Fedweek Legal

If you are faced with an adverse action, e.g., a suspension of 15 days or more, a demotion, or a removal, you have to elect of a choice of forums to contest the action. The options are to file an appeal directly with the Merit Systems Protection Board or to pursue a discrimination complaint through the EEO process. If you alleged discrimination and choose to file an EEO complaint, you will still have your hearing before the MSPB following an EEO investigation by the agency. A more direct option is to file a “mixed case” appeal to the MSPB where you can challenge the merits of the adverse action as well as litigate any affirmative defenses such as discrimination or reprisal for whistleblowing. About the only advantage of filing an EEO complaint is to obtain the EEO Report of Investigation prior to the MSPB hearing, but be advised, this will result in an additional delay.

If you are covered by a collective bargaining agreement, you also may file a grievance under the negotiated grievance procedure and then take the case to arbitration if the union is willing to do so. Once you file a written grievance, you can no longer file with the MSPB or pursue an EEO complaint. Likewise, if you file an MSPB appeal, you can no longer use the negotiated grievance procedure. Before filing a formal grievance, it is best to obtain the union