Developments at the MSPB: On December 18, 2014, the Merit Systems Protection Board issued its decision in Southerland v. Dept. of Defense, 2014 MSPB 88, the third trip to the MSPB for this case. In rejecting Mr. Southerland's petition for attorneys' fees, the MSPB potentially raised a new dispute with the Equal Employment Opportunity Commission (EEOC) concerning mixed cases.
Mr. Southerland was removed on charges of alleged insubordination, AWOL, and failure to request leave in accordance with established procedures. Mr. Southerland appealed his removal, claiming that the removal action was based on disability discrimination. The MSPB administrative judge sustained the AWOL and leave request charges, overturned the insubordination charges, and further found disability discrimination under a 'mixed-motive' theory. As a result, the administrative judge mitigated the removal to a written counseling memorandum. On initial petition for review, the MSPB reversed the administrative judge's opinion as lacking sufficient credibility findings on the insubordination charge. The MSPB also rejected application of 'mixed-motive' analysis to federal-sector discrimination complaints, only allowing 'but-for' causation arguments before the MSPB.
On first remand, the administrative judge sustained the insubordination charges. On the second petition for review, the MSPB reversed itself, holding that 'mixed-motive' analysis does apply to federal-sector discrimination cases. The MSPB defers to the EEOC on issues of substantive discrimination law; in between the first and second petitions for review, the EEOC issued its decision in Feder v. Dept. of Justice, EEOC Appeal No. 0720110014 (July 19, 2012), which confirmed that 'mixed-motive' argument apply to federal sector disability discrimination claims. The MSPB found that the removing official had made statements which constituted direct evidence of disability discrimination. However, the MSPB also held that the agency had proven its defense of showing that it would have removed Mr. Southerland anyway even without consideration of his disability. As a result, Mr. Southerland was not entitled to compensatory damages, reinstatement or back pay, but potentially was qualified to further seek non-personal declaratory or injunctive relief against the agency. The MSPB also left the door open to a later petition for attorneys' fees and costs.
Although the record is silent on whether Mr. Southerland ever sought injunctive or declaratory relief, he did file a fee petition, which was then denied by the administrative judge. Mr. Southerland then appealed that denial, citing several EEOC cases awarding attorneys fees in 'mixed-motive' cases even where no personal relief was awarded to the employee. The MSPB rejected this most recent petition for review. In doing so, the MSPB refused to defer to the EEOC on whether the disability discrimination statutes called for an award of attorneys' fees and costs in case such as Mr. Southerland's situation. The MSPB, citing its own precedent, found that Mr. Southerland did not succeed enough to qualify as a 'prevailing party' eligible for a fee award.
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