How do I prove the agency violated section 2302(b)(8) in the context of an “otherwise appealable” action?
In order to establish a prima facie case of retaliation in the context of an otherwise appealable action, the appellant must show by preponderant evidence that he or she made a protected disclosure and that the disclosure was a contributing factor in a personnel action against him or her.
5 U.S.C. § 1221(e)(1); Ryan v. Department of the Air Force,117 M.S.P.R. 362, ¶ 12 (2012). Prima facie means that a party produces evidence that – unless rebutted – is sufficient to prove a particular proposition or fact. Preponderant evidence means that degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.
If I establish a prima facie case of retaliation under section 2302(b)(8) in an otherwise appealable action, will I prevail?
No, not necessarily. Once the appellant establishes a prima facie case, the agency is given an opportunity to prove, by clear and convincing evidence, that it would have taken the same personnel action in the absence of the protected disclosure