Kim Loan Huynh v. Social Security Administration
Background
- Kim Loan Huynh, an IT Specialist (GS-12), was removed for unacceptable performance under 5 U.S.C. § 4303 after a sequence of supervisory actions beginning in 2010–2012; she filed a grievance and EEO complaints alleging discrimination and later alleged retaliation.
- An arbitrator sustained the removal under the parties’ CBA; the Board earlier found the arbitrator’s CBA interpretation rational but vacated the retaliation analysis for application of the incorrect legal standard and remanded.
- On referral, an administrative judge applied the Savage standard for Title VII retaliation and recommended denying Huynh’s retaliation claim and affirming the removal.
- The administrative judge credited supervisory and mentor testimony that Huynh had recurring performance deficiencies, that mentorship and assignment changes were for legitimate business reasons, and that demotion was not appropriate because deficiencies would persist at lower grades.
- Temporal proximity between protected activity (Workplace Issues Report and EEO complaints) and adverse actions existed, but the judge found no evidence of retaliatory animus beyond timing and concluded the agency proved it would have removed Huynh absent any retaliatory motive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicable legal standard for retaliation | Huynh relied on prior Board analysis (Dobruck); sought relief for retaliation | Agency argued the Board should apply then-current law (Savage) | Savage standard applies (motivating factor, then agency burden to show same-action defense) |
| Whether protected activity was a motivating factor in removal | Huynh: temporal proximity and subsequent supervisory changes (mentoring, assignments, refusal to reassign, selection of removal not demotion) show retaliation | SSA: changes were for legitimate, nonretaliatory reasons (new personnel, performance concerns, managerial decisions) | Held: Huynh failed to prove protected activity was a motivating factor; timing alone insufficient |
| Sufficiency of evidence that demotion (GS-11 or lower) was available/preferred to removal | Huynh: supervisor created a GS-11 PD and should have offered demotion; removal suggests retaliation | SSA: PD creation/timing and suitability addressed; demotion inappropriate because deficiencies would persist at lower grades | Held: No retaliatory animus shown in decision to remove rather than demote; agency testimony persuasive |
| Agency’s affirmative defense — would have taken same action absent retaliatory motive | Huynh: argued actions were retaliatory and pretextual | SSA: demonstrated by preponderant evidence that performance problems justified removal regardless | Held: Agency met its burden; would have removed Huynh even absent any retaliatory motive |
Key Cases Cited
- Dobruck v. Department of Veterans Affairs, 102 M.S.P.R. 578 (MSPB 2006) (prior Board analytical model for retaliation referenced)
- Savage v. Department of the Army, 122 M.S.P.R. 612 (MSPB 2015) (adopted motivating-factor test and shifted to agency burden to show same-action defense)
- Hillen v. Department of the Army, 35 M.S.P.R. 453 (MSPB 1987) (credibility factors for resolving witness testimony)
- Bartel v. Federal Aviation Administration, 14 M.S.P.R. 24 (MSPB 1982) (EEO complaints treated as protected activity)
- Lisiecki v. Federal Home Loan Bank Board, 23 M.S.P.R. 633 (MSPB 1984) (Board lacks authority to modify penalty under § 4303)