File 2: Opinion of Chairman Cabaniss

[ v60 p233 ]

Dissenting opinion of Chairman Cabaniss:

      I write separately to explain why I believe the Authority, in this case and other cases like it, needs to either affirmatively follow and apply the mixed motive requirements set out in Letterkenny Army Depot, 35 FLRA 113, 118 (1990) (Letterkenny) or quit applying Letterkenny to cases where an agency is charged with improperly disciplining an employee for activity that is protected by the Statute. [n1]  While I believe the latter course of action to be the more appropriate, the present case is an example of what I find to be a misapplication of Letterkenny where an employee has been disciplined for activity found to be protected under the Statute.

      As recently as United States Dep't of Defense, Defense Contract Management Agency, Orlando, Fla., 59 FLRA 223, 226 (2003) the Authority stated:

We recently clarified the application of the framework in Letterkenny Army Depot, 35 FLRA 113, 118 (1990) (Letterkenny) to cases of alleged discrimination in violation of § 7116(a)(1) and (2). See United States Dep't of the Air Force, Aerospace Maint. & Regeneration Ctr., Davis Monthan AFB, Tucson, Ariz., 58 FLRA 636 (2003) (Davis Monthan AFB). Under that framework, the GC establishes a prima facie case of discrimination by demonstrating that: (1) the employee against whom the alleged discriminatory action was taken was engaged in protected activity; and (2) such activity was a motivating factor in the agency's treatment of the employee. [Emphasis added].

As plainly stated, in order to establish a prima facie case that an employee's discipline was discriminatory, one must find that both prongs of the Letterkenny test have been met, i.e., that the employee was engaged in protected activity and, that "such activity was a motivating factor in the agency's treatment of the employee." Id.

      The majority's analysis, however, chooses to collapse the second prong of the test into the first, and find that where an employee is disciplined for conduct protected by the Statute, a prima facie case of discrimination has been established. Therefore, under this interpretation, the second prong of the prima facie analysis under Letterkenny is never applied, a conclusion at odds with Letterkenny itself, or the application is a meaningless act since there can never be any outcome (where an employee is indeed engaged in activity protected by the Statute) other than a finding that the second prong is met. If there is going to be a two prong test, then the second prong has to have some meaning independent in and of itself from the first prong, and it must be possible for the second prong to be found either proven or not, otherwise it again becomes meaningless.

      The same concern holds true for the merits assessment under Letterkenny. Even where the General Counsel makes out a prima facie showing of a violation, a respondent will not be found to have violated § 7116(a)(2) if the respondent can prove by preponderant evidence that: (1) there was a legitimate justification for its action; and (2) the same action would have been taken even in the absence of protected activity. Id. at 118. The Authority went on to note that "in a `mixed motive' case, both lawful and unlawful reasons (motives) for the respondent's actions have been established. . . . In a `pretext' case, on the other hand, a motive asserted by a respondent to be lawful is found to be unlawful (pretextual)." Id. at 119-20.

      Where an employee has been disciplined for conduct which the employee alleges is activity protected by the Statute, I submit that there is only one question presented, i.e., whether the motive asserted by an agency to be lawful (the employee was not engaged in activity protected by the Statute) is found to be unlawful (the employee's conduct was activity protected by the Statute). Put another way, the matter is a "pretext" case and not the "mixed motive" case to which Letterkenny applies, where the Authority finds both a lawful and unlawful reason established for the agency's actions. In such a "pretext" case there can also never be a second question raised in some cases because, where the conduct is properly subject to discipline there is no "protected activity" to take into consideration in determining whether the same action would have been taken "even in the absence of protected activity." Letterkenny, 35 FLRA at 118.

      Accordingly, the majority should either specifically reject the application of Letterkenny to those cases where there is only the one question presented, or start applying the second prong of the Letterkenny prima facie analysis in a way that imbues that test with some real meaning, rather than making it a meaningless inquiry. With regards to this particular case, while the [ v60 p234 ] majority is probably correct that the actions of the grievant do not amount to conduct unprotected by the Statute, that finding, nonetheless, does not resolve the above affirmative defense test that is also a part of Letterkenny they purport to be following. [n2]  As such, if that case is to be followed, I would remand this matter to the parties, absent settlement, for resubmission to the Arbitrator so that the Arbitrator, and not the Authority, can make pertinent factual findings necessary to resolve the Agency's affirmative defense argument.

File 1: Authority's Decision in 60 FLRA No. 50
File 2: Opinion od Chairman Cabaniss

Footnote # 1 for 60 FLRA No. 50 - Opinion of Chairman Cabaniss

   I have some question as to whether the Arbitrator considered the issue of protected activity as being part of the case before him, given the lack of any mention or discussion of it by the Arbitrator and the limited reference in the record to any mention of discussion of that issue being put before him. However, given the Agency's failure to challenge the Union on that issue, I conclude that the employee's protected activity defense was a part of the case.

Footnote # 2