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.

The Merit Systems Protection Board vacated an administrative judge’s dismissal of a constructive suspension case after finding that the employee nonfrivolously alleged that she lacked a meaningful choice of whether to go to work against her doctor’s orders.

A former employee’s second Uniformed Services Employment and Reemployment Rights Act (“USERRA”) appeal regarding an alleged hostile work environment was dismissed for lack of jurisdiction by the Merit Systems Protection Board as it found that re-litigating the issues on appeal was barred by the doctrine of collateral estoppel.

The Merit Systems Protection Board reversed the decision of an administrative judge, finding that actual knowledge of an employee’s protected whistleblowing disclosures is not the only way to show that the employee’s disclosures were a “contributing factor” for a personnel action.

A Department of Veterans Affairs employee who had been indefinitely suspended after a grand jury indictment related to the allegedly unauthorized closing of over 2,700 unresolved consults for medical care had his indefinite suspension upheld by the Merit Systems Protection Board.

Attesting that it has a substantial interest in a legal issue presented by Salazar v. Department of Veterans Affairs, the Office of Special Counsel filed a “friend of the court,” or amicus curiae, brief on August 3, 2016, with the Merit Systems Protection Board arguing that an employee who makes a disclosure in his normal course of duties should not be subject to an elevated standard when attempting to prove a prima facie case of whistleblower retaliation.