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    The US 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 appealable actions.  Or see Title 5 C.F.R. § 1201.3.

    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 Title 5 C.F.R., §315.806).  

    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 a
    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.
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