FMLA & OWCP Claims Aren't Protected Activity, MSPB Rules
This case law update was written by Conor D. Dirks, an attorney at the law firm of Shaw Bransford & Roth, where since 2013 he has represented federal officials and employees in all aspects of federal personnel employment law. In addition to his work on behalf of government employees, Mr. Dirks has successfully defended small and medium-sized government agencies against EEO complaints and MSPB appeals of agency disciplinary actions.
A Department of Veterans Affairs employee was terminated for threatening agency employees after HR called the hospital to confirm the employee’s claim that he had not been released to return to work following a medical absence and a work-related injury. On September 23, 2022, the Merit Systems Protection Board (MSPB) ruled that the employee’s Family and Medical Leave Act (FMLA) requests and Office of Workers’ Compensation Programs (OWCP) claims were not protected activity pursuant to 5 U.S.C. § 2302(b)(9).
The employee appealed his termination to the Board after an MSPB Administrative Judge (AJ) affirmed the agency’s termination action. The Board first addressed the employee’s claim that he did not make a threat because his allegedly threatening statement was conditioned on being forced to return to work, and the agency had withdrawn its demand that he return to work after the allegedly threatening statement. Citing Rose v. U.S. Postal Service, 109 M.S.P.R. 31 (2007), the Board held that “threats of bodily harm, even if conditional, are per se unsettling and support a finding that they constitute a threat.” As such, the Board agreed with the AJ that the agency proved the charge.
Next, the Board addressed whether the employee’s FMLA leave requests and OWCP claims constituted activity protected by 5 U.S.C. § 2302(b)(9). Under that law, an agency employee may not take any personnel action against an employee “because of…the exercise of any appeal, complaint, or grievance right.”
First, the Board held that OWCP claims are not protected activity under the meaning of Section 2302(b)(9) because they do not constitute “an initial step toward taking legal action against an employer for the perceived violation of an employee’s rights.”
The Board applied the same analysis to rule that FMLA leave requests are likewise not protected. However, to do so, the Board overruled two prior MSPB decisions, Doe v. U.S. Postal Service, 95 M.S.P.R. 493 (2004) and Crump v. Department of Veterans Affairs, 114 M.S.P.R. 224 (2010). The Board overruled these decisions “to the extent that they explicitly or implicitly found that FMLA leave requests or an OWCP claim constitutes protected activity” under Section 2302(b)(9).
After ruling on that issue, the Board considered whether the employee could have claimed that the agency violated Section 2302(b)(10) instead, which prohibits agencies from taking personnel actions to “discriminate for or against any employee…on the basis of conduct which does not adversely affect the performance of the employee…or the performance of others.” The Board noted that the employee cited to the agency’s “failure to inform him of the proper procedures and the agency’s poor and delayed handling of his OWCP claim as evidence of its animus against him.” However, the Board was not persuaded that any such animus led to his removal because it was “convinced that, given the serious nature of the charge against the [employee], the agency would have removed him in the absence of” his FMLA requests and OWCP claims.
For the above stated reasons, the Board affirmed the employee’s removal and rejected his affirmative defenses.
Read the full case: Marcell v. Department of Veterans Affairs.
For over thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.