MSPB Confirms Lack of Jurisdiction Concerning EEO, Title VII Reprisal Cases
This case law update was written by Victoria E. Grieshammer, an attorney at the law firm of Shaw Bransford & Roth, where since 2021 she has represented federal officials and employees in all aspects of federal personnel employment law. Ms. Grieshammer also advises federal agencies and employers on employment issues, such as proposed disciplinary actions and other employment-related litigation.
Andrew Harrer | Bloomberg
The Merit Systems Protection Board (the Board) clarified that the proper forum for allegations of retaliation for filing an EEO complaint is with the Equal Employment Opportunity Commission (EEOC), not the Board.
The appellant in this case was a GS-15 Deputy Director of the Department of Labor’s Employment and Training Administration, Office of Information Systems and Technology. During his time in this role, he verbally “disclosed and protested” to his supervisors, alleging that they had failed to provide opportunities to African American employees because of their race. Around this time, he also filed complaints of systemic race discrimination against African American employees under the agency’s Harassing Conduct Policy. A few months later, the agency reassigned the appellant to a nonsupervisory GS-15 position.
Appellant filed a complaint with the Office of Special Counsel (OSC) alleging that his reassignment was in reprisal for his disclosures. OSC closed the investigation, and appellant filed an individual right of action (IRA) appeal with the Board. In her initial decision, the administrative judge found that the appellant’s allegations of discrimination did not constitution disclosures of an abuse of authority protected under 5 U.S.C. § 2302(b)(8), the relevant statute, because the allegations related solely to discrimination.
“The Board has jurisdiction over an IRA appeal if the appellant exhausts his administrative remedies before OSC and makes nonfrivolous allegations that: (1) he made a disclosure described under 5 U.S.C. § 2302(b)(8) or engaged in protected activity described 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 by 5 U.S.C. 2302(a).” The Board determined that appellant exhausted his administrative remedies as required, and it focused its reasoning on whether he made a nonfrivolous allegation that his closures and activity were protected under the relevant statutes.
First, the Board explained that its precedent as well as the precedent of several circuit courts have generally excluded EEO reprisal from consideration under 5 U.S.C § 2302(b)(8). It relied on previous decisions that made clear that the legislative history and structure of the Whistleblower Protection Act (WPA) indicate that Congress did not intend to extend IRA appeal protection for employees who allege that their agencies retaliated against them for challenging Title VII violations because these individuals already have the EEOC as an “avenue for redress.” Additionally, even if disclosures of discrimination occur outside of the EEO processes, they still do not constitute protected whistleblower activity under Section 2302(b)(8) because they concern allegations of Title VII violations. In addition to its own precedent, the Board pointed to decisions from the U.S. Courts of Appeals for the Federal Circuit, Sixth Circuit, Seventh Circuit, and District of Columbia Circuit, which have all expressed this principle. The Board also explicitly overruled two Board opinions, Armstrong v. Department of Justice, 107 M.S.P.R. 375 (2007) and Kinan v. Department of Defense, 87 M.S.P.R. 561 (2001), which conflicted with these rulings. In sum, the Board clarified that reprisal for disclosures of Title VII violations do not constitute a protected disclosure under Section 2302(b)(8).
Next, the Board rejected the appellant's argument that the Whistleblower Protection Enhancement Act (WPEA) extended the coverage of whistleblower protection statutes to Title VII-related issues. It noted that, although the WPEA did expand the scope of whistleblower protection in other ways, courts have continued to reaffirm that Title VII issues are excluded from protection under whistleblower protection statutes.
The Board then turned to 5 U.S.C. § 2302(b)(9)(A)(i), holding that the appellant failed to show that his complaints constituted protected activity under this statute. Section 2302(b)(9)(A)(i) expresses that it is protected activity to exercise “any appeal, complaint, or grievance right granted by law, rule or regulation” with regard to remedying a violation of Section 2303(b)(8). Because appellant’s complaints concern discrimination rather than a violation of Section 2302(b)(8), his complaints are not within the purview of Section 2302(b)(9)(A)(i).
The Board rejected the appellant’s final two arguments as well. Appellant argued that his disclosures fell under 5 U.S.C. § 2302(b)(9)(B)’s protection for employees “testifying for or otherwise lawfully assisting any individual in the exercise of any” “appeal, complaint, or grievance right granted by any law, rule, or regulation.” Here, the none of the employees who were purportedly denied opportunities on the basis of race filed any appeal, grievance or complaint, so this statutory provision does not apply. Appellant additionally argued that an amendment to 5 U.S.C. § 2302(b)(9)(C) contained in the National Defense Authorization Act of 2018 (NDAA) allowed the Board to have jurisdiction over his disclosures. Because the events at issue occurred before the 2018 NDAA was enacted, and because the 2018 NDAA was not retroactive, the Board rejected this argument.
In sum, the Board concluded that “while the appellant appears to have been admirably motivated in seeking to remedy perceived discrimination in his agency, we find that he failed to meet his jurisdictional burden, and that the proper forum for his allegation of retaliation for filing an EEO complaint is with the EEOC.”
For these reasons, the Board dismissed the appeal for lack of jurisdiction. Find the full case here: Edwards v. Department of Labor.
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