MSPB REVERSES REMOVAL FOR UNION ANIMUS
While we rarely think of MSPB as a place to slug out a dispute over whether an agency’s unacceptable performance removal of an employee was due to union animus, the Board just reminded us that it will consider that defense in any action appealable to it, e.g., adverse action, unacceptable performance action. (See Ayers v. Dept. of Army, 2015 MSPB 58 (2015).) This employee had apparently filed nine grievances as well as some ULP’s and information requests in a little over four months, triggering a long-term retaliation campaign by her manager. Summarized below via excerpts from the Judge’s 250+ page opinion, is what the Board says is needed if an employee alleges union animus or an agency has to defend against the charge. It is worth reading if only to get a sense of the wide range of evidence the Board will consider when examining animus claims.
Under 5 U.S.C. § 2302(b)(9)(A)(ii), it is unlawful to take any personnel action because of an employee s exercise of any grievance right granted by any law, rule, or regulation other than with regard to remedying a violation of (b)(8) (whistleblowing). As discussed above, although appellant asserted that she made (b)(8) disclosures in some of her grievances, I found that (b)(9)(A)(i), which was enacted as part of the WPEA and covers such (b)(8) protected activity, does not apply here because that part of the WPEA may not be retroactively applied.
To establish a prima facie case of union activity retaliation, appellant must show that the accused official(s) knew of the protected activity, that the adverse employment action under review could, under the circumstances, have been retaliation, and that there was a genuine nexus between the retaliation and the adverse employment action. See Cloonan v. U.S. Postal Service, 65 M.S.P.R. 1, 4 (1994). To establish a genuine nexus between the protected activity and the adverse employment action, appellant must prove that the employment action was taken because of the protected activity. Id. at n.3. If she meets this burden, the agency must show that it would have taken the action even absent the protected activity. See Rockwell v. Department of Commerce, 39 M.S.P.R. 217, 222 (1989).
However, when a hearing has been held, the inquiry proceeds directly to the ultimate question of whether, upon weighing all of the evidence, appellant has met her overall burden of proving illegal retaliation, i.e., whether she has produced sufficient evidence to show that the agency s proffered reason for its action was not the actual reason and that the agency intentionally retaliated against her. The evidence to be considered at this stage of the analysis may include: (1) the elements of the prima facie case; (2) any evidence she presented to attack the agency s proffered explanation for its action; and (3) any further evidence of retaliation that may be available to her, or any contrary evidence that may be available to the agency. Marshall v. Department of Veterans Affairs, 111 M.S.P.R. 5, 11-13 (2008).
Even if an appellant s evidence concerning her reprisal claim is wholly circumstantial, the Board will consider such evidence in determining whether or not she has met her burden of proof. As explained in Marshall, she must show that the accused official(s) knew of the protected activity and provide evidence demonstrating a convincing mosaic of retaliation against her under which a number of pieces of evidence, each of which supports a proposition only weakly can, when taken as a whole, provide strong support if all point in the same direction: a number of weak proofs can add up to a strong proof. As a general rule, this mosaic includes three general types of evidence: (1) evidence of suspicious timing, ambiguous oral or written statements, behavior toward or comments directed at other employees in the protected group, and other bits and pieces of information from which an inference of retaliatory intent might be drawn; (2) evidence that employees similarly situated to the appellant have been better treated; and (3) evidence that the employer s stated reason for its actions is pretextual.
The Board ultimately must weigh the severity of the appellant s alleged misconduct against the intensity of the agency s motive to retaliate. Rhee v. Department of the Treasury, 117 M.S.P.R. at 652, ¶ 26. Even if, unlike here, an agency has a strong case against an appellant, this does not win the case for the agency if the evidence shows that the motive for invoking the misconduct as a reason for a removal action is predominantly retaliation, as this renders the asserted reasons pretextual and thus establishes nexus. Rhee, 117 M.S.P.R. at 655, ¶ 27.
As summarized in the background to this initial decision, the record shows that appellant engaged in grievance activity on nine occasions during the period from April 8 through August 18, 2011 (not to mention other ULP notices and union information requests). In her Step 1, 2, and 3 grievances, appellant alleged that J.P. shoulder-bumped and cursed at her, she disputed her appraisal and amended appraisal, she alleged that Dr. Davis was retaliating against her due to her IG complaint and her prior grievances, she alleged that J.P. was rude to her and was retaliating against her, and she challenged her new performance standards.
As discussed in the background to this initial decision, COL Bedick, LTC s Glover and Lovins, Dr. Davis, J.P., MSG W.G., and the HR office all had actual knowledge of appellant s extensive grievance activity. As explained above, the particularly strong motives of J.P. and MSG W.G., along with Dr. Davis s, to reprise against appellant may easily be imputed to LTC Glover and COL Bedick; respectively, the proposing and deciding officials. See Rhee, at 656, ¶ 30.
Most of the above analysis regarding whistleblowing reprisal also applies here to show there was a convincing mosaic of retaliation, especially regarding: appellant s reasonable belief that she was being harassed and that J.P. and MSG W.G. were engaged in an inappropriate relationship, the suspicious timing of appellant s performance appraisal and the retraining plan, the weakness of the agency s evidence in support of appellant s removal, the affect of the agency s wrongful actions on appellant s wellbeing and conduct, the failure of COL Bedick to consider significant mitigating factors, the evidence of a retaliatory 15-6 Investigation, the very strong motive to retaliate against appellant, the agency s sensitivity to push back from appellant and to her criticism of the chain-of-command, the incongruous allegations against and criticism of appellant regarding her patient interactions during the same year that she was selected to be the RACH STAR recipient, the significant scrutiny appellant came under by very senior management officials, and the failure to take actions to assist appellant.
Additionally, as explained above, there are no similarly situated employees with whom to compare appellant. However, a few additional comments are warranted:
First, there were statements made and testimony given by agency witnesses that tend to show that they looked negatively upon appellant s grievance activity. COL Bedick testified that grievances are very common and that she did not hold appellant s grievances against her. However, she also testified that employees have the right to file such things as grievances, but that they are appropriate if the allegations were true. As indicated above, this is not an accurate statement of the law.
MSG W.G. testified that everybody has a right to [file] a grievance, as long as we have a response, which is a view that seems to assume that a grievant can never be correct in his or her allegations.
J.P. testified that appellant had a right to grieve her performance appraisal, but, in the record, she thrice expressed frustration or commented upon appellant s grievance activities.
In her August 9th Step 1 grievance, appellant alleged that on July 26, 2011, J.P. was rude, discourteous, and disrespectful to her, and was otherwise retaliating against her for her prior protected activities. AF, Tabs 13 (page 391), 14 (pages 390). In two MFR s dated August 15th, J.P. documented her response to the August 9 th grievance. In essence, J.P. stated that on July 26th she had, in fact, been sarcastic to appellant due to being very frustrated while stopping an argument between appellant and G.A., and that J.P. apologized to appellant for this on July 27th. She also noted that appellant filed a grievance and spoke to LTC Glover about this matter, rather than attempting to resolve the issue at a lower level and through the chain-of-command. AF, Tab 14 (pages 387-88). As discussed under specification f, J.P. was counseled by Dr. Davis for being sarcastic toward appellant on July 26th.
Next, in her statement for the 15-6 Investigation, J.P. stated that, Following the timecard incident [when J.P. eliminated time that appellant had spent in the bathroom and hallway talking to J.P. at the November 2011 Texas seminar] , [appellant s] disruptive behavior has increased tenfold. She has filed another grievance . AF, Tab 16 (page 356).
Lastly, after appellant questioned why J.P. had closely monitored her whereabouts during a random urinalysis, J.P. stated that, I don t know why I can t ask her ANYTHING without it becoming a big deal that goes to the union. AF, Tab 18 (page 323) (emphasis in original). See also the discussion under specification i.
As discussed above, Major Kong described appellant s protected activity in a negative manner in her 15-6 Investigation report, when she stated that instead of taking advantage of the retraining program, appellant engaged her energies in … attacking her supervisors and peers for allegedly unfair treatment. For examples of appellant s attacks, MAJ Kong referred reviewers of the report to appellant s 15-6 Investigation statement exhibits which listed some of her grievance activities in a prepared timeline. AF, Tabs Tab 37 (pages 15, 16), 39 (page 9, para. 3.a.).
Additionally, as discussed above, Dr. Berhmann equated appellant s grievance and EEO activity with refusing to have further training without conflict. See also footnote 61.
Secondly, it is important to emphasize the extent of the success appellant achieved through her grievances, because this a significant factor when examining the question of motive to reprise. As explained above and in the background to this initial decision, appellant s grievance activity concerning her performance appraisal was particularly successful in that the agency elevated her marks in two critical elements, elevated her overall rating to the second highest possible level, removed negative bullets and comments from the appraisal, and removed negative key points made from the cover sheet for her next performance year. Additionally, her grievances led, in part, to counseling of J.P. and MSG W.G. and to discipline being taken and/or proposed against them. (See Ayers. V. Dept. of the Army, MSPB, DA-0752-12-0396-I-3 (February 21, 2014).)