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Prohibited Personnel Practice of the Month - October 2011

PROHIBITED PERSONNEL PRACTICE OF THE MONTH

Number 1

Non-Discrimination in Employment

Any employee who has authority to take, direct others to take, recommend, or approve any personnel action, shall not, with respect to such authority—
discriminate for or against any employee or applicant for employment—
(A) on the basis of race, color, religion, sex, or national origin, as prohibited under section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e–16);
(B) on the basis of age, as prohibited under sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a);
(C) on the basis of sex, as prohibited under section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d));
(D) on the basis of handicapping condition, as prohibited under section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791); or
(E) on the basis of marital status or political affiliation, as prohibited under any law, rule, or regulation.

The first prohibited personnel practice seems to repeat what merit system principle 2 says.  Is there a difference?
The first prohibited personnel practice (PPP), 5 U.S.C. § 2302(b)(1), is very similar to the second merit system principle, but the biggest difference between the two is that all of the merit system principles represent ideals for the way the Federal government should be run but they are not enforceable, standing alone.  Thus, many of the principles have a similar PPP that serves to enforce the ideals represented by the principle.  There are also some additional differences that are significant, most notably that with the exception of subsection (E), the PPP names the specific law that prohibits the conduct and therefore gives it context and meaning because those laws have been subject to much administrative and judicial litigation over their lifetimes.  Finally, the principle concerning “privacy and constitutional rights” is not repeated in this PPP.

If I file an appeal with the Merit Systems Protection Board (MSPB) and claim that I was discriminated against, will MSPB hear my claim?
If your claim is filed in connection with a matter that is appealable to MSPB, we will hear your discrimination defense in addition to your claims about the underlying action itself.  This kind of appeal is known as a “mixed case.”  Although MSPB cannot hear claims of discrimination when appeals are filed under three specific statutes (the Veterans Employment Opportunities Act of 1998, the Uniformed Services Employment and Reemployment Rights Act of 1994, and the individual right of action provisions of the Whistleblower Protection Act), MSPB will consider an allegation of discrimination as a defense to an appealable agency action in most instances.  However, in the absence of an otherwise appealable action, a PPP claim may not be considered.

I know what it means when I say that I was discriminated against, but I don’t know much about PPPs.  What’s the difference?
There is no difference.  A claim of discrimination is just one type of PPP established by the Civil Service Reform Act of 1978, Pub. L. No. 95‑454, 92 Stat. 1111 (CSRA). Whether you tell MSPB you are raising a PPP claim under 5 U.S.C. § 2302(b)(1) or just say you believe you were discriminated against on one of the bases listed in that section, the burdens and standards of proof remain the same and MSPB will hear your claim if it has jurisdiction over your appeal.

If I want to raise a claim of sex discrimination, what’s the difference between raising it under subsection A and subsection C?
The Fair Labor Standards Act (FLSA) section cited in the law, with limited exceptions, prohibits paying lower wages on the basis of sex for “equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.”  The Civil Rights Act of 1964 is not limited to wage disparities, but covers “[a]ll personnel actions affecting employees or applicants for employment.”  Thus, if you believe that you are being paid less than a co-worker because of your gender, your claim will fall under (C).  All other gender-based claims will come under (A).  While most claims, therefore, come under (A), during the processing of your appeal the administrative judge will provide enough information to enable you to know what your burden of proof is depending on the type of claim you raise.

Most of the other kinds of discrimination are familiar, but what are marital status and political affiliation discrimination?
To prove the former, an employee must demonstrate that unmarried employees were treated differently from married employees.  Stokes v. Federal Aviation Administration, 761 F.2d 682, 685 (Fed. Cir. 1985).  Thus, such a claim does not include circumstances that may result from your marital status, e.g., child care responsibilities.  Political affiliation discrimination does not cover “office politics” or political correctness.  Rather, it means discrimination based on a person’s affiliation with any partisan political party or candidate.  Mastriano v. Federal Aviation Administration, 714 F.2d 1152, 1155 (Fed. Cir. 1983).  As such, it harkens back to the roots of MSPB, the Pendleton Act of 1883, which replaced the patronage system with a merit system.

What about sexual orientation discrimination?  Is that the same as sex discrimination?
The two concepts are different, and the MSPB lacks jurisdiction under this PPP over a claim of sexual orientation discrimination, although such a claim may be raised under a different PPP.  The Equal Employment Opportunity Commission (EEOC) also lacks authority to hear allegations of sexual orientation discrimination, but it has recently held that where a male employee alleged that he was harassed because he was going to marry another man and that the harassment would not have happened if he were a woman marrying a man, EEOC found that the complainant had alleged a plausible sex stereotyping case which would entitle him to relief under Title VII if he were to prevail.  Veretto v. Donahoe, Appeal No. 0120110873, 2011 WL 2663401 (July 1, 2011).  Veretto was not a mixed case, and the Board has not yet had an opportunity to rule on this type of issue.  Finally, the position of the Office of Special Counsel (OSC) is that allegations of discrimination based on sexual orientation (as well as marital status and political affiliation discrimination) may be prohibited personnel practices or other violations of law subject to its investigation.  See www.osc.gov/pppPolicies1.htm.

I thought that if I believe that I was discriminated against, I had to bring my claim to the agency and the EEOC.  Doesn’t the EEOC decide such claims?  Plus, I know that OSC can investigate PPPs, so does it also have authority?
The EEOC does have authority to decide claims of discrimination under the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Fair Labor Standards Act, and the Rehabilitation Act, and to award appropriate remedies, but it lacks authority with respect to claims of discrimination based on marital status or political affiliation.  See www.EEOC.gov/federal/otherprotections.cfm.  The MSPB has authority to hear all of those claims when they are raised in connection with a matter that we have jurisdiction over.  As to OSC, because discrimination is a PPP, it does have the authority to investigate and seek corrective and disciplinary action concerning such claims.  However, OSC states that because procedures for investigating those complaints have already been established in Federal agencies and the EEOC, it “follows a general policy of deferring complaints involving discrimination to those agencies' procedures.”  See www.osc.gov/pppPolicies1.htm.  In fact, there is yet an additional option for employees covered by a collective bargaining agreement, filing a grievance.  See 5 C.F.R. § 1201.3(c)(1)(i), which provides for an election between filing a grievance and appealing to MSPB.

With all of those options available, how do I know where to file?
When Congress listed the PPPs in the CSRA, it struggled with the same issue.  It decided that, because EEOC’s expertise lies in issues of discrimination law and MSPB’s is in civil service law, when the two come together in one case, deference should be given to each agency based on that expertise.  See Conference Report on S.2640, H.R. Rep. 95-1717, at 139 (1978), as reprinted in Committee on Post Office and Civil Service House of Representatives, 96th Cong., Legislative History of the Civil Service Reform Act of 1978, at 1981 (1978).  As a result, 5 U.S.C. § 7702(a) provides that when an employee or applicant is affected by an action that is appealable to MSPB and wishes to raise a claim of discrimination on one of the bases set out in section 2302(b)(1), that is, a “mixed case,” MSPB may hear and decide both the appealable matter and the issue of discrimination, whether the discrimination issue was first raised to the agency (if the agency has decided it or 120 days have passed since a formal complaint was filed) or brought directly to MSPB.  Also, MSPB’s own regulations, at 5 C.F.R. § 1201.21, provide that when an agency takes an appealable action, it must notify the employee of the right of appeal to MSPB.

In addition, both MSPB and EEOC have regulations setting out the rules specifically applicable to mixed cases.  They provide that if the employee files an EEO complaint first, the employee can appeal to MSPB after receiving a Final Agency Decision on the EEO complaint from the agency, or 180 days after filing the EEO complaint if no final decision has been received.  If the employee files an MSPB appeal first, the employee may appeal the Board’s finding on the discrimination issue to the EEOC’s Office of Federal Operations.  For the applicable rules, see 29 C.F.R. Part 1614 and 5 C.F.R. Part 1201, subpart E.

As to grievances, an employee who elects to file a grievance and raises an allegation of discrimination may appeal to the Board for review of a final arbitration decision.  In such cases, though, the employee must file his appeal directly with the Clerk of the Board and will not be entitled to the procedures granted by an appeal at the regional and field offices. See 5 C.F.R. § 1201.3(c)(3).

Last, since OSC defers to the discrimination complaint process, filing there is not a good choice for gaining review.  Whether you file initially with MSPB or go through your agency’s EEO or grievance process, however, 5 U.S.C. § 2302(b)(1) makes discrimination under the laws it names a PPP, so the same law will apply to proving your claim.  And, don’t worry about possibly filing at the wrong agency.  Congress recognized there might well be confusion and also provided in the CSRA that

In any case in which an employee is required to file any action, appeal, or petition under this section and the employee timely files the action, appeal, or petition with an agency other than the agency with which the action, appeal, or petition is to be filed, the employee shall be treated as having timely filed the action, appeal, or petition as of the date it is filed with the proper agency.
5 U.S.C. § 7702(f).

It seems like MSPB would receive a lot of cases alleging this prohibited practice.  Has it?
Yes, in fact MSPB statistics for the last five fiscal years for which statistics were available (prior to November 2011) show that more than 9,000 allegations of discrimination were made, including those cases in which more than one type of discrimination was asserted.  However, MSPB administrative judges decided on their merits only about 1,500 of them because many cases were settled or dismissed for untimeliness or lack of jurisdiction, or the allegation was withdrawn.  These same statistics show that the claim raised most frequently is disability discrimination, followed by race, then sex.

Has the Board recently issued any significant decisions addressing issues of discrimination?
Yes.  For example, in Southerland v. Department of Defense, 2011  MSPB 92 (October 5, 2011), it interpreted the Americans With Disabilities Act Amendments Act (ADAAA) and held that if an employee is not challenging the agency's failure to make reasonable accommodation and does not require a reasonable accommodation, the analysis should proceed under the “regarded as” prong of the definition of disability, which does not require a showing of an impairment that substantially limits a major life activity or a record of such an impairment.  It also held that a “but for” test applies under the ADAAA, i.e., that the employee must show that but for the disability, the agency would not have taken the appealed action, and the burden of persuasion does not shift to the agency to show that it would have taken the action regardless of disability, even if the appellant produces some evidence that disability was one motivating factor in the adverse employment action.  In Bowman v. Department of Agriculture, 113 M.S.P.R. 214 (2010), the Board also adopted the “but for” test for claims of age discrimination made under the Age Discrimination in Employment Act.  In Davis v. Department of the Interior, 114 M.S.P.R. 527 (2010), addressing generally the requirements of Title VII of the Civil Rights Act but specifically race and sex discrimination, it clarified that to meet the burden of proof that the agency’s action was discriminatory, the appellant need not introduce evidence of a similarly situated employee not in his or her protected group who was treated more favorably, but may rely on anyevidence giving rise to an inference that the unfavorable treatment at issue was due to illegal discrimination.

Has the Board studied discrimination in the Federal government?
It has.  As we noted in connection with merit system principle 2, it recently studied workforce data and Federal employee perceptions of their treatment and issued a report to the President and Congress entitled Fair and Equitable Treatment: Progress Made and Challenges Remaining.  This is just the most recent study relative to issues of discrimination and fair treatment.  You may find all of the others, dating back to the first, a 1981 report on sexual harassment, on MSPB’s website at www.mspb.gov/studies/viewallstudies.htm.