2024 MSPB 6
MSPB2024Background
- Lois A. Starkey was hired by the Department of Housing and Urban Development (HUD) as a GS-14 Manufactured Housing Specialist in July 2017, during her career probationary period.
- Shortly after her hiring, Starkey became the subject of industry complaints, specifically from the Manufactured Housing Association for Regulatory Reform (MHARR), highlighting her Democratic political affiliations and campaign activities.
- An internal personnel dispute arose when Starkey, under instructions from her supervisors and in line with agency policy, contacted an industry association during a dispute with a state partner, leading to complaints from Oregon state officials.
- Despite her immediate supervisors rating her performance as "outstanding" and defending her actions, higher-level management, led by a political appointee (GDASH), terminated her probationary appointment, citing the Oregon complaint as the reason.
- Starkey appealed her termination, asserting it was motivated by partisan political reasons, and the administrative judge found her termination was pretextual and based on her political affiliation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Starkey's probationary termination based on partisan politics? | Starkey argued her firing was based on her known Democratic ties and complaints orchestrated by MHARR. | HUD argued her dismissal was for improper information sharing per the Oregon complaint. | The Board held Starkey was terminated for partisan political reasons, not misconduct. |
| Was the agency’s stated reason (Oregon complaint) a pretext? | Starkey claimed the Oregon complaint was a pretext; she acted under orders and established policy. | HUD maintained the incident justified her dismissal. | The Board found the official reason was pretextual; she acted as instructed. |
| Did the agency comply with procedural rules for interim relief? | Starkey sought dismissal of agency’s petition for late compliance. | HUD provided late certification and argued for review on the merits. | The Board found delay but opted not to dismiss the agency's petition. |
| Was the GDASH aware of Starkey’s political affiliation? | Starkey presented evidence GDASH knew her background via common knowledge and complaints. | HUD denied this, claiming no direct awareness. | The Board found GDASH’s denial not credible based on the evidence. |
Key Cases Cited
- Stokes v. Federal Aviation Administration, 761 F.2d 682 (Fed. Cir. 1985) (adapted Title VII frameworks to Board discrimination analysis)
- Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978) (articulated burden-shifting for discrimination claims)
- Gross v. FBL Financial Services, Inc., 557 U.S. 167 (2009) (established 'but-for' causation for “because of” statutes)
- Bostock v. Clayton County, 140 S. Ct. 1731 (2020) (interpreted 'but-for' causation in Title VII discrimination)
- Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379 (2008) (described relevance of "me too" evidence in employment cases)
- Kerr v. National Endowment for the Arts, 726 F.2d 730 (Fed. Cir. 1984) (explained restoration and retroactive remedies)