dissenting.
I would vacate the administrative judge’s affirmance of Webster’s removal and remand for reconsideration of the chosen penalty and of the defense of reprisal. Even including the two charges I believe were improperly sustained, the administrative judge (AJ) made a major reduction in the number of sustained charges. The nature of the conduct underlying these sustained charges and the failure of the AJ to consider a relevant mitigating factor precludes affirmance of the penalty. Further, the AJ found no reprisal under an incorrect legal standard and, thus, his decision cannot stand on this issue.1
I Background
Alton Webster was employed as a military mail clerk, GS-305-05, directly under *692the supervision of Willie McCain. Webster was charged with 11 incidents of misconduct in support of his removal. The gist of each charge is as follows: (1) discourteousness to two soldiers resulting from yelling to them to move a vehicle they had parked which was blocking other vehicles (not sustained); (2) insubordination to Supervisor McCain stemming from an incident where Webster made a flippant remark after being asked for a copy of Webster’s lecture plan when all instructors use the same plan that was on file (not sustained); (3) insubordination in failure to follow McCain’s policy of returning to the office prior to turning in a government vehicle; (4) insubordination in leaving a fire drill after evacuation of the building to go get ice cream; (5) insubordination and willful misuse of a government vehicle arising from an incident where Webster went outside the chain of command to report that McCain had mishandled the mail; after being coun-selled, Webster did not report directly to work as instructed but instead used a government vehicle to drop off training manuals (not sustained); (6) disrupting the workforce by asking a fellow mail clerk to draft a letter regarding her desire to have a meeting, as proposed by Webster, with the Colonel (not sustained); (7) insubordination due to Webster’s failure to sign out upon leaving the building when McCain had removed the sign-out board without telling Webster (not sustained); (8) failure to follow instructions regarding the use of a rubber stamp when processing three letters for a forwarding location; (9) violating rules and regulations by tearing an article from a newspaper which had been discarded in the dumpster (not sustained); (10) discourteousness to Lt. Perna by Webster’s “childish tirade” which interrupted her conversation with another officer; and (11) disrespectful conduct towards McCain by replying “Are you crazy?” when asked if Webster had placed some mail in distribution or COM center. This listing reveals one salient point. Virtually every charge involves Supervisor McCain or was initiated as a cause for discipline by McCain, save only charges (5) and (10). Indeed, SPC. Wallace, a military mail clerk, stated that McCain was “threateningly persistent” when attempting to get him to sign a statement complaining about appellant’s conduct. Only 5 of the 11 charges were sustained by the AJ. Only one of the sustained charges was not initiated by Supervisor McCain. The plethora and nature of the charges asserted here, what can only be seen as a “shotgun” approach, together with the fact that few were sustained, suggest the odor of vengeance, not discipline.
II Unsustainable Charges
Of the five charges sustained, I conclude that two of these five are not supported by substantial evidence or a reasoned analysis. Webster was charged with “insubordination” when he left the grounds of the office during a fire drill. The agency had the burden to prove that Webster was “insubordinate” when he took a “break” during the fire drill to get ice cream and was not there to receive McCain’s information about a staff meeting. Webster is not charged simply with failure to follow fire drill procedures but insubordination. Such charge entails his “willful refusal” to follow McCain’s instruction to remain on the grounds to receive the staff meeting information. The agency has the burden to prove that instructions were given to him that he willfully refused to obey. See Phillips v. General Servs. Admin., 878 F.2d 370 (Fed.Cir.1989) (“Insubordination by an employee is a willful and intentional refusal to obey an authorized order of a superi- or officer.”). However, the agency offered no evidence that McCain even spoke to Webster at the time of the fire drill. The agency, not Webster, must suffer the effect of this evidentiary deficiency. See Wright v. Department of Transp., 900 F.2d 1541, 1544-45 (Fed.Cir.1990).
Evidence of McCain’s instructions at the time of the fire drill is found in his statement requesting disciplinary action. He stated that when the fire drill commenced he “went around to each section calling out: ‘Fire’, ‘Fire’, ‘Fall out on the grass in front of the Postal Branch using our building Emergency Evacuation floor plan.’ ” *693These instructions alone cannot be reasonably interpreted as an instruction to Webster to remain assembled after the drill to receive information about a staff meeting. The effect of the lack of evidence of specific orders to Webster at the time is that the charge that Webster was insubordinate when he left the area to get ice cream is not supported by substantial evidence. Phillips v. General Servs. Admin., 878 F.2d at 374.
I also conclude that the charge that Webster was insubordinate by failing to follow McCain’s policy to return to the office prior to turning in a government vehicle cannot be sustained. This charge of insubordination required proof that Webster flagrantly or continually refused to comply with this policy. See Phillips v. General Servs. Admin., supra. In fact, only one occasion of failing to report in has been documented. In addition, in sustaining this charge, the AJ relied solely on Supervisor McCain’s hearsay testimony that “[Appellant’s explanation for his failure to return was that ‘the policy did not make sense.’ ” Webster himself stated that
[t]o the best of my ability I have followed my supervisors [sic] instructions. On occasion because I didn't realize what time it was I was late coming in. I have never requested overtime when I came in late.
While at first blush Webster’s explanation seems to be nonresponsive to the charge, it becomes relevant in light of Supervisor McCain’s explanation that he adopted the policy of reporting in to cut down on unauthorized overtime. As a prophylactic measure, McCain had the employees report back to the office before quitting time so that no employees would be worked overtime without authorization.
Without articulating any reason why Webster’s explanation was discredited (given the reason McCain instituted the policy), or even a statement that he was making a credibility determination, the AJ’s analysis respecting this charge is defective and the affirmance must, therefore, at least be vacated and the matter remanded for explanation. Cf. Jackson v. Veterans Admin., 768 F.2d 1325, 1331-32 (Fed.Cir.1985). As articulated, the AJ’s decision shows only a procedural violation which is insufficient to support a charge of “insubordination."2
III Excessive Penalty
The penalty chosen by the agency must represent a “responsible balancing of the relevant [Douglas] factors” considering the charges sustained. Kline v. Department of Transp., 808 F.2d 43, 45-46 (Fed.Cir.1986). Here the AJ not only sustained fewer than half the charges but also found that the deciding official had failed to weigh the Douglas factors. Moreover, the deciding official explained that her decision to remove Webster was because he had lied. Lying was not a charge. The AJ, nevertheless, sustained the action taken because the sustained charges were “serious.”
The charges against Webster appear to be “serious” if one looks only at the labels given to them: "insubordination”, “disrespectful conduct towards a supervisor”, and “disruptive and discourteous” conduct. However, to determine the actual nature of the charge, we must examine the underlying conduct giving rise to the charge, not merely the label. See, e.g., Miguel v. Department of the Army, 727 F.2d 1081 (Fed.Cir.1984) (charge of theft, removal action remanded for redetermination of penalty in light of conduct amounting to theft of $2.10 worth of soap); Stockton v. Department of Transp., 7 MSPB 539, 539-40, 8 M.S.P.R. 43 (1981) (reversing removal upon examination of conduct underlying charge of insubordination).
In addition to the two charges discussed above, getting ice cream during the fire drill and failing to report in before returning his vehicle, another sustained “insubordination” charge concerns the required use of a rubber stamp on a certain type of mail, which appellant did not apply *694to three letters.3 The other two charges consist of discourteousness in the presence of (but not directed at) Lt. Perna and disre-spectfulness in replying to Supervisor McCain “Are you crazy?” in response to a question regarding whether appellant had placed mail in a certain place. That charges can be labeled “disrespect”, “dis-ruptiveness”, “discourteousness” or “insubordination” does not ipso facto support the penalty of removal. This rationale reads the “nature and gravity of the offense” factor out of the Douglas balance. The AJ appears to have fallen into this error.
The most serious defect in the AJ’s analysis of the reasonableness of the penalty of removal, however, was his failure to consider an important factor relating to mitigation, namely, the animus of Supervisor McCain towards Webster. While it was unnecessary for the AJ to refer mechanically to each and every factor set forth in Douglas when determining the reasonableness of the penalty chosen by the agency, see Nagel v. Department of Health & Human Servs., 707 F.2d 1384, 1386 (Fed.Cir.1983), our precedent does require consideration of each Douglas factor on which evidence is submitted. Thus, the animosity in the working relationship which was at least in part due to the supervisor had to be considered. See, e.g., Bonds v. United States Postal Serv., 33 M.S.P.R. 616, 618 (1987); Ryan v. Veterans Admin., 33 M.S.P.R. 463, 466-67 (1987). Failure to consider a relevant factor constitutes an abuse of discretion. VanFossen v. Department of Housing & Urban Development, 748 F.2d 1579, 1581, (Fed.Cir.1984); cf. Miguel v. Department of the Army, 121 F.2d at 1083-84.
The record here contains ample evidence of Supervisor McCain’s conduct evidencing animus, including the list of baseless charges itself. Ms. Bickford, the deciding official, had recognized a year before that the “turmoil in the branch” was in part attributable to McCain. Given the context of her statement, the “turmoil in the branch” she was referring to was McCain’s conduct toward Webster. The majority seeks to diminish the relevance of McCain’s animus by speculating that Ms. Bickford’s failure to mention animus in her removal decision means that she did not consider animus to be significant in 1988. However, nothing has been presented to suggest that the animus between McCain and Webster did not continue or continued only because of Webster. Indeed, the record shows that McCain continued to hold and act on his animus toward Webster, for example, in pressuring another employee with “threatening persistence]” to supply evidence to support one of the charges.
In any event, although a factor, the AJ did not consider Supervisor McCain’s animus in connection with the review of the severity of the penalty. That Ms. Bickford lacked animus is irrelevant. Ms. Bickford was obligated to consider McCain’s animus in making her decision and wholly failed to do so. Thus, the error in failing to consider McCain’s animus is doubly compounded.
The majority acknowledges the error in the AJ’s analysis of mitigation, but excuses it, because the AJ mentioned McCain’s animus in connection with the defense of reprisal. By this rationale, the majority commits legal error by equating consideration of mitigation of the penalty, an agency’s affirmative duty, with consideration of reprisal, an employee’s affirmative defense. An employee who fails to carry the heavy burden of the affirmative defense is still entitled to have his supervisor’s animus considered as a factor in mitigation. Cf. National Labor Relations Bd. v. Transportation Management Corp., 462 U.S. 393, 402, 103 S.Ct. 2469, 2474, 76 L.Ed.2d 667 (1983).
IV Reprisal
The AJ’s rejection of Webster’s reprisal defense involved an improper allocation of the burdens of proof and an improper standard. Accordingly, I would vacate and remand on this issue as well.
*695Reprisal is an affirmative defense to an adverse action. 5 U.S.C. § 7701(c)(2) (1988). To establish reprisal the employee must show that he has engaged in a protected activity, that an adverse action was taken, and that his engagement in such activity caused the agency to take such adverse action against him. See Warren v. Department of the Army, 804 F.2d 654, 658 (Fed.Cir.1986).4
In this case the AJ’s findings support a prima facie defense of reprisal. He found that Webster was engaged in the protected activities of serving as a union steward, successfully pursuing a personal grievance, and writing complaints to Congress and to postal inspectors, inter alia, about a racial slur attributed to Supervisor McCain. With respect to causation, the adverse action followed the protected activity; the agency was aware of the protected conduct; and he specifically found “that the intensity of the agency’s retaliatory motive was high.” The AJ then weighed “this high intensity retaliatory motive against the gravity of the misconduct” and concluded that “an imaginary supervisory who was unaware of appellant’s protected conduct would conclude that an adverse action was warranted.” Therefore, per the AJ, the defense of reprisal failed for lack of nexus. Language can be found in Warren and in other opinions of this court seemingly indorsing the AJ’s analysis. That analysis, nevertheless, is legally erroneous.5
It is clearly not a basis for rejection of the affirmative defense of reprisal either that the charges against an employee are sustainable or that the charges are serious enough to warrant removal or discipline. As an affirmative defense, reprisal comes into play only where the charges would otherwise be sustained, and its application is not statutorily limited to cases where the charges are not serious. Congress has made the choice that where reprisal motivates an adverse action, reprisal in the federal workplace is more to be condemned than the misconduct of an employee. In effect, the majority here continues to hold that there can be no reprisal where the penalty is reasonable in light of the sustained charges. That view entirely vitiates the defense of reprisal.
The Supreme Court has not directly addressed the statutory defense of reprisal in the federal workplace. However, federal employees are entitled to at least the protection provided other employees. In the latter situation, the Court has directly confronted the standard for establishing nexus; that is, a causal connection between an adverse action against an employee and the employee’s engagement in protected activity. In Mount Healthy School Dist. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), the Supreme Court vacated and remanded a decision upholding the denial of tenure to a teacher because of an incorrect allocation of the burdens of proof that the reason behind the decision to deny tenure was in reprisal for the teacher’s exercise of rights protected under the first and fourteenth amendments. After establishing that the teacher had engaged in protected activity and recognizing that the Board could have dismissed the teacher for no reason at all, the Court carved out a test for causation with the goal of placing the employee “in no worse a position than if he had not engaged in the [protected] conduct”:
*696Initially, the burden [is] properly placed upon [the employee] to show that his [or her] conduct was constitutionally protected, and that this conduct was a “substantial factor” — or, to put it in other words, that it was a “motivating factor” [footnote omitted] in the Board’s decision not to rehire him. Respondent having carried that burden, however, the District Court should have gone on to determine whether the Board had shown by a preponderance of the evidence that it would have reached the same decision as to respondent’s reemployment even in the absence of the protected conduct. [Emphasis added.]
Mt. Healthy, 429 U.S. at 287, 97 S.Ct. at 576.
The respective burdens of proof set up by the Supreme Court in Mt. Healthy are not unique to constitutional challenges. The Supreme Court approved the same allocation of burdens for establishing a causal connection between removal of an employee and reprisal for protected union activities under section 8(a)(3) of the National Labor Relations Act (codified at 29 U.S.C. § 158(a)(3) (1982)) in National Labor Relations Bd. v. Transportation Management Corp., 462 U.S. 393, 103 S.Ct. 2469, 76 L.Ed.2d 667 (1983). In that case, the National Labor Relations Board, relying heavily on the Court’s prior decision in Mt. Healthy, held that to establish an unfair labor practice under the statute:
[T]he General Counsel [of the Board] ... had the burden of proving that the employee’s conduct protected by § 7 [of the NLRA] was a substantial or motivating factor in the discharge, [footnote omitted] Even if this was the case, and the employer failed to rebut it, the employer could avoid being held in violation of §§ 8(a)(1) and 8(a)(3) by proving by a preponderance of the evidence that the discharge rested on the employee’s unprotected conduct as well and that the employee would have lost his job in any event. [Emphasis added.]
462 U.S. at 400, 103 S.Ct. at 2473.6 In holding that the board’s interpretation of the statute was not unreasonable, the Supreme Court stated that “[t]he analogy to Mt. Healthy drawn by the Board was a fair one.” The Supreme Court, since Transportation Management, has approved this allocation of the burdens, as well as what must be proved, numerous times. See Price Waterhouse v. Hopkins, 490 U.S. 228, -, 109 S.Ct. 1775, 1789-90, 1795, 104 L.Ed.2d 268 (1989) (opinions of Brennan, J. and White, J); Hunter v. Underwood, 471 U.S. 222, 225, 105 S.Ct. 1916, 1918, 85 L.Ed.2d 222 (1985); Sure-Tan, Inc. v. National Labor Relations Bd., 467 U.S. 883, 895 n. 6, 104 S.Ct. 2803, 2810 n. 6, 81 L.Ed.2d 732 (1984).
The Merit Systems Protection Board first discussed the legal elements of reprisal in In re Frazier, 1 MSPB 159, 1 M.S.P.R. 163 (1979), aff'd, 672 F.2d 150 (D.C.Cir.1982). As explained in a lengthy and educational opinion, the board sought guidance from “judicial interpretation of federal statutes containing similar prohibitions against reprisals,” such as the National Labor Relations Act, 29 U.S.C. § 158(a)(4) (enacted in 1935), the Fair Labor Standards Act, 29 U.S.C. § 215(a)(3) (enacted in 1938), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a) to determine “what acts, and what evidence thereof, will constitute proof of ... reprisal.”
Upon analysis of these statutes and cases interpreting them, the board set out the elements of reprisal as (1) protected conduct, (2) adverse action, and (3) causal connection between the two. It then considered the proof required to establish nexus or causation and concluded that “[t]he causal connection which the employee must show merely consists of an inference of *697retaliatory motive for the adverse employer action.” Frazier, 1 MSPB at 188, 1 M.S.P.R. 163.7
Since Frazier, the board has gone on to explicate how an employee’s prima facie case of reprisal may be overcome. In Gerlach v. Federal Trade Comm’n, 8 MSPB 599, 9 M.S.P.R. 268, 275-76 (1981), the Board, adopting the standard of Mt. Healthy, stated:
Applying the Mt. Healthy test to the instant case, having previously concluded that the appellant demonstrated by a preponderance of the evidence that retaliation was a significant factor in the removal action, we must now determine whether the agency established by a preponderance of the evidence that the appellant would have been removed absent the retaliatory motive.
The board has regularly applied the Mt. Healthy test to determine whether reprisal occurred in adverse action cases since Ger-lach, albeit sometimes stating a more elaborate back and forth shifting of burdens. See, e.g., Mortensen v. Department of the Army, 27 M.S.P.R. 433, 437-38 (1985); Kennedy v. Department of the Army, 22 M.S.P.R. 190, 195 n. 6 (1984); Stromfeld v. Department of Justice, 21 M.S.P.R. 428, 431-32 (1984); McClellan v. United States Postal Serv., 19 M.S.P.R. 237, 240-41 (1984).
The decision by the AJ in this case is not in line with the Board’s precedential decisions.8 The AJ made a specific finding that “the intensity of the agency’s retaliatory motive was high.” That finding established the causal connection element of Webster’s defense and, thus, a prima facie case. The agency then had to present evidence and bear the burden of proof that the adverse action would have been taken absent the agency’s high retaliatory motive. See Berube v. G.S.A., 820 F.2d 396, 399 (Fed.Cir.1987) (agency must prove by a preponderance of the evidence that it would have removed employee absent the protected activity).
The question then arises: What must an agency prove to demonstrate that the adverse action would have been taken absent the retaliatory motive? It is not sufficient merely to hypothesize whether an imaginary unprejudiced supervisor, on the basis of given misconduct, would have taken an adverse action. That sterile approach divorces the decision from the reality of what has actually happened in a particular case. Instead of ignoring the evidence concerning the particular situation, a trial judge must focus on it. Reprisal can only be assessed against the entire background of the normal or routine management of a particular office as contrasted with what happened in the particular case under review. Did the agency generally tolerate the type of infraction of procedures involved? Did the charged incidents of misconduct pre-date the alleged retaliating supervisor’s knowledge of the protected activity? Can it be inferred or not be inferred that the employee was singled out for discipline? Has the agency taken adverse actions of equal severity against others for similar misconduct, where, as here, the misconduct is not unique in character? Did the supervisor react to the employee’s protected activity by actively seeking to obtain evidence of unprotected conduct which would support charges against the employee; did he watch this employee more; did he provoke any misconduct? Are any sustained charges directed to the employee's poor performance of assigned duties? What has been the employee’s work record historically; his relationship with prior supervisors? Has the employee been disciplined before for the same type of conduct? These are the types of critical inquiries, answerable by objective evidence, which courts must consider in determining whether, absent the taint of reprisal, the action would have been taken. See, e.g., Transportation Management, 462 U.S. at 396-*69897, 103 S.Ct. at 2471-72; Stromfeld, 21 M.S.P.R. at 431-32; Gerlach, 9 M.S.P.R. at 277. I also believe that Warren, in speaking of an “imaginary” supervisor’s decision, could be given an interpretation in accord with the above analysis. If it is not, the decision is contrary to Supreme Court precedent and cannot be followed.
What evidence will overcome a prima facie showing of reprisal can be resolved only on a case by case basis. If the agency actually submitted evidence here which might have satisfied its burden, we do not know. Neither the AJ nor the government tells us. Indeed, the government in its brief points to no evidence of the type that overcomes a prima facie case of reprisal. The government makes only the legal argument that if the charges themselves are valid, that establishes the absence of retaliation. As previously indicated, simply because the charges of misconduct are sustained does not overcome a prima facie case of reprisal. To paraphrase Transportation Management, the agency’s proof is two-fold in an adverse action where a pri-ma facie valid defense of reprisal has been established: (1) the action must be sustainable as a legitimate management decision resting on unprotected conduct; i.e., the merits of the charges must be sustained; and (2) the agency must show that the employee would have lost his job in any event, i.e., that the routine operations and personnel policies of the office would have brought about that result. I find the AJ’s cursory analysis of reprisal to be patently insufficient9 and would require reconsideration of this issue.
Entirely missing from the AJ’s opinion here is any recognition that the agency, not Webster, had the burden to prove by a preponderance of the evidence that Webster would have been removed absent the retaliatory motive, plus a finding that the agency met that burden. See Berube, supra. As part of that burden, it is not enough to show that some disciplinary action would have been taken but that the severity of the penalty was not itself chosen as a means of reprisal. See Gerlach, 9 M.S.P.R. at 277 n. 13.
On the findings of the AJ, a prima facie case of reprisal was established. The government’s argument to overcome it, namely, that the charges are valid and serious, is legally insufficient. However, it may be that there is evidence of record not discussed by the AJ or relied on in this court that might overcome a prima facie case. Or possibly the record should be reopened. The significant point, however, is that the AJ erred, as a matter of law, in his analysis of the causation element of reprisal. Under the correct standard, different factual findings are necessary. Thus, the decision cannot be affirmed.
V
For the foregoing reasons, I disagree with the majority that the decision sustaining Webster’s removal should be affirmed. I would vacate and remand to the full board for its considered analysis of this case under its controlling precedent with which I agree.
APPENDIX
The opinion of the administrative judge on the issue of reprisal reads in its entirety as follows:
The appellant did not establish the affirmative defense of reprisal.
Reinhard U. Witiak, the Local 1770 Union President, testified that he appointed the appellant to be a union steward. He expected the appellant to be aggressive and responsive to union concerns. On cross examination he stated that he sent the appellant out to do battle with his supervisor. He stated that there was no limitation on the appellant’s right as a union steward to go outside the agency’s chain of command.
He testified that there was an interface problem between the appellant and Mr. McCain. He discussed this problem with Mr. McCain’s boss, Gary Knight. He reported that Mr. McCain was reluctant to deal with the appellant. He sug*699gested to the appellant that he confront Mr. McCain. The appellant did not take the one day training course for shop stewards until the removal notice had been issued. Mr. Witiak acknowledged that the appellant must ask for time to conduct union business.
The appellant testified that Mr. McCain had told him after a successful grievance, that, “You don’t know your place, boy.” The appellant testified that he wrote to Senator Helms and that he contacted United States Postal Service Inspector Hatch and made complaints about Mr. McCain.
I thus find that the appellant engaged in protected activities. The appellant’s supervisors were aware of the protected activity and had actively discouraged the appellant from going outside the agency’s chain of command. Six of eleven specifications were not sustained and of the five specifications sustained, four involve Mr. McCain. I thus find that the adverse action under review could, under the circumstances, have been retaliation. The appellant has satisfied the first three elements of the reprisal test.
The fourth element of the reprisal test requires me to carefully examine the intensity of retaliatory motive and weigh that intensity against the gravity of the misconduct to determine if there was a genuine nexus between the retaliation and the adverse action. Warren, 804 F.2d at 658.
I must find in this case that the intensity of the agency’s retaliatory motive was high. I additionally note that the appellant’s supercilious and boastful demeanor generated some personal animus with his supervisors. Additionally, the appellant actively sought to confront his supervisor at every opportunity. I must now weigh this high intensity retaliatory motive against the gravity of the misconduct.
Five of the eleven specifications were sustained after my de novo review. Four of these specifications involve incidents with Mr. McCain. The other involved the incident with Lt. Perna. Lt. Perna reported the incident herself. The four incidents involving Mr. McCain all involve active misconduct on the appellant’s part. I thus find that an imaginary supervisory who was unaware of the appellant’s protected conduct would conclude from the objective facts that an adverse action was warranted. This affirmative defense must fail.
Chief Judge Nies assumed the position of Chief Judge on June 27, 1990.
. Where an incorrect legal standard has been applied which requires different or additional factual inquiries from those undertaken by the factfinder, the matter must be referred back for such findings. Panduit Corp. v. Dennison Mfg. Co., 810 F.2d 1561, 1565, 1 USPQ2d 1593, 1595 (Fed.Cir.), cert. denied, 481 U.S. 1052, 107 S.Ct. 2187, 95 L.Ed.2d 843 (1987).
. The AJ recognized that "insubordination” requires an "open refusal to follow supervisory directives.”
. Webster processed the mail correctly under the provision of a DOD Manual but not in accordance with the Fort Bragg local procedure instituted by Supervisor McCain.
. The attempt to break down the defense further into four elements as in Warren has merely created confusion. Element (2) is stated as "the officials involved in the adverse action knew of the protected activity.” To state the obvious if the officials did not know of the employee’s activity, such activity could not possibly have motivated the agency to take any action. The element is subsumed in causation. The clearest statement of the elements of reprisal I have noted is the following from the opinion in EEOC v. Locals 14 and 15, Intern. U. of Oper. Eng, 438 F.Supp. 876, 881 (S.D.N.Y.1977):
[9] In order to establish retaliation ..., the plaintiff must establish three elements:
(1) protected (activity] ... known by the [employer];
(2) an employment action or actions disadvantaging a person or persons engaging in protected activities; and
(3) a causal connection between the first two elements, that is, a retaliatory motive playing a part in the adverse employment actions.
. To the extent the statements in Warren are not dicta, I would seek in banc to overrule them.
. In so doing, the Supreme Court noted that this allocation of the burdens of proof did not shift the burden of persuasion on the question of whether the employer fired [the employee] at least in part because he engaged in protected activities, and on that grounds distinguished Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), a case which decided the question of who had the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated under Title VII of the Civil Rights Act. Transportation Management, 462 U.S. at 400 n. 5, 103 S.Ct. at 2473 n. 5.
. The board also quantified the degree of retaliatory motive as "significant.” Id.
. Only full board decisions are precedential at the board level. The majority overturns the full board reprisal standard discussed above because of Warren even though Warren approves the analysis in Frazier. See 804 F.2d 657-58. I find our precedent at best confusing and would undertake to clarify it in this case.
. The entirety of the analysis is set out in the attached appendix.