Case Summaries: Merit Systems Protection Board

September

Gross is Not Applicable to Mixed Motive Cases under Amended Americans with Disability Act

Robert Southerland v. Dep’t of Defense, Docket Nos. SF-0752-09-0864-R-1, SF-0752-10-0111-R-1 (MSPB Oct. 5, 2011)

In August 2011, the Merit Systems Protection Board posted its decision in Southerland v. Dep’t of Defense adopting the Gross v. FBL Financial Services mixedmotive standard in application to a post-ADAAA disability discrimination case.

In a reversal of its August 2011 decision, the Board " VACATE[d its] August 25, 2011 Opinion and Order in its entirety, and SUBSTITUTE[d]" the new decision.

It appears that much of the decision is the same as the previous decision in Southerland, but for the major change in determining that the Supreme Court's draconian mixed-motive analysis in Gross IS NOT applicable to disparate treatment claims arising under the ADAA, although it still maintains the opinion that it is applicable for legacy pre-ADAA claims. ("we conclude that a mixed-motive analysis is not appropriate in disability discrimination claims arising under the ADAAA").

The decision is available online at: http://www.mspb.gov/netsearch/viewdocs.aspx?doc number=648915&version=650867&application=A CROBAT.

- submitted by Kevin Owen

September

Indefinite Suspension of Employee During Investigation is Illegal

Greene v. Dep’t of Homeland Security, Docket No. AT-0752-10-1029-I-1 (MSPB Sept. 9, 2011).

AJ Brian Bohlen of the MSPB in Atlanta issued a decision finding that it is impermissible as a matter of law for Transportation Security Administration to indefinitely suspend an employee merely because the agency is conducting an investigation of the employee. The Initial Decision is based upon TSA's Management Directives, which effectively mirror Title 5's efficiency of the service standard, rather than Title 5, which for the most part is not applicable to TSA. The AJ also rejected TSA's reliance on its Handbook to the Management Directive (which permitted indefinite suspensions during an investigation), finding that it was entitled to little respect under Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944).

Near the end of the case, just before the record was to close, TSA suddenly reversed Mr. Greene's indefinite suspension, reinstated him to paid admin leave, and restored all of his benefits in an attempt to moot the case. However, in the initial appeal I had included a retaliation claim and I timely filed a notice of compensatory damages which rendered the attempt to moot the case ineffective.

The Agency filed a PFR arguing that because it had reversed the suspension and restored all benefits, the AJ only needed to decide the issue of whether my client had been retaliated against, rather than issue a decision on the merits of the entire case. The Agency asserted that issuing a decision on the merits constituted an advisory opinion, which is not allowed. The Board rejected the Agency's argument, reiterated that a case is not rendered moot by rescission of the underlying action when there are claims for compensatory damages, and held that this was not an advisory opinion because an analysis of TSA's policies was relevant to a determination of pretext.

– submitted by Elaine L. Fitch

September