EEOC denies federal employee request to vacate MSPB decision. Complainant, an employee of the Department of Veterans Affairs (VA), filed an appeal with the Equal Opportunity Commission (EEOC) from a decision by the Merit Systems Protection Board (MSPB).

Complainant had proceeded with a “mixed” case at the MSPB. The mixed case included claims of disability discrimination, hostile work environment and constructive discharge under the Rehabilitation Act. The MSPB dismissed the disability claims from Complainant’s mixed case. The Complainant asked the EEOC to vacate the MSPB decision. The EEOC’s Office of Federal Operations (OFO) held that it had no authority to vacate the MSPB decision.  However, Complainant could pursue those claims in an EEOC proceeding.

Sheila D. v. Dep’t of Veterans Affairs, EEOC Petition No. 2021001103 (Feb. 24, 2021)

The case shows some of the complexity in cases where both MSPB jurisdiction and EEOC jurisdiction overlap. The MSPB can hear traditional EEO matters as a “defense” if there is a personnel action that provides MSPB with the authority to hear the case. So, the MSPB cannot hear a case based only on EEO matters, but can hear EEO matters that relate to a case it can hear.

The law in this area is complex and the decision on how to proceed with a mixed case are complex. You need an experienced federal employee attorney to help. Attorney Kirk J. Angel has been representing federal employees in EEOC and MSPB hearings for more than a decade. If you need help, set a free 15 minute consultation with him today.