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Prohibited Personnel Practice of the Month

PROHIBITED PERSONNEL PRACTICE OF THE MONTH

Number 9
Protected Activity

PROTECTION AGAINST RETALIATION FOR EMPLOYEES WHO ENGAGE IN PROTECTED ACTIVITY

 

Where can I find provision Number 9 - Protected Activity?
It was part of the Civil Service Reform Act of 1978, Pub. L. No. 95-454,
92 Stat. 1111
.  It is codified at 5 U.S.C. § 2302(b)(9), with the other prohibited personnel practices (PPP). 

What is the ninth prohibited personnel practice?
Under the law, any employee who has the authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority — take or fail to take, or threaten to take or fail to take, any personnel action against any employee or applicant for employment because of —
         (A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation;
         (B) testifying for or otherwise lawfully assisting any individual in the exercise of any right referred to in subparagraph (A);
         (C) cooperating with or disclosing information to the Inspector General of an agency, or the Special Counsel, in accordance with applicable provisions of law; or
         (D) for refusing to obey an order that would require the individual to violate a law.

What is the purpose of the ninth prohibited personnel practice?
Simply put, this PPP protects Federal employees and applicants for employment from retaliation when they exercise certain legal rights, when they cooperate with an Inspector General or Office of Special Counsel (OSC) investigation, or when they refuse to obey an order requiring them to violate a law.  The guarantee of freedom from reprisal extends to any person who seeks the assistance of a remedial administrative process, and the law is designed to ensure the integrity of the process.  As an example, in Matter of Frazier, 1 M.S.P.R. 163 (1979), a supervisor “suggested to [Mr.] Frazier that he could expect to encounter less difficulty in his work if he dropped his union and [Equal Employment Opportunity (EEO)] responsibilities” and “offered to drop [a] proposed letter of reprimand … in return for” Mr. Frazier ending his collateral duties as an EEO counselor.  Soon after, Mr. Frazier resigned from those duties, and the agency rescinded the proposed letter of reprimand.  The Merit Systems Protection Board (MSPB or Board) held that the supervisor’s conduct was because of Mr. Frazier’s protected activities and constituted the commission of a PPP.

How do Federal employees show that they were retaliated against in violation of the ninth PPP?
To establish a prima facie case of retaliation under section 2302(b)(9), the employee must show that: he or she engaged in a statutorily-protected activity; he or she was subsequently treated adversely by the agency; the deciding official (the person authorized to make the final decision on a disciplinary action) had actual or constructive knowledge that the employee engaged in the protected activity; and a causal connection exists between the protected activity and the personnel action.  Crump v. Department of Veterans Affairs, 114 M.S.P.R. 224, ¶ 10 (2010).  Prima facie means that a party produces evidence that – unless rebutted – is sufficient to prove a particular proposition or fact.  Once a prima facie case is established, the agency must demonstrate that the action would have been taken even in the absence of any protected activity.  Gerlach v. Federal Trade Commission, 9 M.S.P.R. 268, 271, 274-75 (1981) (citing Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977)). 

What is the difference between section 2302(b)(9) and section 2302(b)(8) (whistleblowing)?
Allegations of reprisal “based upon exercising one’s right to complain” are protected under 5 U.S.C. § 2302(b)(9), while those that are “based on disclosure of information” are protected under 5 U.S.C. § 2302(b)(8).  Serrao v. Merit Systems Protection Board, 95 F.3d 1569, 1574-75 (Fed. Cir. 1996); Luecht v. Department of Navy, 87 M.S.P.R. 297, ¶ 9 (2000).   Therefore, allegations of reprisal based upon EEO or grievance disclosures are not considered whistleblowing within the meaning of the Whistleblower Protection Act, and thus they are outside MSPB’s individual right of action appeal jurisdiction.  Mason v. Department of Homeland Security, 116 M.S.P.R. 135, 145 n.6 (2011). 

May I file a direct appeal to MSPB to remedy violations of section 2302(b)(9)?
If an agency takes an “otherwise appealable action,” such as a removal, a suspension of more than 14 days, or a demotion, against an employee, then he or she may raise violations of  section 2302(b)(9) as an “affirmative defense” to that action.  See 5 U.S.C. § 7512; Booker v. U.S. Postal Service, 53 M.S.P.R. 507, 509, aff’d, 982 F.2d 517 (Fed. Cir. 1992), cert. denied, 510 U.S. 862 (1993); Wren v. Department of the Army, 2 M.S.P.R. 1, 2 (1980), aff’d, 681 F.2d 867, 871-73 (D.C. Cir. 1982).  An affirmative defense occurs when an employee claims that an action should not be sustained because: (1) there was a harmful error in the agency’s procedures for taking the action; (2) the decision was based on a PPP; or (3) the decision was otherwise not in accordance with the law.  5 U.S.C. § 7701(c)(2).  While an agency has the burden to prove that its action is supported by a preponderance of the evidence, the appellant asserting an affirmative defense bears the burden to prove the affirmative defense by a preponderance of the evidence.  5 C.F.R. § 1201.56(a)(2).
In the absence of an “otherwise appealable action,” allegations of PPPs under 5 U.S.C. § 2302(b)(9) do not confer independent jurisdiction on MSPB.  Thus, if an employee believes that an employing agency has taken a personnel action against him or her in violation of section 2302(b)(9), MSPB will not be able to adjudicate the appeal unless the agency has also taken an “otherwise appealable action” against the employee. 

If MSPB does not have jurisdiction over my case as an “otherwise appealable action,” then how do I pursue a claim that someone violated this provision?
If MSPB does not otherwise have jurisdiction to review a PPP claim, an employee may file a complaint with the OSCKing v. Jerome, 42 F.3d 1371, 1375 (Fed. Cir. 1994).  The OSC can investigate allegations of PPPs, secure corrective action, and bring action against employees who commit such acts.  5 U.S.C. § 1214(a)(1)(A).  The OSC may file a complaint with MSPB, which will be heard by an administrative law judge.  5 C.F.R. § 1201.125.  To establish a violation of this section, OSC must show: (1) the employee engaged in an activity protected by the statute; (2) the employee was subsequently treated adversely; (3) agency officials knew or had constructive knowledge that the employee engaged in protected activity; (4) there was a causal connection between the protected activity and the personnel action; and (5) the protected activity was a significant factor in the taking of the action.  Harvey v. Merit Systems Protection Board, 802 F.2d 537, 547 (D.C. Cir. 1986).  

What penalties may MSPB impose for violations of this provision?
The MSPB may impose penalties for violation of this provision, to include reprimanding, suspending, demoting, or removing the offender from Federal employment; prohibiting the offender from working for the Federal Government for up to five years; and imposing a fine of up to $1000.  5 U.S.C. § 1215(a)(3); see Special Counsel v. Nielson, 71 M.S.P.R. 161, 179-80 (1996).  In determining the appropriate penalty to impose in Special Counsel disciplinary actions, MSPB applies its decision in Douglas v. Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), which describes factors to consider when assessing a penalty, although not all of the listed factors will be pertinent in every case.  Special Counsel v. Hathaway, 49 M.S.P.R. 595, 612 (1991), aff’d, 981 F.2d 1237 (Fed. Cir. 1992).

Does the ninth PPP include retaliation for filing an EEO complaint?
As stated above, retaliation for exercising appeal, grievance, or complaint rights is generally covered by 5 U.S.C. § 2302(b)(9).  In addition, MSPB recognizes a claim of retaliation for filing a discrimination complaint, as opposed to, for example, retaliation for filing a grievance, as equivalent to prohibited discrimination under 5 U.S.C. § 2302(b)(1)See Mahaffey v. Department of Agriculture, 105 M.S.P.R. 347, ¶ 20 n.8 (2007).  Significantly, this categorization of retaliation for filing a discrimination complaint can lead to situations where MSPB will review an agency action that might otherwise have been barred from review under a collective bargaining agreement.  5 U.S.C. § 7121(d). 

Are compensatory damages available for violations of the ninth PPP?
If an appellant prevails on a 2302(b)(1) and (9) EEO claim, he or she may be eligible to receive compensatory damages.  See Edwards v. U.S. Postal Service, 112 M.S.P.R. 196, ¶¶ 16-17 (2009).  For instance, if an appellant proves that an agency discriminated against him or her, MSPB could order the agency to pay for expenses related to moving, looking for another job, or medical treatment if those expenses were incurred because of the retaliatory action.  It might also order the agency to pay for “nonpecuniary losses” such as pain, suffering, and loss of enjoyment of life.  5 C.F.R. § 1201.202(c).  In the case of Simonton v. U.S. Postal Service, 85 M.S.P.R. 189, ¶ 14 (2000), the Board found that the appellant might be entitled to compensatory damages based on his claims of gender and disability discrimination under Title VII of the Civil Rights Act of 1964 and his claim of retaliation for prior EEO activity involving Title VII.  The Board also determined, though, that such damages would not be available for Mr. Simonton’s claims of age discrimination or retaliation for pursuing workers’ compensation benefits.

Has MSPB studied this practice?
Yes.  In its report, Prohibited Personnel Practices: Employee Perceptions, MSPB reported that perceived violations of this provision have decreased steadily in the last 15 years.  In 2010, 3.9% of Federal employees who responded to MSPB’s survey reported that they perceived retaliation for filing a grievance or appeal right.  Id. at 33.