A hearing officer rejected an employee’s appeal, finding the employee had not proven that the agency had discriminated due to disability. Image: RicoPatagonia/Shutterstock.com
By: FEDweek StaffThe MSPB has clarified the burdens of proof when federal employees argue that a personnel action such as firing was an act of discrimination by pointing to differences in how other employees in similar situations were treated.
That action came in a case (24 MSPB 3) in which a hearing officer had rejected an employee’s appeal, finding that the employee had not proven that the agency had discriminated due to disability and other reasons.
The merit board said that when an employee argues that disparate treatment shows that discrimination occurred, the employee may argue that discrimination was a “motivating factor” in the decision—even if the decision would have been the same without discrimination—or that the decision would not have occurred “but for” discrimination, or both. It said that an employee may prove the former type “simply by showing that such discrimination played any part in the way a decision was made,” but that finding would result only in forward-looking relief such as an injunction.
It said that proving “but-for” discrimination allows for additional relief such as back pay and reinstatement. However, if the agency argues that it would have taken the same action regardless of discrimination, the employee in turn must show that the stated reason is a pretext or that “it was more likely than not that the agency was motivated by discrimination.”
“An employee may prevail even when the employer acted with mixed motives, i.e., when there is evidence that discrimination was one of multiple motivating factors for an employment action such that the employer acted on the bases of both lawful and unlawful reasons,” it said.
The ruling also clarified MSPB standards for challenges brought when AWOL is cited as the grounds for a disciplinary action. It said that where the employee had requested leave but was denied, the agency must show that it denied the leave for proper reasons. It said its prior precedent was “open to misinterpretation” as meaning that the agency only needed to show it had denied the leave, regardless of whether that denial was proper.
The case was sent back to the hearing officer.
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