Fedweek Legal

“Mixed” cases are procedurally very complicated. In civil service adverse actions, such as suspensions of 15 days or more, demotions, or removals, federal employees may appeal such actions to the Merit Systems Protection Board. The Board does not have the power to hear most discrimination cases, however, which usually are heard by the Equal Employment Opportunity Commission. When a federal employee alleges that an adverse action, e.g., a removal, is discriminatory, the employee may have an EEO investigation of the removal, may appeal the removal to the Board for a hearing, and then may appeal the Board’s decision on the discrimination issue to the Commission. This is a lengthy, expensive and time-consuming process that has had a chilling impact on federal employees’ ability and desire to pursue mixed cases for the long haul.

In a recent case in the U.S. Court of Appeals for the Eleventh Circuit, a federal appellate court has ruled once again that courts may review both the discrimination claim and the civil service claim simultaneously. In Kelliher v. Veneman, (11th Cir., No. 02-11817, 11/13/022), appellant alleged at the MSPB that his removal from the U.S. Department of Agriculture was discriminatory. The MSPB disagreed, and Mr. Kelliher appealed to the courts.

The appellate court ruled that the discrimination allegations must be reviewed de novo as the former employee is entitled to a jury trial. The trial court and jury should review and weigh the evidence of discrimination and should make their own determinations as to whether the employee was subjected to discrimination when he was fired. On the issue of whether the termination and the penalty were just, the trial court does not have as much discretion. When reviewing the civil service claims in a mixed case, the district court will only decide whether the agency action was arbitrary and capricious. The court will not substitute its own judgment for that of the agency managers who made the decision to terminate the employee. Based upon these standards, the Eleventh Circuit did not find that appellant was the victim of an arbitrary or discriminatory removal.

** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com. **