                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     KIM LOAN HUYNH,                                 DOCKET NUMBER
                  Appellant,                         CB-7121-14-0023-V-1

                  v.

     SOCIAL SECURITY                                 DATE: October 21, 2016
       ADMINISTRATION,
                   Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Thomas J. Gagliardo, Baltimore, Maryland, for the appellant.

           Jessica Craig, Baltimore, Maryland, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         This request for review of an arbitrator’s decision under 5 U.S.C. § 7121(d)
     is again before the Board for consideration. Previously, the Board found that the
     arbitrator’s interpretation of the underlying collective bargaining agreement
     (CBA) was rationally derived, but the arbitrator applied the wrong legal standard


     1
        A nonprecedential order is one that the Board has determined does not add
     significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                               2

     in analyzing the appellant’s allegation that the agency had retaliated against her
     for prior equal employment opportunity (EEO) activity. Huynh v. Social Security
     Administration, MSPB Docket No. CB-7121-14-0023-V-1, Order at ¶ 9-11
     (Jan. 22, 2015) (hereinafter “January 22, 2015 Order”); Request for Review
     (RFR) File, Tab 6. Accordingly, the Board vacated the arbitrator’s award as to
     the finding that no retaliation occurred and forwarded the case to the Northeastern
     Regional Office for adjudication of that issue. January 22, 2015 Order, ¶ 11.
     After a review of the record, including the arbitration transcript, 2 the
     administrative judge recommended that the Board deny the retaliation claim and
     affirm the agency’s removal action. 3 Huynh v. Social Security Administration,
     MSPB Docket No. CB-7121-14-0023-H-1, Referral Proceeding File (RPF),
     Tab 17, Recommended Decision (RD) at 22.               We ADOPT the recommended
     decision, DENYING the retaliation claim. We AFFIRM the arbitrator’s decision,
     incorporating by reference the Board’s findings in the January 22, 2015 Order.
¶2         This case arose from a grievance the appellant filed on January 17, 2013,
     after her removal from her position as an Information Technology Specialist,
     GS-12, for unacceptable performance pursuant to 5 U.S.C. § 4303.                RFR File,

     2
       The administrative judge noted that neither party produced the exhibits they presented
     at the arbitration, despite the fact that he ordered them to, and he thus was unable to
     consider these items. Referral Proceeding File (RPF), Tab 17, Recommended Decision
     (RD) at 5 n.3, Tab 5 at 1-2. He further noted that the appellant failed to provide
     citations to the record, including page number references to the transcript, to support
     her argument. RD at 8-9 n.6. He explained that he “attempted to locate testimony
     relevant to her claims, but the process was onerous in the absence of the requested
     citations, and without copies of any of the exhibits [he] was . . . unable to fully consider
     the exhibits . . . and portions of the testimony were impossible to evaluate.” Id. In her
     exceptions to the recommended decision, the appellant cited specific hearing exhibits,
     see, e.g., RFR File, Tab 11 at 5, but she did not provide copies of these exhibits.
     3
       Although the appellant did not specifically assert that the agency retaliated against her
     for filing a separate grievance on June 13, 2012, regarding agency actions taken on
     grounds of her performance issues, see RPF, Tab 12 at 462, 531, 545-47; RFR File,
     Tab 1, Appendix (App.) A at 2, 4, the administrative judge noted that the grievance was
     a protected activity under 5 U.S.C. § 2302(b)(9)(A), and that the recommended decision
     encompassed any claim that it was a motivating factor in her removal, RD at 3 n.2.
                                                                                          3

     Tab 1, Appendix (App.) A at 2-3. During the series of events culminating in her
     removal, the appellant filed a Workplace Issues Report, and later informal and
     formal EEO complaints, alleging that her immediate supervisor discriminated
     against her based on age, color, national origin, and sex. RFR File, Tab 1 at 3-6.
¶3        In deciding the issue of retaliation, the administrative judge explained that
     the analytical model set forth in Dobruck v. Department of Veterans
     Affairs, 102 M.S.P.R. 578 (2006), aff’d, 212 F. App’x 997 (Fed. Cir. 2007),
     which the Board had cited in the January 22, 2015 Order, had been superseded by
     Savage v. Department of the Army, 122 M.S.P.R. 612 (2015). RD at 6-7. He thus
     weighed the appellant’s allegations of retaliation under Savage and found that she
     failed to show by preponderant evidence that her protected activity was a
     motivating factor in the decision to remove her. RD at 8-19. The administrative
     judge further found that, even if the appellant had met her burden of proof, the
     agency showed by preponderant evidence that it would have removed her even in
     the absence of a retaliatory motive. RD at 19-21.
¶4        The appellant filed exceptions to the recommended decision, which the
     Board has considered.     RFR File, Tabs 9, 11.     We nevertheless find that the
     administrative judge correctly decided the issues related to retaliation. In Savage,
     the Board held that to prove retaliation under Title VII, an appellant need show
     only that a prohibited consideration was a motivating factor in the contested
     personnel action. In making such a showing, appellants can proffer a variety of
     evidence that shows, or from which one could infer, that the prohibited
     consideration was a motivating factor. Savage, 122 M.S.P.R. 612, ¶¶ 42-43. If
     the appellant meets her burden to prove by preponderant evidence that the
     prohibited consideration was a motivating factor, the burden then shifts to the
     agency to show by preponderant evidence that it would have nevertheless taken
     the same action in the absence of the discriminatory or retaliatory motive. Id.,
     ¶ 51. If the agency makes such a showing, the employment action will be upheld.
                                                                                             4

     Id. If not, the appellant will have proven the retaliation claim was the “but-for”
     cause of the prohibited action, and she will be entitled to reversal. Id., ¶¶ 48-49.
¶5         The appellant argued that the agency’s actions leading to her removal and
     the removal decision itself were retaliation for her protected activity. She sought
     to establish a nexus between her filing a Workplace Issues Report on
     November 1, 2011 4—in response to language that she considered unfavorable in
     her performance appraisal—and the series of events leading to her removal. RPF,
     Tab 13 at 10-11.     The appellant asserted the existence of a close temporal
     proximity between her filing the report and a “pattern of antagonism” that
     followed. Id. She explained that, within a few days after she presented the report
     to her second-tier supervisor, M.H., her first-tier supervisor, K.B., whom she had
     accused of discrimination, began taking retaliatory actions against her, eventually
     leading to her removal. Id. at 11.
¶6         The appellant first asserted that K.B. changed the agency’s mentorship
     program    and   “radically    changed”    work    assignments     to   the   appellant’s
     disadvantage. 5 Id. The administrative judge found her argument to be without


     4
       The administrative judge observed that the Workplace Issues Report did not appear to
     be related to the EEO process or to grievance procedures under the CBA. RD at 9 n.4.
     Nevertheless, he noted that both parties treated it as a protected activity under 5 U.S.C.
     § 2302(b)(9) in their pleadings before the arbitrator and before the Board. RD at 9 n.4.
     Because the record is unclear as to the regulatory or statutory basis for the Workplace
     Issues Report, we will not make a formal finding that the appellant’s filing it was a
     protected activity. The plain language of 5 U.S.C. § 2302(b)(9), however, seems
     sufficiently broad to include such a report. See 5 U.S.C. § 2302(b)(9)(A) (“the exercise
     of any appeal, complaint, or grievance right granted by any law, rule, or regulation”).
     In any event, the appellant also filed informal and formal EEO complaints, which are
     undisputedly protected activities. RPF, Tab 13 at 7-8; see, e.g., Bartel v. Federal
     Aviation Administration, 14 M.S.P.R. 24, 33 (1982), aff’d as modified, 30 M.S.P.R.
     451 (1986).
     5
       In her response to the recommended decision, the appellant asserts that, among other
     things, K.B. changed her duties from Cobalt programming to Java programming after
     she filed the Workplace Issues Report in November 2011. RFR File, Tab 9 at 10. The
     arbitration findings, however, state that this particular change in duties took place in
     2010. RFR File, Tab 1, App. A at 2.
                                                                                     5

     merit, despite her contention regarding the timing of these changes. RD at 10-13.
     The administrative judge cited testimony from K.B., who at the time was newly
     appointed to the Branch Chief position, explaining her reasons for changing the
     mentorship program, which included the availability of new personnel to serve as
     mentors and her desire to broaden the focus and scope of assignments given to the
     mentees in the program. RD at 10-12. K.B. also testified that she had directed
     all of the appellant’s assignments be reduced to writing because of past
     misunderstandings, and she had assigned the appellant a new mentor, T.K.,
     because one of her previous mentors had become frustrated with her. RD at 10,
     12. K.B. explained that, after repeated updates from T.K., it was apparent that
     the appellant struggled with projects that a journeyman GS-12 employee would be
     able to complete independently. RD at 12; RPF, Tab 11 at 203-04. K.B. thus
     placed the appellant on a performance assistance plan in April 2012, and
     thereafter, on an Opportunity to Perform Successfully (OPS) plan.      RD at 12;
     RPF, Tab 11 at 204-05, 212, Tab 13 at 7.
¶7         While acknowledging the temporal connection between the appellant’s
     filing the Workplace Issues Report and K.B.’s actions, the administrative judge
     credited K.B.’s testimony that her decisions had not been motivated by retaliatory
     animus.   RD at 12-13.    The administrative judge noted that T.K.’s testimony
     corroborated K.B.’s testimony that the appellant was not the only person affected
     by changes to the mentoring program. RD at 12-13. T.K. also observed that the
     appellant exhibited “significant gaps in . . . understanding and ability to
     complete . . . ‘simple’ tasks.”   RD at 12; RPF, Tab 11 at 426-29, 435-38.     In
     contrast, the appellant offered no potential evidence of retaliatory animus. The
     administrative judge thus reasonably concluded that the appellant’s evidence of
     temporal proximity alone was insufficient to establish that K.B. was motivated by
     retaliatory animus.   RD at 13.    We agree.   See Hillen v. Department of the
     Army, 35 M.S.P.R. 453, 458 (1987) (holding that, in resolving credibility issues,
     an administrative judge must consider such factors as the contradiction of the
                                                                                      6

     witness’s version of events by other evidence or its consistency with other
     evidence, and the inherent improbability of the witness’s version of events).
¶8        Although the primary focus of the administrative judge’s analysis of
     temporal proximity pertained to events following the appellant’s submitting the
     Workplace Issues Report, the appellant similarly asserts in her responses to the
     recommended decision that the agency’s October 12, 2012 notice of proposed
     removal followed her August 10, 2012 formal EEO complaint by only slightly
     more than 2 months.     RFR File, Tab 9 at 9, Tab 11 at 17-18.        As with her
     allegations of retaliation arising from her submitting the Workplace Issues
     Report, the appellant has offered no evidence other than temporal proximity, and
     that alone would not establish retaliatory animus.
¶9        Around the time the appellant filed the Workplace Issues Report, she also
     requested reassignment to another supervisor’s branch. RPF, Tab 12 at 596. She
     admitted in her testimony before the arbitrator that M.H. had denied the request in
     part for business reasons, id. at 597-98, but she nevertheless asserted that K.B.’s
     “claimed ignorance that reassignment was an option” was evidence of her
     retaliatory motive, RPF, Tab 13 at 13, Tab 14 at 6; see RFR File, Tab 9 at 10,
     Tab 11 at 13-14. The administrative judge found this contention to be without
     merit, and we agree with his assessment. RD at 13-15. The administrative judge
     explained that K.B.’s managers made the decision not to reassign the appellant,
     and K.B. gave undisputed testimony that the proposed reassignment was
     unsuitable because of her performance difficulties. RD at 14. The administrative
     judge cited K.B.’s testimony that the appellant had difficulty following
     instructions and would be unable to perform in the position to which the agency
     might have assigned her.     RD at 14.   He further explained that the appellant
     offered no evidence that K.B. had acted contrary to her management’s
     instructions because of the appellant’s protected activity, that the agency’s
     decision was not in any way related to her protected activity, or that it was a
     pretext for discrimination. RD at 14-15. The administrative judge likewise found
                                                                                        7

      that the appellant failed to identify any potential comparators who did not engage
      in protected activity and were reassigned after making a request under similar
      circumstances.   RD at 15.    Although the appellant asserts she was not having
      performance difficulties at this time, RFR File, Tab 11 at 13-14, it was, in fact,
      her disagreement with comments in her performance assessment that prompted
      her to file a Workplace Issues Report, RFR File, Tab 1, App. A at 17.
¶10        The appellant also argued that K.B.’s decision to remove rather than demote
      her after she failed the OPS was retaliatory and “strongly suggestive of
      mendacity.” 6 RPF, Tab 13 at 12; see RFR File, Tab 11 at 14-18. K.B. testified
      that she had created a position description for a noncareer ladder GS-11 position
      at the behest of her manager during the OPS and she had considered placing the
      appellant in that job. K.B. ultimately decided not to demote the appellant, and
      instead, proposed her removal. RPF, Tab 11 at 289-96, 299-301. The appellant
      asserted that K.B. was obligated to offer her the GS-11 position after having
      created it and that her decision not to offer the position could only be interpreted
      as retaliatory. RPF, Tab 13 at 11-13. She also asserted that the GS-11 position
      description was nearly identical to that of the GS-12 position from which she was
      removed, which gave K.B. a pretextual reason for not offering it to her. Id. at 12.
      She additionally argued that K.B. should have created a position at the GS-9 or
      GS-10 level if the GS-11 position proved to be inappropriate. Id. She gave much
      weight to the fact that the arbitrator commented at length on the fact that she had
      been removed rather than downgraded. RPF, Tab 13 at 11-12; RFR File, Tab 1,
      App. A at 31.
¶11        The administrative judge, however, found no retaliatory animus in the
      decision to remove the appellant rather than demote her.        RD at 15-19.    The

      6
        The Board lacks the authority to review or modify an agency penalty in an action
      taken under 5 U.S.C. § 4303. Lisiecki v. Federal Home Loan Bank Board, 23 M.S.P.R.
      633, 636-47 (1984), aff’d, 769 F.2d 1558 (Fed. Cir. 1985). The administrative judge
      thus addressed the penalty determination only to the extent that it related to the
      retaliation claim. RD at 15 n.9.
                                                                                       8

      administrative judge characterized K.B.’s testimony as “logical and persuasive”
      regarding the timeline for creating the position, the source of the position
      description, and her considerations in determining whether to demote or remove
      the appellant. RD at 18. He particularly noted her testimony that the appellant’s
      demonstrated performance deficiencies would have carried over to lower-graded
      positions, including positions at the GS-9 or GS-10 level. RD at 18-19. He found
      no evidence that K.B. had been instructed to retain the appellant, only that she
      prepare to consider the option if appropriate.         Id.    We agree with the
      administrative judge’s findings on this issue and with his conclusion that the
      appellant failed to show that her protected activity was a motivating factor in the
      decision to remove her. RD at 19.
¶12        Finally, the administrative judge found that the agency showed by
      preponderant evidence it would have removed the appellant in the absence of any
      retaliatory motive had she shown that such a motive existed. RD at 19-22. The
      administrative judge relied on K.B.’s extensive testimony regarding the
      appellant’s performance issues and testimony of her mentor, T.K. Id.; see RPF,
      Tab 11 at 236-74, 435-38, 453-56. The administrative judge concluded that the
      agency made a strong showing in support of the merits of its action. RD at 21.
      We concur and adopt the recommended decision.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            You have the right to request further review of this final decision.

      Discrimination Claims: Administrative Review
            You may request review of this final decision on your discrimination
      claims by the Equal Employment Opportunity Commission (EEOC). See title 5
      of the U.S. Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you submit your
      request by regular U.S. mail, the address of the EEOC is:
                                                                                  9

If you submit your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                131 M Street, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your discrimination
claims, you may file a civil action against the agency on both your discrimination
claims and your other claims in an appropriate U.S. district court. See 5 U.S.C.
§ 7703(b)(2). You must file your civil action with the district court no later than
30 calendar days after your receipt of this order. If you have a representative in
this case, and your representative receives this order before you do, then you
must file with the district court no later than 30 calendar days after receipt by
your representative. If you choose to file, be very careful to file on time. If the
action involves a claim of discrimination based on race, color, religion, sex,
national origin, or a disabling condition, you may be entitled to representation by
                                                                             10

a court-appointed lawyer and to waiver of any requirement of prepayment of fees,
costs, or other security. See 42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.




FOR THE BOARD                            ______________________________
                                         Jennifer Everling
                                         Acting Clerk of the Board
Washington, D.C.
