EEO 21, MSPB appeal hearing and representation

The

Merit Systems Protection Board

(MSPB or the Board) has a jurisdiction over certain federal

employment issues. (

See EEOC process for private employment issues.)

MSPB has a jurisdiction over reduction in grade or pay, removal, suspension for more than 14 days,

furlough for 30 days or less, and other

. Or see

Probationary federal employees can appeal on a limited bases (for partisan politics and other

violations,

not for discrimination under Title VII or violation of Douglas Factors; see

The MSPB appeal form (186),

http://mspb.gov/howtoappeal.html

contains many useful informations

regarding jurisdictions and the types of federal employment laws the MSPB enforces.

The Agency, as the defendant, has the burden of proof before the Board's administrative judge to

justify its

decision to suspend or remove you. The Douglas Factors, or Prohibited Personnel

Practices, among

others, are examined by the Board.

MSPB may consider issues involving unlawful discrimination or "mixed cases" (including the denied

reasonable accommodations in a disability case). You must raise discrimination as part of your

affirmative defense. If you raise an affirmative defense, you assume the burden of proof.

(Generally, "constructive discharge" issues involving non-probationary federal employees are

appealable

only to the MSPB, and not to EEOC. See EEOC's Equal Employment Opportunity

Management Directive;

29 C.F.R. Part 1614, (EEO-MD-110) ("MD-110"), Chapter 4, Section II.B.,

pages 4-2 through 4-5. "When

allegations of discrimination are alleged in connection with an

alleged involuntary resignation or

retirement, they may be addressed only insofar as they are related

to the issue of voluntariness. The

Board will not consider whether such evidence meets the test for

proof of discrimination established

under the civil rights laws ... or ... on prohibited personnel

practices. See ...71 MSPR 574, 578-80 (1996);

... 53 MSPR 434, 438-39 (1992)." -- From a Judge's

conference report (SF 0752-07-0642-I-1).)

Any and all disciplinary actions less than 15-day suspensions are not considered by MSPB except as

background information or as part of the affirmative defense involving discrimination. You can

present

disciplinary actions of less than 15-day suspensions to establish the pattern of

discriminatory practice, if

you want to argue that your removal or 15 day suspension was the

culmination of the continuing

discriminatory practice on the part of the agency. Be advised that MSPB

does not recognize as part of its

record the Agency's (EEO) Investigative File, including the Report of

the Investigation or Final Agency

Decision, unless you submit it (or parts of it) to the Board as

evidence during the pre-hearing phase.

Once your appeal is accepted, the MSPB administrative judge schedules a pre-hearing conference

and a

hearing and issues the guidelines (orders) and deadlines pertaining to submissions,

motions, etc. The

Agency is supposed to file its response to your appeal to the MSPB including its

supporting documents.

This Agency file is admitted as part of the Board's record. In a similar

fashion, you will be asked to file a

pre-hearing report. Your pre-hearing report should include the list

of witnesses and their contact

information; statement of facts; and supporting documents to be made

part of the Board's record (if not

already contained in the Agency's submission). Documents in your

pre-hearing report should be marked

with a set of tabs different from the Agency's tabs. All

submissions must be served to the judge and to the

Agency's designated counsel with a certificate

of service. There is a discovery phase where you can send

interrogatives for the Agency's decision

maker to respond and can demand the Agency to produce

documents. The Agency may require you

to respond to its interrogatories as well.. Discoveries and

evidence admissions should be dealt with

directly with the Agency counsel without the judge's

involvement. Any problems or unresolved issues

during the discovery period must be resolved by the

judge via motions filed to the judge.

At the pre-hearing, which can be conducted via phone or video conference, the issues for the hearing

are

identified and determined (issues involving discrimination, Douglas factors, Prohibited

Personnel

Practices, and others); and witnesses and evidence are agreed to. After the pre-hearing,

the judge may

issue a summary of the pre-hearing discussions, determinations, and on what was

agreed to by both

parties.

At the hearing, which can be also conducted via phone or video conference, the judge announces the

issues to be examined. The Agency sets the order of the witness appearance. The witnesses are

questioned, cross-examined, and re-addressed. Evidence are presented or referred to from the prior

submissions. The closing arguments are heard. The hearing transcript may be purchased from the

Board once it is made available.

Once the MSPB or the Board issues its decision on a "mixed case," the appellant may petition EEOC

for

review of the Board decision concerning the claim(s) of discrimination.

Related website:

US Office of Special Counsel (OSC)

The information contained in this page are subject to change and update.

EEO 21

does not take responsibility for

any

errors or misrepresentation contained therein.

MSPB Hearing

EEOC filing, EEO representation

MSPB & EEOC hearings, OFO appeals

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