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U.S. Merit Systems Protection Board
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Home
        Prohibited Personnel Practices
        Frequently Asked Questions
          1- Non-Discrimination
          2 - Proper Considerations
          3 - Coercing  Political Activity
          4 -  Obstructing the Right to Compete for Employment
          5 - Influencing  Withdrawal from Competition
          6 - Granting  Any Preference or Advantage Not Authorized by Law
          7 - Nepotism
          8 - Whistleblower Protection
          9 - Protection Against Retaliation
          10 - Conduct Not Adversely Affecting Performance
          11 - Violating Veterans' Preference
          12 - Violating Merit System Principles
          13 - Nondisclosure Forms, Policies & Agreements
          14 - Accessing Medical RecordsSearch & Site Index Prohibited Personnel Practice 9:   Protection Against Retaliation for Employees Who Engage in Protected Activity
	
	
	
  Prohibited Personnel Practice of the Month 
        Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority—
        take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of—
        the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation—
            (i) with regard to remedying a violation     of paragraph (8); or
            (ii) other than with regard to remedying     a violation of paragraph (8);
          testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (A)(i) or (ii);cooperating with or disclosing information to the Inspector General (or any other component  responsible for internal investigation or review) of an agency, or the Special Counsel, in accordance with applicable provisions of law; or
          for  refusing to obey an order that would require the individual to violate a law, rule or regulation.***Where  can I find provision Number 9 - Protected Activity?***
    It  was part of the Civil  Service Reform Act of 1978, Pub. L. No. 95-454, 
      92 Stat. 1111.  It is codified at 5 U.S.C. § 2302(b)(9),  with the other prohibited personnel practices (PPP).
  ***What  is the purpose of the ninth prohibited personnel practice?***
    Simply  put, this PPP protects Federal employees and applicants for employment from  retaliation when they exercise certain legal rights, when they cooperate with an  Inspector General or Office of Special Counsel (OSC) investigation, or when they refuse to obey an order requiring them to violate  a law.  The guarantee of freedom from  reprisal extends to any person who seeks the assistance of a remedial  administrative process, and the law is designed to ensure the integrity of the  process.  As an example, in *Matter of Frazier*, 1  M.S.P.R. 163 (1979), a supervisor “suggested to [Mr.] Frazier that he could  expect to encounter less difficulty in his work if he dropped his union and [Equal  Employment Opportunity (EEO)] responsibilities” and “offered to drop [a]  proposed letter of reprimand ... in return for” Mr. Frazier ending his collateral  duties as an EEO counselor.  Soon after,  Mr. Frazier resigned from those duties, and the agency rescinded the proposed  letter of reprimand.  The Merit Systems  Protection Board (MSPB or Board) held that the supervisor’s conduct was because  of Mr. Frazier’s protected activities and constituted the commission of a PPP.
  ***How  do Federal employees show that they were retaliated against in violation of the  ninth PPP?***
    To  establish a *prima facie* case of retaliation under section  2302(b)(9), the employee must show that: he or  she engaged in a statutorily-protected activity; he or she was subsequently  treated adversely by the agency; the deciding official (the  person authorized to make the final decision on a disciplinary action) had actual or constructive knowledge that the  employee engaged in the protected activity; and a causal connection exists  between the protected activity and the personnel action.  *Crump  v. Department of Veterans Affairs*, 114  M.S.P.R. 224, ¶ 10 (2010).  *Prima facie* means that a party produces evidence that – unless  rebutted – is sufficient to prove a particular proposition or fact.  Once a *prima facie* case is established, the agency must demonstrate that the action would have  been taken even in the absence of any protected activity.  *Gerlach v. Federal Trade Commission*, 9  M.S.P.R. 268, 271, 274-75 (1981) (citing*Mt. Healthy City School District Board of  Education v. Doyle*, 429 U.S. 274 (1977)).
  ***What  is the difference between section 2302(b)(9) and section 2302(b)(8) (whistleblowing)?***
    Allegations  of reprisal “based upon exercising one’s right to complain” are protected under  5 U.S.C. § 2302(b)(9), while those that are “based on disclosure of  information” are protected under 5 U.S.C. § 2302(b)(8).  *Serrao v. Merit Systems**Protection Board*, 95  F.3d 1569, 1574-75 (Fed. Cir. 1996); *Luecht v. Department of Navy*, 87  M.S.P.R. 297, ¶ 9 (2000).    Therefore, allegations of reprisal based upon EEO or grievance  disclosures are not considered whistleblowing within the meaning of the Whistleblower Protection  Act, and thus they are outside MSPB’s individual right of action appeal  jurisdiction.  *Mason v. Department of Homeland Security*, 116  M.S.P.R. 135, 145 n.6 (2011).
  ***May  I file a direct appeal to MSPB to remedy violations of section 2302(b)(9)?***
    If  an agency takes an “otherwise appealable action,” such as a removal, a suspension  of more than 14 days, or a demotion, against an employee, then he or she may  raise violations of  section 2302(b)(9)  as an “affirmative defense” to that action.  *See* 5 U.S.C. § 7512; *Booker v. U.S. Postal Service*, 53  M.S.P.R. 507, 509, *aff’d*, 982  F.2d 517 (Fed. Cir. 1992), *cert. denied*, 510 U.S. 862 (1993); *Wren v. Department of the Army*, 2  M.S.P.R. 1, 2 (1980), *aff’d*, 681  F.2d 867, 871-73 (D.C. Cir. 1982).  An  affirmative defense occurs when an employee claims that an action should not be  sustained because: (1) there was a harmful error in the agency’s procedures for  taking the action; (2) the decision was based on a PPP; or (3) the decision was  otherwise not in accordance with the law.  5 U.S.C. § 7701(c)(2).   While an agency has the burden to prove  that its action is supported by a preponderance of the evidence, the appellant  asserting an affirmative defense bears the burden to prove the affirmative  defense by a preponderance of the evidence.  5 C.F.R. § 1201.56(a)(2).
    In  the absence of an “otherwise appealable action,” allegations of PPPs under 5 U.S.C. § 2302(b)(9)  do not confer independent jurisdiction on MSPB.   Thus, if an employee believes that an employing agency has taken a personnel  action against him or her in violation of section 2302(b)(9), MSPB will not be  able to adjudicate the appeal unless the agency has also taken an “otherwise appealable  action” against the employee.
  ***If  MSPB does not have jurisdiction over my case as an “otherwise appealable action,”  then how do I pursue a claim that someone violated this provision?***
    If  MSPB does not otherwise have jurisdiction to review a PPP claim, an employee  may file a complaint with the OSC.  *King v.  Jerome*, 42  F.3d 1371, 1375 (Fed. Cir. 1994).  The  OSC can investigate allegations of PPPs, secure corrective action, and bring  action against employees who commit such acts.  5 U.S.C. § 1214(a)(1)(A).  The OSC may file a complaint with MSPB, which  will be heard by an administrative law judge.  5 C.F.R. §  1201.125.  To establish a violation  of this section, OSC must show: (1) the employee engaged in an activity  protected by the statute; (2) the employee was subsequently treated adversely;  (3) agency officials knew or had constructive knowledge that the employee  engaged in protected activity; (4) there was a causal connection between the  protected activity and the personnel action; and (5) the protected activity was  a significant factor in the taking of the action.  *Harvey  v. Merit Systems Protection Board*, 802  F.2d 537, 547 (D.C. Cir. 1986).
  ***What  penalties may MSPB impose for violations of this provision?***
    The  MSPB may impose penalties for violation of this provision, to include  reprimanding, suspending, demoting, or removing the offender from Federal  employment; prohibiting the offender from working for the Federal Government  for up to five years; and imposing a fine of up to $1000.  5 U.S.C. § 1215(a)(3);  s*ee Special Counsel v. Nielson*, 71  M.S.P.R. 161, 179-80 (1996).  In  determining the appropriate penalty to impose in Special Counsel disciplinary  actions, MSPB applies its decision in *Douglas  v. Veterans Administration*, 5  M.S.P.R. 280, 305-06 (1981), which describes factors to consider when assessing  a penalty, although not all of the listed factors will be pertinent in every  case.  *Special Counsel v. Hathaway*, 49  M.S.P.R. 595, 612 (1991), *aff’d*,  981 F.2d 1237 (Fed. Cir. 1992).
  ***Does  the ninth PPP include retaliation for filing an EEO complaint?***
    As  stated above, retaliation for exercising appeal, grievance, or complaint rights  is generally covered by 5 U.S.C. § 2302(b)(9).  In addition,  MSPB recognizes a claim of retaliation for filing a discrimination complaint,  as opposed to, for example, retaliation for filing a grievance, as equivalent  to prohibited discrimination under 5 U.S.C. §  2302(b)(1).  *See* *Mahaffey  v. Department of Agriculture*, 105  M.S.P.R. 347, ¶ 20 n.8 (2007).  Significantly,  this categorization of retaliation for filing a discrimination complaint can  lead to situations where MSPB will review an agency action that might otherwise  have been barred from review under a collective bargaining agreement.  5 U.S.C. § 7121(d).
  ***Are  compensatory damages available for violations of the ninth PPP?***
    If  an appellant prevails on a 2302(b)(1)  and (9) EEO claim, he or she may be eligible  to receive compensatory damages.  *See Edwards v. U.S. Postal Service*, 112  M.S.P.R. 196, ¶¶ 16-17 (2009).   For instance, if an appellant proves that an agency discriminated  against him or her, MSPB could order the agency to pay for expenses related to  moving, looking for another job, or medical treatment if those expenses were  incurred because of the retaliatory action.   It might also order the agency to pay for “nonpecuniary losses” such as  pain, suffering, and loss of enjoyment of life.  85  M.S.P.R. 189, ¶ 14 (2000), the Board found that the appellant might be  entitled to compensatory damages based on his claims of gender and disability  discrimination under Title VII of the Civil Rights Act of 1964 and his claim of  retaliation for prior EEO activity involving Title VII.  The Board also determined, though, that such  damages would not be available for Mr. Simonton’s claims of age discrimination  or retaliation for pursuing workers’ compensation benefits.
  ***Has  MSPB studied this practice?***
    Yes.  In its report, *Prohibited  Personnel Practices: Employee Perceptions*, MSPB reported that perceived  violations of this provision have decreased steadily in the last 15 years.  In 2010, 3.9% of Federal employees who  responded to MSPB’s survey reported that they perceived retaliation for filing  a grievance or appeal right.  *Id*. at 33.


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