JOAN E. GERLACH _. XT DOCKET No.

- Jj n DC07528010020

FEDERAL TRADE COMMISSION

OPINION AND ORDER

Appellant filed a timely petition for appeal from the action of the

Federal Trade Commission removing her from her position as EEO

Specialist. The removal action was based on the charge of "Continuing Unwillingness or Inability to Follow Supervisory Directives."

The specifications of the charge related to an alleged failure to

prepare technically correct and timely products incorporating the

changes requested by appellant's supervisor for four writing assignments during the period of July 11 through December 6, 1979.

Appellant contended that the removal action was initiated by her

supervisor in retaliation for a grievance filed by appellant and that

the removal was also based on race, sex, and age discrimination.

BACKGROUND

The agency appointed appellant as a part-time employee in March

1979. In August 1979 appellant filed a formal grievance concerning

secretarial support and work assignments by her supervisor. In

October 1979 the chairman of the agency determined that the

appellant's supervisor had taken steps to remedy the problems cited

in the grievance and that no further action by him was required.

Appellant's removal was proposed by her supervisor in January 1980

and directed by the deciding official in April 1980.

At a hearing before a Board presiding official, appellant's supervisor conceded that she was aware of appellant's grievance against

her, and appellant testified that adverse changes in the supervisor's

conduct toward her occurred after the filing of the grievance.

Appellant's testimony was corroborated by a former agency EEO

office employee who testified concerning her comparable experiences

with appellant's supervisor. In the initial decision, the presiding

official found the supervisor's denial of any memory of problems

experienced with the former employee, and the supervisor's assertion that the four relatively short writing assignments constituted

very close to 99 percent of appellant's work for the 5-month period

involved in the removal action, to be "incredible."

The presiding official also found that the testimony offered by the

appellant was far more credible than that offered by the agency and

that although the majority of the specifications were sustained, they

did not constitute serious noncompliance with supervisory directives.

The presiding official further found that the penalty of removal was

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inappropriate for the minor legitimate performance deficiencies and

held that the removal action was taken, at least in part, in reprisal

for appellant's having filed the grievance, thus constituting a

prohibited personnel practice pursuant to 5 U.S.C. § 2302(bX9).

Citing 5 U.S.C. § 7701(cX2XB), which provides that an adverse action

may not be sustained if it is shown to be based on a prohibited

personnel practice, the presiding official reversed the removal.1

PETITION FOR REVIEW

The agency filed a timely petition for review pursuant to 5 C.F.R.

§ 1201.115. The agency argued that the presiding official's finding of

reprisal, in violation of 5 U.S.C. § 2302(bX9), was based upon

incorrect credibility determinations. In the alternative, the agency

contended that even if reprisal played some part in the removal

decision, that based upon the record in this case, that fact would not

require reversal pursuant to 5 U.S.C. § 7701(cX2XB). This latter

argument is based on the rationale that the ultimate decision as to

whether the personnel action was based on a prohibited personnel

practice depends on whether the record establishes that the adverse

action would not have been taken but for the prohibited personnel

practice. The agency cited the Supreme Court's decision in Mt

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

274 (1977), as authority for this position.2

Appellant's response to the petition for review contended that the

presiding official's findings of fact were clearly supported by the

record and that her conclusions of law and ultimate decision were in

accord with statutory and case law.

As detailed in the Analysis and Decision section of this opinion, we

have concluded that the presiding official incorrectly interpreted the

mandate of 5 U.S.C. § 7701(cX2XB). Moreover, the Board believes

that it is necessary to clarify the analytical process of decisionmaking in adverse action appeals involving claims of reprisal for

protected conduct and discrimination on the basis of protected

status. Accordingly, the petition for review is GRANTED.

ANALYSIS AND DECISION

A claim of reprisal for filing a grievance constitutes an allegation

of a prohibited personnel practice under 5 U.S.C. § 2302(bX9). To

establish a violation of section 2302(bX9), an appellant must demonstrate that he or she engaged in an activity protected by the section;

that he or she subsequently was treated in an adverse fashion by the

"The presiding official held that appellant did not establish that she was

discriminated against on the basis of race, sex, or age.

The agency also relied upon Mt. Healthy for the proposition that the appellant

bears the burden of proof on the "but for" issue. This argument is inconsistent with

the Supreme Court's decision. See Analysis and Decision section, infra.

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employer; and that the deciding official had actual or constructive

knowledge that the employee was engaged in the protected activity.

The appellant must also demonstrate that there is a causal connection between the protected activity and the adverse action and that

the protected activity was a significant factor in the taking of the

adverse action. In the Matter of Frazier, I MSPB 159 (1979).

In the instant case, appellant had clearly engaged in the protected

activity of filing a grievance. Both the proposing and the deciding

official had actual knowledge that appellant had engaged in such an

activity. The testimony adduced from appellant and her witnesses

conflicted with that of her supervisor as to the supervisor's conduct

and motives for bringing the removal action. The presiding official

found the testimony and circumstantial evidence presented by

appellant to be more credible than that presented by the agency. The

presiding official's holding that the removal action was brought, at

least in part, in reprisal for appellant's having filed a grievance

against her supervisor was to a substantial extent based on the

credibility findings.

When questions of credibility are presented, we must necessarily

give due deference to the assessment of the presiding official who

was present to hear and observe the demeanor of the witnesses.

Weaver v. Department of the Navy, 2 MSPB 297, 299 (1980). While

the Board "is free to substitute its own determinations of fact for

those of the presiding official, giving the presiding official's findings

only so much weight as may be warranted by the record and by the

strength of the presiding official's reasoning,"3 after review of the

record before us, the Board can find no reason to set aside the

presiding official's findings of fact.

The Board agrees with the presiding official's holding that the

protected conduct was a significant factor in the decision to remove

appellant. This conclusion is based upon the findings of fact and

credibility determinations set forth in the initial decision and the

extreme disparity between the minor nature of the sustained

specifications and the penalty of removal. It is also based upon a

comparison between this action and the agency's record of disciplinary actions taken during the year preceding this action,4

 and the fact

that there was no attempt to utilize progressive discipline to remedy

appellant's legitimate deficiencies.

'Weaver at 298.

4According to information provided by the agency, in the year prior to appellant's

removal only two other disciplinary actions were taken in the entire agency. Both

actions were suspensions; one was a 14-day suspension for failure to obey a lawful

supervisory directive to operate certain machinery, and the other was a 30-day

suspension for addressing another employee in a vulgar, offensive, and threatening

manner, and physically assaulting that person.

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The presiding official held, and the Board agrees, that the

sustained charges in this case were not sufficient to support the

removal action. The initial decision further held, however, that

reversal of the action was required by 5 U.S.C. § 7701(cX2XB),

because appellant had proven that the removal was motivated, in

part, by a prohibited personnel practice.

After review of the specific language of 5 U.S.C. § 7701(cX2XB) and

the legislative history of the Civil Service Reform Act, the Board

cannot agree with the presiding official's interpretation of 5 U.S.C.

§ 7701(cX2XB). Section 7701(cX2XB) of title 5 provides that, notwithstanding proof of the agency's charges, an agency decision may not

be sustained if the employee:

(B) shows that the decision was based on any prohibited

personnel practice described in section 2302(b) of this title;

(emphasis added).

The customary definition of "based" as it is used in this provision

connotes that the matter referred to is the most important element.5

Such definition is in accord with the legislative history of the Civil

Service Reform Act, which sought to protect employees from prohibited personnel practices, but at the same time not to insulate them

from legitimate conduct or performance-based adverse actions.

Congress' intention to assure that the rights of employees were

balanced against management responsibilities to assure an efficient

work force was set forth as follows:

Finally, it should be noted that this section is a prohibition

against reprisals. The section should not be construed as

protecting an employee who is otherwise engaged in misconduct,

or who is incompetent, from appropriate disciplinary action. If,

for example, an employee has had several years of inadequate

performance, or unsatisfactory performance ratings, or if an

employee has engaged in action which would constitute dismissal for cause, the fact that the employee 'blows the whistle' on his

agency after the agency has begun to initiate disciplinary action

against the employee will not protect the employee against such

disciplinary action. Whether the disciplinary action is a result of

the individual's performance on the job, or whether it is a

reprisal because the employee chose to criticize the agency, is a

matter for judgment to be determined in the first instance by

the agency, and ultimately by the Special Counsel and the Merit

Systems Protection Board. S. Rep. No. 696,95th Cong., 2nd Sess.

22 (1978).

•Webster's New Twentieth Century Dictionary Unabridged, Second Edition, p. 164

(1968); Webster's Third New International Dictionary, p. 180 (1976).

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The foregoing statement of legislative intent related to 5 U.S.C.

§ 2303(bX8), which sets forth the prohibited personnel practice of

reprisal for "whistleblowing." Since protection for "whistleblowers"

was one of the major concerns of Congress in enacting the Civil

Service Reform Act, we must conclude that Congress did not intend

to provide less protection for "whistleblowers" than for employees

engaging in other conduct protected by 5 U.S.C. § 2302(b). Thus, we

hold that 5 U.S.C. § 7701(cX2XB) mandates reversal of the agency's

action only where the Board has determined that a prohibited

personnel practice was the "motivating factor" or "real reason" for

the agency action.

The Board has studied federal court precedents in analogous areas

of the law for guidance in developing an analytical framework for

determining whether the adverse action was based on a legitimate or

prohibited reason, where both appear to have contributed to the

agency action.

Aft. Healthy City School District Board of Education v. Doyle, 429

U.S. 274 (1977), involved a school board's refusal to renew the

contract of an untenured teacher. The two written reasons cited by

the school board were the teacher's use of obscene language and

gestures in the school cafeteria and his communication of a change

in school policies to a local radio station. The teacher sued, alleging

that the refusal to renew violated his rights under the first and

fourteenth amendments.

The district court found that the first reason relied upon by the

school board involved unprotected conduct, while the second involved conduct protected by the first and fourteenth amendments.

The district court held the failure to renew to be improper because

the protected conduct was a substantial factor in the school board's

decision, and the Court of Appeals for the Sixth Circuit affirmed.

The Supreme Court vacated and remanded, holding that where

dual causation is involved, although the employee carried the

burden of showing that protected conduct was a substantial factor in

the personnel decision, the employer must be given the opportunity

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

the same action if the protected conduct had not occurred. The Court

reasoned as follows:

A rule of causation which focuses solely on whether protected

conduct played a part, "substantial" or otherwise, in a decision

not to rehire, could place an employee in a better position as a

result of the exercise of constitutionally protected conduct than

he would have occupied had he done nothing. The difficulty with

the rule enunciated by the District Court is that it would require

reinstatement in cases where a dramatic and perhaps abrasive

incident is inevitably on the minds of those responsible for the

decision to rehire, and does indeed play a part in that decision—

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even if the same decision would have been reached had the

incident not occurred. The constitutional principle at stake is

sufficiently vindicated if such an employee is placed in no worse

a position than if he had not engaged in the conduct. A

borderline or marginal candidate should not have the employment question resolved against him because of constitutionally

protected conduct. But that same candidate ought not to be able,

by engaging in such conduct, to prevent his employer from

assessing his performance record and reaching a decision not to

rehire on the basis of that record, simply because the protected

conduct makes the employer more certain of the correctness of

its decisions. [429 U.S. at 285-286.]

Based upon this reasoning, the Supreme Court enunciated a twopart test to be applied in a dual motivation case.6

 First, the employee

has the burden of establishing by a preponderance of the evidence

that the protected conduct was a "substantial" or "motivating"

factor.7 If the employee carries that burden, the burden shifts to the

employer to prove by a preponderance of the evidence that it would

have taken the same action even if the protected conduct had not

taken place.

As noted, Mt. Healthy was a case involving reprisal for the

exercise of constitutional rights. Its analytical approach, however,

has been used by the Court of Appeals for the District of Columbia

Circuit in deciding cases of alleged discrimination in violation of

Title VII of the Civil Rights Act of 1964 and in appeal reprisal cases.8

The National Labor Relations Board has also adopted the Mt.

Healthy test for cases brought by its General Counsel alleging

reprisal for union activities.9

Because neither the Mt. Healthy decision nor those decisions

utilizing its analytical framework in other areas of the law involve

cases arising pursuant to the Civil Service Reform Act, the Board is

not compelled to adopt the Mt. Healthy test. After careful review of

the decisions utilizing the Mt. Healthy test, however, we have

concluded that it constitutes an approach which is inherently logical

and totally consistent with the Civil Service Reform Act and its

legislative history. It presents a coherent analytical framework for

6

429 U.S. at 287.

T

This portion of the test is identical to that adopted by the Board in In the Matter of

Frazier, 1 MSPB159 (1979). The facts of that case, however, did not require the Board

to consider the applicability of the second element of the Mt. Healthy test to Board

cases. 1 MSPB 159, 189 n.52.

^Williams v. Boorstin, 24 EPD § 31,283 (D.C. Or. October 3, 1980); Day v.

Matthews, 530 F.2d 1083 (D.C. Cir. 1976).

'Wright Line, A Division of Wright Line, Inc., 105 LRRM 1169 (1980).

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determining causality assuring that an employee who may have

engaged in protected activity is not thereby granted immunity from

the ordinary consequences of misconduct or poor performance and

equitably allocates the burdens of proof.10

Accordingly, the Board will adhere to the Mt. Healthy test for all

dual causation cases involving allegations of discrimination or

reprisal.11 It is out intention that the test be utilized as a method of

allocating the respective burdens of proof and as an analytical tool

for determining ultimate causality. It is not intended to dictate the

order of presentation of evidence, and the Board does not anticipate

that it will result in alteration of the present hearing process.

Applying the Aft. Healthy test to the instant case, having previously concluded that the appellant demonstrated by a preponderance of

the evidence that retaliation was a significant factor in the removal

action, we must now determine whether the agency established by a

preponderance of the evidence that the appellant would have been

removed absent the retaliatory motive.

The Board has stated its agreement with the presiding official that

the sustained specifications were so minor as to be insufficient cause

to take a removal action. In addition, the record of agency disciplinary actions for the year preceding the appellant's removal establishes that no similar action was taken against any other employee,

and that a far leas drastic penalty was imposed for a much graver

charge involving a physical assault of another employee.12 Therefore, we find that the agency failed to establish by a preponderance

of the evidence that the removal action would have been taken even

in the absence of the retaliatory motive of appellant's supervisor.19

10The Court of Appeals for the District of Columbia Circuit has held that the

standard to be used in determining whether the employer has established that the

action would have been taken even in the absence of the protected conduct or status is

"clear and convincing evidence." Day v. Matthews, supra. Adoption of the standard of

"clear and convincing" would require the agency to prove its charges by a higher

standard that the Reform Act requires for any adverse action. The "preponderance of

the evidence" standard set forth by the Supreme Court in Mt. Healthy is in accord

with the standards provided for in the Civil Service Reform Act and will be utilized by

the Board.

"The Mt. Healthy analysis may also be adaptable to cases involving other

prohibited personnel practices. Such applicability will be decided on a case by case

basis.

"See p. 5, n.3 infra,

"That the agency could possibly have taken some lesser action against the

appellant on the basis of the sustained specifications is irrelevant to this determination; the question before the Board is whether the agency would have removed the

appellant in the absence of the proven retaliatory intent of her supervisor.

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Accordingly, the initial decision of the presiding official is AFFIRMED AS MODIFIED herein, and the agency is hereby ORDERED to cancel the removal.

Proof of compliance with this Order shall be submitted to the

Office of the Secretary of the Board within twenty (20) days of the

date of issuance of this opinion. Any petition for enforcement of this

Order shall be made to the D.C. Regional Office in accordance with 5

C.F.R. § 1201.181(a).

This is the final order of the Merit Systems Protection Board in

this appeal. Appellant is hereby notified of the right to petition the

Equal Employment Opportunity Commission to consider the Board's

decision on the issue of discrimination. A petition must be filed with

the Commission no later than thirty (30) days after appellant's

receipt of this order.

Appellant is hereby also notified of the right to seek judicial

review of the Board's action as specified in 5 U.S.C. § 7703. A

petition for judicial review must be filed in the appropriate court no

later than thirty (30) days after appellant's receipt of this order.

For the Board:

ERSA H. POSTON.

WASHINGTON, D.C., December 15, 1981

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