In Stoll v. Department of Veteran Affairs, 449 F.3d 263 (1st Cir. 2006) the First Circuit affirmed a district court’s dismissal of a former Veteran Affairs employee’s lawsuit. The court held that the employee must wait until the Merit Systems Protection Board issued its final decision before pursuing the matter in federal court. Further, the court found that because the plaintiff elected to pursue the matter at the Board, she had forfeited her right to begin the process anew through the EEOC process.

The plaintiff was a human resource employee in the Veteran Affairs Medical Center in San Juan, Puerto Rico until her termination in September 2001. She alleged that the agency created a hostile work environment and discriminatorily discharged her because of her age (59) and deteriorating health. After her discharge, she filed an administrative appeal to the Board, which subsequently upheld the termination. In the course of appealing the Board’s initial decision, the plaintiff contacted the Veteran Affairs EEO office and filed a formal complaint. The agency dismissed the complaint, and the Commission upheld the dismissal because there was a pending proceeding before the Board.

Still awaiting the final decision of the Board, the plaintiff filed suit in federal court. The district court dismissed her claims of age and disability discrimination for a failure to exhaust administrative remedies. The First Circuit affirmed, finding “once a government employee elects to pursue a mixed case before the Board, she is obliged to follow that route through to completion, to the exclusion of any other remedy that originally might have been available.” Thus, because she sought review from the Board, she was barred from “switching horses” and pursuing the EEO route, and was required to wait for the Board’s final decision to pursue judicial review.

A federal employee, or former employee, who has suffered an adverse employment action has two means of challenging that action: 1) filing an administrative appeal to the Board, or 2) lodging an EEO complaint with their agency. Once an individual has formally selected either forum, they have reached the “point of no return” and must exhaust their claim in that chosen forum. In this case, the plaintiff elected to pursue review of her discharge with the Board. Having done so, the door to filing an EEO complaint shut, and subsequent review by the Commission could only occur after the Board issued a final decision.

The court also reminds us of the need to adhere strictly to all administrative requirements. In the above case, the Board affirmed the VA’s decision to terminate, and the employee appealed that decision for further review. Prior to receiving the Board’s final decision, the plaintiff “jumped the gun” and filed suit in federal court. This action was premature and led to the dismissal of her claims. As the First Circuit explained, the plaintiff had two options for judicial review, both of which required her to wait until receiving the Board’s final decision. First, she could have appealed the Board’s final decision to the Court of Appeals for the Federal Circuit for review. Secondly, because this is a mixed case, she could have filed a civil action in the appropriate district court within thirty days of receiving the Board’s final decision. In either event, a complainant must wait for the Board’s final decision. In this case, the plaintiff failed to wait for the Board’s final decision; therefore, she had not exhausted her administrative remedies and her federal suit was premature.

This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide.

The attorneys at Passman & Kaplan, P.C, are also the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. This book has been selling for $49.95 plus s&h for over two years, but as a special offer to FEDweek readers, we’ve reduced the price to only $29.95 plus s&h.