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 series of performance plans and an Opportunity to Perform Successfully (OPS).
- Huynh filed a Workplace Issues Report (Nov. 1, 2011) and subsequent informal and formal EEO complaints alleging discrimination by her supervisor (age, color, national origin, sex); she also filed a grievance contesting the removal.
- An arbitrator upheld the removal under the collective bargaining agreement; the Board previously found the arbitrator’s CBA interpretation rational but vacated the no-retaliation finding and remanded for proper legal analysis of retaliation.
- On remand, the administrative judge applied the Savage framework for retaliation claims: plaintiff must show a protected consideration was a motivating factor; if shown, the agency must prove it would have taken the same action anyway.
- The administrative judge credited supervisor and mentor testimony about longstanding performance deficiencies, rejected Huynh’s reliance on temporal proximity alone, and found no evidence of retaliatory animus or pretext.
- The administrative judge also found the agency proved by preponderant evidence it would have removed Huynh absent any retaliatory motive; the Board adopted that recommended decision and affirmed the removal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether agency retaliated for EEO activity | Huynh: timing of Workplace Issues Report and later EEO filings and subsequent adverse actions (changes to mentoring, assignments, reassignment denial, removal) show retaliation | Agency: changes and corrective actions were motivated by legitimate performance concerns; decisions by management, not retaliation | No retaliation; temporal proximity alone insufficient; credibility credited to supervisor and mentor testimony |
| Whether reassignment denial was retaliatory | Huynh: denial after report shows retaliatory motive; supervisor claimed ignorance of reassignment option | Agency: decision by managers for business reasons; reassignment unsuitable given performance issues | Denial was nondiscriminatory and motivated by performance/business reasons |
| Whether removal (vs. demotion) was retaliatory or pretextual | Huynh: creation of GS-11 position and choosing removal suggests pretext and mendacity; should have been downgraded | Agency: position creation/timing explained; supervisor concluded performance problems would persist at lower grades | No pretext; removal supported by evidence that deficiencies would carry to lower-graded jobs |
| Burden-shifting and ultimate causation | Huynh: protected activity was motivating factor; Agency failed to show it would have acted same way | Agency: even if motivating factor shown, it proved by preponderance it would have removed her anyway | Agency met burden; would have removed Huynh absent any retaliatory motive; removal upheld |
Key Cases Cited
- Dobruck v. Dep’t of Veterans Affairs, 102 M.S.P.R. 578 (2006) (earlier MSPB motivating-factor framework cited but later superseded)
- Savage v. Dep’t of the Army, 122 M.S.P.R. 612 (2015) (clarified motivating-factor standard and burden-shifting in MSPB retaliation claims)
- Hillen v. Dep’t of the Army, 35 M.S.P.R. 453 (1987) (standards for evaluating witness credibility)
- Lisiecki v. Fed. Home Loan Bank Bd., 23 M.S.P.R. 633 (1984) (Board lacks authority to review or modify penalty under 5 U.S.C. § 4303)