The MSPB’s New Analysis of EEO Reprisal Cases is Wrong

George M. ChuziAs we know, the Merit Systems Protection Board is the federal agency charged by Congress with hearing and deciding appeals in adverse actions, such as demotion, removal, or suspensions for 15 days or more. Cases involving both an action appealable to the Board and a claim of discrimination or reprisal are called “mixed cases.” While the procedure for deciding mixed cases is not for the faint of heart, one thing has been clear: the Board is supposed to follow established precedent when it rules on discrimination claims in mixed cases.

One of the obstacles in EEO reprisal cases is what the employee has to show in order to demonstrate that a decision or action was retaliatory. Specifically, is it enough that the employee shows that reprisal was one of the factors – a ‘motivating factor” — in the decision, or does the reprisal have to be the sole – the “but for” — factor even if there were other factors? And, which party – the employee or the Agency – has the burden of proof?

In Pridgen v. Office of Management and Budget, 22 MSPB 31, a precedential decision issued in September 2022, the Board held that a federal employee alleging that she was removed because she sought reasonable accommodation of her disabilities and filed EEO complaints alleging disability discrimination could not prevail on her reprisal claim because she did not show that her EEO activities were the “but for” reasons for the adverse actions. Earlier in the decision, the Board reversed Ms. Pridgen’s removal on other grounds, but ruled on the reprisal claim in order “to reflect the proper causation standard.” Unfortunately, the Board’s analysis is seriously flawed.

First, the Board observed (in ¶ 44) that

Separate from its prohibition on disparate treatment disability discrimination, the ADA [the Americans with Disabilities Act] has an anti-retaliation provision, which prohibits discriminating against any individual “because such individual” has engaged in protected activity. Both requesting a reasonable accommodation and opposing disability discrimination are activities protected by the Rehabilitation Act.

Second, the Board then cited the Supreme Court’s decision in University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338 (2013), which the Board said “interpreted similar language from Title VII’s anti-retaliation provision applicable to private sector claims” and “determined that the requirement to prove the employer’s actions occurred ‘because’ of the employee’s protected activity imposed a ‘but-for’ causation standard.” The Board cited several court decisions issued after Nassar agreeing that a claim of reprisal for activity protected by the ADA “requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer,” in other words, that the activity is the “but for” cause of the action. (Emphasis added).

The Board’s analysis, however, is simply wrong. First, the part of the ADA that applies to federal employees, 29 U.S.C. § 794a(a), specifically provides that “the remedies, procedures, and rights” available to federal employee complaints under Title VII govern disability discrimination complaints.  There is no mention in this section of other parts of the ADA.

This distinction is critical because, while the Board relied heavily on the Nassar decision, Nassar involved the portion of Title VII applicable to private sector employees, and not the version applicable to federal employees.  As early as 2014 the EEOC rejected efforts to apply Nassar to federal employees, holding that

The “but for” standard discussed in Nassar does not apply to retaliation claims brought under the federal sector provisions of Title VII . . . because the relevant statutory language does not contain the “because of” language on which the Supreme Court based its holdings in Nassar . . . . See Petitioner v. Dep’t of Interior, EEOC Petition No. 0320110050, at FN 6 (July 16, 2014).

Given the EEOC’s accurate rejection of Nassar’s application to federal employee complaints, the Board’s assertion that the Supreme Court overruled the EEOC in Nassar, ¶ 47, is without merit.

Second, and even more importantly, the Board’s requirement that the employee provide “proof that the unlawful retaliation would not have occurred” except for illegal retaliation improperly shifts the burden from the Agency to the employee, contrary to the parts of Title VII to which it was directed by section 794a, specifically 42 U.S.C. § 2000e-5(f) through 5(k).  One of those sections, section 5(g), provides that an employee who shows discrimination or reprisal is even one factor in the decision is entitled to full relief unless the Agency “demonstrates that the [Agency] would have taken the same action in the absence of the impermissible motivating factor.”  There is simply no justification for the Board to shift this burden onto the employee.

Finally, even if the Board correctly relied on the “because of” language in the ADA, the decision in Pridgen is still mistaken when it holds that only “if prior EEO activity is a ‘but for’ cause of retaliation, by definition there is no other proper reason for the action,”       ¶ 47, suggesting that evidence of another reason for the action precludes a finding of reprisal.  That logic, however, was rejected by the Supreme Court’s 2020 decision in Bostock v. Clayton County, Georgia. While Bostock primarily held that discrimination against gay and transgender employees constituted “sex” discrimination in violation of Title VII, it also held that a factor that satisfied the “but for” standard did not have to be the “only” factor, but could be one of several factors:

Most notably, [Title VII] prohibits employers from taking certain actions “because of” sex. And, as this Court has previously explained, “the ordinary meaning of ‘because of’ is ‘by reason of’ or ‘on account of.’” [citing Nassar]. In the language of law, this means that Title VII’s “because of” test incorporates the “‘simple’” and “traditional” standard of but-for causation. That form of causation is established whenever a particular outcome would not have happened “but for” the purported cause. In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause. This can be a sweeping standard. Often, events have multiple but-for causes. So, for example, if a car accident occurred both because the defendant ran a red light and because the plaintiff failed to signal his turn at the intersection, we might call each a but-for cause of the collision. When it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff’s sex was one but-for cause of that decision, that is enough to trigger the law.

Bostock, 140 S.Ct. at 1739 (emphasis added). After Bostock, the word “because” can no longer be interpreted to mean “the only cause,” and instead must mean “one of the causes” of the action against the employee.

Even more disturbing, the Board justified its reliance on Nassar by noting, at ¶ 46, that, “like Federal circuit courts which have considered this issue, we find that the ‘but-for’ standard is applicable to ADA retaliation claims.” Remarkably, however, all of the court decisions cited by the Board for this proposition were issued between 2012 and 2015; none was issued after June 2020, when Bostock clarified the “but for” analysis.

As the result, the Board has imposed on appellants in disability reprisal cases a standard of causation in conflict with both the text of the Rehabilitation Act and the most recent Supreme Court decision on the subject. The Board’s failure even to reference Bostock, let alone try to distinguish it, is difficult to understand.

George Chuzi is Senior Counsel at KCNF.

A version of this article also appeared in Law360 on February 16, 2023. Download the PDF here.