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EEOC Grants Federal Employee Renewed Investigation After MSPB Dismissal. Complainant filed an appeal to the EEOC from a Final Agency Decision (FAD) dismissing his claim of discrimination for prior EEO activity.

He had previously filed an appeal with the Merit Systems Protection Board (MSPB) alleging Agency denied him with grade increases. Agency dismissed EEO claim because Complainant elected to bring his claim to the MSPB. Agency argues that FAD should be affirmed because Complainant chose to bring his claim to the MSPB and his case was still pending.

While EEOC was considering the case, the MSPB issued an initial decision. MSPB noted when Complainant should have received step increases and that Agency late processed step increases with back pay. However, MSPB dismissed Complainant’s appeal for lack of jurisdiction. EEOC explains that when jurisdiction is at issue with an MSPB and EEO case, Agency should hold complaint in abeyance until jurisdiction is resolved. If MSPB finds no jurisdiction, Agency should treat complaint as a normal EEO complaint. Applying these standards, Agency must resume investigation of complaint, nullifying FAD.

Garret W. v. Chad F. Wolf, Secretary, Department of Homeland Security, https://www.eeoc.gov/sites/default/files/decisions/2020_12_07/2019004937.pdf

If you need an experienced attorney who has handled hearings with the MSPB or EEOC, reach out to us. You can set a free 15 minute consultation with Attorney Kirk J. Angel right on our website at: https://theangellawfirm.com/federal-employees