appellant of the different burdens of proof he must meet to prove his defenses, 

 

8 There are several types of due process violations. Among the most commonly alleged 

are those concerning a biased deciding official, a lack of notice and a meaningful 

opportunity to respond, and a decision maker’s consideration of ex parte information. 

See, e.g., Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985); Lange 

v. Department of Justice, 119 M.S.P.R. 625, ¶¶ 8-9 (2013). We leave it to the 

administrative judge to determine the nature of the appellant’s due process claim in the 

first instance.
12

afford the parties an additional opportunity to conduct discovery on these issues, 

and hold a supplemental hearing addressing these defenses, if requested. If the 

appellant does not prevail on any of the affirmative defenses on remand, the 

administrative judge may adopt his prior findings concerning the agency’s

charges, nexus, and the reasonableness of the appellant’s removal in his remand 

initial decision. See Viana v. Department of the Treasury, 114 M.S.P.R. 659, ¶ 8

(2010).

FOR THE BOARD:

______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.