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57 FLRA No. 32
Indian Health Service, Crow Hospital,Crow Agency, Montana and Marcella A. Knaub, Individual and Millie F. Stewart, Individual, Case Nos. DE-CA-90532 & DE-CA-90639 (Decided May 3, 2001)
The complaint alleged that the Respondent violated § 7116(a)(1) and (2) of the Federal Service Labor-Management Relations Statute by giving two employees notices of termination and the option to resign because they each engaged in activity protected by the Statute. The Judge dismissed the complaint. The Authority adopted the Judge's findings, conclusions, and recommended Order to the extent consistent with this decision. The Authority concluded that the Respondent's discharge of the two employees was because of their protected activity, in violation of § 7116(a)(1) and (2) of the Statute.
Under the Authority's analytical framework for resolving complaints of alleged discrimination in violation of § 7116(a)(2) of the Statute, the General Counsel has, at all times, the overall burden to establish by a preponderance of the evidence 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 in connection with hiring, tenure, promotion, or other conditions of employment. However, satisfying this threshold burden establishes a violation of the Statute only if the respondent offers no evidence in its defense. The respondent has the burden to establish, by a preponderance of the evidence, as an affirmative defense 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.
In this case, in agreement with the Judge, the Authority found that the General Counsel established a prima facie case of § 7116(a)(2) violations. Knaub and Stewart's protected activity clearly served as a motivating factor in management's decision to terminate them, for the reasons stated by the Judge. Contrary to the Judge, however, the Authority noted that it was persuaded that the Respondent had not shown that it would have taken the same action even in the absence of the protected activity. Rather, the Authority concluded that the medical error was not the real basis, but was a pretext.
The Authority noted that the record clearly indicated disparate treatment that was unexplained other than as retaliation for the two nurses' protected activity, and both rebuts the Respondent's expressed, legitimate reason and establishes it as pretextual. The violation here involved discriminating against two employees--treating them differently--because of their protected activity. To remedy the violations the Authority ordered that the nurses be offered retroactive reinstatement, be made whole, and have their records expunged of mention of the terminations, to the extent consistent with law and regulation.