United States Merit Systems Protection Board

Case Report for January 21, 2011

These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.



The Board has not issued any precedential decisions since the previous Case Report.


Petitioner: National Aeronautics & Space Administration

Respondents: Robert M. Nelson et al.

Tribunal: United States Supreme Court

Docket Number: 09-530

Issuance Date: January 19, 2011

Constitutional Issues – Informational Privacy

Writing for the Court, Justice Alito summarized the Court’s decision as follows:

    In two cases decided more than 30 years ago, this Court referred broadly to a constitutional privacy “interest in avoiding disclosure of personal matters.” Whalen v. Roe , 429 U. S. 589, 599–600 (1977) ; Nixon v. Administrator of General Services , 433 U. S. 425, 457 (1977). Respondents in this case, federal contract employees at a Government laboratory, claim that two parts of a standard employment background investigation violate their rights under Whalen and Nixon. Respondents challenge a section of a form questionnaire that asks employees about treatment or counseling for recent illegal-drug use. They also object to certain open-ended questions on a form sent to employees’ designated references.

    We assume, without deciding, that the Constitution protects a privacy right of the sort mentioned in Whalen and Nixon . We hold, however, that the challenged portions of the Government’s background check do not violate this right in the present case. The Government’s interests as employer and proprietor in managing its internal operations, combined with the protections against public dissemination provided by the Privacy Act of 1974, 5 U. S. C. 552a, satisfy any “interest in avoiding disclosure” that may “arguably ha[ve] its roots in the Constitution.” Whalen , supra , at 599, 605.

In an opinion (joined by Justice Thomas)concurring in the judgment, Justice Scalia stated that:

    I agree with the Court, of course, that background checks of employees of government contractors do not offend the Constitution. But rather than reach this conclusion on the basis of the never-explained assumption that the Constitution requires courts to “balance” the Government’s interests in data collection against its contractor employees’ interest in privacy, I reach it on simpler grounds. Like many other desirable things not included in the Constitution, “informational privacy” seems like a good idea—wherefore the People have enacted laws at the federal level and in the states restricting the government’s collection and use of information. But it is up to the People to enact those laws, to shape them, and, when they think it appropriate, to repeal them. A federal constitutional right to “informational privacy” does not exist.

Plaintiff-Appellant: Duane R. Bonds

Defendant-Appellee: Michael Leavitt, Secretary, Department of Health & Human Services

Tribunal: U.S. Court of Appeals for the Fourth Circuit

Docket Number: 09-2179

Issuance Date: January 3, 2011

Whistleblower Protection Act
- Protected Disclosure – Normal Duties
- Mixed Case Procedures
- Retaliation for Protected EEO Activity

Bonds appealed from federal district court orders that dismissed some of her employment claims and granted summary judgment against her on the others. Bonds is an African-American female doctor who has spent much of her professional career fighting sickle cell disease and other medical disorders that severely impact fetal and maternal health. She alleged that National Institutes of Health (NIH) terminated her employment in retaliation for protected whistleblowing activity. She also raised 3 Title VII claims in connection with her termination: that she was exposed to a hostile work environment; that she suffered illegal retaliation for opposing racial discrimination; and that she was discriminated against because of her race and gender. Her whistleblower retaliation claim related to her work on a sickle-cell clinical drug trial that involved a process known as Epstein-Barr virus cell line transformation, which allows researchers to transform and grow indefinitely blood cells taken from study participants without drawing new blood. Bonds believed that retaining these “immortalized” cell lines violated federal law. She filed a disclosure with the Office of Special Counsel (OSC) alleging this and OSC initiated an investigation. NIH thereafter terminated her employment, stating that it was taking this action because Bonds improperly released sensitive information, including budget figures related to upcoming negotiations with potential contractors, to persons not entitled to that information.

Bonds filed an administrative EEO complaint with her agency, which accepted the complaint as a mixed case. When the agency had not issued a decision after 7 months, Bonds filed a complaint in federal district court challenging the merits of the removal action and asserting that the action was taken in violation of the Whistleblower Protection Act and Title VII of the Civil Rights Act.

Holdings: The court affirmed in part, reversed in part, and remanded the case to the district court for further proceedings:

1. The court had jurisdiction over the appellant’s claim under the Civil Service Reform Act (CSRA).

a. The CSRA comprehensively overhauled the civil service system, creating a framework for evaluating adverse personnel actions against federal employees. The CSRA governs the adjudication of “mixed case complaints,” meaning complaints alleging employment discrimination filed with a federal agency related to or stemming from an action that can be appealed to the MSPB. Actions that can be appealed to the MSPB include removal from federal service, including retaliatory termination for protected whistleblower activity.

b. The court agreed with Bonds that the district court possessed jurisdiction over her claim under 5 U.S.C.  7702(e), which provides that after the required time has passed without administrative action on an EEO complaint, “an employee shall be entitled to filed a civil action to the same extent and in the same manner as provided in” cited provisions of several civil rights laws.

c. Each circuit court of appeals to have addressed this issue has concluded that district courts possess jurisdiction over non-discrimination claims in mixed cases when agencies fail to meet the time limit (120 days) established by  7702(e)(1)(B). Finding other courts’ reasoning on this issue persuasive, the court adopted this position as well.

d. Bonds’ EEO complaint sufficiently raised a CSRA claim by alleging that she did not engage in the misconduct alleged as the basis for her termination, and that alternatively, termination was an “overly harsh” penalty.

2. The district court erred in granting the defendant summary judgment against Bond on her claim or retaliation for protected whistleblowing under 5 U.S.C.  2302(b)(8)(A).

a. The WPA, codified at 5 U.S.C.  2302(b)(8), contains two subsections. Subsection B protects whistleblowing to the Special Counsel or to the Inspector General or his/her designee; subsection A applies to all other whistleblowing.

b. Bonds’ subsection A claim alleges that she suffered retaliation for reporting the cell line issue to Dr. Elizabeth Nabel, the Director of the National Heart, Lung, and Blood Institute. The district court held that Bonds failed to create a genuine issue of material fact regarding whether she engaged in protected activity under subsection A because she did not report her concerns to an authority who was in a position to correct the alleged wrongdoing, and because reporting that wrongdoing was within her routine job duties and she did not report the wrongdoing outside normal channels.

c. Section 2302(b)(8) makes it unlawful to take a personnel action against an employee “because of – (A) any disclosure of information by an employee . . . which the employee . . . reasonably believes evidences – (i) a violation of any law, rule, or regulation . . . .” (emphasis added by court).

d. The court’s decision in Hooven-Lewis v. Caldera, 249 F.3d 259, 276 (4th Cir. 2001), did not rule that, to constitute protected conduct, the disclosure must be made to a person that the would-be whistleblower believes has actual authority to correct the wrongdoing. The essence of the decision in that case is merely that no disclosure occurs to anyone when a report is made to the wrongdoer himself because the wrongdoer is already necessarily aware of his own conduct.

e. The court acknowledged the ruling by the Federal Circuit in Huffman v. Office of Personnel Management, 263 F.3d 1341 (Fed. Cir. 2001) that a disclosure is not protected if it was a normal part of the employee’s duties made through normal channels. The court stated that, “Even assuming that we would sanction such an exception in our circuit, we do not believe it would entitle the defendants to summary judgment in this case.” The court found no evidence that Bonds had a responsibility to report any concerns to Dr. Nabel as part of Bonds’ normal duties.

3. The district court erred in granting the defendant summary judgment against Bond on her claim of retaliation for protected whistleblowing under 5 U.S.C.  2302(b)(8)(B).

a. Turning to Bonds’ subsection B claim that she suffered retaliation based on her report to the OSC of the cell line issue, the district court ruled that Bonds’ claim failed as a matter of law because she did not create a genuine factual issue regarding whether Peterson (the official who made the decision to terminate Bonds’ employment) knew that Bonds’ whistleblowing was the catalyst for the government’s investigation regarding the cell lines.

b. The evidence suggests that Peterson had plenty of reason to conclude that Bonds, as the only person vehemently resisting the retention of the cell lines, was the catalyst for the investigation. The issue of whether Peterson knew when he terminated Bonds that her report had brought on the investigation was properly one for a jury to resolve.

4. The court examined each of Bonds’ Title VII claims, finding that the district court correctly granted summary judgment or dismissed each claim. In discussing the claim of retaliation for protected EEO activity, the court found that 42 U.S.C.  2000e-16 provides federal employees protection against such retaliation.

a. 42 U.S.C.  2000e-3 prohibits retaliation by a private employer against an employee because she “has opposed any practice made an unlawful employment practice by” Title VII. In 1972, Congress expanded Title VII’s coverage to include employee of federal executive agencies and other particular categories of federal employees. Section 2000e-16(a) provides that all personnel actions taken in regard to these employees “shall be made free from any discrimination . . . .”

b. Unlike  2000e-3,  2000e-16 does not explicitly provide protection against retaliation. Section 2000e-16(d) provides, however, that “[t]he provisions of section 2000e-5(f) through (k) of this title, as applicable, shall govern civil actions brought hereunder.” Section 2000e-5(g), in turn, provides that a court may not order the “hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual . . . was refused employment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, or national origin or in violation of section 2000e-3(a) of this title.”

c. Reading these provisions together, the court concluded that Congress incorporated the protections against retaliation afforded to private employees under  2000e-3(a) to federal employee under  2000e-16.

Appellant: Richard T. Ford

Appellee: Raymond Edwin Mabus, Jr., Secretary of the Navy

Tribunal: U.S. Court of Appeals for the District of Columbia Circuit

Docket Number: 09-5041

Issuance Date: December 10, 2010

Age Discrimination

In challenging his non-selection for a promotion, Ford alleged that he was subjected to age discrimination. The primary issue on appeal was the standard of proof applicable to claims of age discrimination filed by federal employees. Ford argued that, even if his challenges to the district court’s application of the McDonnell Douglas test fail, he may nonetheless prevail under a Price Waterhouse mixed motive analysis, i.e., if he proved that discriminatory animus played a motivating part in the employment decision, the employer may avoid a finding of liability only by proving that it would have made the same decision even if it had not allowed discriminatory animus to play such a role. The employer argued that the Supreme Court’s decision in Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009) foreclosed any use of mixed-motive analysis in age discrimination cases because the Court held that the burden never shifts to the employer and that the employee must establish that age was the “but-for” cause of the employer’s decision. The Court of Appeals summarized its decision as follows:

Appellant, a federal government employee, alleges discrimination on the basis of age in violation of section 633a of the Age Discrimination in Employment Act (ADEA). The district court applied the McDonnell Douglas framework and found that appellant had failed to meet his ultimate burden of proving that age was the but-for cause of the challenged action. Seeing error in neither the district court’s fact-findings nor its evidentiary rulings, we affirm that portion of its judgment. But because of what this court has called section 633a’s “sweeping” language—“all [federal government] personnel actions . . . shall be made free from any discrimination based on age”—we hold that plaintiffs may also establish liability, though not necessarily entitlement to such remedies as reinstatement and backpay, by showing that consideration of age was a factor in the challenged personnel action. We therefore reverse the entry of judgment for the government and remand for further proceedings consistent with this opinion.

In reaching this conclusion, the court reasoned as follows:

1. In Gross, the Court was construing the “because of” language of 29 U.S.C.  623, which applies to private employment. 29 U.S.C.  633a, which governs federal employment, provides that “[a]ll personnel actions . . .  shall be made free from any discrimination based on age.” As the Supreme Court observed in Gomez-Perez v. Potter, 553 U.S. 474, 486 (2008), section 633a is a “broad, general ban on ‘discrimination based on age.’”

2. In Cuddy v. Carmen, 694 F.2d 853 (D.C. Cir. 1982), the court did suggest that the standard for proving violations under  633a is the same as under  623, but this statement was dictum.

3. The government’s argument ignores the very different functions the parallel phrases – “because of” and “based on” – play in the two provisions. In section 623, “because of” modifies “to fail or refuse to hire.” By contrast, in section 633a, “based on” modifies “discrimination.” So while a section 623 plaintiff must, as Gross holds, show that the challenged personnel action was taken because of age, a section 633a plaintiff must show that the personnel action involved “any discrimination based on age.” Limiting plaintiffs to proving liability only by establishing that consideration of age was the but-for cause of the personnel action would thus divorce the phrase “free from any discrimination” from its plain meaning. To be faithful to that “sweeping” language, the court held that plaintiffs may also prevail by proving that age was a factor in the employer’s decision.

4. Section 633a does not require burden shifting. As in Gross, the court saw no “warrant to depart” from “the ordinary default rule that plaintiffs bear the risk of failing to prove their claims.” The plaintiff thus has the burden to show that age was a factor in the challenged personnel action.

5. Although Ford may establish section 633a liability by proving that age was a factor in the Navy’s decision, thus entitling him to declaratory and possibly injunctive relief, it is insufficient to merit instatement and backpay. For those types of remedies, a but-for standard of causation is necessary because, after all, if the Navy would have made the same decision absent consideration of age, Ford would have no right to the job. The court declined to find who bears the additional burden of proof on this question, which was “entirely unbriefed.” “Having flagged the issue, we thus leave its resolution for another day.”

Appellant: Linda Solomon

Appellee: Thomas J. Vilsack, Secretary of Agriculture

Tribunal: U.S. Court of Appeals for the District of Columbia Circuit

Docket Number: 09-5319

Issuance Date: December 21, 2010

Disability Discrimination – Reasonable Accommodation
Disability Retirement

At issue in this case was whether Solomon’s receipt of disability retirement benefits precluded her from claiming that her employer violated the Rehabilitation Act by failing to accommodate her disability. The court summarized its decision as follows:

This case involves the interaction of two statutory regimes designed to benefit and protect federal employees with disabilities: the Rehabilitation Act of 1973 and the disability retirement provisions of the Federal Employees’ Retirement System Act of 1986. To prevail on a claim of disability discrimination under the Rehabilitation Act, plaintiffs must show that they could “perform the essential functions” of their jobs either “with or without reasonable accommodation.” By contrast, disabled employees able to fulfill the duties of their positions with reasonable accommodation are ineligible for disability benefits from the Federal Employees Retirement System. Here the district court held that appellant’s receipt of federal disability retirement benefits precluded her from claiming that her employer, the U.S. Department of Agriculture, violated the Rehabilitation Act by failing to accommodate her disability. We disagree. Guided by the Supreme Court’s analysis in Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999), we conclude (1) that claims for federal disability retirement benefits and disability-discrimination claims under the Rehabilitation Act do not so inherently conflict as to justify presumptively barring recipients of such benefits from asserting Rehabilitation Act claims, and (2) that a reasonable jury could find that the statements appellant and her doctor made in support of her application for disability benefits are consistent with her current claim that she could have performed the essential functions of her position with reasonable accommodation. We thus hold that appellant’s receipt of disability benefits bars neither her claim that her employer failed to accommodate her disability nor a related set of claims that her supervisors retaliated against her for exercising her rights under federal antidiscrimination laws. Accordingly, we vacate the district court’s entry of summary judgment on those claims and remand for the court to consider in the first instance whether appellant has raised trial-worthy issues of material fact.


Non-precedential Decisions

The U.S. Court of Appeals for the Federal Circuit issued non-precedential decisions in the following cases:

Maglietti v. Merit Systems Protection Board, No. 2010-3144 (Jan. 13, 2011) (MSPB Docket No. PH-0752-10-0072-I-1) (affirming the Board’s decision, which dismissed this appeal for lack of jurisdiction)

Killeen v. Office of Personnel Management, No. 2010-3111 (Jan. 13, 2011) (MSPB Docket No. CH-0831-07-0013-A-1) (reversing the Board’s decision, which reduced the amount of attorney fees requested by the prevailing party, and remanding with instructions to award the full amount of attorney fees requested)

Becker v. Department of Veterans Affairs, No. 2010-3151 (Jan. 13, 2011) (MSPB Docket No. NY-4324-09-0228-I-1) (affirming the Board’s decision, which denied the appellant’s USERRA claim)

Nelson v. Merit Systems Protection Board, No. 2010-3152 (Jan. 13, 2011) (MSPB Docket No. CH-0752-08-0811-I-2) (affirming the Board’s decision, 113 M.S.P.R. 644 (2010), which dismissed the appeal as untimely filed)

Sutton v. Merit Systems Protection Board, No. 2010-3147 (Jan. 13, 2011) (MSPB Docket No. CH-844E-09-0813-I-1) (affirming the Board’s decision, 113 M.S.P.R. 576 (2010), which dismissed the appellant’s petition for review as untimely filed)

Makse v. Office of Personnel Management, No. 2010-3156 (Jan. 14, 2011) (MSPB Docket No. CH-0831-09-0779-I-1) (affirming the Board’s decision, which affirmed OPM’s determination of the amount of the appellant’s annuity)

Cross v. Office of Personnel Management, No. 2010-3158 (Jan. 14, 2011) (MSPB Docket No. SL-831E-88-0232-C-1) (affirming the Board’s decision, which denied the appellant’s petition for enforcement alleging that OPM was not in compliance with a final Board decision directing it to approve her application for disability retirement)

Miller v. Office of Personnel Management, No. 2010-3170 (Jan. 18, 2011) (MSPB Docket No. CH-0831-09-0682-I-1) (affirming the Board’s decision, which affirmed OPM’s determination that the appellant is not entitled to a survivor annuity based on the service of her late spouse)

Phillips v. Department of the Air Force, No. 2010-3160 (Jan. 18, 2011) (MSPB Docket No. AT-0752-10-0006-I-1) (affirming the Board’s decision, which sustained the agency’s adverse action)

Alford v. Department of Defense, No. 2010-3112 (Jan. 19, 2011) (MSPB Docket No. DC-3330-09-0703-I-1) (affirming the Board’s decision, 113 M.S.P.R. 263 (2010), which dismissed the appellant’s VEOA appeal for failure to state a claim upon which relief could be granted and his USERRA appeal for lack of jurisdiction)

Baney v. Merit Systems Protection Board, No. 2010-3097 (Jan. 19, 2011) (MSPB Docket No. DA-1221-09-0479-W-1) (affirming the Board’s decision, which dismissed this IRA appeal for lack of jurisdiction)

Tompkins v. U.S. Postal Service, No. 2009-3219 (Jan. 19, 2011) (MSPB Docket No. AT-0752-09-0033-I-1) (affirming the Board’s decision, which sustained the agency’s removal action)

Jennings v. Social Security Administration, No. 2009-3127 (Jan. 19, 2011) (MSPB Docket No. CB-7521-07-0026-T-1) (affirming the Board’s decision, which sustained the agency’s removal action)

Kowat v. Department of the Army, No. 2010-3179 (Jan. 19, 2011) (MSPB Docket No. DA-3330-09-0406-I-1) (affirming the Board’s decision, which denied the appellant’s VEOA claim)

Aragon v. Office of Personnel Management, No. 2010-3078 (Jan. 19, 2011) (MSPB Docket No. SF-0831-09-0824-I-1) (affirming the Board’s decision, which affirmed OPM’s determination that the appellant was not entitled to make a deposit under the Civil Service Retirement System)

Machulas v. Department of the Air Force, No. 2010-3185 (Jan. 19, 2011) (MSPB Docket No. PH-4324-10-0200-I-1) (affirming the Board’s decision, which denied the appellant’s USERRA claim)