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NEWS AND CASE ALERT
September 30th, 2022 | Issue #14-09
TABLE OF CONTENTS
FEDERAL CIRCUIT REEMPHASIZES PROHIBITION AGAINST MATERIAL EX PARTE CONTACTS IN ADVERSE ACTIONS
MSPB ATTEMPTS TO SYNTHESIZE ANALYSIS OF BURDENS OF PROOF IN DISCRIMINATION AND REPRISAL CASES
SUGGESTED READING
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By: Broida & Davis
This encyclopedic guide condenses MSPB and Federal Circuit decisions from 1999 through early 2022 into concise, usable summaries. Cases are arranged by subject matter areas and further categorized alphabetically. (more details at deweypub.com/mscs)
?This newly updated handbook on managing federal employees covers, from a supervisor's perspective, every important aspect of human resources management from hiring to firing. (more details at deweypub.com/fshr)
FEDERAL CIRCUIT REEMPHASIZES PROHIBITION AGAINST MATERIAL EX PARTE CONTACTS IN ADVERSE ACTIONS
It wasn’t a close call. Air Force fired a firefighter who failed a random drug test. The employee protested that he’d switched medications with his mother’s. The deciding official sought advice from his wife, a register nurse, and from his brother-in-law, a nurse practitioner, who told the deciding official that the likelihood of the mixup in the meds was slim to none. That advice adversely influenced the deciding official’s view of the credibility of the firefighter’s explanation. The case went to arbitration, where there’s usually no discovery, and the whole business of the family consults came out at the hearing. The arbitrator did not credit the due process defense involving ex-parte communications, and so the case went to the Federal Circuit. That court, hearkening to Stone v. FDIC, 179 F.3d 1368 (1999), determined the information conveyed by the relatives was material to the decisionmaking process because it influenced the decisionmaker’s evaluation of the credibility of the firefighter’s explanation of how matters stood with the medications. Distinguished was the decision in Blank v. Dept. of Army, 247 F.3d 1225 (Fed. Cir. 2001), excusing ex parte communications that no more than confirmed existing record information supporting the adverse action. That the deciding official may have been predisposed to discredit the employee’s explanation did not excuse his consideration of ex-parte information that influenced his decision. Result: the arbitrations decision upholding the removal was reversed. The Air Force could try again, but the decisional process had to afford due process.

Johnson v. Dept. of Air Force, Fed. Cir. 2021-1579 (Sept. 26, 2022)
The MSPB Guide is a complete research tool for Board cases, laws, procedure, and litigation practice and is the seminal text on this complex area of the law. (more details at deweypub.com/mspb)
Using Board and Federal Circuit cases as examples, Charges & Penalties offers the most comprehensive analysis and authoritative advice on adverse actions, charge drafting, and penalty selection. (more details at deweypub,com/mscp)
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MSPB ATTEMPTS TO SYNTHESIZE ANALYSIS OF BURDENS OF PROOF IN DISCRIMINATION AND REPRISAL CASES
For years--too many years—the Board has formulated, reformulated, refined, and restated what evidence its AJs should admit in discrimination and reprisal cases and what standards should be applied to assess that evidence. We find Board (and EEOC and court) decisions speaking of circumstantial, indirect, direct, or statistical evidence, or evidence demonstrating a convincing mosaic of discrimination, or evidence that belongs in a single pile and must be evaluated as a whole. Whatever the expression describing the assembly of evidence probative of discrimination or reprisal allegations, matters become as esoteric in describing the process of evaluating the significance of that evidence. Pridgen v. OMB, 2022 MSPB 31 (2022), provided that description—but it was so convoluted that the decision must be read several times to get its import and to separate out burdens of proof applicable to various allegations. To remain accurate in our description, we will shamelessly borrow (with edits for concision) from the MSPB Case Report of September 16, 2022, which described the decision after likely a score or more of reviews of the Board opinion and likely considerable effort to get the summary right (and we applaud the Case Report editors for their efforts):

1. Title VII discrimination claims in the Federal sector may be proved through either the motivating factor or but-for causation standard, but the appellant must prove but-for causation to obtain full relief.

2. An appellant may prove discrimination under Title VII by showing that the prohibited discrimination was a motivating factor in the employment decision.

3. An appellant who proves motivating factor is entitled to injunctive or other "forward-looking relief." To obtain the full measure of relief under the statute (including status quo ante relief, compensatory damages, or other relief related to the end result of the employment outcome), however, an appellant must prove that discrimination was a but-for cause of the employment outcome.

5. The McDonnell Douglas framework continues to have application to Board proceedings.

6. Claims of retaliation for opposing discrimination in violation of Title VII in the Federal sector may be proved through either the motivating factor or but-for causation standard, but the appellant must prove but-for causation to obtain full relief.

7. Disability discrimination claims under the Rehabilitation Act may be proved through either the motivating factor or but-for causation standard, but the appellant must prove but-for causation to obtain full relief.

8. A "but-for" causation standard applies to claims of retaliation for engaging in activity protected by the Rehabilitation Act.

Pridgen v. OMB, 2022 MSPB 31 (Sept. 12, 2022)
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SUGGESTED READING
Robert Montgomery, "Top Tips for Top-Notch Oral Argument Answers" (ABA Journal Feb. 2022)