MSPB: “Convincing Mosaic” Not a Legal Requirement for Proof of Discrimination
The Merit Systems Protection Board (“MSPB”) clarified the legal requirements for proving an affirmative defense of EEO discrimination after the U.S. Court of Appeals for the Seventh Circuit affirmed that its use of the phrase “convincing mosaic,” considered a type of circumstantial evidence, was meant to be a metaphor, rather than a legal test.
A Department of Veterans Affairs Contract Specialist was removed from federal employment after allegedly providing falsified documents to Central Michigan University stating that she was deployed to Iraq from June 2001 through June 2013. The employee appealed her removal to the MSPB, and an administrative judge sustained the charges and the employee’s removal. The employee petitioned the full Board for review, arguing that several of the charges should not have been sustained, but also that the charges were a pretext for discrimination based on race, sex, and disability, as well as retaliation for her EEO activity. On October 7, 2016, the full Board denied the employee’s petition for review, and affirmed the initial decision.
The Board sustained the three charges challenged by the employee, and then turned to the employee’s affirmative defenses. The Board noted that in denying the employee’s discrimination and reprisal affirmative defenses, the administrative judge “applied the evidentiary standards set forth” in Savage v. Department of the Army, 122 M.S.P.R. 612 (2015). In Savage, the Board stated that after an employee asserts an affirmative defense of discrimination or retaliation, the employee must show by preponderant evidence that the discrimination or retaliation was a motivating factor in the personnel action. That showing can be made, according to the Board in Savage, by relying on direct or any of the three types of circumstantial evidence described in Troupe v. May Department Stores Co., 20 F.3d 734 (7th Cir. 1994). Those three types of circumstantial evidence were: 1) pretext; 2) comparator evidence; and 3) “convincing mosaic” of discrimination or retaliation. But Savage also overruled prior Board decisions that had erroneously held that any affirmative defense proven by circumstantial evidence must provide evidence showing the “convincing mosaic” from Troupe.
The Board noted that in August of 2016, in Ortiz v. Werner Enterprises, Inc., No. 15-2574 (7th Cir. Aug. 19, 2016), the U.S. Court of Appeals for the Seventh Circuit clarified the Troupe decision, explaining that the phrase “convincing mosaic” was “not meant to impose a new, separate legal requirement or to serve as a legal test, but was instead ‘designed as a metaphor to illustrate why courts should not try differentiate between direct and indirect evidence.” The Board recognized that Ortiz fought back against the way that “convincing mosaic” continued “to be misused as a governing legal standard in cases decided after Troupe,” and rejected the practice of sorting evidence into different piles based on whether the evidence was direct or indirect, stating that “all evidence belongs in a single pile and must be evaluated as a whole.”
Considering the Ortiz decision, the Board found that the administrative judge, regardless of the characterization of the evidence in the initial decision, properly found that the employee failed to meet her burden (preponderance of the evidence) to prove that discrimination based on race or sex, or retaliation, was a motivating factor in the removal. This, according to the Board, is the dispositive inquiry, regardless of whether the evidence is considered to be direct or indirect. The Board found that the administrative judge considered the evidence as a whole, did not disregard or any evidence, and did not treat the phrase “convincing mosaic” as a legal requirement” even if she discussed the distinction between direct and indirect evidence.
For the above stated and other reasons, the Merit Systems Protection Board found that the employee failed to establish any basis for granting the petition for review, and so denied the petition and affirmed the administrative judge’s petition.
Read the full case: Gardner v. Department of Veterans Affairs
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Posted in Case Law Update