Marguerite Pridgen v. Office of Management and Budget, 2022 MSPB 31

Background

Appellant Marguerite Pridgen was a GS-15 policy analyst with chronic colitis, rhinitis, and carpal tunnel; she requested accommodations and received an air purifier and modified office space.
She filed multiple EEO complaints (2010–2012), Board appeals, and OSC complaints and made disclosures to GAO, OIGs, and the Deputy Attorney General about alleged agency noncompliance with grant-related laws and guidance.
The agency placed Pridgen on administrative leave (2011), issued counseling and an unsatisfactory rating, placed her on a PIP in July–Sept 2013, and removed her effective March 7, 2014, for unacceptable performance under 5 U.S.C. chapter 43.
An administrative judge initially affirmed the removal and rejected most affirmative defenses; Pridgen petitioned for review.
The Board on review reversed the removal (agency failed to prove unacceptable performance on a critical element), ordered reinstatement with back pay, and remanded claims of race/color/disability discrimination and retaliation/whistleblower reprisal for further adjudication.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did agency prove unacceptable performance on a critical element (chapter 43 removal)?	Pridgen argued PIP tasks were tied to non‑critical (strategic) goals, not core competencies.	Agency argued PIP deficiencies supported unsatisfactory critical‑element rating and removal.	Held: Agency failed to show unacceptable performance on any critical element (core competencies); removal reversed and vacated.
Was there race/color disparate‑treatment discrimination (comparator evidence)?	Pridgen argued a non‑Black, non‑disabled GS‑15 peer reporting to same supervisor received more favorable assignments and treatment.	Agency argued tasks differed and coworker was not a valid comparator.	Held: Coworker is similarly situated for assignment‑discrimination inquiry; remand for further findings on whether assignments reflected race/color discrimination.
Was there disability discrimination or retaliation under the Rehabilitation Act/ADA?	Pridgen asserted she was actually disabled (colitis etc.) and received less favorable assignments and adverse action tied to disability and accommodations.	Agency maintained performance, not disability, drove actions; denial of discrimination/retaliation.	Held: Pridgen proved she is an individual with an actual disability; comparator/assignment evidence requires remand to reassess disability disparate‑treatment claim and related remedies (motivating‑factor for liability; but‑for required for full relief).
Were Pridgen’s disclosures and OSC/OIG complaints protected whistleblowing and did they contribute to removal (WPA/5 U.S.C. § 1221(e))?	Pridgen claimed protected disclosures re: failure to implement grant‑reporting regulations (NDAA §872), grant reform delays, and Controller guidance errors; alleged reprisal for these disclosures and OSC filings.	Agency disputed that disclosures were sufficiently specific/protected and disputed contributing‑factor/causation.	Held: Board found the GAO, DOJ/OIG, and OSC disclosures were protected; remanded to determine whether disclosures were contributing factors and whether agency can show by clear and convincing evidence it would have acted absent disclosures (Carr factors).
What causation standard applies to discrimination and retaliation claims?	Pridgen argued motivating‑factor standard should govern many claims.	Agency relied on but‑for and other standards where applicable.	Held: Clarified standards: Title VII and Rehabilitation Act disparate‑treatment claims may be proved by motivating‑factor evidence (but but‑for required for full relief); ADA retaliation (and Rehabilitation Act retaliation under anti‑retaliation provision) requires but‑for causation per Nassar. WPA reprisal claims use contributing‑factor then agency clear‑and‑convincing burden under 5 U.S.C. § 1221(e).
Discovery rulings (motions to compel)	Pridgen argued motions were timely under a suspension order.	Agency defended denial as untimely under 5 C.F.R. § 1201.73.	Held: Administrative judge did not abuse discretion; motions to compel denied as untimely.

Key Cases Cited

Babb v. Wilkie, 140 S. Ct. 1168 (2020) (Federal sector discrimination may be shown if protected characteristic "played any part" in decision; but‑for required for full relief)
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (framework for order and allocation of proof in discrimination cases)
Nassar v. Univ. of Texas Southwestern Med. Ctr., 570 U.S. 338 (2013) (retaliation claims under Title VII require but‑for causation)
Santos v. Nat’l Aeronautics & Space Admin., 990 F.3d 1355 (Fed. Cir. 2021) (agency must properly assess pre‑PIP performance in chapter 43 contexts; discussed as influencing Board analysis)
Lovshin v. Dep’t of the Navy, 767 F.2d 826 (Fed. Cir. 1985) (definition of "unacceptable performance" and critical‑element consequences)
Carr v. Social Security Admin., 185 F.3d 1318 (Fed. Cir. 1999) (factors for assessing whether agency proved by clear and convincing evidence it would have taken same action absent protected whistleblowing)
Troupe v. May Department Stores Co., 20 F.3d 734 (7th Cir. 1994) (sets out direct, circumstantial, comparator, and "convincing mosaic" methods of proving discrimination)