U.S. flagAn official website of the United States government
      Here's how you know **The .gov means it’s official.**
            
            Federal government websites often end in .gov or .mil. Before sharing sensitive information, make sure you’re on a federal government site.
 **The site is secure.**
            
            The **https://** ensures that you are connecting to the official website and that any information you provide is encrypted and transmitted securely.


U.S. Merit Systems Protection Board
 Menu


close HomeAbout
    About the MSPB	
			Contacts & Locations
			Equal Employment Opportunity
			Information Quality Standards
			No FEAR Act
			Open.Gov
			Organization
			Plans, Budget & Performance
			Privacy Program
           Merit System Principles
	Prohibited Personnel Practices
	 Site Index and SearchAppeals
    Appeal Process
						Appellant Q&A
    Electronic Filing
    Forms
    Hearing Sites
    Policy & Resources
    Regulations
    Whistleblower Q&A 
	Electronic Filing  
	Mediation Appeals ProgramDecisions
    Case Reports
Nonprecedential Decisions
		Precedential DecisionsStudies & Publications
       About & Contact Studies
		Latest Publications
		Newsletters
		Reports
          Research Briefs
		Search StudiesSurveys of Federal Employees Public & Information Services
    Accessibility
		   Contracting & Procurement
			  Federal Register Notices
		      FOIA Program
				 e-FOIA Reading Room
        Submit a FOIA Request
           FOIA Reports 
			Information Collections
			Jobs & Internships
	Press Releases & News
	Privacy Program
				Regulations
			    Technical Support Search small
Search




Home
	   Studies
		   	 Adverse Actions: A Primer in Pieces
      Second-Hand News Can be Misleading
      The Adverse Action Process - A Flowchart
      Performance-Based Actions under Chapters 43 and 75 of Title 5 - Similarities and Differences
      Different Types of Adverse Actions Use Different Rules
      Legal Sources for the Right to Notice and a Meaningful Opportunity to Reply
      Decision-Maker Must Listen and Have Power to Decide
      Connecting the Job and the Offense ("Nexus")
      Labels are Not Required, but if Used They Must be Proven
      Determining the Penalty
      How Employees Become Similarly Situated for Purposes of an Adverse Action Penalty
      Avoid Facilitating Prohibited Personnel Practices (PPPs)
      Agency Officials' Substantive and Procedural Errors and How to Fix Them
      Identifying Probationers and Their Rights
      The Limited Powers of the U.S. Merit Systems Protection Board
      Why Federal Employees Have the Right to a Hearing
      How a Hearing is Conducted
      Implementing or Challenging Initial Decisions
      Additional Resources
  Search and Site Index *Avoid Facilitating Prohibited Personnel Practices (PPPs)*
    Proposing and deciding officials are not  permitted to take an action for prohibited reasons, such as retaliation for  whistleblowing activity or for discriminatory motives (including not only  “traditional” discrimination (*e.g.,* race or sex), but also discrimination based on military service, political  party, or off-duty conduct that does not affect the efficiency of the  service).  Moreover, officials – no  matter how pure their own motives – have the responsibility to ensure that the  action has not been corrupted by someone else in the process who has a  prohibited motive.
    The Supreme Court has held, in the context of a  statute protecting service members from anti-military animus, that “if a  supervisor performs an act motivated by anti-military animus that is intended  by the supervisor to cause an adverse employment action, and if that act is a  proximate cause of the ultimate employment action, then the employer is  liable[.]”1  This is known as the “cat’s paw” approach to  liability, so named for a fable in which a cat is tricked by a monkey into  sticking the cat’s paw into a flame to seize some food.  The cat gets his paw injured while the  monkey, who persuaded the cat to act, escapes with all the food and no  injuries.2  In the employment context, an innocent  official can get burned if someone with animus tricks the official into taking  a personnel action.
     The law instructs the Board that if a decision  is based on any PPP, the agency’s decision cannot be sustained.3   The Board and its reviewing court have held  that the cat’s paw approach applies to this instruction.  Even if the official with animus officially  recuses himself or herself from preparing the charges or issuing the final  decision, if that official is involved in any manner that taints the process,  the action cannot be sustained.4
    The cat’s paw theory for determining if an  action is corrupted by the commission of a PPP (or other prohibited purpose  such as anti-military animus) is one of many reasons why it is so important for  decision-makers to listen carefully to an employee’s reply to the notice of  proposed action.  Listening to – or  reading – an employee’s response to the proposed action is a due process  requirement; but, truly paying attention to it is an opportunity for the agency  to learn if it has been tricked into sticking a paw into the fire.  Whether the deciding official is trying to  comply with the Constitution, confirm that the employee is not a scapegoat,  avoid the cat’s paw, or some other purpose, there are a lot of different ways  in which ensuring that the adverse action response period is meaningful can  prevent the agency from getting burned.
    For a discussion of the meaning of the  individual PPPs and the extent to which employees perceive them, see our  report, *Prohibited Personnel  Practices:  Employee Perceptions*.5
   1*Staub v. Proctor Hospital*, 562 U.S. 411, 422 (2011).
      2*Id*. at 415, n.1.
      3 5 U.S.C. §  7701(c)(2)(B).
      4*See Sullivan v. Department of the Navy*, 720 F.2d 1266, 1269, 1276  (Fed. Cir. 1983) (holding that despite the official recusing himself, “his  dominant role in the case throughout the proceedings” infused the action with  the improper motive, thereby rendering the personnel action unsustainable); *Aquino v. Department of Homeland Security*,  121 M.S.P.R. 35, ¶¶ 20-21 (2014) (holding that when a supervisor with a  retaliatory animus alleges misconduct by an employee but does not serve as the  proposing or deciding official, if the agency uses that allegation as the basis  for proposing and implementing an adverse action, then the action itself has  retaliation as the basis and the agency must prove by clear and convincing  evidence that it would have taken the same action in the absence of the  animus).
      5 U.S. Merit Systems  Protection Board, Prohibited Personnel Practices:  Employee Perceptions (2011), available at www.mspb.gov/studies.  *See* Prohibited Personnel Practices  Frequently Asked Questions, available at https://www.mspb.gov/ppp/ppp.htm#faq.


Return to top


About MSPB
			  Accessibility
           Budget and Performance
          FOIA
          Info Quality Standards
          No FEAR Act
    
          Office of the Inspector General
          Privacy Program   
           Technical Support       USA.gov
		OSC.gov
				 Vote.gov


U.S. Merit Systems Protection Board
 Agency Contact Center (202) 653-7200
          mspb@mspb.gov