Posted on January 31, 2018 in
Labor and Employment
Should the former or current federal employee with an EEO issue file a “mixed case” in the MSPB? Federal employees who have been dismissed, demoted, or suspended without pay for over 14 days have the right to appeal to the MSPB.
If the employee attributes the adverse action to bias, in whole or part, based upon Title VII, age, or disability in violation of federal anti-discrimination laws, it is a mixed case if related to or stemming from an action that can be appealed to MSPB. However, the mixed case claim cannot be made to both the Agency and the MSPB. An earlier claim has priority and the later claim is subject to dismissal. Any alleged discrimination issue can be determined by the MSPB in a mixed case appeal if the MSPB acknowledges jurisdiction under the Civil Service Reform Act of 1978, and finds no procedural defect in the EEO claim. On non-mixed case appeals before the MSPB, a final adverse decision must be appealed to the Court of Appeals for the Federal Circuit. If there is an adverse decision on an EEO issue in a mixed case by the MSPB, the employee can petition for review to the EEOC Office of Federal Operations or file directly in federal district court.
You may call and speak with Bev Bates at 404-262-6272. His office is located at 3151 Maple Dr., NE, Atlanta, GA 30305, where he has been located since 1992. He began private practice in 1974, co-founding Bates & Baum. Before that he argued and briefed court-martial appeals for 4 years in Army JAG and served 8 years as assistant U.S. Attorney, Northern District of GA, Atlanta.