© Copy right by EEO 21, LLC 148 E Street Road, Suite 321, Feasterville, PA, U.S.A. |
The US Merit Systems Protection Board (MSPB or the Board) has a jurisdiction over certain federal employment issues. (For private employment cases, see EEOC process.) MSPB has jurisdiction over federal Agency actions involving reduction in grade or pay, removal, suspension of more than 14 days, furlough of 30 days or less, and other appealable actions.
5 U.S.C. Section 3330a(d).
supervisory employee, or a personnelist; or is eligible for veterans' preference. See 5 U.S.C. Chapter 75 governing MSPB's jurisdiction. However, he or she may appeal to MSPB if he or she is partially recovered from a compensable injury such as injuries pertaining to the Workers' Compensation Program. See 5 C.F.R. Section 353.304(c). Under certain circumstances, a restoration may be so unreasonable as to constitute a denial of restoration that is within the MSPB's jurisdiction. See Myrick v. US Postal Service, 21 M.S.P.R. 79, 81 n.2 (1984).
actions mentioned above involving partisan politics and other violations, but not for discrimination under Title VII or violation of Douglas Factors; see Title 5 C.F.R., §315.806).
decisions. See 5 U. S. C. § 8461(e)(2); 5 C. F. R. § 841.308. The MSPB appeal form (186), http://mspb.gov/howtoappeal.html, contains useful information regarding its jurisdiction and the types of federal employment laws the MSPB enforces.
justify its action adversely taken against you for which you have appealed to the Board. In addition to discrimination matters, the Douglas Factors, the Prohibited Personnel Practices, and other issues under the Board jurisdiction are appealable to the Board. MSPB may consider issues involving unlawful discrimination in a "mixed case" (including termination as result of denied reasonable accommodations in a disability discrimination case). You must raise discrimination as part of your affirmative defense. If you do, you assume the burden of proof for establishing discrimination. (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)." Sited 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, if raised, involving discrimination claims (in a case within the MSPB's jurisdiction such as a "mixed case"). 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 suspension of 15 days or more was the culmination of the continuing discriminatory practice by the Agency. Note: MSPB (or "the Board") does not recognize or may not be aware of the Agency's (EEO) Investigative File, including the Report of the Investigation or Final Agency Decision rendered on EEO matters, unless you submit it (or parts of it) to MSPB as evidence before the hearing. Once your appeal is accepted, the MSPB administrative judge issues an Acknowledgment Order and Scheduling Order to set up a pre-hearing conference and a hearing. These Orders must be adhered to, as they contain important deadlines. If you miss the deadlines, your case may be severely weakened as result. The Order governs the protocols pertaining to the entire hearing process and proceeding. It contain s the important deadlines pertaining to filing a motion, responding to a motion, pre-hearing requirements, etc. (See below for more detail.) See a sample of Acknowledgment Order.
MSPB hearings move swiftly.
can be exercised by engaging in the discovery authorized by the judge via Acknowledgment Order, which involves serving the Agency counsel your Interrogatories and Request for Production of Documents. The discovery request must be initiated within 20 days of issuance of the Acknowledgment Order. See discoveries for more information. The Agency is required to file its narrative response to your appeal within a certain days of your appeal. Th e Agency narrative response, along with the attachments therein, is admitted as part of the Board's record, which can be referred to during the hearing or in the motions you may file. In a similar fashion, you will be asked to file a pre-hearing report. Your pre-hearing report should include an inventory of documents and a list of witnesses and their contact information; statement of facts and argument; and supporting documents you want to submit as part of record. Documents in your pre-hearing report should be marked with a set of tabs different from the Agency's tabs. (See the Acknowledgment Order for specific guideline.) All submissions must be served to the judge and to the Agency's designated counsel with a certificate of service attached. There is a short discovery period within which you can send interrogatives for the Agency's decision maker to respond and can demand the Agency to produce documents. The Agency will most likely require you to respond to its interrogatories and request for document production as well. Discovery requests must be sent to the agency counsel, not to the judge. Any problems or unresolved issues during the discovery period can be addressed by filing a motion to the judge. (More on discovery requests and how to obtain documents and information from the Agency.) At the pre-hearing conference--which is usually conducted by phone among the judge, you (the appellant) and Agency counsel--the issues to be addressed at the hearing are identified and determined (issues involving discrimination, Douglas factors, Prohibited Personnel Practices, and others); and witnesses and evidence admission are disputed, agreed upon, and/or ruled by the judge. After the pre-hearing, the judge may issue a conference report summarizing the pre-hearing discussions, determinations, and on what was agreed upon by both parties. At the MSPB hearing (which can also be conducted via phone or video conference) the judge announces the issues to be examined. The order of the witness appearance may be decided. The witnesses are questioned, cross-examined, and re-addressed. Evidence are presented or referred to from the prior submissions admitted into record. The closing arguments from both sides are heard. Judges like to complete the hearing within a day or two. The hearing transcript may be purchased from the Board once it is made available.
only address issues involving judge's legal errors involving application of law or procedures and on judge's unethical conduct, if any. If and when the Board issues a decision on a "mixed case," the appellant may petition EEOC (Office of Federal Operations) for review of the Board's decision concerning discrimination claims only.
or for other valid reasons.
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 |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
| |
 |
MSPB & EEOC hearings, OFO appeals, informal and formal discrimination claims Non attorney uniquely serving nationwide from Philadelphia |
