The Board found that the decision to terminate the appellant’s appointment was unusual and unjustified. Image: patpitchaya/Shutterstock.com
By: FEDweek StaffFollowing is a summary from the MSPB of a recent decision involving an appeal by a probationary federal employee of a firing on grounds that it was politically motivated—one of the few grounds that probationary employees can use as grounds for an appeal—which meanwhile set precedent for such cases.
In June 2017, the Trump administration named a new political appointee as General Deputy Assistant Secretary for Housing (GDASH). In July 2017, the agency hired the appellant as a Manufactured Housing Specialist, a career competitive-service position. Soon after the appellant began working for the agency, an industry group—the Manufactured Housing Association for Regulatory Reform (MHARR)—sent a letter to several agency officials raising partisan political complaints. In the letter, MHARR complained that the agency retained the appellant’s second-level supervisor, “an Obama Administration holdover,” and hired the appellant, “an Obama donor herself,” and described the agency’s actions in this regard as “amazingly ill considered, offensive and arguably scandalous.”
In September 2017, the agency’s state partners in Oregon sent a letter to the Secretary of the agency threatening to withdraw from their partnership, in part due to the appellant’s alleged sharing of “sensitive government-to-government discussions with outside parties.” The appellant’s second-line supervisor defended the appellant’s actions at issue in the complaint. In November 2017, the agency rated the appellant “outstanding,” the highest possible rating, on her performance appraisal.
On December 19, 2017, the appellant’s third-level supervisor terminated the appellant after consulting with the GDASH and others. The agency’s stated reason for its termination action was the appellant’s alleged release of sensitive information to outside parties as described in the complaint from the agency’s state partners in Oregon.
On appeal to the Board, the appellant argued that the agency terminated her for partisan political reasons. The administrative judge agreed and reversed the probationary termination. The agency petitioned for review. Despite the agency’s non-compliance with interim relief obligations, the Board declined to dismiss the agency’s petition for review.
Holding: To establish Board jurisdiction under 5 C.F.R. § 315.806(b), an appellant must prove that the prohibited consideration of partisan political reasons or marital status was a but-for cause of her termination. She may use Title VII analytical frameworks to prove but-for causation.
1. In determining the appellant’s burden of proof under § 315.806(b), the Board compared the language of this regulatory provision to the language of Title VII’s anti-discrimination provision at 42 U.S.C. § 2000e-16(a) and the language of the Age Discrimination in Employment Act’s anti-discrimination provision at 29 U.S.C. § 623(a)(1). The Board determined that § 315.806(b), which requires the appellant to prove that her termination was “based on” partisan political reasons or marital status, is akin to the language at 29 U.S.C. § 623(a)(1), which prohibits discrimination “because of age.” The Board relied on the U.S. Supreme Court’s finding in Gross v. FBL Financial Services, Inc., 557 U.S. 167, 176-77 (2009), that the statutory phrases “based on” and “because of” have the same meaning and should be read as requiring that the plaintiff prove but-for causation.
2. The Board clarified that Title VII analytical frameworks remain applicable to § 315.806(b) claims to the extent that they may be used to prove but-for causation. The Board cited its recent decision in Wilson v. Small Business Administration, 2024 MSPB 3, ¶¶ 16-19 (explaining how the McDonnel Douglas framework, a mixed-motive framework, or both theories simultaneously may be used to prove but-for causation in a Title VII claim). The Board explained that, in this case, the appellant proceeded under the McDonnel Douglas framework.
Holding: The appellant proved that partisan political reasons were a but-for cause of her probationary termination. Accordingly, the administrative judge’s reversal of the probationary termination is affirmed.
1. The Board found that the decision to terminate the appellant’s appointment was unusual and unjustified. The agency’s stated reason for the appellant’s termination was her alleged sharing of sensitive information with outside parties as described in the Oregon complaint. However, the agency officials involved in the appellant’s termination, including the GDASH, lacked or ignored the relevant facts and did not consult the appellant’s first- and second-level supervisors, who had expertise in the area and firmly believed that the appellant was an outstanding employee and had acted appropriately. In making these findings, the Board deferred to the administrative judge’s demeanor-based credibility determinations.
2. The Board affirmed the administrative judge’s finding, based on demeanor-based credibility determinations, that the GDASH was the agency official who made the termination decision and directed the third-level supervisor to carry it out.
3. The Board affirmed the administrative judge’s finding that the GDASH’s testimony denying that she knew of the appellant’s political affiliation was not credible.
4. The Board found that the circumstances of the appellant’s second level supervisor’s reassignment to an administrative position was relevant and material to the appeal. The appellant’s second-level supervisor was also a target of MHARR’s partisan political complaints, the same deciding official was involved in both personnel actions and took them almost simultaneously, neither personnel action was subject to the kind of deliberation normally expected, and the justifications for both personnel actions were weak at best.
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