2022 MSPB 6
MSPB2022Background
- Appellant was a reemployed annuitant GS-0996-12 Ratings Veterans Service Representative separated by the VA on June 30, 2014; agency stated services no longer required.
- Appellant alleged reprisal to OSC for protected disclosures in QRT studies and for union representational activity (AFGE Local 1594); OSC referred him to the Board and he filed an IRA appeal.
- Deciding official later wrote that removal was for misconduct (attendance/schedule issues at trainings, refusal to follow instructions, and duplicate case-credit entries); she believed removal was the only option for a reemployed annuitant.
- The administrative judge found jurisdiction under 5 U.S.C. § 2302(b)(8) and (b)(9)(B); he held some representational activities were protected and contributing factors, but ruled the agency proved by clear and convincing evidence it would have removed the appellant anyway under the Carr factors.
- On review the Board (1) rejected the AJ’s modified Carr-factor-one standard for at-will reemployed annuitants, (2) found the AJ applied too narrow an analysis to Carr factor two (motive) and failed to consider workplace labor‑management tension, and (3) determined the agency’s comparator evidence under Carr factor three was incomplete—remanding for a new Carr‑factor analysis.
- The Board affirmed that (a) the appellant’s April 16 reply to a proposed admonishment was not protected under § 2302(b)(9)(B) and (b) the May 23 RFI‑objection memo was not separately protected (the grievance filed that day was protected). The Board directed reconsideration of credibility and certain documentary evidence on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellant’s additional acts (April 16 reply to proposed admonishment; May 23 RFI‑objection memo) constituted protected activity under 5 U.S.C. § 2302(b)(9)(B) | Reply and memo were representational/union activity assisting coworkers and thus protected | Reply and memo were not steps toward an appeal/complaint/grievance process; the memo was informational and the reply to a proposed admonishment is not a statutorily granted grievance right | Reply to admonishment not protected; RFI‑objection memo not separately protected (the contemporaneous grievance was protected) |
| Proper standard for Carr factor one given appellant’s status as a reemployed annuitant (at‑will) | At‑will status reduces agency’s burden; AJ should assess reasonableness of official’s belief at time and allow a relaxed showing | Agency must still prove by clear and convincing evidence it would have taken same action absent protected activity; at‑will status does not diminish burden | Rejected AJ’s modified/relaxed standard; retained traditional clear‑and‑convincing, holistic Carr‑factors analysis (agency burden unchanged) |
| Whether Board should consider broader retaliatory motives for Carr factor two (beyond immediate decisionmaker) | AJ should consider broader workplace context and potential professional retaliatory motive against appellant | Agency argued no strong motive by deciding official or HRM chief | Board held AJ applied too narrow a view; must consider workplace labor‑management tension and whether motive can be imputed broadly (professional retaliatory motive may be relevant) |
| Sufficiency of comparator evidence for Carr factor three (whether agency treats similarly situated non‑protected employees the same) | Absence of full comparator evidence undermines agency’s claim it would have acted regardless of protected activity | Agency produced testimony about separations of other reemployed annuitants | Board found agency’s comparator evidence incomplete/insufficient; failure to present complete comparators means Carr factor three cannot favor agency; remand required |
Key Cases Cited
- Carr v. Social Security Administration, 185 F.3d 1318 (Fed. Cir. 1999) (establishing Carr factors for evaluating agency proof in whistleblower/retaliation cases)
- Whitmore v. Department of Labor, 680 F.3d 1353 (Fed. Cir. 2012) (Board must consider broader retaliatory motives and influence beyond chain of command)
- Miller v. Department of Justice, 842 F.3d 1252 (Fed. Cir. 2016) (instructing Board to examine retaliatory motive beyond immediate supervisors)
- Robinson v. Department of Veterans Affairs, 923 F.3d 1004 (Fed. Cir. 2019) (recognizing “professional retaliatory motive” when disclosures implicate agency managers generally)
- Smith v. General Services Administration, 930 F.3d 1359 (Fed. Cir. 2019) (absence of comparator evidence can undermine agency’s proof)
- Siler v. Environmental Protection Agency, 908 F.3d 1291 (Fed. Cir. 2018) (comparator evidence requirements and agency’s burden)
- Yunus v. Department of Veterans Affairs, 242 F.3d 1367 (Fed. Cir. 2001) (assessing first Carr factor by reference to what officials knew at time of action)
- Alarid v. Department of the Army, 122 M.S.P.R. 600 (2015) (applying §1221(e) burden‑shifting framework to non‑disclosure protected activity claims)
- Graves v. Department of Veterans Affairs, 123 M.S.P.R. 434 (2016) (interpreting “appeal, complaint, or grievance” under §2302(b)(9)(B))
- Shibuya v. Department of Agriculture, 119 M.S.P.R. 537 (2013) (remand guidance; AJ who heard live testimony best positioned to reassess credibility)