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.
Written by Valerie A. Chastain