                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                      2015 MSPB 50

                             Docket No. SF-0752-14-0256-I-1

                                   Douglas A. Alarid,
                                        Appellant,
                                             v.
                                Department of the Army,
                                          Agency.
                                      August 21, 2015

           Paul E. Carreras, Santa Rosa, California, for the appellant.

           Douglas W. Hales and David Michael Tucker, Fort Hunter Liggett,
             California, for the agency.

                                         BEFORE

                             Susan Tsui Grundmann, Chairman
                                Mark A. Robbins, Member



                                 OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed his removal. For the reasons discussed below, we GRANT the petition
     for review, VACATE the initial decision, and REMAND the case to the regional
     office for further adjudication in accordance with this Opinion and Order.

                                      BACKGROUND
¶2         The appellant served as a Police Officer at all times relevant to this appeal.
     Initial Appeal File (IAF), Tab 5 at 18. The agency removed the appellant from
     Federal service based on two charges of misconduct: conspiracy to purchase and
                                                                                     2

     distribute an unauthorized Federal police badge; and manufacture and distribution
     of an unauthorized Federal police identification card. Id. at 20-29. The appellant
     filed a timely appeal of his removal and raised an affirmative defense of reprisal
     based upon his participation in union activity. IAF, Tab 1 at 7. In his prehearing
     submission, moreover, the appellant raised affirmative defenses of retaliation for
     whistleblowing and a due process violation. IAF, Tab 8 at 9, 15-17.
¶3         The administrative judge held a prehearing conference and entered an order
     suspending case processing to allow the parties an opportunity to explore
     settlement. IAF, Tab 9. In his prehearing conference summary and order, the
     administrative judge noted that the appellant was “raising the affirmative
     defenses of retaliation for protected whistleblowing and union activity,” but the
     administrative judge offered no explanation of the applicable burdens of proof
     governing such claims.    Id. After the first case processing suspension period
     expired, the administrative judge entered a second order suspending case
     processing. IAF, Tab 13. In that order, the administrative judge stated that the
     appellant had raised “affirmative defenses of retaliation for protected [equal
     employment opportunity (EEO)] activity and whistleblowing activity,” and he
     cited Warren v. Department of the Army, 804 F.2d 654 (Fed. Cir. 1986), for the
     applicable burden of proof “to prevail on a contention of illegal retaliation.”
     IAF, Tab 13. Neither party objected to the administrative judge’s summary of the
     defenses raised by the appellant.
¶4         The administrative judge subsequently held another prehearing conference.
     IAF, Tab 20. In his summary of that prehearing conference, the administrative
     judge again cited Warren for the applicable burden of proof concerning the
     appellant’s affirmative defenses. Id. In this order, however, the administrative
     judge stated that “[i]t was determined that [the appellant’s] originally asserted
     whistleblowing retaliation claim pertained exclusively to his protected EEO
     activity.” Id. at n.1. The administrative judge offered no explanation for this
     determination, did not acknowledge the appellant’s affirmative defenses of
                                                                                            3

     reprisal for participation in union activity or a due process violation, and did not
     explain the effects of withdrawing or abandoning any of his affirmative defenses.
     Id.   Although the administrative judge provided the parties 10 days to file
     objections to this order, neither party did so.
¶5         Following a hearing, the administrative judge issued an initial decision
     sustaining both of the agency’s charges, finding the penalty of removal
     reasonable, and finding that the appellant failed to prove that his removal was the
     result of reprisal for EEO activity.       IAF, Tab 41, Initial Decision (ID).        In
     adjudicating the appellant’s affirmative defense, the administrative judge
     indicated that he had previously determined that “the appellant’s originally
     asserted whistleblowing retaliation claim pertained exclusively to his protected
     EEO activity.” ID at 13 n.11. The administrative judge acknowledged that both
     parties “briefly touched on other affirmative defenses in their closing briefs,” 1 but
     declined to reach those issues because neither party objected to his prehearing
     conference summary within 7 days, 2 and because the appellant only presented
     evidence concerning his claim of reprisal for EEO activity. Id.
¶6         The appellant filed a petition for review challenging several of the
     administrative    judge’s   credibility   determinations     and    arguing   that   the
     administrative judge erred in denying his affirmative defense of reprisal for union
     activity. Petition for Review (PFR) File, Tab 1 at 6-8, 10-11. The agency filed a



     1
       The agency argued in its closing brief that the appellant failed to prove that his
     removal was the result of whistleblower reprisal, IAF, Tab 31 at 6, and the appellant
     alleged in his closing brief that he was terminated in reprisal for protected union
     activity, IAF, Tab 30 at 4. Neither party specifically addressed allegations of EEO
     reprisal.
     2
       The record reflects that the administrative judge gave the parties 10 days, rather than
     7 days, to object to his prehearing conference summary. See IAF, Tab 20 at 2. It is
     undisputed, however, that neither party objected to the prehearing conference summary
     and order.
                                                                                          4

     response in opposition to the petition for review, and the appellant filed a reply. 3
     PFR File, Tabs 4-5.

                                          ANALYSIS
     The appeal must be remanded for further adjudication of the appellant’s
     whistleblower reprisal and due process claims.
¶7         Upon our review of the parties’ submissions and the administrative judge’s
     orders, we find that the administrative judge did not fully identify all of the
     affirmative defenses the appellant raised in response to his removal. See Gath v.
     U.S. Postal Service, 118 M.S.P.R. 124, ¶ 11 (2012) (citing Wynn v. U.S. Postal
     Service, 115 M.S.P.R. 146, ¶ 10 (2010)).        As explained below, the appellant
     raised an affirmative defense based upon his participation in union activity under
     5 U.S.C. § 2302(b)(9)(B), but the administrative judge failed to outline the
     relevant burdens for proving such a claim under the Whistleblower Protection
     Enhancement Act of 2012 (WPEA), Pub. L. No. 112-199, 126 Stat. 1465.
     See 5 U.S.C. § 1221(e), (i).     Additionally, the appellant raised allegations of
     whistleblower reprisal under 5 U.S.C. § 2302(b)(8) and a due process violation.
     The administrative judge also failed to apprise the appellant of his burdens of
     proof on these claims or to document whether the appellant withdrew or
     abandoned either of these affirmative defenses prior to hearing.            See Gath,
     118 M.S.P.R. 124, ¶ 10. Accordingly, we remand the appeal to the administrative
     judge for further adjudication of the appellant’s affirmative defenses.




     3
       After the record closed on petition for review, the appellant filed a supplemental
     response in further support of his petition for review. PFR File, Tab 6. The Board’s
     regulations only provide for the filing of a petition for review, an opposition in
     response, and a reply. See 5 C.F.R. § 1201.114(a). Because we are remanding the
     appeal for further development of the record, the appellant will have an opportunity to
     supplement the record before the administrative judge. We have not considered the
     appellant’s supplemental response in the course of granting his petition for review.
                                                                                           5

     The appellant’s allegation of reprisal based upon his participation in union
     activity is a prohibited personnel practice affirmative defense under
     5 U.S.C. § 2302(b)(9)(B).
¶8         As explained above, in his initial decision, the administrative judge
     indicated that he had determined previously that the “appellant’s originally
     asserted whistleblowing retaliation claim pertained exclusively to his protected
     EEO activity,” and that he would adjudicate the affirmative defense as a claim of
     EEO reprisal. 4 ID at 13 n.11; IAF, Tab 20 at 1 n.1. The administrative judge,
     however, did not address the appellant’s specific assertions that his removal was
     based on his participation in union-related activities on behalf of other
     employees.
¶9         Upon our review of the record, we find that the administrative judge should
     have considered the appellant’s allegations as a claim of reprisal under
     section 2302(b)(9)(B), rather than as a claim of reprisal for EEO activity. An
     employee’s participation in union activity generally does not constitute protected
     activity for purposes of establishing a claim of EEO retaliation.            See Gath,
     118 M.S.P.R. 124, ¶ 12 (clarifying that retaliation for EEO activity and union
     activity are separate claims); McLaurin v. U.S. Postal Service, EEOC Appeal No.
     0120070899, 2008 WL 3890478, at *1 (Aug. 14, 2008) (finding that union
     participation generally does not form the basis of a claim for reprisal based on
     EEO activity). In his initial appeal, the appellant asserted that his removal was
     motivated by his role as a union vice president. IAF, Tab 1. In his prehearing
     submission, the appellant alleged that he had been involved in numerous


     4
       The administrative judge did not provide an explanation for this conclusion in either
     his prehearing conference summary and order or his initial decision. See IAF, Tab 20;
     ID at 13 n.11. The appellant, moreover, did not specifically raise a claim of EEO
     retaliation in his initial appeal or in either his pre- or post-hearing submissions. See
     IAF, Tabs 1, 8, 30. Because the appellant never specifically raised an affirmative
     defense based on retaliation for EEO activity, the administrative judge should not have
     adjudicated such a claim.
                                                                                         6

      grievances against the agency and that the former chief of police sought to
      dissuade him from pursuing grievance matters by accusing him of misconduct.
      IAF, Tab 8 at 7-9.       Finally, both parties addressed whether the appellant
      established reprisal based on his participation in union activity in their
      post-hearing submissions, and the appellant has argued on review that his
      removal was the result of his role as a union official. PFR File, Tab 1 at 11; IAF,
      Tab 31 at 8-9, Tab 30 at 4.
¶10         Based on the appellant’s factual assertions, we find that he raised an
      affirmative defense of reprisal for participating in union activity under
      section 2302(b)(9)(B). Section 2302(b)(9)(B) makes it unlawful for an individual
      to take, fail to take, or threaten to take or fail to take a personnel action because
      of the employee “testifying for or otherwise lawfully assisting any individual in
      the exercise of any right referred to in [5 U.S.C. § 2302(b)(8)(A)](i) or (ii).”
      5 U.S.C. § 2302(b)(9)(B).       Performing union-related duties, such as filing
      grievances and representing other employees in the grievance process, are
      protected activities under section 2302(b)(9).      See Wooten v. Department of
      Health & Human Services, 54 M.S.P.R. 143, 146 (1992), superseded on other
      grounds by statute as stated in Carney v. Department of Veterans Affairs,
      121 M.S.P.R. 446, ¶ 5 (2014).
¶11         We also find that, under Wynn, the administrative judge should have
      apprised the appellant of the burdens to prove a prohibited personnel practice
      under section 2302(b)(9)(B), and that he should have identified this defense in his
      prehearing conference summary.         See Gath, 118 M.S.P.R. 124, ¶¶ 11-12.
      Consistent with the burdens of proof established by the WPEA discussed below,
      we remand this affirmative defense to the administrative judge for further
      adjudication.
                                                                                                         7

      The appellant’s affirmative defense under 5 U.S.C. § 2302(b)(9)(B) is subject to
      the standards set forth in 5 U.S.C. § 1221(e).
¶12          Under the WPEA, a prohibited personnel practice affirmative defense
      asserted in a chapter 75 appeal that independently could form the basis of an
      individual      right    of    action    (IRA)    appeal    must    be    analyzed       under   the
      burden-shifting         scheme     set    forth   in   5 U.S.C. § 1221(e).         See     5 U.S.C.
      § 1221(e)(1)-(2), (i) (subsections 1221(a)–(h) shall apply in chapter 75 appeals
      where a prohibited personnel practice under sections 2302(b)(8) and (b)(9)(A)(i),
      (B), (C), or (D) is alleged); Shibuya v. Department of Agriculture, 119 M.S.P.R.
      537, ¶¶ 19-20, 32 (2013).               Importantly, the WPEA expanded the grounds on
      which an IRA appeal may be filed with the Board. See Hooker v. Department of
      Veterans Affairs, 120 M.S.P.R. 629, ¶ 9 (2014). Prior to the enactment of the
      WPEA, an appellant could only file an IRA appeal with the Board based on
      allegations of whistleblower reprisal under section 2302(b)(8).                      See Wooten,
      54 M.S.P.R. at 146. Following the WPEA’s enactment, however, an appellant
      also may file an IRA appeal with the Board concerning alleged reprisal based on
      certain   other         classes    of    protected     activity    as    defined   in      5 U.S.C.
      § 2302(b)(9)(A)(i), (B), (C), and (D).                     See 5 U.S.C. § 1221(a); Hooker,
      120 M.S.P.R. 629, ¶ 9.            Important to the allegations raised in this appeal, the
      appellant may now file an IRA appeal with the Board under section 2302(b)(9)(B)
      alleging reprisal based on his lawfully assisting another individual in the exercise
      of any appeal, complaint, or grievance right granted by any law, rule, or
      regulation. 5       See       5 U.S.C. § 1221(a);      Carney,     121    M.S.P.R.       446,    ¶ 5.


      5
        Differing from section 2302(b)(9)(A)(i), which bars reprisal for an appellant’s
      personal exercise of any appeal, complaint, or grievance right granted by law, rule, or
      regulation concerning an alleged violation of section 2302(b)(8), section 2302(b)(9)(B)
      bars reprisal for assisting another individual in the exercise of any appeal, complaint, or
      grievance right granted by law, rule, or regulation, and such a proceeding need not
      concern remedying a violation of whistleblower reprisal under section 2302(b)(8). See
      Carney, 121 M.S.P.R. 446, ¶ 6 n.3.
                                                                                             8

      Accordingly, an affirmative defense of reprisal for participating in union
      grievance activity under section 2302(b)(9)(B) raised in a chapter 75 appeal must
      be analyzed under the burden-shifting standards set forth in section 1221(e). See
      5 U.S.C. § 1221(a), (i); Hooker, 120 M.S.P.R. 629, ¶ 9; Shibuya, 119 M.S.P.R.
      537, ¶¶ 19-20, 32.
¶13            Because the appellant has alleged reprisal for activity allegedly covered by
      section 2302(b)(9)(B), on remand, the administrative judge must adjudicate this
      defense under the following framework.            First, the administrative judge must
      determine whether the appellant has established by preponderant evidence that he
      was involved in protected activity under 2302(b)(9)(B).                  See Shibuya,
      119 M.S.P.R. 537, ¶ 20. An appellant can establish that he was involved in such
      protected activity by proving that he testified or assisted another employee in any
      appeal, complaint, or grievance right granted by any law, rule, or regulation. See
      Carney, 121 M.S.P.R. 446, ¶ 5. Next, the administrative judge must determine
      whether the appellant’s participation in the protected activity was a contributing
      factor    in   the   challenged   personnel      action   at   issue.   See   5   U.S.C.
      § 1221(e)(1)(A)-(B); Shibuya, 119 M.S.P.R. 537, ¶ 22. One way of proving that
      an appellant’s prior protected activity was a contributing factor in a personnel
      action is the “knowledge/timing” test.        See Shibuya, 119 M.S.P.R. 537, ¶ 22.
      Under this test, an appellant can establish that his prior protected activity was a
      contributing factor in the challenged action by showing that the deciding official
      knew of the protected activity and took the personnel action within a period of
      time such that a reasonable person could conclude that the protected activity was
      a contributing factor in the action. 6 See id.



      6
        The Board also has found that an appellant may establish contributing factor by
      providing other evidence, such as that pertaining to the strength or weakness of the
      agency’s reasons for taking the personnel action, whether the protected activity was
      personally directed at the proposing or deciding officials, and whether those individuals
                                                                                         9

¶14         If the appellant makes both of these showings by preponderant evidence,
      the burden of persuasion shifts to the agency to prove by clear and convincing
      evidence that it would have taken the same action in the absence of the
      appellant’s protected activity. 5 U.S.C. § 1221(e)(2); Shannon v. Department of
      Veterans Affairs, 121 M.S.P.R. 221, ¶ 24 (2014).       In determining whether the
      agency has met this burden, the Board will consider all the relevant factors,
      including the following: (1) the strength of the agency’s evidence in support of
      its action; (2) the existence and strength of any motive to retaliate on the part of
      the agency officials involved in the decision; and (3) any evidence that the
      agency takes similar actions against employees who did not engage in such
      protected activity, but who are otherwise similarly situated.        Carr v. Social
      Security Administration, 185 F.3d 1318, 1323 (Fed. Cir. 1999). The Board does
      not view these factors as discrete elements, each of which the agency must prove
      by clear and convincing evidence, but rather weighs these factors together to
      determine whether the evidence is clear and convincing as a whole.             Lu v.
      Department of Homeland Security, 122 M.S.P.R. 335, ¶ 7 (2015). In assessing
      whether the agency has met its burden by clear and convincing evidence, the
      Board must consider all the pertinent evidence in the record, and it must not
      exclude or ignore countervailing evidence by only looking at the evidence that
      supports the agency’s position.        See Herman v. Department of Justice,
      119 M.S.P.R. 642, ¶ 15 (2013) (citing Whitmore v. Department of Labor,
      680 F.3d 1353, 1367-70 (Fed. Cir. 2012)).
¶15         The administrative judge cited the Warren standard for retaliation claims in
      both the prehearing summary and initial decision. IAF, Tab 20 at 1-2; ID at 13. 7


      had a motive to retaliate against the appellant. See Rumsey v. Department of Justice,
      120 M.S.P.R. 259, ¶ 26 (2013).
      7
        Under Warren, to prevail on a claim of retaliation, an appellant must show that:
      (1) he engaged in protected activity; (2) the accused official knew of the activity;
      (3) the adverse action under review could have been retaliation under the
                                                                                                10

      However, the Warren standard is inapplicable to claims that are subject to the
      burden-shifting framework set forth in 5 U.S.C. § 1221(e), such as the appellant’s
      allegation     of     reprisal     for   participating     in    union   activity      under
      section 2302(b)(9)(B).         See 5 U.S.C. § 1221(e)(2).       Although Warren has not
      been overruled by the Federal Circuit, the statutory changes of the WPEA
      significantly narrow the scope of cases to which it applies.
      The administrative judge did not inform the appellant of the burdens of proof on
      his affirmative defenses, and the record does not demonstrate that the appellant
      abandoned or withdrew any of his affirmative defenses.
¶16         In     his    original     prehearing   conference    summary      and     order,   the
      administrative judge determined that the appellant had raised affirmative defenses
      of reprisal for whistleblowing and union activity. IAF, Tab 9. In a subsequent
      summary of a telephonic prehearing conference, however, the administrative
      judge indicated that the appellant only raised an affirmative defense of retaliation
      for EEO activity. IAF, Tab 20. The administrative judge did not explain this
      conclusion other than writing that “[i]t was determined that [the appellant’s]
      originally asserted whistleblowing retaliation claim pertained exclusively to his
      protected EEO activity.” Id. In that summary, the administrative judge did not
      refer to the appellant’s claim of retaliation for union activity.              In the initial
      decision, the administrative judge noted that although the parties addressed other
      affirmative defenses besides retaliation for EEO activity in their closing briefs, he
      would not consider them because neither party filed an exception to his summary
      of telephonic prehearing conference. ID at 13 n.11.
¶17         The record below does not reflect any intention by the appellant to abandon
      his whistleblower or union activity affirmative defenses. See, e.g., IAF, Tab 8
      at 7-9.    The appellant, moreover, argued below that his removal violated due



      circumstances; and (4) there was a genuine nexus between the alleged retaliation and
      the adverse action. See Warren, 804 F.2d at 656-58.
                                                                                           11

      process. 8 Id. at 15-17. The administrative judge, however, did not acknowledge
      this argument in any of his orders or his initial decision. See generally ID; IAF,
      Tab 20. Because the appellant raised his affirmative defenses on appeal, under
      Wynn, the administrative judge should have informed the appellant of the
      applicable burdens to prove such claims. See Gath, 118 M.S.P.R. 124, ¶¶ 11-12
      (remanding for notice of the burden to prove an affirmative defense of reprisal for
      union activity where there was no indication that the appellant withdrew or
      abandoned the claim); Hulett v. Department of the Navy, 120 M.S.P.R. 54, ¶ 10
      (2013) (remanding for notice of the burden to prove a due process violation).
      The administrative judge failed to notify the parties of their respective burdens as
      to the appellant’s affirmative defense claims.       Under these circumstances, we
      cannot conclude that the appellant’s failure to file an exception to the
      teleconference summary was fatal to his affirmative defenses and we find it
      appropriate to remand all of the affirmative defenses raised by the appellant to
      the administrative judge for an explanation of the applicable burdens of proof
      under Wynn.

                                             ORDER
¶18         Based on the foregoing, we REMAND the appellant’s affirmative defenses
      of reprisal for union activity, reprisal for whistleblowing, and due process
      violations to the administrative judge for further adjudication consistent with the
      standards discussed above. On remand, the administrative judge should apprise
      the appellant of the different burdens of proof he must meet to prove his defenses,


      8
        There are several types of due process violations. Among the most commonly alleged
      are those concerning a biased deciding official, a lack of notice and a meaningful
      opportunity to respond, and a decision maker’s consideration of ex parte information.
      See, e.g., Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985); Lange
      v. Department of Justice, 119 M.S.P.R. 625, ¶¶ 8-9 (2013). We leave it to the
      administrative judge to determine the nature of the appellant’s due process claim in the
      first instance.
                                                                               12

afford the parties an additional opportunity to conduct discovery on these issues,
and hold a supplemental hearing addressing these defenses, if requested. If the
appellant does not prevail on any of the affirmative defenses on remand, the
administrative judge may adopt his prior findings concerning the agency’s
charges, nexus, and the reasonableness of the appellant’s removal in his remand
initial decision. See Viana v. Department of the Treasury, 114 M.S.P.R. 659, ¶ 8
(2010).



FOR THE BOARD:


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