The Merit System Protection Board Never Finds Discrimination.

MSPB Continues to Refine Discrimination Analysis


It’s been a running joke, and for the employee’s bar not so much of a joke, that federal sector employment lawyers, HR folks, etc., really didn’t need to spend any time learning about the MSPB’s view of discrimination law for the simple reason that the Board never finds discrimination anyway. Could that be about to change? We’re still not seeing findings of discrimination from the MSPB, but suddenly it has an increased focused on the analysis of discrimination cases by its administrative judges. See Disparate Treatment by Any Other Name, Vol. I, Issue XV (2010).

The latest addition to the Board’s discrimination repetoire is Hodge v. Department of Homeland Security, 2010 MSPB 190 (September 15, 2010). In Hodge, the Board reversed the indefinite suspension of a Deportation Officer finding that an investigation into alleged misconduct was not sufficient reason to sustain the suspension where the agency did not rely on the crime provision of 5 USC 7513(b)(1). Having already reversed the suspension, the Board then went on to analyze the appellant’s claim of discrimination and the finding of the administrative judge that the appellant had failed to present a prima facie case of discrimination.

Because the case had gone to hearing, the Board found that the judge erred in analyzing whether the appellant had presented a prima facie case. Instead, the Board found that the judge should have simply proceeded to analyze whether the appellant had established that the agency’s reason for the indefinite suspension was pretextual. The Board cites Jackson v. U.S. Postal Service, 79 MSPR 46 (1998) for the proposition that when evidence has already been taken on a discrimination claim, it is error to analyze whether the appellant has presented a prima facie case and the analysis should proceed directly to the issue of pretext. The Board’s certainly correct about its own case law, but the reality is that the Board is simply following the dictates of the U.S. Supreme Court in U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983).

As Jackson duly notes, in Aikens the Supreme Court found that “[w]here the defendant has done everything required of him if the plaintiff had properly made our a prima facie case, whether the plaintiff really did so is no longer relevant[;] [t]he district court has before it all the evidence it needs to decide whether ‘the defendant intentionally discriminated against the plaintiff.’”

Of course, none of this helped the appellant in Hodge as the Board found there was insufficient evidence of pretext. The Board found:

[T]he appellant allegedly was involved in an incident with New Orleans police officers wherein she challenged their authority when they asked her to leave a car wash, resisted arrest, refused their attempts to handcuff her, and struck one of them in the face with her fist. IAF, Tab 4, Subtab 4(d) at 1. The misconduct of the three comparator employees consisted, respectively, of: being intoxicated and firing his weapon; having an affair with the wife of a man who was the subject of an investigation; and being the subject of domestic violence charges filed against him by the comparator’s wife. See Hearing Transcript at 120-21, 124. The conduct of the comparator employees clearly conflicts less directly with the duties of a law enforcement officer than the appellant’s direct and public confrontation with other law enforcement officers.

So, maybe we’re going to start seeing findings of discrimination out of the Board. On the other hand, one has to wonder. Is the conduct of the appellant in Hodge really less compatible with being a law enforcement than getting drunk and firing a weapon, having an affair with the spouse of someone who’s the subject of an investigation, and being charged with domestic violence? Hmm . . . perhaps it’s a good thing that the Board doesn’t get to hire law enforcement officers and only gets to decide on their discipline.
(By Ernest Hadley)

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