                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                        2015 MSPB 51

                              Docket Nos. AT-0752-11-0634-I-2
                                         AT-1221-12-0591-W-1
                                    Tommie G. Savage,
                                          Appellant,
                                               v.
                                 Department of the Army,
                                           Agency.
                                      September 3, 2015

           Felipe Bohnet-Gomez and Michael D. Kohn, Esquire, Washington, D.C.,
             for the appellant.

           Nancy Washington Vaughn and Ryan Andrew Black, Huntsville, Alabama,
             for the agency.

                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member



                                  OPINION AND ORDER

¶1         The appellant has petitioned for review of the February 7, 2014 initial
     decision that affirmed her removal and the February 6, 2014 initial decision that
     granted in part her request for corrective action under the Whistleblower
     Protection Act (WPA). For the reasons discussed below, we JOIN the two
     appeals 1 and REMAND the joined appeal for further adjudication.



     1
       Joinder of two or more appeals filed by the same appellant is appropriate where doing
     so would expedite case processing and will not adversely affect the parties’ interests.
                                                                                        2

                                      BACKGROUND
¶2         The appellant formerly was employed as a Contract Specialist with the U.S.
     Army Engineer and Support Center in Huntsville, Alabama. From 1993, when
     she began full-time employment, through 2006, she received excellent
     performance ratings and was promoted regularly. Savage v. Department of the
     Army, MSPB Docket No. AT-0752-11-0634-I-2, Refiled Appeal File (RAF),
     Tab 64, Exhibits (Exs.) A-P, AD. In 2006, she was designated as the contracting
     officer for the “Ranges Program,” which generally concerns the design and
     implementation of agency training facilities. See RAF, Tab 13 at 4.
¶3         Beginning in late 2006, and continuing into 2007, the appellant reported
     what she claimed were illegal and improper contracting activities in the Ranges
     Program.    RAF, Tab 64, Exs. AE, AG. These disclosures mainly involved
     allegations that a contractor employee (F.H.) was making key contracting
     decisions that should have been made by government officials, particularly
     program manager M.F. Essentially, the appellant claimed that a close personal
     relationship between F.H. and M.F. constituted a conflict of interest that
     explained and accounted for the liberties that F.H. was permitted within the
     Ranges Program.      See id.   The appellant’s disclosures were a factor in the
     initiation of several command-directed inquiries into the Ranges Program,
     including an internal audit that resulted in a May 24, 2007 draft report, which
     essentially validated the appellant’s legal concerns, as well as an Army
     Regulation (AR) 15-6 investigation that resulted in a written report dated
     August 9, 2007. Id., Exs. AK, EQ. The latter report identified the appellant by
     name as a source of the allegations of wrongdoing. Id., Ex. EQ at 14.
¶4         Meanwhile, in June 2007, the appellant filed a formal equal employment
     opportunity (EEO) complaint, in which she alleged, inter alia, that she had been


     Davis v. U.S. Postal Service, 119 M.S.P.R. 22, ¶ 1 n.1 (2012); 5 C.F.R. § 1201.36(a),
     (b). We find that these criteria are satisfied here.
                                                                                      3

     subjected to harassment and a hostile work environment because of her race and
     sex. See RAF, Tab 64, Ex. BE. On October 17, 2007, the appellant and the
     agency entered into a negotiated settlement agreement that resolved the EEO
     complaint and provided, inter alia, that the appellant would be reassigned “to a
     position comparable with her current grade and salary” with the agency’s Small
     Business Office in Huntsville. Id. Effective November 11, 2007, the appellant
     was reassigned, with no reduction in pay, from her YC-1102-02 Supervisory
     Contract Specialist position to a nonsupervisory YA-1102-02 Contract Specialist
     position with the Small Business Office. Id., Exs. BE, BG. Subsequently, in
     December 2007, the appellant received a performance appraisal with an overall
     rating of 3 out of 5, far less favorable than her previous appraisals. RAF, Tab 52,
     Ex. EC; see RAF, Tab 64, Exs. A-H, K-P, AD.
¶5         Beginning in June 2008, the appellant made additional disclosures
     concerning what she believed to be a violation of Federal acquisition regulations
     in the office’s failure to utilize DD Form 2579, Small Business Coordination
     Record. On August 17, 2008, the appellant and her new first-level supervisor,
     Deputy Commander D.B., had a heated discussion concerning the DD Form 2579
     issue. The following day, August 18, 2008, the appellant visited a psychologist,
     Dr. B.M., who recommended an 8-week leave of absence due to “intensifying
     depression, anxiety and work[] caused stress.” RAF, Tab 8, Subtab 4hh. D.B.
     granted the appellant’s request for leave through October 20, 2008.            Id.,
     Subtabs 4ff-4gg.
¶6         On October 18, 2008, Dr. B.M. recommended that the appellant’s leave of
     absence be extended until December 22, 2008. Id., Subtab 4ee. D.B. initially
     denied the appellant’s additional leave request, but after requesting and receiving
     additional documentation from Dr. B.M., he granted the request for sick leave
     until December 5, 2008. Id., Subtabs 4z-4cc. The appellant then submitted a
     leave request under the Family and Medical Leave Act (FMLA), with a
     certification from Dr. B.M. Id., Subtab 4x. D.B. granted the appellant’s request
                                                                                       4

     for FMLA leave from December 8, 2008, through March 5, 2009. Id., Subtab 4w.
     Meanwhile, in December 2008, D.B. issued the appellant a performance
     appraisal, with an overall rating of 3 out of 5. RAF, Tab 52, Ex. EB.
¶7         By letter dated March 4, 2009, Dr. B.M. recommended that the appellant’s
     return-to-work date tentatively be changed from March 5, 2009, to May 4, 2009,
     and the appellant requested an additional leave of absence in accordance with
     those instructions. RAF, Tab 8, Subtabs 4u-4v. By letter dated March 5, 2009,
     D.B. denied the request in large part, but approved the appellant’s use of accrued
     sick leave through noon on March 12, 2009. Id., Subtab 4t. On March 11, 2009,
     the appellant requested advanced sick leave through May 4, 2009. Id., Subtab 4s.
     That same day, D.B. denied the request, citing the appellant’s “previous inability
     to return to work according to [her] psychologist’s estimates.” Id., Subtab 4r.
     However, D.B. noted that he had miscalculated the appellant’s annual leave
     balance and informed her that she was expected to return to work at noon on
     March 26, 2009, when all of her accrued leave was exhausted. Id. The appellant
     requested reconsideration and submitted a March 13, 2009 letter from Dr. B.M.,
     who again recommended a return date of May 4, 2009. Id., Subtabs 4p-4q. D.B.
     again denied the appellant’s request. Id., Subtab 4o. The appellant then made a
     request for leave without pay (LWOP), which D.B. also denied, again noting that
     Dr. B.M. had already provided multiple return dates and that the appellant had
     not been able to return to work on any of those dates. Id., Subtabs 4n-4o. On
     April 3, 2009, D.B. informed the appellant that her leave was exhausted and that
     she therefore would be placed in an absence without leave (AWOL) status
     effective March 27, 2009. Id., Subtab 4l. The effective date of her AWOL status
     was later changed to April 2, 2009, to reflect the final sick and annual leave hours
     she had accrued. Id., Subtab 4d. 2

     2
       On April 22, 2009, the appellant filed an appeal with the Board’s regional office
     contesting the agency’s decision to place her on AWOL status. That appeal was
                                                                                         5

¶8            On April 3, 2009, the appellant filed another formal EEO complaint, in
     which she alleged that she had been subjected to a hostile work environment,
     based on reprisal for the settled 2007 EEO complaint, as well as another EEO
     complaint she had filed in 2008. See Savage v. Department of the Army, MSPB
     Docket No. AT-0752-11-0634-I-1, Initial Appeal File (I-1 IAF), Tab 4.             She
     named D.B. as the discriminating official and cited his denial of her request for
     LWOP, among other alleged retaliatory actions.          Id.   The agency ultimately
     issued a final agency decision (FAD) finding no discrimination as to the
     allegations in her April 3, 2009 complaint. Id.
¶9            In a May 6, 2009 letter, Dr. B.M. related that the appellant briefly reported
     to work on May 4, 2009, but became physically ill and left after approximately an
     hour. RAF, Tab 8, Subtab 4k. Based on that incident, Dr. B.M. recommended
     September 1, 2009, as a new tentative return-to-work date. Id. In an email dated
     May 11, 2009, the appellant submitted a copy of the May 4 letter from Dr. B.M.
     and requested that her AWOL status be converted to LWOP or advanced sick
     leave.    Id., Subtab 4j.   In response to that request, D.B. asked for additional
     information from Dr. B.M. and also scheduled the appellant for an appointment
     with a second psychologist, Dr. J.H.        Id., Subtabs 4h-4i.    Dr. B.M. did not
     respond to D.B.’s request. The appellant met with Dr. J.H. on July 8, 2009, and
     in a memorandum dated July 19, 2009, Dr. J.H. opined that it was unlikely that
     the appellant would be able to return to her job in the next 6 to 12 months. Id.,
     Subtab 4g. He further stated, “There is considerable doubt in the mind of the
     undersigned that she will ever return to the currently assigned workplace, but
     continued treatment might be helpful in bringing that about or assisting [the
     appellant] to the point that she could work for the Corps in some other capacity.”
     Id.

     dismissed for lack of jurisdiction. Savage v. Department of the Army, MSPB Docket
     No. AT-3443-09-0577-I-1, Initial Decision (Aug. 12, 2009).
                                                                                         6

¶10         By notice dated September 14, 2009, D.B. proposed to remove the
      appellant based on three charges:      (1) AWOL; (2) Excessive Absences; and
      (3) Unavailability to Report for Duty with No Foreseeable End. RAF, Tab 8,
      Subtab 4d.    The appellant did not respond to the notice.         By letter dated
      November 3, 2009, the deciding official, Colonel N.T., removed the appellant
      effective November 6, 2009. Id., Subtab 4b. The appellant filed another formal
      EEO complaint concerning her removal, and on April 8, 2011, the agency issued
      a FAD finding no discrimination. Id., Subtab 3.
¶11         The appellant filed a timely appeal of her removal on May 6, 2011. I-1
      IAF, Tab 1. In her appeal, she contended that her removal was the ultimate result
      of the agency creating a hostile work environment where she could not perform
      her duties and responsibilities, which in turn led to her extended absences. Id.
      She further contended that the hostile work environment was created following
      the settlement of her June 2007 EEO complaint. Id. In September 2011, she
      requested that her appeal be dismissed without prejudice to allow her additional
      time to file a whistleblowing retaliation complaint with the Office of Special
      Counsel (OSC). I-1 IAF, Tab 20. The administrative judge granted her request
      and dismissed the appeal without prejudice to refiling. I-1 IAF, Tab 22, Initial
      Decision.
¶12         On October 11, 2011, the appellant filed a complaint with OSC. See RAF,
      Tab 1; Savage v. Department of the Army, MSPB Docket No. AT-1221-12-0591-
      W-1, (W-1) File, Tab 1. In her complaint, she alleged that agency officials had
      taken various personnel actions, including her removal, in retaliation for
      reporting contract fraud to auditors, investigators, the Federal Bureau of
      Investigation, and the Criminal Investigation Command, and for participating in
      the AR 15-6 investigation. See W-1 File, Tab 1. By letter dated May 27, 2012,
      OSC notified the appellant that it had closed its investigation and informed her of
      her right to file an individual right of action (IRA) appeal with the Board. Id.
                                                                                     7

¶13         Subsequently, the appellant filed a timely IRA appeal and also refiled her
      removal appeal. Id. The administrative judge joined the two appeals for hearing.
      RAF, Tab 3. In the IRA appeal, the administrative judge determined that the
      appellant had established jurisdiction concerning the following personnel actions
      taken against her: (1) the November 2007 reassignment; (2) the December 2007
      performance appraisal; (3) the failure to confer a monetary award to her
      following a Small Business Office conference in 2008; (4) the December 2008
      performance appraisal; (5) the refusal to extend her return-to-work date in
      March 2008; (6) the denial of her advanced sick leave request in March 2008;
      (7) the denial of her LWOP request in March 2008; and (8) an alleged
      constructive suspension based on the creation of a hostile work environment that
      compelled her to be absent from work from mid-August 2008, until her removal
      in November 2009. RAF, Tab 55. In the removal appeal, the appellant raised
      affirmative defenses of retaliation for protected whistleblowing activity,
      retaliation for protected EEO activity, and discrimination based on race
      (African-American), sex (female), and disability. Id.
¶14         Following a hearing on December 10 and 11, 2012, the administrative
      judge issued separate initial decisions in the IRA and removal appeals. In the
      IRA appeal, the administrative judge determined that the appellant had made
      protected disclosures concerning the Ranges Program, and also had shown that
      they were a contributing factor in all personnel actions at issue, except for the
      alleged constructive suspension.   W-1 File, Tab 6, Initial Decision (W-1 ID)
      at 6-13.   He noted that the appellant also had alleged a protected disclosure
      concerning the DD Form 2579, but found that she had not exhausted her OSC
      remedy regarding that disclosure. W-1 ID at 8. The administrative judge then
      found that the agency had shown by clear and convincing evidence that it would
      have taken some of the alleged retaliatory actions in the absence of the
      appellant’s whistleblowing activity, but had failed to meet that burden as to the
      December 2007 and December 2008 performance evaluations, and the failure to
                                                                                         8

      provide a monetary award for the appellant’s participation in a Small Business
      Office conference. W-1 ID at 13-21. Finally, the administrative judge concluded
      that the appellant had failed to establish that she was constructively suspended.
      W-1 ID at 21-24.
¶15         In the removal appeal, the administrative judge sustained all three charges
      and found that the agency had met its burden of proof regarding nexus and
      penalty. RAF, Tab 71, Initial Decision (RAF ID) at 4-12. He further found that
      the appellant had failed to establish her affirmative defenses. RAF ID at 12-18.
      Accordingly, the administrative judge sustained the removal action.          RAF ID
      at 18. The appellant filed timely petitions for review of both initial decisions.
      Savage v. Department of the Army, MSPB Docket No. AT-0752-11-0634-I-2,
      Petition for Review File, Tab 5; Savage v. Department of the Army, MSPB
      Docket No. AT-1221-12-0591-W-1, Petition for Review (W-1 PFR) File, Tab 5.

                                         ANALYSIS
                         MSPB Docket No. AT-1221-12-0591-W-1
      The appellant’s constructive suspension        claim   is   remanded   for    further
      adjudication as a chapter 75 appeal.
¶16         On petition for review, the appellant contends that the administrative judge
      erred in requiring her to establish OSC exhaustion concerning her constructive
      suspension claim. W-1 PFR File, Tab 1 at 20. In support of her argument, she
      cites Covarrubias v. Social Security Administration, 113 M.S.P.R. 583 (2010),
      overruled by Colbert v. Department of Veterans Affairs, 121 M.S.P.R. 677
      (2014), in which we held that an IRA appeal is limited to alleged personnel
      actions that are not otherwise appealable to the Board and that the involuntary
      retirement claim raised by the appellant in that case therefore was outside the
      scope of her IRA appeal. Id., ¶ 9 n.2. She reasons that, under Covarrubias, her
      constructive suspension claim is subject to chapter 75 jurisdictional standards,
      rather than the jurisdictional standards for IRA appeals, and that it is unnecessary
                                                                                        9

      to prove OSC exhaustion to establish an affirmative defense of whistleblowing
      retaliation in an adverse action appeal.
¶17           While the appellant’s reasoning was sound when she filed her petition for
      review, Covarrubias has since been overruled. Colbert, 121 M.S.P.R. 677, ¶ 12
      n.5.    The holding of Covarrubias was based on our previous decision in
      Massimino v. Department of Veterans Affairs, 58 M.S.P.R. 318 (1993), abrogated
      by 5 U.S.C. § 7121(g), in which we held that when an individual who was
      affected by an action that is directly appealable to the Board files a whistleblower
      retaliation complaint with OSC, the jurisdictional basis for a subsequent appeal to
      the Board is the “true nature” of the agency’s action.         Id. at 322-23. After
      Covarrubias was issued, however, we recognized that Massimino had been
      abrogated by the 1994 amendments to the WPA, in particular, the new section at
      5 U.S.C. § 7121(g). See Agoranos v. Department of Justice, 119 M.S.P.R. 498,
      ¶ 18 (2013). Under 5 U.S.C. § 7121(g), an employee who claims to have suffered
      whistleblowing reprisal regarding an action may elect no more than one of the
      following remedies:     a direct appeal to the Board; a negotiated grievance
      procedure pursuant to 5 U.S.C. § 7121; or a request for corrective action under
      5 U.S.C. chapter 12, subchapters II and III, i.e., an OSC complaint, potentially to
      be followed by an IRA appeal.        Ordinarily, an individual who first requests
      corrective action from OSC will be deemed to have made a binding election to
      proceed in that forum.        5 U.S.C. § 7121(g)(4)(C).       In such a case, the
      jurisdictional requirements for an IRA appeal apply, even if the contested
      personnel action would have been directly appealable to the Board.              See
      Agoranos, 119 M.S.P.R. 498, ¶ 14.          This principle applies equally to alleged
      constructive actions. See Colbert, 121 M.S.P.R. 677, ¶ 12 n.5.
¶18           However, we also have held that an election under 5 U.S.C. § 7121(g) is
      binding only if made knowingly and voluntarily. Agoranos, 119 M.S.P.R. 498,
      ¶ 16.   Here, neither the agency, nor the administrative judge, advised the
      appellant that contesting her alleged constructive suspension in an OSC complaint
                                                                                          10

      would preclude a subsequent chapter 75 appeal before the Board. See id., ¶ 18.
      Moreover, while the express language of 5 U.S.C. § 7121(g) negates Massimino
      and Covarrubias, the Board had not yet recognized this when the OSC complaint
      was filed, and the appellant and her attorney could have reasonably relied on
      those cases. See Agoranos, 119 M.S.P.R. 498, ¶¶ 17-18. 3 We therefore find that
      the appellant’s decision to contest her alleged constructive suspension before
      OSC was not a binding election and did not preclude her from filing an adverse
      action appeal before the Board. Because the appellant has expressly indicated
      that she wishes for her constructive suspension claim to be adjudicated outside
      the scope of her IRA appeal, we will consider her claim as an adverse action
      appeal under chapter 75.
¶19         Like involuntary resignations, removals, and reductions in pay or grade,
      involuntary leaves of absence may be appealable under chapter 75. Bean v. U.S.
      Postal Service, 120 M.S.P.R. 397, ¶ 8 (2013). The Board has found jurisdiction
      over constructive suspensions in a variety of situations. See Brown v. U.S. Postal
      Service, 115 M.S.P.R. 88, ¶ 8 (2010). Although various fact patterns may give
      rise to an appealable constructive suspension, all constructive suspension claims
      (and indeed all constructive action claims), have two things in common:
      (1) the employee lacked a meaningful choice in the matter; and (2) it was the
      agency’s wrongful actions that deprived the employee of that choice.             Bean,
      120 M.S.P.R. 397, ¶ 8.      Assuming that the jurisdictional requirements of a



      3
        The administrative judge also appears not to have recognized the effect of 5 U.S.C.
      § 7121(g), as evidenced by his decision to dismiss the removal appeal without prejudice
      to permit the appellant to file an OSC complaint. Ordinarily, under 5 U.S.C. § 7121(g),
      the appellant’s removal would not have been properly before OSC, as she had already
      appealed it to the Board. To the extent the administrative judge may have erred in
      granting the appellant’s request for dismissal without prejudice, or to the extent OSC
      may have erred in including the removal in the scope of its investigation, these errors
      have no effect on the outcome of this appeal.
                                                                                      11

      chapter 75 appeal are otherwise met, as is the case here, proof of these two things
      is sufficient to establish Board jurisdiction. Id.
¶20         Here, the appellant alleges that her absences beginning on August 18, 2008,
      were the result of psychological damage caused by intolerable working
      conditions. To establish jurisdiction over a constructive suspension on the basis
      of intolerable working conditions, an appellant must show that a reasonable
      person would have felt compelled to absent herself under the conditions and that
      the agency was culpable for these conditions. Peoples v. Department of the Navy,
      83 M.S.P.R. 216, ¶ 5 (1999). Because no employee is entitled to leave work and
      remain absent without explanation, the appellant must inform the agency of the
      existence of the objectionable conditions and request assistance or remediation
      from the agency. Id., ¶ 8. The agency also must be notified of the specific nature
      of the conditions and the employee’s inability to cope with them before the
      agency can be expected to investigate, attempt remediation of the conditions if
      necessary, or to consider finding other duties or positions for the employee
      pending resolution of the complaint. Id., ¶ 9.
¶21         Here, the administrative judge concluded that, because the appellant did
      not request reassignment as a reasonable accommodation for her medical
      restrictions, she had a meaningful choice as to her absences, and therefore had not
      been constructively suspended. W-1 ID at 24. However, a medical absence may
      be attributable to intolerable working conditions regardless of whether the
      employee subsequently requests accommodation under the Rehabilitation Act. If
      the conditions are such that a reasonable person would feel compelled to absent
      herself, and the agency is culpable for those conditions, to constitute a
      nonfrivolous allegation of involuntary absence from duty, it is sufficient for the
      appellant to notify the agency that she is medically incapable of returning to duty
      in her current work environment. See Peoples, 83 M.S.P.R. 216, ¶ 11.
¶22         Accordingly, we remand the appellant’s constructive suspension claim for
      adjudication as a chapter 75 appeal under the standard set forth in Peoples. If the
                                                                                       12

      administrative judge finds that the appellant suffered a constructive suspension,
      he should consider not only whether the appellant received due process
      concerning that action, but also whether it was taken in retaliation for
      whistleblowing activity, including the DD Form 2579 disclosure. See Jenkins v.
      Environmental Protection Agency, 118 M.S.P.R. 161, ¶ 13 (2012) (finding that
      reversal of removal action on due process grounds did not render the appeal moot
      where the appellant could obtain further relief based on her whistleblowing
      reprisal claim).
      The appellant’s claim of a hostile work environment is an alleged personnel
      action.
¶23         Regardless of whether the appellant establishes that her absences amounted
      to a constructive suspension, the creation of a hostile work environment is itself a
      personnel action for purposes of the WPA. The statute defines “personnel action”
      to include, among other listed actions, “any other significant change in duties,
      responsibilities, or working conditions.”    5 U.S.C. § 2302(a)(2)(A)(xii).     The
      legislative history of the 1994 amendment to the WPA indicates that the term
      “any other significant change in duties, responsibilities, or working conditions”
      should be interpreted broadly, to include “any harassment or discrimination that
      could have a chilling effect on whistleblowing or otherwise undermine the merit
      system.”   Roach v. Department of the Army, 82 M.S.P.R. 464, ¶ 24 (1999)
      (quoting 140 Cong. Rec. H11, 421 (daily ed. Oct. 7, 1994) (statement of Rep.
      McCloskey)). Although the appellant alleged before both OSC and the Board
      that the agency subjected her to a hostile work environment in retaliation for her
      protected disclosures concerning the Ranges Program, the administrative judge
      did not address that alleged personnel action, except to the extent it also was
      implicated in the appellant’s constructive suspension claim.      Accordingly, the
      administrative judge should determine on remand whether the appellant
      established prohibited whistleblowing retaliation regarding the alleged creation of
      a hostile work environment.
                                                                                            13

      Further adjudication is needed to determine whether the agency established by
      clear and convincing evidence that it would have taken the remaining actions in
      the absence of the appellant’s whistleblowing activity.
¶24         The administrative judge found that, while the appellant’s protected
      disclosures were a contributing factor in the remaining personnel actions, the
      agency established by clear and convincing evidence that it would have taken
      some, but not all, of those actions in the absence of her whistleblowing activity.
      Specifically, the administrative judge found that the agency met its burden as to
      the appellant’s November 2007 reassignment, 4 the refusal to extend her
      return-to-work date in March 2009, the refusal to grant advanced sick leave in
      March 2009, and the refusal to grant LWOP in March 2009.                  See W-1 ID
      at 14-15, 18-21. For the reasons discussed below, we find that the administrative
      judge’s analysis of the clear and convincing standard in these actions was
      incomplete.
¶25         In determining whether an agency has shown by clear and convincing
      evidence that it would have taken the same personnel action in the absence of
      whistleblowing, the Board will consider the following factors: the strength of the
      agency’s evidence in support of its action; the existence and strength of any

      4
        The appellant describes her reassignment as a “constructive demotion,” on the theory
      that she entered the settlement agreement of her EEO claim without knowing that she
      would be reassigned to a nonsupervisory position with a lower pay cap. See RAF,
      Tab 52, Exs. EB-EC; RAF, Tab 64, Ex. BG. However, neither a reduction in
      responsibility, nor a possible loss of future pay, constitutes an appealable demotion,
      constructive or otherwise. McEnery v. Merit Systems Protection Board, 963 F.2d 1512,
      1514-15 (Fed. Cir. 1992). The constructive demotion doctrine is limited to cases in
      which the employee: (1) was reassigned from a position which, due to issuance of a
      new classification standard or correction of a classification error, was worth a higher
      grade; (2) met the legal and qualification requirements for promotion to the higher
      grade; and (3) was permanently reassigned to a position classified at a grade level lower
      than the grade level to which she would otherwise have been promoted. Russell v.
      Department of the Navy, 6 M.S.P.R. 698, 711 (1981); see Hogan v. Department of the
      Navy, 218 F.3d. 1361, 1364 (Fed. Cir. 2000). These elements are not present here.
      Nonetheless, a reassignment is a personnel action for purposes of the WPA. See
      5 U.S.C. § 2302(a)(2)(A)(iv).
                                                                                    14

      motive to retaliate on the part of the agency officials who were involved in the
      decision; and any evidence that the agency takes similar actions against
      employees who are not whistleblowers but who are otherwise similarly situated.
      Carr v. Social Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999).
      Our reviewing court has further clarified that “[e]vidence only clearly and
      convincingly supports a conclusion when it does so in the aggregate considering
      all the pertinent evidence in the record, and despite the evidence that fairly
      detracts from that conclusion.”   Whitmore v. Department of Labor, 680 F.3d
      1353, 1368 (Fed. Cir. 2012).
¶26         In finding that the agency met its burden as to the appellant’s
      November 2007 reassignment, the administrative judge relied entirely on his
      finding that the reassignment was consistent with the terms of the October 2007
      settlement agreement.   W-1 ID at 13-14.    The record reflects that the agency
      complied with the agreement insofar as it provided for the appellant’s
      reassignment “to a position comparable with her current grade and salary” with
      the Small Business Office. RAF, Tab 64, Ex. BE. However, that fact alone does
      not amount to clear and convincing evidence that the agency would have effected
      that particular reassignment—which resulted in the removal of the appellant’s
      supervisory duties and a reduction in pay cap—in the absence of her
      whistleblowing activity.   To determine whether that is so, it is necessary to
      consider evidence beyond the settlement agreement, including evidence, if any,
      tending to show that the agency would have otherwise effected another
      reassignment consistent with the agreement. See Whitmore, 680 F.3d at 1368.
¶27         Regarding the agency’s refusal in March 2009, to extend the appellant’s
      return-to-work date or grant her requests for advanced sick leave or LWOP, the
      administrative judge again relied solely on evidence tending to support the
      agency’s actions. W-1 ID at 18-21. It is true that these actions may have been
      reasonable, given the appellant’s failure to return to work on the previous dates
      projected by Dr. B.M. However, in determining whether the agency would have
                                                                                          15

      taken the actions in the absence of the whistleblowing activity, the administrative
      judge did not consider the possibility that the appellant’s extended absences
      might never have occurred but for the agency’s alleged retaliatory actions in
      creating a hostile work environment.       See Whitmore, 680 F.3d at 1376.         On
      remand, the administrative judge should consider this possibility and examine any
      supporting evidence. See id.
                           MSPB Docket No. AT-0752-11-0634-I-2
      Charges
¶28         As to the AWOL charge, is undisputed that the appellant was absent on all
      the dates and for all the hours for which she was charged AWOL and that the
      agency did not authorize those absences.        However, where an employee has
      requested leave to cover her absences, an AWOL charge will be sustained only if
      the agency establishes that her requests were properly denied.           Ferguson v.
      Department of the Navy, 43 M.S.P.R. 143, 144 (1990). 5              If the employee
      requested LWOP for the periods when she was placed in an AWOL status, the
      Board will examine the record as a whole to determine if the denial of LWOP was
      reasonable under the circumstances.          Joyner v. Department of the Navy,
      57 M.S.P.R. 154, 159 (1993).
¶29         Ordinarily, when an employee who is incapacitated for duty has exhausted
      all of her leave, an agency may properly deny her LWOP request where there is
      no foreseeable end in sight to her absences and where those absences are a burden

      5
        To prove an AWOL charge, an agency must establish “that the employee was absent,
      and that his absence was not authorized or that his request for leave was properly
      denied.” Little v. Department of Transportation, 112 M.S.P.R. 224, ¶ 6 (2009)
      (emphasis added); see Wesley v. U.S. Postal Service, 94 M.S.P.R. 277, ¶ 14 (2003)
      (same). Read literally, this phrasing would suggest that an agency could prove an
      AWOL charge merely by showing that it did not authorize the employee’s absences,
      even if the employee made a request for leave that was not properly denied. This is not
      the case. See Ferguson, 43 M.S.P.R. at 144. More precisely, to prove an AWOL
      charge, an agency must demonstrate that the employee was absent without authorization
      and, if the employee requested leave, that the request was properly denied.
                                                                                      16

      on the agency. Id. In this case, however, the appellant contends that she was
      constructively suspended during the period she was charged with AWOL. If so,
      this would entail not only that she had no meaningful choice concerning those
      absences, but also that her lack of choice was the result of the agency’s wrongful
      actions. See Bean, 120 M.S.P.R. 397, ¶ 8. We find that it would be inherently
      unreasonable for an agency to deny LWOP to cover absences for which the
      agency was culpable. Accordingly, should the administrative judge determine on
      remand that the appellant was constructively suspended during the period for
      which she was charged AWOL, the charge must be reversed.
¶30         We next turn to the charge of excessive absences.       In the specification
      under that charge, the agency cited the entire period of the appellant’s absences
      from August 18, 2008, through August 14, 2009.           These absences include
      1,192 hours of approved leave, of which 480 were covered by the FMLA, as well
      as the 800 AWOL hours with which she was separately charged. RAF, Tab 9,
      Subtab 4d. As a general rule, an agency may not take an adverse action based on
      an employee’s use of approved leave.           Bair v. Department of Defense,
      117 M.S.P.R. 374, ¶ 5 (2012).      However, an exception may exist where the
      following criteria are met: (1) the employee was absent for compelling reasons
      beyond her control so that agency approval or disapproval of leave was
      immaterial because she could not be on the job; (2) the absences continued
      beyond a reasonable time, and the agency warned the employee that an adverse
      action could be taken unless she became available for duty on a regular full-time
      or part-time basis; and (3) the agency showed that the position needed to be filled
      by an employee available for duty on a regular, full-time or part-time basis. Cook
      v. Department of the Army, 18 M.S.P.R. 610, 611-12 (1984). This exception is
      applicable only under unusual circumstances, i.e., where the employee is unable
      to return to duty because of the continuing effects of illness or injury. Id. In
      addition, we have held that an employee may not be disciplined for use of leave
                                                                                       17

      covered by the FMLA. McCauley v. Department of the Interior, 116 M.S.P.R.
      484, ¶ 11 (2011).
¶31         Of the 1,192 hours of approved leave cited in the proposal notice,
      480 hours were covered by the FMLA, and therefore cannot support the charge.
      See id. As for the remainder, we find that the agency failed to establish element
      (2) of the Cook exception. The record reflects that D.B. notified the appellant on
      several occasions that failure to come to work when not in an approved leave
      status would result in her placement in an AWOL status, which in turn could lead
      to an adverse action. RAF, Tab 8, Subtabs 4m, 4o, 4r. Yet, it was not until
      April 3, 2009, that D.B. warned the appellant that she could be removed not only
      for AWOL, but also for “excessive absenteeism,” which might be understood to
      include approved leave. Id., Subtab 4l. That warning came too late, though, for
      by then the agency had ceased to approve additional leave, and the appellant was
      in an AWOL status in any event. Under these circumstances, we find that the
      appellant did not receive the notice required for the Cook exception to apply. See
      Fox v. Department of the Army, 120 M.S.P.R. 529, ¶ 32 (2014).             Thus, the
      excessive absences charge cannot be sustained as to any of her approved
      absences.
¶32         Regarding the 800 hours of AWOL, it has been suggested in dicta that
      periods of AWOL may be included in a charge of excessive absences. McCauley,
      116 M.S.P.R. 484, ¶ 10. 6    However, while it is true that AWOL is a type of
      absence, the Cook holding was based on provisions of the Federal Personnel
      Manual (FPM) specifically concerned with excessive use of approved leave. See
      Cook, 18 M.S.P.R. at 611-12.      Although the FPM was abolished in 1993, the
      Cook holding has survived for decades since, and we see no grounds for revising


      6
        The excessive absences charge in McCauley did not include the AWOL periods with
      which the appellant in that case was separately charged. McCauley, 116 M.S.P.R. 484,
      ¶ 2.
                                                                                        18

      it now. Accordingly, to the extent that periods of AWOL are included within a
      charge of excessive absences, we will not consider those periods under the Cook
      standard, but instead will consider them as an AWOL charge.             Here, the
      800 AWOL hours cited in the excessive absences charge, when construed as a
      charge of AWOL, are entirely duplicative of the first charge, and we therefore
      give them no further consideration. In sum, the second charge is not sustained.
¶33         In addressing the agency’s final charge, unavailability for duty with no
      foreseeable end, the administrative judge again stated the Cook elements. See
      RAF ID at 9. This is understandable, as the term “unavailability for duty” may
      suggest a charge of excessive absences, to which the Cook standard would apply.
      See Edwards v. Department of Transportation, 109 M.S.P.R. 579, ¶ 14 (2008).
      However, after reviewing the proposal notice and decision letter, we conclude
      that the third charge was not based on the appellant’s past absences, but rather
      her continuing inability to return to work. See id.
¶34         An agency may remove an employee if she is unable, because of a medical
      condition, to perform the duties of her position. Id., ¶ 15. In finding removal
      warranted based on an employee’s inability to work due to incapacitation, the
      Board has relied on the absence of any foreseeable end to the unavailability. Id.,
      ¶ 17. Here, it is undisputed that the appellant was medically unable to return to
      the workplace.     Furthermore, considering the appellant’s repeated failure to
      return to work on the dates projected by Dr. B.M., and Dr. J.H.’s doubt that she
      would ever return to work in the same capacity, we find that the agency has
      shown by preponderant evidence that there was no foreseeable end to the
      appellant’s medical inability to perform her duties. The third charge therefore is
      sustained.
      Title VII Claims
¶35         The appellant contends that the agency removed her based on race and sex
      discrimination and in retaliation for her protected EEO activity, including the
      April 2009 complaint in which she named D.B. as the discriminating official.
                                                                                      19

      I-1 IAF, Tab 4. During the pendency of this appeal, the U.S. Supreme Court
      issued its decision in University of Texas Southwestern Medical Center v. Nassar,
      133 S. Ct. 2517, 2534 (2013), in which it held that a plaintiff claiming prohibited
      retaliation under 42 U.S.C. § 2000e-3(a) must show that the contested personnel
      action would not have occurred but for the retaliatory motive. The administrative
      judge did not address Nassar in the initial decision, and the Board has not yet
      issued a precedential decision addressing the possible effect of Nassar on our
      proceedings. Accordingly, we take this opportunity to clarify the standards and
      procedures governing our adjudication of Title VII claims, including (but not
      limited to) retaliation.
            42 U.S.C. § 2000e-16 prohibits retaliation as well as status-based
            discrimination.
¶36         The Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261,
      86 Stat. 111 (1972), extended Title VII to cover Federal employment, adding a
      new section 717, codified at 42 U.S.C. § 2000e-16. The basic anti-discrimination
      standard for Federal employment is set forth at subsection (a), which broadly
      provides that personnel actions taken by Federal agencies “shall be made free
      from any discrimination based on race, color, religion, sex, or national origin.”
      42 U.S.C. § 2000e-16(a); see West v. Gibson, 527 U.S. 212, 214 (1999). The
      courts, the Equal Employment Opportunity Commission (EEOC or Commission),
      and the Board have long assumed that section 2000e-16(a) incorporated the
      existing provision at 42 U.S.C. § 2000e-3(a), which prohibits private sector
      employers from retaliating against employees or applicants “because” of the
      exercise of Title VII rights.   See Hale v. Marsh, 808 F.2d 616, 619 (7th Cir.
      1986); Ayon v. Sampson, 547 F.2d 446, 449-50 (9th Cir. 1976); Martin v.
      Department of the Air Force, 73 M.S.P.R. 590, 594 (1997); Algarin v.
      Department of the Navy, EEOC Appeal No. B01780106, 1980 WL 351765, at *1
      (Mar. 4, 1980).      However, the Supreme Court has clarified that 42 U.S.C.
      § 2000e-16 does not in fact incorporate 42 U.S.C. § 2000e-3(a). Gomez-Perez v.
                                                                                      20

      Potter, 553 U.S. 474, 487-88, 488 n.4 (2008).        The Federal sector provision
      instead “contains a broad prohibition of ‘discrimination,’ rather than a list of
      specific prohibited personnel practices.”    Id. at 487.    Hence, EEO retaliation
      claims in the Federal sector do not implicate the statute at issue in Nassar.
¶37         The Court did not have occasion in Gomez-Perez to definitively state
      whether 42 U.S.C. § 2000e-16 itself prohibits retaliation in addition to
      status-based discrimination.    However, the Court did consider that question
      regarding the parallel Federal sector provision of the Age Discrimination in
      Employment Act (ADEA), found at 29 U.S.C. § 633a(a). That statute, which the
      Court found to have been patterned directly after 42 U.S.C. § 2000e-16(a),
      similarly provides that personnel actions by Federal agencies “shall be made free
      from any discrimination based on age.” 29 U.S.C. § 633a(a); see Gomez-Perez,
      553 U.S. at 487-88. The Court held that the requirement that such actions “be
      made free” from age discrimination is itself sufficiently broad to prohibit
      retaliation against an employee who complained of age discrimination.
      Gomez-Perez, 553 U.S. at 491.       We conclude the same is true of 42 U.S.C.
      § 2000e-16.
            A violation of 42 U.S.C. § 2000e-16 is established where discrimination or
            retaliation is a motivating factor in the contested personnel action.
¶38         The next question to be considered is whether an appellant alleging a
      violation of 42 U.S.C. § 2000e-16 must show that improper consideration was the
      “but for” cause of the contested personnel action, as would be the case in a
      private sector retaliation claim under 42 U.S.C. § 2000e-3(a), or whether a less
      stringent causation standard should apply.         This question is of particular
      importance given that most adverse actions against Federal employees are at least
      ostensibly taken for cause.    Not infrequently, this leads to a dual motivation
      scenario in which the contested action may appear to have been taken for both
      prohibited reasons and legitimate reasons, such as sustained misconduct.
                                                                                          21

¶39         Again, we may draw a useful analogy to the ADEA.            In Gross v. FBL
      Financial Services, Inc., 557 U.S. 167 (2009), the Court considered whether a
      “but for” causation requirement should apply to claims of age discrimination
      arising under 29 U.S.C. § 623(a)(1), which prohibits discrimination “because of
      age” in private sector employment. Examining the text of 29 U.S.C. § 623(a)(1),
      the Court reasoned that “the ordinary meaning . . . of ‘because of’ age is that age
      was the ‘reason’ that the employer decided to act.” Id. at 176. Accordingly, the
      Court held, the prohibition against employment discrimination “because of age”
      should be read as requiring the plaintiff to demonstrate “but for” causation. Id.
¶40         However, as noted above, Federal sector ADEA claims are governed by a
      different statute, 29 U.S.C. § 633a(a), which does not include the term “because
      of,” but instead broadly provides that personnel actions “shall be made free from
      any discrimination based on age.” In Ford v. Mabus, 629 F.3d 198 (D.C. Cir.
      2010), the U.S. Court of Appeals for the District of Columbia Circuit
      distinguished Gross on those grounds and concluded that a Federal sector
      employee could prove a violation of 29 U.S.C. § 633a(a) merely by showing that
      age was a factor in the contested personnel action, even if it were not the “but
      for” cause.   Id. at 205-06.   The court further found that, given the statute’s
      sweeping language, it was unnecessary to look for “a particular quantum of
      influence,” such as “substantial” evidence, but rather for “the existence of any
      influence at all.” Id. at 206. This is so, the court reasoned, because “any amount
      of discrimination tainting a personnel action, even if not substantial, means that
      the action was not ‘free from any discrimination based on age.’ ‘Any,’ after all,
      means any.” Id. (citing United States v. Gonzales, 520 U.S. 1, 5 (1997)). Shortly
      thereafter, in Alotta v. Department of Transportation, EEOC Appeal No.
      0129903865, 2011 WL 2515244 (June 17, 2011), the EEOC reached the same
                                                                                           22

      conclusion on similar grounds, albeit in dicta. 7 In Wingate v. U.S. Postal Service,
      118 M.S.P.R. 566 (2012), we endorsed the reasoning of Alotta, again concluding
      that a Federal employee may prove age discrimination by showing that age was “a
      factor” in the personnel action, even if it was not the “but for” cause. Id., ¶ 7.
¶41         The requirement of 42 U.S.C. § 2000e-16 that personnel actions by
      agencies “be made free from any discrimination based on race, color, religion,
      sex, or national origin” is analogous to the ADEA provision at issue in Ford,
      Alotta, and Wingate.     We therefore conclude that, to establish a violation of
      42 U.S.C. § 2000e-16, an appellant need only demonstrate that a prohibited
      consideration was a factor in the contested personnel action. Moreover, because
      a prohibition against retaliation is inherent in the same statute, the same causation
      standard also applies to Title VII retaliation claims in the Federal sector. Hence,
      as with status-based discrimination cases, a violation of 42 U.S.C. § 2000e-16 is
      established if a prohibited consideration was a motivating factor in the contested
      personnel action, even if it was not the only reason.           Accord Petitioner v.
      Department of Interior, EEOC Appeal No. 0320110050, 2014 WL 3788011,
      at *10 n.6 (July 16, 2014), concurred in and adopted by Davis v. Department of
      the Interior, MSPB Docket No. AT-0752-09-0860-E-1, Final Order at 4-6
      (Aug. 15, 2014).
            An appellant may establish a violation of 42 U.S.C. § 2000e-16 using
            direct evidence or any of three types of circumstantial evidence:
            “convincing mosaic,” comparator, or pretext.
¶42         In Troupe v. May Department Stores Company, 20 F.3d 734 (7th Cir.
      1994), a case involving a claim of pregnancy discrimination, the U.S. Court of
      Appeals for the Seventh Circuit provided a useful taxonomy of the “[d]ifferent
      kinds and combinations of evidence” that may support an inference that

      7
        Despite its finding, the EEOC did not undertake a mixed-motive analysis in Alotta, but
      instead applied the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792
      (1973), which does require an ultimate showing of “but for” causation.
                                                                                              23

      intentional discrimination or retaliation was a motivating factor in an employment
      action.    Id. at 736.      One kind is direct evidence, i.e., “evidence that can be
      interpreted as an acknowledgment of discriminatory intent[.]” Id. In addition to
      direct    evidence,   the    court   identified   and   distinguished   three   types   of
      circumstantial evidence. The first kind “consists of suspicious timing, ambiguous
      statements oral or written, behavior toward or comments directed at other
      employees in the protected group, and other bits and pieces from which an
      inference of discriminatory intent might be drawn.” Id. Considered together, the
      court explained, such bits and pieces may compose “a convincing mosaic of
      discrimination.”      Id. at 737.    The second kind of circumstantial evidence is
      comparator evidence, consisting of “evidence, whether or not rigorously
      statistical, that employees similarly situated to the plaintiff other than in the
      characteristic . . . on which an employer is forbidden to base a difference in
      treatment received systematically better treatment.” Id. at 736. The third kind
      consists of evidence that the agency’s stated reason for its action is “unworthy of
      belief, a mere pretext for discrimination.” Id. The court stressed that none of the
      aforementioned types of evidence, i.e., direct, “convincing mosaic,” comparator,
      or pretext, will be needed in every case.          “Each type of evidence,” the court
      explained, “is sufficient by itself . . . to support a judgment for [the employee]; or
      they can be used together.” Id.
¶43            In FitzGerald v. Department of Homeland Security, 107 M.S.P.R. 666
      (2008), we erroneously stated that to establish an EEO reprisal claim using
      circumstantial evidence, the appellant must provide evidence showing a
      “convincing mosaic” of retaliation against her. Id., ¶ 20. That holding was based
      on a misreading of Troupe, and the Seventh Circuit has itself clarified that “it was
      not the intention in Troupe to promulgate a new standard, whereby circumstantial
      evidence in a discrimination or retaliation case must . . . have a mosaic-like
      character.” Sylvester v. SOS Children’s Villages Illinois, Inc., 453 F.3d 900, 904
      (7th Cir. 2006); see Petitioner v. Department of the Interior, EEOC Appeal
                                                                                        24

      No. 0320110050, 2014 WL 3788011, at *10 n.6 (citing Sylvester, 453 F.3d
      at 903).      To the extent we erroneously imposed a “convincing mosaic”
      requirement, FitzGerald and its progeny are hereby overruled. 8
             The Board’s authority to enforce 42 U.S.C. § 2000e-16 derives from civil
             service law.
¶44          While 42 U.S.C. § 2000e-16 sets forth the substantive standard for Title
      VII claims in the Federal sector, it does not itself authorize the Board to enforce
      that standard.     Subsection (b) of the statute grants the EEOC the authority to
      enforce the standard through appropriate remedies, including reinstatement and
      back pay. 42 U.S.C. § 2000e-16(b). In addition, the statute contains provisions
      concerning the courts’ enforcement authority. Subsection (c) provides that, after
      an agency or the EEOC takes final action on a complaint, or fails to take action
      within a certain time, the aggrieved employee may bring a “civil action,” with the
      department head named as the defendant. 42 U.S.C. § 2000e-16(c). Section (d)
      further provides that such civil actions shall be governed by the provisions of
      42 U.S.C. § 2000e-5(f) through (k), “as applicable.”      42 U.S.C. § 2000e-16(d).
      Those incorporated provisions in turn assign jurisdiction to an appropriate district
      court, see 42 U.S.C. § 2000e-5(f)(3), and provide that the court may, subject to
      certain restrictions, award remedies including injunctive relief, reinstatement,
      back       pay,   and   attorney   fees,   see   42   U.S.C.    § 2000e-5(g),    (k).




      8
        Subsequent cases erroneously imposing a “convincing mosaic” requirement include
      Quinlan v. Department of Homeland Security, 118 M.S.P.R. 362 (2012); Rhee v.
      Department of the Treasury, 117 M.S.P.R. 640 (2012); Agbaniyaka v. Department of the
      Treasury, 115 M.S.P.R. 130 (2010), aff’d, 484 F. App’x 545 (Fed. Cir. 2012); Crump v.
      Department of Veterans Affairs, 114 M.S.P.R. 224 (2010); Marshall v. Department of
      Veterans Affairs, 111 M.S.P.R. 5 (2008); and Kohler v. Department of the Navy,
      108 M.S.P.R. 510 (2008).
                                                                                        25

¶45         By contrast, there is no comparable provision in the statute—or, for that
      matter, anywhere else in Title VII—granting enforcement authority to the Board. 9
      The Board’s authority to adjudicate and remedy alleged violations of 42 U.S.C.
      § 2000e-16 is instead a matter of civil service law. One source of that authority
      is 5 U.S.C. § 7702(a)(1)(B), which provides that in any case where an appellant
      affected by an action appealable to the Board alleges that a basis for the action
      was discrimination prohibited by 42 U.S.C. § 2000e-16, the Board shall “decide
      both the issue of discrimination and the appealable action[.]” The statute further
      specifies that the issues are to be decided “in accordance with the Board’s
      appellate procedures under [5 U.S.C. §§ 7701 and 7702].”                  5 U.S.C.
      § 7702(a)(1)(B) (emphasis added).        Hence, while the substantive “issue of
      discrimination” is defined by the standard set forth by 42 U.S.C. § 2000e-16(a), it
      is civil service law that defines the procedures by which we decide whether a
      violation of that statute has taken place.
¶46         Significantly, the Board’s procedures do not provide for summary
      judgment. Crispin v. Department of Commerce, 732 F.2d 919, 922 (Fed. Cir.
      1984); see 5 U.S.C. § 7701(a)(1) (providing that an appellant “shall have the right
      to a hearing”). 10 In determining if summary judgment is appropriate in a case
      where the plaintiff alleges that the contested personnel action is motivated solely
      by discrimination, the courts and the EEOC have traditionally followed the
      burden-shifting scheme of McDonnell Douglas Corp. v. Green, 411 U.S. 792,
      802-04 (1973). However, because the Board has no authority to grant summary

      9
        Indeed, it was the intent of Congress in passing the Equal Employment Opportunity
      Act of 1972 to transfer to the EEOC the enforcement authority formerly vested in the
      Board’s predecessor agency, the Civil Service Commission. See H.R. Rep. No. 92-238,
      at 2158-60, reprinted in 1972 U.S.C.A.A.N. 2137, 2160.
      10
         In Redd v. U.S. Postal Service, 101 M.S.P.R. 182, ¶¶ 10-12 (2006), we declined to
      follow Crispin based on the erroneous assumption that our procedures for deciding
      discrimination claims were a matter of substantive discrimination law. Redd is hereby
      overruled.
                                                                                        26

      judgment, and decides discrimination claims only after the record is complete, the
      McDonnell Douglas framework has no application to our proceedings in this or
      any other appeal. See Jackson v. U.S. Postal Service, 79 M.S.P.R. 46, 51-52
      (1998).
¶47         As for remedies, our authority to award reinstatement and back pay derives
      from 5 U.S.C. § 7701(c)(2)(B), which provides that the Board will not sustain an
      agency’s decision if the appellant “shows that the decision was based on any
      prohibited personnel practice described in section 2302(b) of this title.”
      Section 2302(b)(1) in turn provides, inter alia, that an agency employee with
      “authority to take, direct others to take, recommend, 11 or approve any personnel
      action, shall not, with respect to such authority . . . discriminate for or against
      any employee or applicant for employment . . . on the basis of race, color,
      religion, sex, or national origin, as prohibited under [42 U.S.C. § 2000e-16].”
      Accordingly, if an appellant proves that the action on appeal was “based” on a
      violation of 42 U.S.C. § 2000e-16, which constitutes a prohibited personnel
      action under 5 U.S.C. § 2302(b)(1), the Board will order the agency to cancel the
      action and return the appellant to the status quo ante. See 5 U.S.C. § 1204(a)
      (granting the Board the authority to adjudicate and take final action on matters
      within its jurisdiction and to order compliance with its actions).
            A violation of 42 U.S.C. § 2000e-16 warrants reversal under 5 U.S.C.
            § 7701(c)(2)(B) only if the agency would not have taken the action in the
            absence of the discriminatory or retaliatory motive.
¶48         The term “based,” as used in 5 U.S.C. § 7701(c)(2)(B), “connotes that the
      matter referred to is the most important element.”       Gerlach v. Federal Trade
      Commission, 9 M.S.P.R. 268, 273 (1981). Accordingly, 5 U.S.C. § 7701(c)(2)(B)
      mandates reversal of the agency’s action only where the Board has determined

      11
         Because a proposing official is an agency employee with authority to “recommend” a
      personnel action, we agree with the appellant that the administrative judge erred in
      failing to consider whether D.B. had a retaliatory motive.
                                                                                          27

      that a prohibited personnel practice was the “motivating factor” or “real reason”
      for the action.    Id. at 274.   Hence, while the Board will find a violation of
      42 U.S.C. § 2000e-16, and consequently a prohibited personnel practice under
      5 U.S.C. § 2302(b)(1), if the appellant shows that a discriminatory or retaliatory
      motive was a factor in the contested action, such a finding will not necessarily
      result in reversal. Rather, the Board will reverse the action on that basis if the
      prohibited personnel practice was the “but for” cause of the action, i.e., if the
      agency would not have taken the same action in the absence of the discriminatory
      or retaliatory motive. See Dorsey v. Department of the Air Force, 78 M.S.P.R.
      439, 450-51 (1998); Madison v. Department of the Air Force, 32 M.S.P.R. 465,
      477 (1987); cf. Gerlach, 9 M.S.P.R. at 270, 273 (concerning alleged retaliation
      for filing a grievance). 12
             In determining whether relief is appropriate under                   5   U.S.C.
             § 7701(c)(2)(B), the Board will apply the Mt. Healthy test.
¶49          For cases involving allegations of discrimination and retaliation not
      covered by the WPA, the Board has adopted the analytical framework of
      Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274
      (1977), for determining whether reversal of the action is warranted under
      5 U.S.C. § 7701(c)(2)(B). Gerlach, 9 M.S.P.R. at 276; see Dorsey, 78 M.S.P.R.
      at 450-51; Madison, 32 M.S.P.R. at 477. In Mt. Healthy, a case involving a claim
      of retaliation for protected First Amendment activity, the Court enunciated a
      two-part test to be applied in determining whether remedial action was justified.
      429 U.S. at 287. First, the Court explained, the employee must show that the
      protected conduct was a substantial or motivating factor in the contested action.
      Id. If the employee carries that burden, then the burden shifts to the employer to


      12
        To the extent a retaliation for protected EEO activity claim also may be construed as
      a prohibited personnel practice under 5 U.S.C. § 2302(b)(9)(A)(ii), the same standard
      applies. See Gerlach, 9 M.S.P.R. at 273.
                                                                                            28

      prove by a preponderance of the evidence that it would have taken the same
      action even if the protected conduct had not taken place. Id.
¶50         The Mt. Healthy test assures that an employee who belongs to a protected
      group or has engaged in protected activity is not thereby granted immunity from
      the ordinary consequences of misconduct or poor performance.              Mt. Healthy,
      429 U.S. at 285-86; see Gerlach, 9 M.S.P.R. at 275. In keeping with that aim, the
      allocation of the burdens under Mt. Healthy is both equitable and reasonable.
      Accordingly, we reaffirm that the Board will adhere to the Mt. Healthy test in
      cases involving discrimination or retaliation allegations under 42 U.S.C.
      § 2000e-16. See Dorsey, 78 M.S.P.R. at 450-51; Madison, 32 M.S.P.R. at 477. 13
¶51         In sum, when an appellant asserts an affirmative defense of discrimination
      or retaliation under 42 U.S.C. § 2000e-16, the Board first will inquire whether the
      appellant has shown by preponderant evidence that the prohibited consideration
      was a motivating factor in the contested personnel action. Such a showing is
      sufficient to establish that the agency violated 42 U.S.C. § 2000e-16, thereby


      13
         The application of the Mt. Healthy test to discrimination and retaliation claims under
      42 U.S.C. § 2000e-16 is in some respects analogous to the burden-shifting scheme for
      status-based Title VII discrimination claims in the private sector. Under 42 U.S.C.
      § 2000e-2(m), “an unlawful employment practice is established when the complaining
      party demonstrates that color, religion, sex, or national origin was a motivating factor
      in any employment practice, even though other factors also motivated the practice.”
      Upon that showing, the burden then shifts to the employer to demonstrate that it “would
      have taken the same action in the absence of the impermissible motivating factor,” in
      which case the plaintiff will not receive damages or a reinstatement order, but may
      nonetheless receive a limited remedy including declaratory relief, injunctive relief, and
      some attorney fees. 42 U.S.C. § 2000e-5(g)(2)(B). However, the scheme set forth at
      42 U.S.C. §§ 2000e-2(m) and 2000e-5(g)(2)(B) does not apply to our adjudication of
      claims under 42 U.S.C. § 2000e-16. First, because 42 U.S.C. § 2000e-16 broadly
      prohibits discrimination without incorporating specific prohibited practices, such as the
      ban on retaliation at 42 U.S.C. § 2000e-3(a), see Gomez-Perez, 553 U.S. at 487, it does
      not (and need not) incorporate 42 U.S.C. § 2000e-2(a) and (m). Moreover, as discussed
      above, the enforcement provisions incorporated by 42 U.S.C. § 2000e-16, including
      42 U.S.C. § 2000e-5(g)(2)(B), do not control our proceedings, which are instead
      governed by the appellate procedures set forth at 5 U.S.C. §§ 7701 and 7702.
                                                                                       29

      committing a prohibited personnel practice under 5 U.S.C. § 2302(b)(1).          In
      making her initial showing, an appellant may rely on direct evidence or any of the
      three types of circumstantial evidence described in Troupe, either alone or in
      combination. If the appellant meets her burden, we then will inquire whether the
      agency has shown by preponderant evidence that the action was not based on the
      prohibited personnel practice, i.e., that it still would have taken the contested
      action in the absence of the discriminatory or retaliatory motive. If we find that
      the agency has made that showing, its violation of 42 U.S.C. § 2000e-16 will not
      require reversal of the action.    On remand, the administrative judge should
      consider the appellant’s Title VII claims consistent with the above analysis.
      Whistleblowing Reprisal
¶52         The appellant’s affirmative defense of whistleblowing reprisal also will
      require further consideration. First, the administrative judge did not consider the
      appellant’s disclosure concerning the DD Form 2579. Although the appellant did
      not address that disclosure in her OSC complaint, there is no exhaustion
      requirement concerning her whistleblowing retaliation defense in the removal
      appeal, and the DD Form 2579 disclosure therefore should have been considered
      in that context. Furthermore, in finding that the agency showed by clear and
      convincing evidence that it would have removed the appellant in the absence of
      her disclosures, the administrative judge essentially relied on his finding that all
      three charges were proven. RAF ID at 17-18. We do not sustain the excessive
      absences charge, however, and the disposition of the AWOL charge depends upon
      the outcome of the appellant’s constructive suspension claim.        Moreover, the
      administrative judge did not address the possibility that the appellant’s
      incapacitation, which ultimately led to her removal, was itself the product of
      whistleblowing reprisal.   See Whitmore, 680 F.3d at 1376.        Accordingly, the
      administrative judge should consider again on remand whether, in light of all
      pertinent record evidence, the agency showed by clear and convincing evidence
                                                                           30

      that it would have removed the appellant in the absence of her protected
      whistleblowing activity.

                                          ORDER
¶53         The joined appeal is remanded to the regional office for further
      adjudication consistent with this Opinion and Order.



      FOR THE BOARD:


      ______________________________
      William D. Spencer
      Clerk of the Board
      Washington, D.C.
