The US Merit Systems Protection Board (MSPB or the Board, www.MSPB.gov) has a jurisdiction over certain federal employment personnel actions. (For private employment cases, see EEOC process.)
EEO claims can be filed as affirmative defense in a MSPB appeal. See mixed cases.
Affirmative defense is a claim that, even if the agency meets its burden of proof on the merits of its decision, an action may not be sustained, if the appellant proves by preponderant evidence that:
(1) In arriving at its decision, the agency committed harmful procedural errors in the application of its procedures.
(2) The decision was based on a prohibited personnel practice as described in 5 U.S.C. § 2302(b), including unlawful discrimination or reprisal; or
(3) The decision was not in accordance with law.
Brown v. Department of the Navy, M.S.P.B. No. DC-0752-19-0634-I-1, 2020 WL 767483 (Feb. 13, 2020) (nonprecedential init. December.) (citing 5 U.S.C. § 7701(c)(2) and 5 C.F.R. § 1201.56(a)(2)(iii), (b)).
Since Agency bears the burden of proof that it considered the Douglas Factors (in Chapter 75 issues), alleging violation thereof is not affirmative defense.
MSPB has jurisdiction over Independent Right of Action (IRA) appeals.
IRA appeals contain whistleblower retaliation complaints involving non “otherwise appealable” actions (see below). Prior to filing an IRA appeal, you must first “exhaust” administrative remedy. See IRA appeals.
Otherwise Appealable Actions
MSPB has jurisdiction over federal Agency’s personnel actions involving reduction in grade or pay, removal, suspension of more than 14 days (“without duties and pay”)—see 5 U.S.C. § § 7501(2), 7511(a)(2), 7512(2)—furlough of 30 days or less, and other appealable actions. See 5 U.S. Code § 7512. These personnel actions are called “otherwise appealable” actions, meaning that they are directly appealable to MSPB without having to “exhaust” administrative remedies, such as filing an OSC whistleblower retaliation complaint or EEO discrimination complaint. If you are terminated or suspended without pay for more than 14 days, you should appeal to MSPB. Non-managerial Postal employees and Title 38 VA employees are generally excluded from MSPB appeals.
Exceptions: Title 38 employees and non-managerial Postal employees can file MSPB appeal, if they are alleging whistleblower retaliation.
Most “otherwise appealable” actions fall into the following six categories:
Reduction in grade or removal for unacceptable performance, including constructive discharge. See MSPB AJ's order regarding the standard for establishing constructive discharge claim (selections).
Removal, reduction in grade or pay, suspension for more than fourteen (14) days, or furlough for thirty (30) days or less for cause that will promote the efficiency of the service.
Separation, reduction in grade, or furlough for more than 30 days, when the action was effected because of a reduction-in-force.
Reduction-in-force action affecting a career appointee in the Senior Executive Service.
Reconsideration decision sustaining a negative determination of competence for a general schedule employee.
Disqualification of an employee or applicant because of a OWCP suitability determination (even for non-managerial US Postal Service employees). See a decision by MSPB AJ involving USPS worker and denial of light duty and reasonable accommodation.
From the EEOC Management Directive (EEO-MD-110)("MD-110"), Chapter 4, I(B)(2), as modified.
See Title 5 C.F.R. § 1201.3 governing MSPB jurisdiction.
The MSPB appeal form (185), contains useful information regarding its jurisdiction and the types of federal employment laws the MSPB enforces.
Chapter 43 Violation
MSPB appeals generally involves personnel actions taken against a federal employee based on the following two provisions: (1) 5 U.S. Code § 4303 (“Chapter 43”) and (2) 5 U.S. Code § 7511 (“Chapter 75”).
Chapter 43 allows the agency to remove or down grade an employee based on unacceptable performance. It sets forth procedural requirements that must be met prior to taking such an action:
The employee must be made aware of clearly defined performance standards.
The employee must be given appropriate and adequate opportunities to improve performance.
Chapter 75 Violation
5 U.S. Code § 7511 (“Chapter 75”) allows the agency to take personnel actions “to promote the efficiency of the service.” When the action involves conduct issues, Chapter 75 is generally invoked by the agency to take the disciplinary action.
In taking adverse personnel action, the agency must consider the following 12 Douglas Factors:
1. The nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated;
2. The employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position;
3. The employee’s past disciplinary record;
4. The employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability;
5. The effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s ability to perform assigned duties;
6. Consistency of the penalty with those imposed upon other employees for the same or similar offenses;
7. Consistency of the penalty with any applicable agency table of penalties;
8. The notoriety of the offense or its impact upon the reputation of the agency;
9. The clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question;
10. Potential for the employee’s rehabilitation;
11. Mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter; and
12. The adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.
5 U.S. Code § 7511 (“Chapter 75”) requires at least 30-day advanced notice prior to issuing a “otherwise appealable” personnel action (such as removal or suspension of 15 days or more). It also requires that the employee be afforded at least 7 days “to answer orally and in writing” the charges leveled against him or her. This provision entitles the employee to appeal the disciplinary action in question to the Merit Systems Protection Board and requires the agency to maintain “any supporting material” based upon which the action is taken and to furnish it to the employee upon request.
Other Appealable Actions
See MSPB list of other appealable actions: Appendix A.
MSPB has jurisdiction over whistleblower retaliation claims. See Whistleblowing.
MSPB has jurisdiction over violations of Veterans' Preference in hiring/promotion pursuant to Title 5 U.S.C. Section 3330a(d)(1). The Board has jurisdiction over denied promotion in retaliation for whistleblowing. See 5 U.S.C. § 2302(a)(2)(A)(i). It also has jurisdiction over denied promotion in discrimination based on uniformed service. See 38 U.S.C. §§ 3311, 4324.
US Postal employees cannot appeal to MSPB unless he or she is a managerial employee, a 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 (of light duty position) 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).
Probationary federal employees can appeal on a limited bases (i.e., on issues involving adverse 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).
MSPB has jurisdiction over appeals from Office of Personnel Management (OPM) reconsideration decisions.
See MSPB Hearing for more on jurisdiction. Also see mixed cases for related information.
A sample of MSPB appeal statement (involving removal for excessive absence in violation of Douglas Factors) can be purchased at the Store.
When you file an appeal with MSPB via online (MSPB.gov), you should fill out the online form and submit it along with supporting documents. However, you are afforded to submit your designation of representative form and only the following three documents (if appealing Agency’s removal action): the notice of proposed removal, the notice of removal decision, and the notice of personnel action (SF 50). However, other documents, such as Appeal Statement, can be combined with one of these documents and be submitted as a single file (containing several support documents).