Ask The Lawyer

By Debra Roth

In filing complaint, be careful in choosing appeals process

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The Merit Systems Protection Board and the Equal Employment Opportunity Commission are independent agencies that hear and resolve employee workplace complaints. They have different but sometimes overlapping jurisdictions, and an uninformed decision about which forum to choose can sometimes lead to disappointment, unanticipated delay and a surprise about where the employee’s complaint is heard.
EEOC’s mission is to eradicate illegal discrimination from the federal workplace, while the MSPB’s mission is to protect the merit system, which can include adjudicating prohibited personnel practices. Since it is a prohibited personnel practice to illegally discriminate, MSPB will also hear and decide discrimination cases that are within its jurisdiction.
EEOC can hear a wider range of cases than MSPB. EEOC will hear any case that concerns a complaint about terms and conditions of employment, such as hiring, firing, demotion, loss of benefits, nonselection for promotion, disciplinary actions, negative performance ratings, significant reassignments or a hostile work environment, if the hostile work environment alters the terms and conditions of employment.
MSPB considers adverse actions involving suspensions of 15 days or more, demotions or removals. MSPB also hears whistle-blower reprisal cases, retirement claims, reduction in force appeals and several other types of specific claims.
Most of the EEOC-MSPB overlap is in the adverse action area, when an employee claims he or she was demoted, suspended or fired for a discriminatory reason.
The first consideration if determining where to file a complaint is to decide if your particular workplace complaint is within MSPB’s jurisdiction. For example, you might receive an unsatisfactory performance rating, followed by a performance improvement plan (PIP), followed by a removal.
The unsatisfactory rating is definitely within EEOC’s jurisdiction but not MSPB’s, unless you also claim whistle-blower reprisal. The performance improvement plan is a preliminary matter and is not within EEOC’s jurisdiction unless it is retaliatory for prior EEO activity, or part of a pattern of a hostile work environment. The removal is within the jurisdiction of both MSPB and EEOC.
So, you see, this gets complicated and is important, because you only get to choose one process.
To complicate things further, Congress dealt with this overlapping jurisdiction by creating “mixed cases.” An employee who has a mixed case can choose either process, but not both.
The biggest difference between the two agencies is that MSPB usually decides cases quickly, within about four months. EEOC can take years if the case includes a hearing in front of an EEOC judge. But in a mixed case, there is no hearing in front of an EEOC judge. The hearing is always eventually at MSPB.
An employee who has been separated and who chooses the EEOC process may not receive an initial decision for about a year. During this year, the employee does receive a Report of Investigation on the EEOC part of the case, which can be helpful in adjudicating the discrimination part of an adverse action appeal at MSPB. The issue is: Is it worth the delay?
In our hypothetical example, the unsatisfactory rating and the PIP (if it is retaliatory or part of a pattern of a hostile work environment) will proceed through the entire EEOC process, including a separate hearing before an EEOC administrative judge. This can be long, arduous and frustrating.
The mixed-case process is difficult to navigate without a lawyer. In choosing where to file a complaint, be aware that most workplace disputes are not sufficiently severe to fall within MSPB’s jurisdiction. If you choose EEOC, remember that you will have to prove discrimination to ultimately win there, and that can be difficult.
At MSPB, if your case is within its jurisdiction, you can win without proving discrimination, but you must show the agency action is without merit or is tainted with harmful procedural error or a prohibited personnel practice.

Comments

  1. Ed Says:
    September 20th, 2012 at 3:44 pm

    Got it, clear as mud!