(a) Subject to the exception stated in paragraph (b) of this section, in any case involving a prohibited personnel practice described in 5 U.S.C. 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D), the Board will order appropriate corrective action if the appellant shows by a preponderance of the evidence that the disclosure or other protected activity was a contributing factor in the personnel action that was threatened, proposed, taken, or not taken against the appellant.
(b) However, even where the appellant meets the burden stated in paragraph (a) of this section, the Board will not order corrective action if the agency shows by clear and convincing evidence that it would have threatened, proposed, taken, or not taken the same personnel action in the absence of the disclosure or other protected activity.
[78 FR 39548, July 2, 2013]
Notes of Decisions
Flynn v. United States Sec. & Exch. Comm'n, 877 F.3d 200 (4th Cir. 2017).
· cites it 3× “See 5 C.F.R. § 1209.7 (a). If the petitioner establishes a prima facie ease, the burden shifts to the agency to show “by clear and convincing evidence that it would have .”
Javier Soto v. Dep't of Vets. Affairs, 2022 MSPB 6 (MSPB 2022).
“600 , ¶ 14; 5 C.F.R. § 1209.7 (b). 6 regarding the venue of a grievance meeting; (2) a May 20, 2014 third-step grievance filed against an official in the agency’s West Palm Beach location, alleging improper management interference with union representation of an unnamed…”
Carson v. Dep't of Energy, 398 F.3d 1369 (Fed. Cir. 2005).
“§ 1221 (e)(1) (2005); 5 C.F.R. § 1209.7 (2005); see also Willis v.”
Donald B. Ellison v. Merit Sys. Prot. Bd., 7 F.3d 1031 (Fed. Cir. 1993).
“§ 1221 (e)(1); 5 C.F.R. § 1209.7 (1993). If an employee fails to demonstrate that the aggrieved personnel action was the result of a prohibited personnel practice as described in section 2302(b)(8), he is not entitled to corrective action under the WPA.”
Janet M. Clark v. Dep't of the Army, 997 F.2d 1466 (Fed. Cir. 1993).
“I 1989) (emphasis supplied); see also 5 C.F.R. § 1209.7 (reiterating these standards of proof for any ease involving a personnel practice that is prohibited under 5 U.”
Peter F. A. Brown v. Sec'y Janet Napolitano, 380 F. App'x 832 (11th Cir. 2010).
· cites it 2× “§ 1221 (e)(1); 5 C.F.R. § 1209.7 (a). Even if the claimant meets that burden, however, corrective action is not necessary if the agency can show by clear and convincing evidence that it would have taken the same personnel action in the absence of the disclosure.”
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