Denise R. McGann v. General Services Administration
Background
- Appellant, a GS-15 Supervisory HR Specialist, received a 30-day suspension effective July 2, 2014, based on four charges including insubordination for a March 31, 2014 email accusing supervisors of “acting like bullies.”
- Appellant raised affirmative defenses: retaliation for protected EEO activity, failure to accommodate (disability discrimination), and whistleblower reprisal; she appealed to the MSPB and requested a hearing.
- At hearing the administrative judge found the agency proved all charges by preponderant evidence, rejected the affirmative defenses, and upheld the 30-day suspension as reasonable.
- On review the appellant argued (1) a due process violation because the deciding official relied on information not provided to her, and (2) that the March 31 email was protected opposition to harassment/EEO activity, so disciplining her was retaliatory.
- The Board declined to consider the due process claim because appellant failed to timely preserve it at the prehearing stage; it analyzed the retaliation claim and the penalty under applicable standards and Savage.
- The Board concluded the email was not protected opposition (it was incendiary and not based on a reasonable belief of discrimination), appellant failed to show retaliation under Savage, and the penalty was within Douglas limits; the petition for review was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellant’s due process rights were violated because the deciding official relied on information not provided to appellant | Appellant: deciding official considered March 25 evaluation and March 26 reprimand not disclosed to appellant, depriving her of due process | Agency: issue not raised timely; record shows appellant had opportunity and did not preserve the claim | Not considered on review — claim waived for failure to timely object to prehearing summary |
| Whether the March 31 email constituted protected opposition under Title VII/opposition clause | Appellant: email opposed supervisors’ harassment and denial of reasonable accommodation; therefore protected | Agency: email was disrespectful, incendiary, insubordinate and not a reasonable form of opposition | Held not protected — language was incendiary and appellant lacked a reasonable good-faith belief of discrimination |
| Whether disciplining appellant for the email was retaliation for protected EEO activity (Savage framework) | Appellant: email is protected; deciding official’s reliance is direct evidence of reprisal | Agency: suspension was for misconduct, not motivated by EEO activity; officials credibly testified to that effect | Appellant failed to prove by preponderant evidence that EEO activity was a motivating factor; agency met burden that it would have disciplined absent any impermissible motive |
| Whether the 30-day suspension was an unreasonable penalty | Appellant: penalty excessive given service and circumstances | Agency: deciding official considered Douglas factors and prior discipline warranted suspension | Penalty affirmed — agency considered Douglas factors and exercised reasonable management discretion |
Key Cases Cited
- Savage v. Department of the Army, 122 M.S.P.R. 612 (clarifies Board’s two-step burden-shifting framework for § 2000e-16 claims)
- Smith v. Texas Department of Water Resources, 818 F.2d 363 (5th Cir.) (opposition clause does not protect insubordinate or disruptive workplace conduct)
- Armstrong v. Index Journal Co., 647 F.2d 441 (4th Cir.) (opposition clause limits — misconduct not immunized)
- Haebe v. Department of Justice, 288 F.3d 1288 (Fed. Cir.) (deference to credibility findings based on witness demeanor)
- Douglas v. Veterans Administration, 5 M.S.P.R. 280 (establishes factors for assessing discipline/penalty reasonableness)