Savage v. Army

1. IRA Appeal

1.1. Personnel actions

1.1.1. Removal

1.1.2. Denial of Leave

1.1.2.1. Can't determine if clear & convincing standard met w/o Whitmore analysis

1.1.3. Performance ratings

1.1.4. Nov 07 Reassigment

1.1.5. hostile work environment

1.1.6. The fact that this reassignment was based on EEO settlement not enough to satisfy clear & convincing standard w/o Whitmore analysis

2. Board's Decision

2.1. 752

2.1.1. Removal

2.1.2. Constructive Suspension

2.1.2.1. Although raised before OSC, considered as a 752 because election of IRA route not knowing

2.1.2.2. Jurisdiction

2.1.3. AWOL

2.1.3.1. Constructive suspension a possible defense to AWOL

2.1.4. Excessive absence

2.1.4.1. Not sustained because the appellant was not warned excessive absence could leave to removal.

2.1.5. Unavailable for duty

2.1.5.1. Sustained

2.1.6. various others

3. Discrimination issues

3.1. Can be proven by . . .

3.1.1. Circumstantial Evidence

3.1.1.1. Convincing mosaic

3.1.1.1.1. not an absolute requirement

3.1.1.2. Comparator

3.1.1.3. Pretext

3.2. No "but for" test when the Board considers discrimination in the Federal sector. Savage, 122 M.S.P.R. 61, ¶ 42

3.3. Reversal of an action as a remedy does require a "but for" test. Savage, 122 M.S.P.R. 61, ¶ 48

3.3.1. No Summary Judgment

3.3.1.1. McDonnell Douglas Test inapplicable

3.3.2. Direct evidence; or

3.3.3. Mt. Healthy Test

3.3.3.1. If the protected conduct was a substantial or motivating factor of the action, then:

3.3.3.2. the burden shifts to the employer to prove nce that it would have taken the same action even if the protected conduct had not taken place.

3.4. Federal sector anti-discrimination is based upon 42 U.S.C. § 2000e–16

3.4.1. It is a broad prohibition of ‘discrimination,’ rather than a list of specific prohibited personnel practices.”

3.4.1.1. Age discrimination is not covered here but in 29 U.S.C. § 633a(a)

3.4.2. Savage clarified that its broad prohibition includes retaliation

4. Facts of Case

4.1. Appellant made protected disclosures

4.1.1. Contracting irregularties

4.1.2. Violations of the FAR

4.2. Appellant got leave for depression, anxiety & "work caused" stress

4.3. Appellant got 3 out of 5 performance rating

4.4. Appellant had heated argument with her supervisor on Aug 17 '07

4.5. Appellant out of work since Aug 18 '07 (until removal proposed on Sep 14 '09)

4.6. Appellant put on AWOL effective Apr 2 '09

4.6.1. Told to return to work on March 26 '09 when all her leave would be exhausted

4.6.2. Request for LWOP beyond that date denied

4.6.3. Appellant returned for 1 hour but fell ill & left

4.7. Appellant removed for AWOL, Excessive absence & unavailability for duty

5. Procedural History

5.1. June 07 EEO Complaint

5.1.1. Complaint alleged harassment & hostile work environment

5.1.2. Settlement Agreement Entered

5.1.2.1. Agency gave her nonsupervisory position without promotion potential

5.1.2.2. Agency agreed  to give her a position at same grade and pay

5.2. April 09 EEO Complaint

5.2.1. Concerned denial of LWOP alleges reprisal & hostile work environment

5.2.2. Finding of no discrimination

5.3. MSPB Appeal of Removal

5.3.1. DWOP'd to let appellant go to OSC

5.3.2. Later joined with IRA Appeal