UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2015 MSPB 51

Docket Nos. AT-0752-11-0634-I-2

 AT-1221-12-0591-W-1

Tommie G. Savage,

Appellant,

v.

Department of the Army,

Agency.

September 3, 2015

Felipe Bohnet-Gomez and Michael D. Kohn, Esquire, Washington, D.C., 

for the appellant.

Nancy Washington Vaughn and Ryan Andrew Black, Huntsville, Alabama, 

for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

OPINION AND ORDER

¶1 The appellant has petitioned for review of the February 7, 2014 initial 

decision that affirmed her removal and the February 6, 2014 initial decision that 

granted in part her request for corrective action under the Whistleblower 

Protection Act (WPA). For the reasons discussed below, we JOIN the two 

appeals 1 and REMAND the joined appeal for further adjudication.

 

1 Joinder of two or more appeals filed by the same appellant is appropriate where doing 

so would expedite case processing and will not adversely affect the parties’ interests. 
2

BACKGROUND

¶2 The appellant formerly was employed as a Contract Specialist with the U.S. 

Army Engineer and Support Center in Huntsville, Alabama. From 1993, when 

she began full-time employment, through 2006, she received excellent 

performance ratings and was promoted regularly. Savage v. Department of the 

Army, MSPB Docket No. AT-0752-11-0634-I-2, Refiled Appeal File (RAF), 

Tab 64, Exhibits (Exs.) A-P, AD. In 2006, she was designated as the contracting 

officer for the “Ranges Program,” which generally concerns the design and 

implementation of agency training facilities. See RAF, Tab 13 at 4. 

¶3 Beginning in late 2006, and continuing into 2007, the appellant reported 

what she claimed were illegal and improper contracting activities in the Ranges 

Program. RAF, Tab 64, Exs. AE, AG. These disclosures mainly involved 

allegations that a contractor employee (F.H.) was making key contracting 

decisions that should have been made by government officials, particularly 

program manager M.F. Essentially, the appellant claimed that a close personal 

relationship between F.H. and M.F. constituted a conflict of interest that 

explained and accounted for the liberties that F.H. was permitted within the 

Ranges Program. See id. The appellant’s disclosures were a factor in the 

initiation of several command-directed inquiries into the Ranges Program, 

including an internal audit that resulted in a May 24, 2007 draft report, which 

essentially validated the appellant’s legal concerns, as well as an Army 

Regulation (AR) 15-6 investigation that resulted in a written report dated 

August 9, 2007. Id., Exs. AK, EQ. The latter report identified the appellant by 

name as a source of the allegations of wrongdoing. Id., Ex. EQ at 14.

¶4 Meanwhile, in June 2007, the appellant filed a formal equal employment 

opportunity (EEO) complaint, in which she alleged, inter alia, that she had been 

 

Davis v. U.S. Postal Service, 119 M.S.P.R. 22, ¶ 1 n.1 (2012); 5 C.F.R. § 1201.36(a), 

(b). We find that these criteria are satisfied here. 
3

subjected to harassment and a hostile work environment because of her race and 

sex. See RAF, Tab 64, Ex. BE. On October 17, 2007, the appellant and the 

agency entered into a negotiated settlement agreement that resolved the EEO 

complaint and provided, inter alia, that the appellant would be reassigned “to a 

position comparable with her current grade and salary” with the agency’s Small 

Business Office in Huntsville. Id. Effective November 11, 2007, the appellant 

was reassigned, with no reduction in pay, from her YC-1102-02 Supervisory 

Contract Specialist position to a nonsupervisory YA-1102-02 Contract Specialist 

position with the Small Business Office. Id., Exs. BE, BG. Subsequently, in 

December 2007, the appellant received a performance appraisal with an overall 

rating of 3 out of 5, far less favorable than her previous appraisals. RAF, Tab 52,

Ex. EC; see RAF, Tab 64, Exs. A-H, K-P, AD. 

¶5 Beginning in June 2008, the appellant made additional disclosures 

concerning what she believed to be a violation of Federal acquisition regulations 

in the office’s failure to utilize DD Form 2579, Small Business Coordination 

Record. On August 17, 2008, the appellant and her new first-level supervisor, 

Deputy Commander D.B., had a heated discussion concerning the DD Form 2579

issue. The following day, August 18, 2008, the appellant visited a psychologist, 

Dr. B.M., who recommended an 8-week leave of absence due to “intensifying 

depression, anxiety and work[] caused stress.” RAF, Tab 8, Subtab 4hh. D.B.

granted the appellant’s request for leave through October 20, 2008. Id., 

Subtabs 4ff-4gg. 

¶6 On October 18, 2008, Dr. B.M. recommended that the appellant’s leave of 

absence be extended until December 22, 2008. Id., Subtab 4ee. D.B. initially 

denied the appellant’s additional leave request, but after requesting and receiving 

additional documentation from Dr. B.M., he granted the request for sick leave 

until December 5, 2008. Id., Subtabs 4z-4cc. The appellant then submitted a 

leave request under the Family and Medical Leave Act (FMLA), with a 

certification from Dr. B.M. Id., Subtab 4x. D.B. granted the appellant’s request 
4

for FMLA leave from December 8, 2008, through March 5, 2009. Id., Subtab 4w. 

Meanwhile, in December 2008, D.B. issued the appellant a performance 

appraisal, with an overall rating of 3 out of 5. RAF, Tab 52, Ex. EB.

¶7 By letter dated March 4, 2009, Dr. B.M. recommended that the appellant’s 

return-to-work date tentatively be changed from March 5, 2009, to May 4, 2009, 

and the appellant requested an additional leave of absence in accordance with 

those instructions. RAF, Tab 8, Subtabs 4u-4v. By letter dated March 5, 2009, 

D.B. denied the request in large part, but approved the appellant’s use of accrued 

sick leave through noon on March 12, 2009. Id., Subtab 4t. On March 11, 2009, 

the appellant requested advanced sick leave through May 4, 2009. Id., Subtab 4s. 

That same day, D.B. denied the request, citing the appellant’s “previous inability 

to return to work according to [her] psychologist’s estimates.” Id., Subtab 4r. 

However, D.B. noted that he had miscalculated the appellant’s annual leave 

balance and informed her that she was expected to return to work at noon on 

March 26, 2009, when all of her accrued leave was exhausted. Id. The appellant 

requested reconsideration and submitted a March 13, 2009 letter from Dr. B.M., 

who again recommended a return date of May 4, 2009. Id., Subtabs 4p-4q. D.B.

again denied the appellant’s request. Id., Subtab 4o. The appellant then made a 

request for leave without pay (LWOP), which D.B. also denied, again noting that 

Dr. B.M. had already provided multiple return dates and that the appellant had 

not been able to return to work on any of those dates. Id., Subtabs 4n-4o. On

April 3, 2009, D.B. informed the appellant that her leave was exhausted and that 

she therefore would be placed in an absence without leave (AWOL) status 

effective March 27, 2009. Id., Subtab 4l. The effective date of her AWOL status 

was later changed to April 2, 2009, to reflect the final sick and annual leave hours

she had accrued. Id., Subtab 4d.

2

 

 

2 On April 22, 2009, the appellant filed an appeal with the Board’s regional office 

contesting the agency’s decision to place her on AWOL status. That appeal was 
5

¶8 On April 3, 2009, the appellant filed another formal EEO complaint, in 

which she alleged that she had been subjected to a hostile work environment, 

based on reprisal for the settled 2007 EEO complaint, as well as another EEO 

complaint she had filed in 2008. See Savage v. Department of the Army, MSPB 

Docket No. AT-0752-11-0634-I-1, Initial Appeal File (I-1 IAF), Tab 4. She 

named D.B. as the discriminating official and cited his denial of her request for 

LWOP, among other alleged retaliatory actions. Id. The agency ultimately 

issued a final agency decision (FAD) finding no discrimination as to the 

allegations in her April 3, 2009 complaint. Id. 

¶9 In a May 6, 2009 letter, Dr. B.M. related that the appellant briefly reported 

to work on May 4, 2009, but became physically ill and left after approximately an 

hour. RAF, Tab 8, Subtab 4k. Based on that incident, Dr. B.M. recommended 

September 1, 2009, as a new tentative return-to-work date. Id. In an email dated 

May 11, 2009, the appellant submitted a copy of the May 4 letter from Dr. B.M.

and requested that her AWOL status be converted to LWOP or advanced sick 

leave. Id., Subtab 4j. In response to that request, D.B. asked for additional 

information from Dr. B.M. and also scheduled the appellant for an appointment 

with a second psychologist, Dr. J.H. Id., Subtabs 4h-4i. Dr. B.M. did not 

respond to D.B.’s request. The appellant met with Dr. J.H. on July 8, 2009, and 

in a memorandum dated July 19, 2009, Dr. J.H. opined that it was unlikely that 

the appellant would be able to return to her job in the next 6 to 12 months. Id., 

Subtab 4g. He further stated, “There is considerable doubt in the mind of the 

undersigned that she will ever return to the currently assigned workplace, but 

continued treatment might be helpful in bringing that about or assisting [the 

appellant] to the point that she could work for the Corps in some other capacity.” 

Id. 

 

dismissed for lack of jurisdiction. Savage v. Department of the Army, MSPB Docket 

No. AT-3443-09-0577-I-1, Initial Decision (Aug. 12, 2009).
6

¶10 By notice dated September 14, 2009, D.B. proposed to remove the 

appellant based on three charges: (1) AWOL; (2) Excessive Absences; and 

(3) Unavailability to Report for Duty with No Foreseeable End. RAF, Tab 8, 

Subtab 4d. The appellant did not respond to the notice. By letter dated 

November 3, 2009, the deciding official, Colonel N.T., removed the appellant 

effective November 6, 2009. Id., Subtab 4b. The appellant filed another formal 

EEO complaint concerning her removal, and on April 8, 2011, the agency issued 

a FAD finding no discrimination. Id., Subtab 3. 

¶11 The appellant filed a timely appeal of her removal on May 6, 2011. I-1 

IAF, Tab 1. In her appeal, she contended that her removal was the ultimate result 

of the agency creating a hostile work environment where she could not perform 

her duties and responsibilities, which in turn led to her extended absences. Id. 

She further contended that the hostile work environment was created following 

the settlement of her June 2007 EEO complaint. Id. In September 2011, she 

requested that her appeal be dismissed without prejudice to allow her additional 

time to file a whistleblowing retaliation complaint with the Office of Special 

Counsel (OSC). I-1 IAF, Tab 20. The administrative judge granted her request 

and dismissed the appeal without prejudice to refiling. I-1 IAF, Tab 22, Initial 

Decision.

¶12 On October 11, 2011, the appellant filed a complaint with OSC. See RAF,

Tab 1; Savage v. Department of the Army, MSPB Docket No. AT-1221-12-0591-

W-1, (W-1) File, Tab 1. In her complaint, she alleged that agency officials had 

taken various personnel actions, including her removal, in retaliation for

reporting contract fraud to auditors, investigators, the Federal Bureau of 

Investigation, and the Criminal Investigation Command, and for participating in 

the AR 15-6 investigation. See W-1 File, Tab 1. By letter dated May 27, 2012, 

OSC notified the appellant that it had closed its investigation and informed her of 

her right to file an individual right of action (IRA) appeal with the Board. Id. 
7

¶13 Subsequently, the appellant filed a timely IRA appeal and also refiled her 

removal appeal. Id. The administrative judge joined the two appeals for hearing. 

RAF, Tab 3. In the IRA appeal, the administrative judge determined that the 

appellant had established jurisdiction concerning the following personnel actions

taken against her: (1) the November 2007 reassignment; (2) the December 2007 

performance appraisal; (3) the failure to confer a monetary award to her

following a Small Business Office conference in 2008; (4) the December 2008 

performance appraisal; (5) the refusal to extend her return-to-work date in 

March 2008; (6) the denial of her advanced sick leave request in March 2008; 

(7) the denial of her LWOP request in March 2008; and (8) an alleged 

constructive suspension based on the creation of a hostile work environment that 

compelled her to be absent from work from mid-August 2008, until her removal 

in November 2009. RAF, Tab 55. In the removal appeal, the appellant raised 

affirmative defenses of retaliation for protected whistleblowing activity, 

retaliation for protected EEO activity, and discrimination based on race

(African-American), sex (female), and disability. Id. 

¶14 Following a hearing on December 10 and 11, 2012, the administrative 

judge issued separate initial decisions in the IRA and removal appeals. In the 

IRA appeal, the administrative judge determined that the appellant had made 

protected disclosures concerning the Ranges Program, and also had shown that 

they were a contributing factor in all personnel actions at issue, except for the 

alleged constructive suspension. W-1 File, Tab 6, Initial Decision (W-1 ID) 

at 6-13. He noted that the appellant also had alleged a protected disclosure 

concerning the DD Form 2579, but found that she had not exhausted her OSC 

remedy regarding that disclosure. W-1 ID at 8. The administrative judge then 

found that the agency had shown by clear and convincing evidence that it would 

have taken some of the alleged retaliatory actions in the absence of the 

appellant’s whistleblowing activity, but had failed to meet that burden as to the 

December 2007 and December 2008 performance evaluations, and the failure to 
8

provide a monetary award for the appellant’s participation in a Small Business 

Office conference. W-1 ID at 13-21. Finally, the administrative judge concluded 

that the appellant had failed to establish that she was constructively suspended. 

W-1 ID at 21-24. 

¶15 In the removal appeal, the administrative judge sustained all three charges

and found that the agency had met its burden of proof regarding nexus and 

penalty. RAF, Tab 71, Initial Decision (RAF ID) at 4-12. He further found that 

the appellant had failed to establish her affirmative defenses. RAF ID at 12-18.

Accordingly, the administrative judge sustained the removal action. RAF ID 

at 18. The appellant filed timely petitions for review of both initial decisions. 

Savage v. Department of the Army, MSPB Docket No. AT-0752-11-0634-I-2, 

Petition for Review File, Tab 5; Savage v. Department of the Army, MSPB 

Docket No. AT-1221-12-0591-W-1, Petition for Review (W-1 PFR) File, Tab 5.

ANALYSIS

MSPB Docket No. AT-1221-12-0591-W-1

The appellant’s constructive suspension claim is remanded for further 

adjudication as a chapter 75 appeal.

¶16 On petition for review, the appellant contends that the administrative judge 

erred in requiring her to establish OSC exhaustion concerning her constructive 

suspension claim. W-1 PFR File, Tab 1 at 20. In support of her argument, she 

cites Covarrubias v. Social Security Administration, 113 M.S.P.R. 583 (2010), 

overruled by Colbert v. Department of Veterans Affairs, 121 M.S.P.R. 677

(2014), in which we held that an IRA appeal is limited to alleged personnel 

actions that are not otherwise appealable to the Board and that the involuntary 

retirement claim raised by the appellant in that case therefore was outside the 

scope of her IRA appeal. Id., ¶ 9 n.2. She reasons that, under Covarrubias, her 

constructive suspension claim is subject to chapter 75 jurisdictional standards, 

rather than the jurisdictional standards for IRA appeals, and that it is unnecessary 
9

to prove OSC exhaustion to establish an affirmative defense of whistleblowing 

retaliation in an adverse action appeal. 

¶17 While the appellant’s reasoning was sound when she filed her petition for 

review, Covarrubias has since been overruled. Colbert, 121 M.S.P.R. 677, ¶ 12

n.5. The holding of Covarrubias was based on our previous decision in 

Massimino v. Department of Veterans Affairs, 58 M.S.P.R. 318 (1993), abrogated 

by 5 U.S.C. § 7121(g), in which we held that when an individual who was 

affected by an action that is directly appealable to the Board files a whistleblower 

retaliation complaint with OSC, the jurisdictional basis for a subsequent appeal to 

the Board is the “true nature” of the agency’s action. Id. at 322-23. After 

Covarrubias was issued, however, we recognized that Massimino had been

abrogated by the 1994 amendments to the WPA, in particular, the new section at 

5 U.S.C. § 7121(g). See Agoranos v. Department of Justice, 119 M.S.P.R. 498, 

¶ 18 (2013). Under 5 U.S.C. § 7121(g), an employee who claims to have suffered 

whistleblowing reprisal regarding an action may elect no more than one of the 

following remedies: a direct appeal to the Board; a negotiated grievance 

procedure pursuant to 5 U.S.C. § 7121; or a request for corrective action under 

5 U.S.C. chapter 12, subchapters II and III, i.e., an OSC complaint, potentially to 

be followed by an IRA appeal. Ordinarily, an individual who first requests 

corrective action from OSC will be deemed to have made a binding election to 

proceed in that forum. 5 U.S.C. § 7121(g)(4)(C). In such a case, the

jurisdictional requirements for an IRA appeal apply, even if the contested 

personnel action would have been directly appealable to the Board. See 

Agoranos, 119 M.S.P.R. 498, ¶ 14. This principle applies equally to alleged 

constructive actions. See Colbert, 121 M.S.P.R. 677, ¶ 12 n.5. 

¶18 However, we also have held that an election under 5 U.S.C. § 7121(g) is 

binding only if made knowingly and voluntarily. Agoranos, 119 M.S.P.R. 498, 

¶ 16. Here, neither the agency, nor the administrative judge, advised the 

appellant that contesting her alleged constructive suspension in an OSC complaint 
10

would preclude a subsequent chapter 75 appeal before the Board. See id., ¶ 18. 

Moreover, while the express language of 5 U.S.C. § 7121(g) negates Massimino

and Covarrubias, the Board had not yet recognized this when the OSC complaint 

was filed, and the appellant and her attorney could have reasonably relied on 

those cases. See Agoranos, 119 M.S.P.R. 498, ¶¶ 17-18.

3

 We therefore find that 

the appellant’s decision to contest her alleged constructive suspension before 

OSC was not a binding election and did not preclude her from filing an adverse 

action appeal before the Board. Because the appellant has expressly indicated 

that she wishes for her constructive suspension claim to be adjudicated outside 

the scope of her IRA appeal, we will consider her claim as an adverse action 

appeal under chapter 75.

¶19 Like involuntary resignations, removals, and reductions in pay or grade, 

involuntary leaves of absence may be appealable under chapter 75. Bean v. U.S. 

Postal Service, 120 M.S.P.R. 397, ¶ 8 (2013). The Board has found jurisdiction 

over constructive suspensions in a variety of situations. See Brown v. U.S. Postal 

Service, 115 M.S.P.R. 88, ¶ 8 (2010). Although various fact patterns may give 

rise to an appealable constructive suspension, all constructive suspension claims 

(and indeed all constructive action claims), have two things in common: 

(1) the employee lacked a meaningful choice in the matter; and (2) it was the 

agency’s wrongful actions that deprived the employee of that choice. Bean, 

120 M.S.P.R. 397, ¶ 8. Assuming that the jurisdictional requirements of a 

 

3 The administrative judge also appears not to have recognized the effect of 5 U.S.C. 

§ 7121(g), as evidenced by his decision to dismiss the removal appeal without prejudice 

to permit the appellant to file an OSC complaint. Ordinarily, under 5 U.S.C. § 7121(g), 

the appellant’s removal would not have been properly before OSC, as she had already 

appealed it to the Board. To the extent the administrative judge may have erred in 

granting the appellant’s request for dismissal without prejudice, or to the extent OSC 

may have erred in including the removal in the scope of its investigation, these errors 

have no effect on the outcome of this appeal. 
11

chapter 75 appeal are otherwise met, as is the case here, proof of these two things 

is sufficient to establish Board jurisdiction. Id.

¶20 Here, the appellant alleges that her absences beginning on August 18, 2008,

were the result of psychological damage caused by intolerable working 

conditions. To establish jurisdiction over a constructive suspension on the basis 

of intolerable working conditions, an appellant must show that a reasonable 

person would have felt compelled to absent herself under the conditions and that 

the agency was culpable for these conditions. Peoples v. Department of the Navy, 

83 M.S.P.R. 216, ¶ 5 (1999). Because no employee is entitled to leave work and 

remain absent without explanation, the appellant must inform the agency of the 

existence of the objectionable conditions and request assistance or remediation 

from the agency. Id., ¶ 8. The agency also must be notified of the specific nature 

of the conditions and the employee’s inability to cope with them before the 

agency can be expected to investigate, attempt remediation of the conditions if 

necessary, or to consider finding other duties or positions for the employee 

pending resolution of the complaint. Id., ¶ 9. 

¶21 Here, the administrative judge concluded that, because the appellant did 

not request reassignment as a reasonable accommodation for her medical 

restrictions, she had a meaningful choice as to her absences, and therefore had not 

been constructively suspended. W-1 ID at 24. However, a medical absence may 

be attributable to intolerable working conditions regardless of whether the 

employee subsequently requests accommodation under the Rehabilitation Act. If

the conditions are such that a reasonable person would feel compelled to absent 

herself, and the agency is culpable for those conditions, to constitute a 

nonfrivolous allegation of involuntary absence from duty, it is sufficient for the 

appellant to notify the agency that she is medically incapable of returning to duty 

in her current work environment. See Peoples, 83 M.S.P.R. 216, ¶ 11. 

¶22 Accordingly, we remand the appellant’s constructive suspension claim for 

adjudication as a chapter 75 appeal under the standard set forth in Peoples. If the 
12

administrative judge finds that the appellant suffered a constructive suspension, 

he should consider not only whether the appellant received due process 

concerning that action, but also whether it was taken in retaliation for 

whistleblowing activity, including the DD Form 2579 disclosure. See Jenkins v. 

Environmental Protection Agency, 118 M.S.P.R. 161, ¶ 13 (2012) (finding that 

reversal of removal action on due process grounds did not render the appeal moot

where the appellant could obtain further relief based on her whistleblowing 

reprisal claim). 

The appellant’s claim of a hostile work environment is an alleged personnel 

action.

¶23 Regardless of whether the appellant establishes that her absences amounted 

to a constructive suspension, the creation of a hostile work environment is itself a 

personnel action for purposes of the WPA. The statute defines “personnel action” 

to include, among other listed actions, “any other significant change in duties, 

responsibilities, or working conditions.” 5 U.S.C. § 2302(a)(2)(A)(xii). The 

legislative history of the 1994 amendment to the WPA indicates that the term 

“any other significant change in duties, responsibilities, or working conditions” 

should be interpreted broadly, to include “any harassment or discrimination that 

could have a chilling effect on whistleblowing or otherwise undermine the merit 

system.” Roach v. Department of the Army, 82 M.S.P.R. 464, ¶ 24 (1999) 

(quoting 140 Cong. Rec. H11, 421 (daily ed. Oct. 7, 1994) (statement of Rep. 

McCloskey)). Although the appellant alleged before both OSC and the Board 

that the agency subjected her to a hostile work environment in retaliation for her 

protected disclosures concerning the Ranges Program, the administrative judge

did not address that alleged personnel action, except to the extent it also was

implicated in the appellant’s constructive suspension claim. Accordingly, the 

administrative judge should determine on remand whether the appellant 

established prohibited whistleblowing retaliation regarding the alleged creation of 

a hostile work environment. 
13

Further adjudication is needed to determine whether the agency established by 

clear and convincing evidence that it would have taken the remaining actions in 

the absence of the appellant’s whistleblowing activity.

¶24 The administrative judge found that, while the appellant’s protected 

disclosures were a contributing factor in the remaining personnel actions, the 

agency established by clear and convincing evidence that it would have taken 

some, but not all, of those actions in the absence of her whistleblowing activity. 

Specifically, the administrative judge found that the agency met its burden as to 

the appellant’s November 2007 reassignment, 4 the refusal to extend her 

return-to-work date in March 2009, the refusal to grant advanced sick leave in 

March 2009, and the refusal to grant LWOP in March 2009. See W-1 ID 

at 14-15, 18-21. For the reasons discussed below, we find that the administrative 

judge’s analysis of the clear and convincing standard in these actions was 

incomplete.

¶25 In determining whether an agency has shown by clear and convincing 

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

whistleblowing, the Board will consider the following factors: the strength of the 

agency’s evidence in support of its action; the existence and strength of any 

 

4 The appellant describes her reassignment as a “constructive demotion,” on the theory 

that she entered the settlement agreement of her EEO claim without knowing that she 

would be reassigned to a nonsupervisory position with a lower pay cap. See RAF, 

Tab 52, Exs. EB-EC; RAF, Tab 64, Ex. BG. However, neither a reduction in 

responsibility, nor a possible loss of future pay, constitutes an appealable demotion, 

constructive or otherwise. McEnery v. Merit Systems Protection Board, 963 F.2d 1512, 

1514-15 (Fed. Cir. 1992). The constructive demotion doctrine is limited to cases in 

which the employee: (1) was reassigned from a position which, due to issuance of a 

new classification standard or correction of a classification error, was worth a higher 

grade; (2) met the legal and qualification requirements for promotion to the higher 

grade; and (3) was permanently reassigned to a position classified at a grade level lower 

than the grade level to which she would otherwise have been promoted. Russell v. 

Department of the Navy, 6 M.S.P.R. 698, 711 (1981); see Hogan v. Department of the 

Navy, 218 F.3d. 1361, 1364 (Fed. Cir. 2000). These elements are not present here. 

Nonetheless, a reassignment is a personnel action for purposes of the WPA. See 

5 U.S.C. § 2302(a)(2)(A)(iv). 
14

motive to retaliate on the part of the agency officials who were involved in the 

decision; and any evidence that the agency takes similar actions against 

employees who are not whistleblowers but who are otherwise similarly situated. 

Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). 

Our reviewing court has further clarified that “[e]vidence only clearly and 

convincingly supports a conclusion when it does so in the aggregate considering 

all the pertinent evidence in the record, and despite the evidence that fairly 

detracts from that conclusion.” Whitmore v. Department of Labor, 680 F.3d 

1353, 1368 (Fed. Cir. 2012). 

¶26 In finding that the agency met its burden as to the appellant’s 

November 2007 reassignment, the administrative judge relied entirely on his 

finding that the reassignment was consistent with the terms of the October 2007 

settlement agreement. W-1 ID at 13-14. The record reflects that the agency 

complied with the agreement insofar as it provided for the appellant’s

reassignment “to a position comparable with her current grade and salary” with 

the Small Business Office. RAF, Tab 64, Ex. BE. However, that fact alone does 

not amount to clear and convincing evidence that the agency would have effected 

that particular reassignment—which resulted in the removal of the appellant’s 

supervisory duties and a reduction in pay cap—in the absence of her 

whistleblowing activity. To determine whether that is so, it is necessary to 

consider evidence beyond the settlement agreement, including evidence, if any, 

tending to show that the agency would have otherwise effected another 

reassignment consistent with the agreement. See Whitmore, 680 F.3d at 1368.

¶27 Regarding the agency’s refusal in March 2009, to extend the appellant’s 

return-to-work date or grant her requests for advanced sick leave or LWOP, the 

administrative judge again relied solely on evidence tending to support the 

agency’s actions. W-1 ID at 18-21. It is true that these actions may have been 

reasonable, given the appellant’s failure to return to work on the previous dates 

projected by Dr. B.M. However, in determining whether the agency would have 
15

taken the actions in the absence of the whistleblowing activity, the administrative 

judge did not consider the possibility that the appellant’s extended absences 

might never have occurred but for the agency’s alleged retaliatory actions in 

creating a hostile work environment. See Whitmore, 680 F.3d at 1376. On

remand, the administrative judge should consider this possibility and examine any 

supporting evidence. See id. 

MSPB Docket No. AT-0752-11-0634-I-2

Charges

¶28 As to the AWOL charge, is undisputed that the appellant was absent on all 

the dates and for all the hours for which she was charged AWOL and that the 

agency did not authorize those absences. However, where an employee has 

requested leave to cover her absences, an AWOL charge will be sustained only if 

the agency establishes that her requests were properly denied. Ferguson v. 

Department of the Navy, 43 M.S.P.R. 143, 144 (1990). 5 If the employee 

requested LWOP for the periods when she was placed in an AWOL status, the 

Board will examine the record as a whole to determine if the denial of LWOP was 

reasonable under the circumstances. Joyner v. Department of the Navy, 

57 M.S.P.R. 154, 159 (1993). 

¶29 Ordinarily, when an employee who is incapacitated for duty has exhausted 

all of her leave, an agency may properly deny her LWOP request where there is 

no foreseeable end in sight to her absences and where those absences are a burden 

 

5 To prove an AWOL charge, an agency must establish “that the employee was absent, 

and that his absence was not authorized or that his request for leave was properly 

denied.” Little v. Department of Transportation, 112 M.S.P.R. 224, ¶ 6 (2009) 

(emphasis added); see Wesley v. U.S. Postal Service, 94 M.S.P.R. 277, ¶ 14 (2003) 

(same). Read literally, this phrasing would suggest that an agency could prove an

AWOL charge merely by showing that it did not authorize the employee’s absences, 

even if the employee made a request for leave that was not properly denied. This is not 

the case. See Ferguson, 43 M.S.P.R. at 144. More precisely, to prove an AWOL 

charge, an agency must demonstrate that the employee was absent without authorization 

and, if the employee requested leave, that the request was properly denied. 
16

on the agency. Id. In this case, however, the appellant contends that she was 

constructively suspended during the period she was charged with AWOL. If so, 

this would entail not only that she had no meaningful choice concerning those 

absences, but also that her lack of choice was the result of the agency’s wrongful 

actions. See Bean, 120 M.S.P.R. 397, ¶ 8. We find that it would be inherently 

unreasonable for an agency to deny LWOP to cover absences for which the 

agency was culpable. Accordingly, should the administrative judge determine on 

remand that the appellant was constructively suspended during the period for 

which she was charged AWOL, the charge must be reversed. 

¶30 We next turn to the charge of excessive absences. In the specification 

under that charge, the agency cited the entire period of the appellant’s absences

from August 18, 2008, through August 14, 2009. These absences include 

1,192 hours of approved leave, of which 480 were covered by the FMLA, as well 

as the 800 AWOL hours with which she was separately charged. RAF, Tab 9, 

Subtab 4d. As a general rule, an agency may not take an adverse action based on 

an employee’s use of approved leave. Bair v. Department of Defense, 

117 M.S.P.R. 374, ¶ 5 (2012). However, an exception may exist where the 

following criteria are met: (1) the employee was absent for compelling reasons 

beyond her control so that agency approval or disapproval of leave was 

immaterial because she could not be on the job; (2) the absences continued 

beyond a reasonable time, and the agency warned the employee that an adverse 

action could be taken unless she became available for duty on a regular full-time 

or part-time basis; and (3) the agency showed that the position needed to be filled 

by an employee available for duty on a regular, full-time or part-time basis. Cook

v. Department of the Army, 18 M.S.P.R. 610, 611-12 (1984). This exception is 

applicable only under unusual circumstances, i.e., where the employee is unable 

to return to duty because of the continuing effects of illness or injury. Id. In 

addition, we have held that an employee may not be disciplined for use of leave 
17

covered by the FMLA. McCauley v. Department of the Interior, 116 M.S.P.R. 

484, ¶ 11 (2011). 

¶31 Of the 1,192 hours of approved leave cited in the proposal notice, 

480 hours were covered by the FMLA, and therefore cannot support the charge. 

See id. As for the remainder, we find that the agency failed to establish element 

(2) of the Cook exception. The record reflects that D.B. notified the appellant on 

several occasions that failure to come to work when not in an approved leave 

status would result in her placement in an AWOL status, which in turn could lead 

to an adverse action. RAF, Tab 8, Subtabs 4m, 4o, 4r. Yet, it was not until 

April 3, 2009, that D.B. warned the appellant that she could be removed not only 

for AWOL, but also for “excessive absenteeism,” which might be understood to 

include approved leave. Id., Subtab 4l. That warning came too late, though, for

by then the agency had ceased to approve additional leave, and the appellant was 

in an AWOL status in any event. Under these circumstances, we find that the 

appellant did not receive the notice required for the Cook exception to apply. See

Fox v. Department of the Army, 120 M.S.P.R. 529, ¶ 32 (2014). Thus, the 

excessive absences charge cannot be sustained as to any of her approved 

absences. 

¶32 Regarding the 800 hours of AWOL, it has been suggested in dicta that 

periods of AWOL may be included in a charge of excessive absences. McCauley, 

116 M.S.P.R. 484, ¶ 10. 6

 However, while it is true that AWOL is a type of 

absence, the Cook holding was based on provisions of the Federal Personnel 

Manual (FPM) specifically concerned with excessive use of approved leave. See 

Cook, 18 M.S.P.R. at 611-12. Although the FPM was abolished in 1993, the 

Cook holding has survived for decades since, and we see no grounds for revising 

 

6 The excessive absences charge in McCauley did not include the AWOL periods with 

which the appellant in that case was separately charged. McCauley, 116 M.S.P.R. 484, 

¶ 2. 
18

it now. Accordingly, to the extent that periods of AWOL are included within a 

charge of excessive absences, we will not consider those periods under the Cook

standard, but instead will consider them as an AWOL charge. Here, the 

800 AWOL hours cited in the excessive absences charge, when construed as a 

charge of AWOL, are entirely duplicative of the first charge, and we therefore 

give them no further consideration. In sum, the second charge is not sustained. 

¶33 In addressing the agency’s final charge, unavailability for duty with no 

foreseeable end, the administrative judge again stated the Cook elements. See 

RAF ID at 9. This is understandable, as the term “unavailability for duty” may 

suggest a charge of excessive absences, to which the Cook standard would apply. 

See Edwards v. Department of Transportation, 109 M.S.P.R. 579, ¶ 14 (2008).

However, after reviewing the proposal notice and decision letter, we conclude

that the third charge was not based on the appellant’s past absences, but rather 

her continuing inability to return to work. See id. 

¶34 An agency may remove an employee if she is unable, because of a medical 

condition, to perform the duties of her position. Id., ¶ 15. In finding removal 

warranted based on an employee’s inability to work due to incapacitation, the 

Board has relied on the absence of any foreseeable end to the unavailability. Id., 

¶ 17. Here, it is undisputed that the appellant was medically unable to return to 

the workplace. Furthermore, considering the appellant’s repeated failure to 

return to work on the dates projected by Dr. B.M., and Dr. J.H.’s doubt that she 

would ever return to work in the same capacity, we find that the agency has 

shown by preponderant evidence that there was no foreseeable end to the 

appellant’s medical inability to perform her duties. The third charge therefore is 

sustained. 

Title VII Claims

¶35 The appellant contends that the agency removed her based on race and sex 

discrimination and in retaliation for her protected EEO activity, including the 

April 2009 complaint in which she named D.B. as the discriminating official. 
19

I-1 IAF, Tab 4. During the pendency of this appeal, the U.S. Supreme Court 

issued its decision in University of Texas Southwestern Medical Center v. Nassar, 

133 S. Ct. 2517, 2534 (2013), in which it held that a plaintiff claiming prohibited 

retaliation under 42 U.S.C. § 2000e-3(a) must show that the contested personnel 

action would not have occurred but for the retaliatory motive. The administrative 

judge did not address Nassar in the initial decision, and the Board has not yet 

issued a precedential decision addressing the possible effect of Nassar on our 

proceedings. Accordingly, we take this opportunity to clarify the standards and 

procedures governing our adjudication of Title VII claims, including (but not 

limited to) retaliation.

42 U.S.C. § 2000e-16 prohibits retaliation as well as status-based 

discrimination.

¶36 The Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, 

86 Stat. 111 (1972), extended Title VII to cover Federal employment, adding a 

new section 717, codified at 42 U.S.C. § 2000e-16. The basic anti-discrimination 

standard for Federal employment is set forth at subsection (a), which broadly 

provides that personnel actions taken by Federal agencies “shall be made free 

from any discrimination based on race, color, religion, sex, or national origin.” 

42 U.S.C. § 2000e-16(a); see West v. Gibson, 527 U.S. 212, 214 (1999). The 

courts, the Equal Employment Opportunity Commission (EEOC or Commission), 

and the Board have long assumed that section 2000e-16(a) incorporated the 

existing provision at 42 U.S.C. § 2000e-3(a), which prohibits private sector 

employers from retaliating against employees or applicants “because” of the

exercise of Title VII rights. See Hale v. Marsh, 808 F.2d 616, 619 (7th Cir. 

1986); Ayon v. Sampson, 547 F.2d 446, 449-50 (9th Cir. 1976); Martin v. 

Department of the Air Force, 73 M.S.P.R. 590, 594 (1997); Algarin v. 

Department of the Navy, EEOC Appeal No. B01780106, 1980 WL 351765, at *1 

(Mar. 4, 1980). However, the Supreme Court has clarified that 42 U.S.C. 

§ 2000e-16 does not in fact incorporate 42 U.S.C. § 2000e-3(a). Gomez-Perez v. 
20

Potter, 553 U.S. 474, 487-88, 488 n.4 (2008). The Federal sector provision 

instead “contains a broad prohibition of ‘discrimination,’ rather than a list of 

specific prohibited personnel practices.” Id. at 487. Hence, EEO retaliation 

claims in the Federal sector do not implicate the statute at issue in Nassar. 

¶37 The Court did not have occasion in Gomez-Perez to definitively state 

whether 42 U.S.C. § 2000e-16 itself prohibits retaliation in addition to 

status-based discrimination. However, the Court did consider that question 

regarding the parallel Federal sector provision of the Age Discrimination in 

Employment Act (ADEA), found at 29 U.S.C. § 633a(a). That statute, which the 

Court found to have been patterned directly after 42 U.S.C. § 2000e-16(a), 

similarly provides that personnel actions by Federal agencies “shall be made free 

from any discrimination based on age.” 29 U.S.C. § 633a(a); see Gomez-Perez, 

553 U.S. at 487-88. The Court held that the requirement that such actions “be 

made free” from age discrimination is itself sufficiently broad to prohibit 

retaliation against an employee who complained of age discrimination. 

Gomez-Perez, 553 U.S. at 491. We conclude the same is true of 42 U.S.C. 

§ 2000e-16.

A violation of 42 U.S.C. § 2000e-16 is established where discrimination or 

retaliation is a motivating factor in the contested personnel action.

¶38 The next question to be considered is whether an appellant alleging a 

violation of 42 U.S.C. § 2000e-16 must show that improper consideration was the 

“but for” cause of the contested personnel action, as would be the case in a 

private sector retaliation claim under 42 U.S.C. § 2000e-3(a), or whether a less 

stringent causation standard should apply. This question is of particular 

importance given that most adverse actions against Federal employees are at least 

ostensibly taken for cause. Not infrequently, this leads to a dual motivation

scenario in which the contested action may appear to have been taken for both 

prohibited reasons and legitimate reasons, such as sustained misconduct. 
21

¶39 Again, we may draw a useful analogy to the ADEA. In Gross v. FBL 

Financial Services, Inc., 557 U.S. 167 (2009), the Court considered whether a 

“but for” causation requirement should apply to claims of age discrimination

arising under 29 U.S.C. § 623(a)(1), which prohibits discrimination “because of 

age” in private sector employment. Examining the text of 29 U.S.C. § 623(a)(1), 

the Court reasoned that “the ordinary meaning . . . of ‘because of’ age is that age 

was the ‘reason’ that the employer decided to act.” Id. at 176. Accordingly, the 

Court held, the prohibition against employment discrimination “because of age” 

should be read as requiring the plaintiff to demonstrate “but for” causation. Id. 

¶40 However, as noted above, Federal sector ADEA claims are governed by a 

different statute, 29 U.S.C. § 633a(a), which does not include the term “because 

of,” but instead broadly provides that personnel actions “shall be made free from 

any discrimination based on age.” In Ford v. Mabus, 629 F.3d 198 (D.C. Cir. 

2010), the U.S. Court of Appeals for the District of Columbia Circuit 

distinguished Gross on those grounds and concluded that a Federal sector 

employee could prove a violation of 29 U.S.C. § 633a(a) merely by showing that 

age was a factor in the contested personnel action, even if it were not the “but 

for” cause. Id. at 205-06. The court further found that, given the statute’s 

sweeping language, it was unnecessary to look for “a particular quantum of 

influence,” such as “substantial” evidence, but rather for “the existence of any 

influence at all.” Id. at 206. This is so, the court reasoned, because “any amount 

of discrimination tainting a personnel action, even if not substantial, means that 

the action was not ‘free from any discrimination based on age.’ ‘Any,’ after all, 

means any.” Id. (citing United States v. Gonzales, 520 U.S. 1, 5 (1997)). Shortly 

thereafter, in Alotta v. Department of Transportation, EEOC Appeal No. 

0129903865, 2011 WL 2515244 (June 17, 2011), the EEOC reached the same 
22

conclusion on similar grounds, albeit in dicta.

7

 In Wingate v. U.S. Postal Service, 

118 M.S.P.R. 566 (2012), we endorsed the reasoning of Alotta, again concluding

that a Federal employee may prove age discrimination by showing that age was “a 

factor” in the personnel action, even if it was not the “but for” cause. Id., ¶ 7. 

¶41 The requirement of 42 U.S.C. § 2000e-16 that personnel actions by 

agencies “be made free from any discrimination based on race, color, religion, 

sex, or national origin” is analogous to the ADEA provision at issue in Ford, 

Alotta, and Wingate. We therefore conclude that, to establish a violation of 

42 U.S.C. § 2000e-16, an appellant need only demonstrate that a prohibited 

consideration was a factor in the contested personnel action. Moreover, because 

a prohibition against retaliation is inherent in the same statute, the same causation 

standard also applies to Title VII retaliation claims in the Federal sector. Hence, 

as with status-based discrimination cases, a violation of 42 U.S.C. § 2000e-16 is 

established if a prohibited consideration was a motivating factor in the contested 

personnel action, even if it was not the only reason. Accord Petitioner v. 

Department of Interior, EEOC Appeal No. 0320110050, 2014 WL 3788011,

at *10 n.6 (July 16, 2014), concurred in and adopted by Davis v. Department of 

the Interior, MSPB Docket No. AT-0752-09-0860-E-1, Final Order at 4-6 

(Aug. 15, 2014). 

An appellant may establish a violation of 42 U.S.C. § 2000e-16 using 

direct evidence or any of three types of circumstantial evidence: 

“convincing mosaic,” comparator, or pretext.

¶42 In Troupe v. May Department Stores Company, 20 F.3d 734 (7th Cir. 

1994), a case involving a claim of pregnancy discrimination, the U.S. Court of 

Appeals for the Seventh Circuit provided a useful taxonomy of the “[d]ifferent 

kinds and combinations of evidence” that may support an inference that 

 

7 Despite its finding, the EEOC did not undertake a mixed-motive analysis in Alotta, but 

instead applied the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), which does require an ultimate showing of “but for” causation. 
23

intentional discrimination or retaliation was a motivating factor in an employment 

action. Id. at 736. One kind is direct evidence, i.e., “evidence that can be 

interpreted as an acknowledgment of discriminatory intent[.]” Id. In addition to 

direct evidence, the court identified and distinguished three types of 

circumstantial evidence. The first kind “consists of 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 might be drawn.” Id. Considered together, the 

court explained, such bits and pieces may compose “a convincing mosaic of 

discrimination.” Id. at 737. The second kind of circumstantial evidence is 

comparator evidence, consisting of “evidence, whether or not rigorously 

statistical, that employees similarly situated to the plaintiff other than in the 

characteristic . . . on which an employer is forbidden to base a difference in 

treatment received systematically better treatment.” Id. at 736. The third kind 

consists of evidence that the agency’s stated reason for its action is “unworthy of 

belief, a mere pretext for discrimination.” Id. The court stressed that none of the 

aforementioned types of evidence, i.e., direct, “convincing mosaic,” comparator, 

or pretext, will be needed in every case. “Each type of evidence,” the court 

explained, “is sufficient by itself . . . to support a judgment for [the employee]; or 

they can be used together.” Id. 

¶43 In FitzGerald v. Department of Homeland Security, 107 M.S.P.R. 666

(2008), we erroneously stated that to establish an EEO reprisal claim using 

circumstantial evidence, the appellant must provide evidence showing a

“convincing mosaic” of retaliation against her. Id., ¶ 20. That holding was based 

on a misreading of Troupe, and the Seventh Circuit has itself clarified that “it was 

not the intention in Troupe to promulgate a new standard, whereby circumstantial 

evidence in a discrimination or retaliation case must . . . have a mosaic-like 

character.” Sylvester v. SOS Children’s Villages Illinois, Inc., 453 F.3d 900, 904 

(7th Cir. 2006); see Petitioner v. Department of the Interior, EEOC Appeal 
24

No. 0320110050, 2014 WL 3788011, at *10 n.6 (citing Sylvester, 453 F.3d 

at 903). To the extent we erroneously imposed a “convincing mosaic” 

requirement, FitzGerald and its progeny are hereby overruled. 8

 

The Board’s authority to enforce 42 U.S.C. § 2000e-16 derives from civil 

service law.

¶44 While 42 U.S.C. § 2000e-16 sets forth the substantive standard for Title 

VII claims in the Federal sector, it does not itself authorize the Board to enforce 

that standard. Subsection (b) of the statute grants the EEOC the authority to 

enforce the standard through appropriate remedies, including reinstatement and 

back pay. 42 U.S.C. § 2000e-16(b). In addition, the statute contains provisions 

concerning the courts’ enforcement authority. Subsection (c) provides that, after 

an agency or the EEOC takes final action on a complaint, or fails to take action 

within a certain time, the aggrieved employee may bring a “civil action,” with the 

department head named as the defendant. 42 U.S.C. § 2000e-16(c). Section (d) 

further provides that such civil actions shall be governed by the provisions of 

42 U.S.C. § 2000e-5(f) through (k), “as applicable.” 42 U.S.C. § 2000e-16(d). 

Those incorporated provisions in turn assign jurisdiction to an appropriate district 

court, see 42 U.S.C. § 2000e-5(f)(3), and provide that the court may, subject to 

certain restrictions, award remedies including injunctive relief, reinstatement, 

back pay, and attorney fees, see 42 U.S.C. § 2000e-5(g), (k). 

 

8 Subsequent cases erroneously imposing a “convincing mosaic” requirement include 

Quinlan v. Department of Homeland Security, 118 M.S.P.R. 362 (2012); Rhee v. 

Department of the Treasury, 117 M.S.P.R. 640 (2012); Agbaniyaka v. Department of the 

Treasury, 115 M.S.P.R. 130 (2010), aff’d, 484 F. App’x 545 (Fed. Cir. 2012); Crump v. 

Department of Veterans Affairs, 114 M.S.P.R. 224 (2010); Marshall v. Department of 

Veterans Affairs, 111 M.S.P.R. 5 (2008); and Kohler v. Department of the Navy, 

108 M.S.P.R. 510 (2008).
25

¶45 By contrast, there is no comparable provision in the statute—or, for that 

matter, anywhere else in Title VII—granting enforcement authority to the Board. 9

 

The Board’s authority to adjudicate and remedy alleged violations of 42 U.S.C. 

§ 2000e-16 is instead a matter of civil service law. One source of that authority 

is 5 U.S.C. § 7702(a)(1)(B), which provides that in any case where an appellant 

affected by an action appealable to the Board alleges that a basis for the action 

was discrimination prohibited by 42 U.S.C. § 2000e-16, the Board shall “decide 

both the issue of discrimination and the appealable action[.]” The statute further 

specifies that the issues are to be decided “in accordance with the Board’s 

appellate procedures under [5 U.S.C. §§ 7701 and 7702].” 5 U.S.C. 

§ 7702(a)(1)(B) (emphasis added). Hence, while the substantive “issue of 

discrimination” is defined by the standard set forth by 42 U.S.C. § 2000e-16(a), it 

is civil service law that defines the procedures by which we decide whether a 

violation of that statute has taken place. 

¶46 Significantly, the Board’s procedures do not provide for summary 

judgment. Crispin v. Department of Commerce, 732 F.2d 919, 922 (Fed. Cir. 

1984); see 5 U.S.C. § 7701(a)(1) (providing that an appellant “shall have the right 

to a hearing”). 10 In determining if summary judgment is appropriate in a case 

where the plaintiff alleges that the contested personnel action is motivated solely 

by discrimination, the courts and the EEOC have traditionally followed the 

burden-shifting scheme of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 

802-04 (1973). However, because the Board has no authority to grant summary 

 

9 Indeed, it was the intent of Congress in passing the Equal Employment Opportunity 

Act of 1972 to transfer to the EEOC the enforcement authority formerly vested in the 

Board’s predecessor agency, the Civil Service Commission. See H.R. Rep. No. 92-238, 

at 2158-60, reprinted in 1972 U.S.C.A.A.N. 2137, 2160. 

10 In Redd v. U.S. Postal Service, 101 M.S.P.R. 182, ¶¶ 10-12 (2006), we declined to 

follow Crispin based on the erroneous assumption that our procedures for deciding 

discrimination claims were a matter of substantive discrimination law. Redd is hereby 

overruled. 
26

judgment, and decides discrimination claims only after the record is complete, the 

McDonnell Douglas framework has no application to our proceedings in this or 

any other appeal. See Jackson v. U.S. Postal Service, 79 M.S.P.R. 46, 51-52

(1998).

¶47 As for remedies, our authority to award reinstatement and back pay derives 

from 5 U.S.C. § 7701(c)(2)(B), which provides that the Board will not sustain an 

agency’s decision if the appellant “shows that the decision was based on any 

prohibited personnel practice described in section 2302(b) of this title.” 

Section 2302(b)(1) in turn provides, inter alia, that an agency employee with 

“authority to take, direct others to take, recommend, 11 or approve any personnel 

action, shall not, with respect to such authority . . . discriminate for or against 

any employee or applicant for employment . . . on the basis of race, color, 

religion, sex, or national origin, as prohibited under [42 U.S.C. § 2000e-16].”

Accordingly, if an appellant proves that the action on appeal was “based” on a 

violation of 42 U.S.C. § 2000e-16, which constitutes a prohibited personnel 

action under 5 U.S.C. § 2302(b)(1), the Board will order the agency to cancel the 

action and return the appellant to the status quo ante. See 5 U.S.C. § 1204(a) 

(granting the Board the authority to adjudicate and take final action on matters 

within its jurisdiction and to order compliance with its actions).

A violation of 42 U.S.C. § 2000e-16 warrants reversal under 5 U.S.C. 

§ 7701(c)(2)(B) only if the agency would not have taken the action in the 

absence of the discriminatory or retaliatory motive.

¶48 The term “based,” as used in 5 U.S.C. § 7701(c)(2)(B), “connotes that the 

matter referred to is the most important element.” Gerlach v. Federal Trade 

Commission, 9 M.S.P.R. 268, 273 (1981). Accordingly, 5 U.S.C. § 7701(c)(2)(B) 

mandates reversal of the agency’s action only where the Board has determined 

 

11 Because a proposing official is an agency employee with authority to “recommend” a 

personnel action, we agree with the appellant that the administrative judge erred in 

failing to consider whether D.B. had a retaliatory motive. 
27

that a prohibited personnel practice was the “motivating factor” or “real reason” 

for the action. Id. at 274. Hence, while the Board will find a violation of 

42 U.S.C. § 2000e-16, and consequently a prohibited personnel practice under 

5 U.S.C. § 2302(b)(1), if the appellant shows that a discriminatory or retaliatory 

motive was a factor in the contested action, such a finding will not necessarily 

result in reversal. Rather, the Board will reverse the action on that basis if the 

prohibited personnel practice was the “but for” cause of the action, i.e., if the 

agency would not have taken the same action in the absence of the discriminatory 

or retaliatory motive. See Dorsey v. Department of the Air Force, 78 M.S.P.R. 

439, 450-51 (1998); Madison v. Department of the Air Force, 32 M.S.P.R. 465, 

477 (1987); cf. Gerlach, 9 M.S.P.R. at 270, 273 (concerning alleged retaliation 

for filing a grievance). 12

In determining whether relief is appropriate under 5 U.S.C. 

§ 7701(c)(2)(B), the Board will apply the Mt. Healthy test.

¶49 For cases involving allegations of discrimination and retaliation not

covered by the WPA, the Board has adopted the analytical framework of 

Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274

(1977), for determining whether reversal of the action is warranted under 

5 U.S.C. § 7701(c)(2)(B). Gerlach, 9 M.S.P.R. at 276; see Dorsey, 78 M.S.P.R. 

at 450-51; Madison, 32 M.S.P.R. at 477. In Mt. Healthy, a case involving a claim 

of retaliation for protected First Amendment activity, the Court enunciated a 

two-part test to be applied in determining whether remedial action was justified. 

429 U.S. at 287. First, the Court explained, the employee must show that the 

protected conduct was a substantial or motivating factor in the contested action. 

Id. If the employee carries that burden, then the burden shifts to the employer to 

 

12 To the extent a retaliation for protected EEO activity claim also may be construed as 

a prohibited personnel practice under 5 U.S.C. § 2302(b)(9)(A)(ii), the same standard 

applies. See Gerlach, 9 M.S.P.R. at 273.
28

prove by a preponderance of the evidence that it would have taken the same 

action even if the protected conduct had not taken place. Id.

¶50 The Mt. Healthy test assures that an employee who belongs to a protected 

group or has engaged in protected activity is not thereby granted immunity from 

the ordinary consequences of misconduct or poor performance. Mt. Healthy, 

429 U.S. at 285-86; see Gerlach, 9 M.S.P.R. at 275. In keeping with that aim, the 

allocation of the burdens under Mt. Healthy is both equitable and reasonable. 

Accordingly, we reaffirm that the Board will adhere to the Mt. Healthy test in 

cases involving discrimination or retaliation allegations under 42 U.S.C. 

§ 2000e-16. See Dorsey, 78 M.S.P.R. at 450-51; Madison, 32 M.S.P.R. at 477.

13

¶51 In sum, when an appellant asserts an affirmative defense of discrimination 

or retaliation under 42 U.S.C. § 2000e-16, the Board first will inquire whether the 

appellant has shown by preponderant evidence that the prohibited consideration 

was a motivating factor in the contested personnel action. Such a showing is 

sufficient to establish that the agency violated 42 U.S.C. § 2000e-16, thereby 

 

13 The application of the Mt. Healthy test to discrimination and retaliation claims under 

42 U.S.C. § 2000e-16 is in some respects analogous to the burden-shifting scheme for 

status-based Title VII discrimination claims in the private sector. Under 42 U.S.C. 

§ 2000e-2(m), “an unlawful employment practice is established when the complaining 

party demonstrates that color, religion, sex, or national origin was a motivating factor 

in any employment practice, even though other factors also motivated the practice.” 

Upon that showing, the burden then shifts to the employer to demonstrate that it “would 

have taken the same action in the absence of the impermissible motivating factor,” in 

which case the plaintiff will not receive damages or a reinstatement order, but may 

nonetheless receive a limited remedy including declaratory relief, injunctive relief, and 

some attorney fees. 42 U.S.C. § 2000e-5(g)(2)(B). However, the scheme set forth at 

42 U.S.C. §§ 2000e-2(m) and 2000e-5(g)(2)(B) does not apply to our adjudication of 

claims under 42 U.S.C. § 2000e-16. First, because 42 U.S.C. § 2000e-16 broadly 

prohibits discrimination without incorporating specific prohibited practices, such as the 

ban on retaliation at 42 U.S.C. § 2000e-3(a), see Gomez-Perez, 553 U.S. at 487, it does 

not (and need not) incorporate 42 U.S.C. § 2000e-2(a) and (m). Moreover, as discussed 

above, the enforcement provisions incorporated by 42 U.S.C. § 2000e-16, including 

42 U.S.C. § 2000e-5(g)(2)(B), do not control our proceedings, which are instead 

governed by the appellate procedures set forth at 5 U.S.C. §§ 7701 and 7702. 
29

committing a prohibited personnel practice under 5 U.S.C. § 2302(b)(1). In 

making her initial showing, an appellant may rely on direct evidence or any of the 

three types of circumstantial evidence described in Troupe, either alone or in 

combination. If the appellant meets her burden, we then will inquire whether the 

agency has shown by preponderant evidence that the action was not based on the 

prohibited personnel practice, i.e., that it still would have taken the contested 

action in the absence of the discriminatory or retaliatory motive. If we find that 

the agency has made that showing, its violation of 42 U.S.C. § 2000e-16 will not 

require reversal of the action. On remand, the administrative judge should

consider the appellant’s Title VII claims consistent with the above analysis. 

Whistleblowing Reprisal

¶52 The appellant’s affirmative defense of whistleblowing reprisal also will 

require further consideration. First, the administrative judge did not consider the 

appellant’s disclosure concerning the DD Form 2579. Although the appellant did 

not address that disclosure in her OSC complaint, there is no exhaustion 

requirement concerning her whistleblowing retaliation defense in the removal 

appeal, and the DD Form 2579 disclosure therefore should have been considered 

in that context. Furthermore, in finding that the agency showed by clear and 

convincing evidence that it would have removed the appellant in the absence of 

her disclosures, the administrative judge essentially relied on his finding that all

three charges were proven. RAF ID at 17-18. We do not sustain the excessive 

absences charge, however, and the disposition of the AWOL charge depends upon 

the outcome of the appellant’s constructive suspension claim. Moreover, the 

administrative judge did not address the possibility that the appellant’s 

incapacitation, which ultimately led to her removal, was itself the product of 

whistleblowing reprisal. See Whitmore, 680 F.3d at 1376. Accordingly, the 

administrative judge should consider again on remand whether, in light of all 

pertinent record evidence, the agency showed by clear and convincing evidence 
30

that it would have removed the appellant in the absence of her protected 

whistleblowing activity. 

ORDER

¶53 The joined appeal is remanded to the regional office for further 

adjudication consistent with this Opinion and Order. 

FOR THE BOARD:

______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.