Thursday, March 31, 2016

“Interim Relief” at the EEOC

In 1989, Congress amended the Civil Service Reform Act with respect to the relief available to employees who appeal their removal to the Merit Systems Protection Board and obtain a decision from the Administrative Judge ordering their reinstatement. Prior to the Amendment, the employee could not be reinstated until any appeal by the agency to the Board was resolved. The Amendment, however, added 5 U.S.C. § 7701(b)(2)(A), which provides as follows:
If an employee or applicant for employment is the prevailing party in an appeal under this subsection, the employee or applicant shall be granted the relief provided in the decision effective upon the making of the decision, and remaining in effect pending the outcome of any petition for review . . .
If the employee returns to duty based on that provision, he or she “shall receive pay, compensation, and all other benefits as terms and conditions of employment during the period pending the outcome of any petition for review . . . .” § 7701(b)(2)(B). If the Agency determines not to return the employee to duty during this period, the employee will receive the pay and benefits anyway. This is known as “interim relief.”

There are several categories of employees (such as probationers and others) who lack the right to appeal their removal or suspension (of 15 days or more) to the MSPB. Many of these employees are permitted to file an EEO complaint regarding their removal or suspension and proceed to a hearing before an EEOC Administrative Judge. Even after Congress authorized the MSPB to grant interim relief, the EEOC lacked authority to grant similar relief to employees who obtained a favorable decision from an EEOC Administrative Judge reversing their removal or suspension.

In 1999, however, the EEOC rectified this oversight and issued a new regulation providing for interim relief. See 29 C.F.R. § 1614.505. The provisions of § 1614.505 are similar to, but at the same time different from, the provisions governing the Board.

Subsection (a)(1) provides that if the agency appeals the Administrative Judge’s decision to the Commission, and that decision orders retroactive reinstatement because of removal, separation, or suspension, the agency must restore the employee “to duty status in the position specified in the decision,” pending the outcome of the appeal.

Subsection (a)(2) provides that if the Commission denies the agency’s appeal, the employee’s service during this interim period “shall be credited toward the completion of a probationary or trial period, eligibility for a within-grade increase, or the service requirement for career tenure . . . .” As a result, if a probationary employee obtains a decision finding his or her removal was discriminatory, given the amount of time it takes the EEOC to decide appeals (over a year, currently), the period of interim relief will almost always be sufficient to satisfy probation.

Subsection (a)(3) provides that during the interim period, the agency must only pay current salary and benefits and need not pay the back pay or damages ordered by the Administrative Judge. However, if the EEOC upholds the decision in the employee’s favor, the agency will have to pay the employee any interest that accrued on the back pay and damages from the date of the Administrative Judge’s decision.

Subsection (a)(4) demands attention. That subsection requires the agency to notify the employee “in writing at the same time it appeals” that it will grant interim relief but will pay retroactive pay and damages with interest if its appeal is denied. The last sentence is no-nonsense: “Failure of the agency to provide [this] notification will result in the dismissal of the agency’s appeal.” The consequences to the agency of a failure to comply with this requirement were starkly underscored in Porter H. v. Johnson, Sec’y of Homeland Security, EEOC Appeal 0720140018, 2016 WL 1085202 (March 16, 2016). In Porter, the agency appealed the Administrative Judge’s decision ordering reinstatement of the employee, but neglected to grant interim relief or notify the employee. The employee moved to dismiss the agency’s appeal (see subsection (b), below).

The agency replied that it had overlooked the requirement, but granted the interim relief as soon as it saw the employee’s motion to dismiss. The agency told the EEOC
that it acted in good faith, and its failure to provide interim relief simultaneously with its notice of appeal was inadvertent. The Agency also maintains that it subsequently “cured” its noncompliance with EEO regulations by providing Complainant with a conditional offer of employment to [a permanent] position. The Agency further maintains that it did not comply with [the regulations] because of “an oversight and failure of communication between various offices of the Agency.”
Porter H., slip op. at *2. The Commission was unimpressed with the agency’s excuses: “[W]e do not find . . . these excuses sufficient justification to warrant a waiver of the applicable regulations. Consequently, the Agency’s appeal is hereby DISMISSED.” Id., slip op. at *3.

Subsection (a)(5) gives the agency providing interim relief the discretion not to return the employee to work if that would be disruptive. However, the Agency must still pay the employee as though he or she was at work.

Finally, subsection (b) provides that an employee requesting the Commission to dismiss an appeal because interim relief was not provided must file that request within 25 days of the date of service of the agency’s appeal.

The EEOC does not deal with many cases involving its interim relief regulations. That may be because employees and agencies have not focused on them, or because the Commission does not regularly deal with claims involving employees who have been removed or suspended for 15 days or more but cannot appeal to the MSPB. Whatever the reason, these regulations provide a potent remedy for employees who prevail on such complaints and, accordingly, are entitled to monetary relief during the agency’s appeal.

This blog was written by George Chuzi.

Monday, March 21, 2016

FLSA Overtime Rule Changes Are Coming Sooner Than Expected

Brace yourselves. The Department of Labor’s final rule revising overtime exemption regulations is coming sooner than expected. On March 14, 2016, DOL sent the final rule to the White House Office of Management and Budget. This is the final step before the rule is published. Because OMB review typically takes one to two months, the final rule could be released in April or May 2016. Previously, the final rule was not expected until July 2016. These changes will dramatically expand the number of employees entitled to overtime pay under the Fair Labor Standards Act (“FLSA”). Indeed, DOL estimates that as many as 21.4 million currently exempt workers may be impacted.


The FLSA guarantees a minimum wage and overtime pay at a rate of not less than one and one-half times the employee’s regular rate for hours worked over 40 in a workweek. Congress first enacted the FLSA in 1938 as a way to encourage employers to hire more workers, rather than overworking a smaller workforce. Enforcement of the overtime requirement tends to increase the number of jobs. There are a number of exemptions, however. The most common exemptions from minimum wage and overtime pay are those for executive, administrative, professional, outside sales, and computer employees—otherwise referred to as the “white collar exemptions.” The last change to these regulations was in 2004.

Currently, to qualify for exemption, employees must meet certain minimum tests related to their primary job duties and be paid not less than $455 per week or $23,660 for a full-year. The white collar exemptions do not apply to employees earning less than $23,660 annually, manual laborers, police officers, firefighters, paramedics, and other similar public safety personnel. Also, employees earning at least $100,000 in annual salary, commission and non-discretionary bonuses are exempt from the FLSA’s minimum wage and overtime requirements if the employees perform one or more duties of an exempt executive, administrative or professional employee.

Because these regulations are outdated and leave millions of Americans without overtime and minimum wage protections, on March 13, 2014, President Obama issued a directive to the DOL to modernize and streamline the existing overtime regulations for executive, administrative, professional outside sales, and computer employees. On July 6, 2015, DOL issued a proposed rule. As DOL stated on its website, “a convenience store manager, fast food assistant manager, or some office workers may be expected to work 50 or 60 hours a week or more, making less than the poverty level for a family of four, and not receive a dime of overtime pay. [This] proposed regulation is a critical first step toward ensuring that hard-working Americans are compensated fairly and have a chance to get ahead.” DOL received more than 250,000 comments on the proposed rule before the September deadline.

The Most Significant Proposed Changes

Under the proposed rule, the eligibility ceiling for overtime pay would rise from $455 per week or $23,660 per year, to $970 per week or $50,440 per year—more than double the current amount. These new amounts reflect the 40th percentile of weekly earnings for full-time salaried workers in 2016. DOL estimates that the proposed changes would extend minimum wage and overtime protections to nearly 5 million workers within the first year of implementation. These workers would either need to be reclassified as non-exempt and paid overtime, or receive an increase in their salary to meet the new minimum threshold requirement.

The highly compensated employee threshold will also climb. The total annual compensation requirement would jump from $100,000 to $122,148, or the 90th percentile of salaried workers’ weekly earnings.

Also, for the first time ever, the salary thresholds would be subject to an automatic annual adjustment that will be tied to the 40th and 90th percentiles of earnings, or adjusted for inflation according to the Consumer Price Index.

Why the Rush?

The rush for the final rule may be due to the Congressional Review Act, which gives Congress 60 legislative days to review any major new regulation before it takes effect. If Congress dislikes the regulation, it can nullify it with a resolution of disapproval. Ordinarily that doesn’t pose much threat to a sitting president, since he or she can always veto the resolution. However, if a rule is submitted to Congress with less than 60 session days remaining, then the next Congress will have a similar 60-day period to consider the rule. If the final rule misses the 60th day, then the new president may let the resolution of disapproval stand. Given this year’s legislative calendar, any regulation issued after May 19 risks reversal under a Donald Trump, Ted Cruz, or John Kasich administration.

What This Means for Employers

While there is still time, employers should review their current workforce classifications and assess whether there is a need for reclassification. Employers also need to consider the potential payroll implications for 2016. One option, for example, is to increase exempt employee salaries to meet the new threshold to retain the overtime exemption. Another option is to simply change the status of an employee to non-exempt and pay him or her overtime. For more information on how the overtime rule changes may impact you or your business, please contact us at Kalijarvi Chuzi Newman & Fitch.

By Alex Kutrolli

Tuesday, March 15, 2016

Do You Take These Employees in Sickness and in Health?

Photo Credit: Joe Sohm / VisionsofAmerica / Getty

On March 9, 2016, Vermont Governor Peter Shumlin signed into law a bill requiring that employers provide their employees with paid sick days.  The new law will provide relief to approximately 60,000 employees. Starting in 2017, full-time employees will get 3 days off every 12 months, increasing to 5 days off starting in 2019.  

Providing paid sick leave benefits both the employer and the employee.  If employees do not have access to paid sick leave, they often go into work anyway, putting the health of others at risk.  Unsurprisingly, employees “without sick days are usually low-income.”  It is estimated that just “40 percent of private-sector service workers receive paid sick leave,” not including part-time workers.  In support of the new law, Governor Shumlin expressed special concern over employees in the food industry reporting to work while sick, where “90 percent of employees there have admitted to doing so, creating public health concerns.”  

Paid sick leave “reduces the risk of an outbreak of illness in the workplace, allows workers to recover more quickly and be more productive when they return to work, and reduces turnover and the costs associated with searching for, and training, new workers.”  Playing out in current events, Chipotle, following its recent Norovirus outbreak, announced that, effective July 1, 2016, it will offer hourly workers paid sick leave—benefits that were previously only offered to salaried workers.  Chipotle is offering paid sick leave to help “ensure that ill employees have no incentive to work while ill.”

More than one-third of all private-sector workers (about 43 million employees) do not have any paid sick leave.  Currently, there are no federal laws requiring paid sick leave.  The Family Medical Leave Act, however, does provide for “up to 12 weeks of unpaid leave for certain medical situations for either the employee or a member of the employee’s immediate family.”  Compared to other countries, particularly in Europe, the United States lags considerably in providing paid sick days for workers.

President Barack Obama commended the recent Vermont law and urged the U.S. Congress and other states to follow suit. “This action means thousands of families will no longer have to choose between losing income and taking care of a sick child,” Obama said.  All Americans should be provided with this basic security.

California, Connecticut, Massachusetts, and Oregon, in addition to several cities, including Washington, D.C., have passed similar laws. In December 2013, the D.C. Council, thanks in part to the advocacy of the Employment Justice Center, unanimously passed the Earned Sick and Safe Leave Amendment Act of 2013. This amendment significantly expands the coverage of D.C.'s Accrued Sick and Safe Leave Act of 2008, to include tipped and temporary employees, and increases enforcement provisions and penalties.

Written by:  Aaron Herreras

Wednesday, March 9, 2016

Establishing Causation in Retaliation Claims: Part 2 – Lacking Close Temporal Proximity Is Not Always Fatal

In Part 1 of my blog, I discussed that one of the factors in determining whether a protected disclosure or activity caused a retaliatory personnel action is the amount of time between the disclosure and the action, or temporal proximity. While Federal government employees are generally accorded a significantly longer period of time to make this causal connection (one to two years), see Salerno v. Department of Interior and Mastrullo v. Department of Labor, private sector employees must usually prove the temporal connection within a much shorter time frame (a period generally not to exceed a couple of months). See Clark County Sch. Dist. v. Breeden; O’Neal v. Ferguson Constr. Co.; Richmond v. ONEOK, Inc. and Hughes v. Derwinski.

As discussed in Part 1, private sector employees bringing claims of retaliation under Title VII must prove that the employer’s desire to retaliate was the “but for” cause of the challenged employment action, rather than merely a ‘motivating factor.” See Univ. of Texas Southwestern Med. Ctr. v. Nassar. “[A] plaintiff may establish the requisite causation by ‘showing that the employer had knowledge of the employee’s protected activity, and that the adverse personnel action took place shortly after that activity.’” Richardson v. Petasis. The District Court for the District of Columbia has held “that a close temporal relationship may alone establish the required causal connection.” Singletary v. District of Columbia. In Richardson, the court found that the employee’s filing of an EEOC complaint on August 13, 2012, and the removal of her supervisory duties on September 11, 2012–less than one month later–was sufficiently close to establish the required causal connection. “This falls within the generally accepted range for establishing a causal connection.” Id. at *32 (citing Brodetski v. Duffey (“[C]ourts generally have accepted time periods of a few days up to a few months…”)) (brackets and elipses in original) (emphasis added).

While in private-sector cases, a few months is the outermost range in most circumstances for establishing causation based on temporal proximity, some courts have recognized temporal proximity as an indicator of causation after much longer periods when the private sector employer takes the adverse action at its first opportunity. In Kalinoski v. Gutierrez, the court found that a three-month gap between the employee’s protected activity and the defendant’s non-selection of the employee did not foreclose the employee from establishing a prima facie case of retaliation. The court explained that, “[t]his non-selection claim does not really present a situation where the employer could have taken the challenged action at any time it wished. Instead, the timing was dictated somewhat by government hiring procedures. In other words, it is possible that defendant denied plaintiff the job at the first possible opportunity following her filing of the discrimination claim—it just happened to be three months later by virtue of the normal timing of the hiring process.”

“Especially where a defendant retaliates at the first opportunity that is presented, a plaintiff will not be foreclosed from making out a prima facie case despite a substantial gap in time.” Pardo-Kronemann v. Jackson; Porter v. Cal. Dep’t of Corr. (the years between the plaintiff's protected activity and the adverse-employment actions did not defeat a finding of a causal connection where the defendant did not have the opportunity to retaliate until he was given responsibility for making personnel decisions); Romano v. Brown & Williamson Tobacco Corp. (“We doubt that a sophisticated employer, such as defendant, would immediately retaliate. Rather, a jury may find that…defendant’s wounds merely festered until an opportunity to terminate presented itself….” The court found that a lapse of ten years between the time the employee engaged in the protected activity and his termination did not prevent a finding of causation in those circumstances.) See also Coates v. Dalton (four-year time lapse not a bar; if it were, an employer could avoid liability simply by waiting to punish an employee who had engaged in protected EEOC activity).

While temporal proximity frequently is an easy indicator of causation,  

[I]t is causation, not temporal proximity itself, that is an element of plaintiff’s prima facie case, and temporal proximity merely provides an evidentiary basis from which an inference can be drawn. The element of causation, which necessarily involves an inquiry into the motives of the employer, is highly context-specific. When there may be valid reasons why the adverse employment action was not taken immediately, the absence of immediacy between the cause and effect does not disprove causation.

Kachmar v. SunGard Data Systems, Inc. Indeed, “‘where there is a lack of temporal proximity, circumstantial evidence of a ‘pattern of antagonism’ following the protected conduct can also give rise to the inference’ that a causal connection exists.” Id. (citation omitted). In Abramson v. William Paterson College of New Jersey, the court found that the plaintiff proved the causal nexus by demonstrating ongoing antagonism from her department head and the dean following her protected activity.

Not only may ensuing antagonistic actions be enough to establish the requisite causal connection, but also “[e]vidence of discriminatory or disparate treatment in the time period between the protected activity and the adverse employment action can be sufficient to show a causal connection.” Che v. Massachusetts Bay Transp. Auth. (citing Kachmar, 109 F.3d at 177). In Che, the court disagreed with the defendant’s contention that no reasonable jury could find a causal connection between Che’s filing of his first two discrimination lawsuits and his demotion, which occurred eleven months after he filed his most recent lawsuit. Id. There was evidence showing that Che, after he filed his discrimination lawsuits, was subject to discipline for writing in an assignment block and having an argument with a co-worker, but other employees were not similarly disciplined for engaging in the same misconduct. The court found this evidence sufficient for Che to establish causation and to thus meet his prima facie case of retaliation. Id.

Discriminatory treatment following a protected activity or disclosure may also evidence a causal connection between the protected activity and a retaliatory action. That an intention to discriminate motivated the employer’s action may be inferred from an employer's failure to follow its “usual employment practices and procedures.” Norville v. Staten Island Univ. Hosp.  (evidence that the employer failed to follow its usual practice of selecting the employee with the most seniority for a position when two equally qualified employees apply for the position supports an inference of discrimination). See also Stern v. Trustees of Columbia Univ., 131 F.3d 305, 313 (2d Cir. 1997) (the fact that the university deviated from its usual practices was evidence of impermissible discrimination); Stewart v. Rutgers (failure to follow procedures, and procedural errors, can provide a jury with sufficient circumstantial evidence to find that an employment decision was based on discrimination motives).

As these cases make clear, a plaintiff may rely upon a broad array of evidence to establish the requisite causal connection. This evidence may include pretext. See Abramson, 260 F.3d at 289. “Resort to a pretextual explanation is, like flight from a scene of the crime, evidence of consciousness of guilt, which is, or course, evidence of illegal conduct.” Sheridan v. DuPont Nemours & Co. For example, “a plaintiff may show that her employer gave inconsistent reasons for terminating her.” Abramson, 260 F.3d at 289. “Revealing discrepancies in the proffered reasons can also constitute evidence of the causal link.” Id.

Lacking a very close temporal proximity is not necessarily fatal to establishing the causal connection in private-sector retaliation cases. Where such evidence is lacking, the connection may nonetheless be established by showing that the employer acted at the first opportunity to take an adverse action, acted with antagonism toward the employee who engaged in the protected activity, treated the employee disparately or with a discriminatory animus following the employee’s protected activity, or the employer’s asserted justifications for its action were inconsistent. Courts must make a generalized inquiry into whether the employee’s protected activity was the likely reason for the adverse action. See Kachmar, 109 F.3d at 178 (citing Waddell v. Small Tube Prods., Inc.; cf. Andrews v. City of Philadelphia (“A play cannot be understood on the basis of some of its scenes but only on its entire performance, and similarly, a discrimination analysis must concentrate not on individual incidents, but on the overall scenario.”))

Written by Valerie A. Chastain

Wednesday, March 2, 2016

Establishing Causation in Retaliation Claims: Part 1 -- Temporal Proximity

To win a retaliation claim, a whistleblower must show that the protected activity caused the adverse action. Of course, the employee who blows the whistle must first show that the subject matter of the whistleblowing is protected by law and that the disclosure was the cause of the action claimed to be retaliatory.  One of the factors in determining whether a disclosure caused a retaliatory personnel action is the amount of time between the disclosure and the action.

In several recent administrative decisions, judges have concluded that certain protected disclosures by federal employees, even when made up to two full years prior to the contested personnel action, may nonetheless be considered contributing factors in the action. In contrast, some judges in private sector Title VII retaliation cases subject those employees to a more demanding “because of” or “but for” test for causation, and have required a much shorter temporal connection between the two events.

Under the Whistleblower Protection Enhancement Act of 2012 (WPEA), the Merit Systems Protection Board (the “Board”) has jurisdiction over a federal employee’s Individual Right of Action (“IRA”) appeal if the appellant has exhausted his remedies before the Office of Special Counsel (“OSC”) and has made nonfrivolous allegations that (1) he made a protected disclosure under 5 U.S.C. §2302(b)(8), or engaged in protected activity under 5 U.S.C. § 2302(b)(9)(A)(i), (B),(C), or (D), and (2) the disclosure or protected activity was a contributing factor in the agency’s decision to take or fail to take a personnel action as defined in 5 U.S.C. § 2302(a). Salerno v. Dep’t of Interior. “To satisfy the contributing factor criterion at the jurisdictional stage of an IRA appeal, the appellant only need raise a nonfrivolous allegation that the fact of, or the content of, the protected disclosure was one factor that tended to affect the personnel action in any way.” Id. at ¶ 13.”One way to establish this criterion is the knowledge/timing test, under which an employee may nonfrivolously allege that the disclosure was a contributing factor in a personnel action through circumstantial evidence, such as evidence that the official who took the personnel action knew of the disclosure and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor in the personnel action.” Id.

So what is the duration of time that a “reasonable person” may, according to the Board, conclude that a protected disclosure was a contributing factor to the personnel action? This duration of time seems to be lengthening as these cases have been adjudicated over the years:

*Cosgrove v. Dep’t of Navy, 59 M.S.P.R. 618, 623 (1993): The Board concluded the appellant met his burden of demonstrating that his whistleblowing was a contributing factor in his nonselection, where his supervisor sought and obtained a waiver of a hiring freeze, issued a vacancy announcement, and selected someone other than the appellant, all within a period of four months following the appellant’s disclosure to a senator.

*Jones v. Dep’t of Interior, 74 M.S.P.R. 666, 676 (1997): The Board found that the appellant’s disclosures were a contributing factor in his lower performance rating, which occurred over one year after he made the protected disclosures.

*Redschlag v. Dep’t of Army, 89 M.S.P.R. 589, 635 (2001): The Board held that the appellant’s disclosures to the OIG were a contributing factor to the agency’s decision to remove her from her position, when those disclosures were made 21 months before the agency made the decision to remove her from her position.

*Gonzales v. Dep’t of Transportation, 109 M.S.P.R. 250, ¶ 9 (2008): The Board found that the appellant satisfied the knowledge/timing test when he testified before the OIG in late 2005, and the agency removed him in February 2007–a period of slightly more than one year. “The Board has found that a period of more than 1 year between a protected disclosure and a personnel action can satisfy the knowledge/timing test.” (citing Redschlag, 89 M.S.P.R. at 635).

*Schnell v. Dep’t of Army, 114 M.S.P.R. 83, ¶ 22 (2010): The Board concluded that the various personnel actions which occurred within one to two years of the appellant’s protected disclosures satisfied the knowledge/timing test.

*Mastrullo v. Dep’t of Labor, 2015 M.S.P.B. 67, ¶21 (2015): The Board held that the appellant proved that his August 2010 disclosures were a contributing factor in the agency’s failure to give him a 40-hour time-off award in June 2012. “The Board has held that a personnel action taken within approximately 1 to 2 years of the appellant’s disclosures satisfies the knowledge/timing test.” Id.

*Salerno v. Dep’t of Interior, 2016 M.S.P.B. 10, ¶ 14 (Feb. 22, 2016): The Board found that the appellant made a nonfrivolous allegation through the knowledge/timing test that his disclosures made 15 months prior to the agency’s decision to suspend him for 30 days were a contributing factor in that decision.

Administrative judges seem to consider a two-year window to be the outermost range for contributing factor protected disclosures under the WPA. In Salinas v. Department of Army, the Board found that a delay of more than two years was too remote to satisfy the knowledge/timing test. When the range is approaching those outer limits, though, some judges are taking into consideration whether any intervening actions took place, which help to establish the connection between the protected disclosures and the contested personnel action. For example, in Mastrullo, following the appellant’s disclosures in August 2010 regarding co-worker harassment, an investigation was conducted regarding the harassment. The Agency suspended the co-worker in February 2011 based in part on the appellant’s complaints, and in June 2012, the agency failed to give appellant a time-off award. The Board explained: “Under the circumstances of this matter, including the ensuing agency investigation and decision to take disciplinary action against the coworker based in part on the allegations in the appellant’s August 2010 complaints, we conclude that this time frame satisfies the timing component of the knowledge/timing test.” Mastrullo, 123 M.S.P.R. at ¶ 21.

When federal sector employees bring Title VII retaliation claims under the WPA, their claims receive the same generous time consideration. In Smith v. Department of Agriculture, the Board acknowledged that the filing of an Equal Employment Opportunity complaint is an activity protected under 5 U.S.C. § 2302(b)(9). What about employees bringing Title VII retaliation claims under Title VII? In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court 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. Nassar’s ramifications on federal sector employees claiming retaliation under Title VII was unclear until the Board’s decision in Savage v. Department of Army:

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, 119 S. Ct. 1906, 144 L. Ed. 2d 196 (1999). The courts, the Equal Employment Opportunity 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….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. Potter, 533 U.S. 474, 487-88, 488 n.4, 128 S. Ct. 1931, 170 L. Ed. 2d 887 (2008)…Hence, EEO retaliation claims in the Federal sector do not implicate the statute at issue in Nassar.

Savage, 122 M.S.P.R. at 632-33 (emphasis added).

The next question addressed by the Board in Savage was “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.” Savage, 122 M.S.P.R. at 633. The Board began this analysis by drawing an analogy to the Age Discrimination in Employment Act (“ADEA”), and looking at the Supreme Court’s decision in Gross v. FBL Financial Services, Inc., in which the Court examined the text of 29 U.S.C. § 623(a)(1), which prohibits discrimination “because of” age in private sector employment, and concluded plaintiffs must demonstrate “but for” causation in age discrimination cases.

The Board’s analogy stopped at Gross, however. “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.’” Savage, 122 M.S.P.R. at 634. “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 these 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. Thus, the Board found:

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 in Ford…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…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.

Savage, 122 M.S.P.R. at 634.

Federal employees claiming retaliation under the less stringent motivating factor standard of 42 U.S.C. § 2000e-16 have the benefit of not only a less demanding standard, but also the benefit of a much longer period of time in which to establish temporal proximity between the protected disclosure or activity and the contested personnel action. In contrast, for private sector employees claiming unlawful retaliation under the stricter “because of” standard in 42 U.S.C. § 2000e-3(a), the temporal proximity must be “very close.” See Clark County Sch. Dist. v. Breeden (holding that the school district’s action taken 20 months after the protected activity “suggests, by itself, no causality at all.”) (citing O’Neal v. Ferguson Constr. Co.; Richmond v. ONEOK, Inc. (holding a 3-month period insufficient to establish causality); Hughes v. Derwinski (holding a 4-month period insufficient to establish causality)).

In both the private and federal sectors, a variety of circumstances can establish that an employer’s adverse decision was motivated by unlawful consideration of protected activities. In Part 2, next week’s blog, I will discuss other methods of establishing causation, such as by showing that the employer took adverse action at the first opportunity (which lengthens the acceptable temporal proximity), the employer demonstrated animus against the employee following the protected activity, or the employer failed to follow its normal procedures.