EEOC Does Not Determine Authority of MSPB in Cases

An administrative judge from the EEOC may be an expert on EEO cases but that does not carry over into the expertise of the Merit Systems Protection Board. When an EEOC administative judge told a federal employee he could appeal to the Board, the MSPB and the courts did not hesitate to correct his “misplaced” advice.

A suspension of a federal employee for more than 14 days can be appealed to the Merit Systems Protection Board. But  the Board does not have jurisdiction over a suspension of 14 days or less. So, if an employee receives two suspensions of 14 days each, then that’s 28 days and therefore appealable to the Board, right? Wrong, says the Federal Circuit in Smith v. Merit Systems Protection Board, C.A.F.C. No. 06-3097, 6/9/06.

Some HR specialist readers may be wondering why this question ever got raised to the court. The idea of adding the two suspension periods together to give the Board jurisdiction actually originated with the EEOC. Read on.

Smith was a mailhandler with the Postal Service. The agency suspended him for 14 days for failure to follow instructions. Then, a little more than a month later, the agency suspended him for another 14 days for unacceptable conduct and failure to follow instructions.

Several months after the second suspension, Smith was removed, but the court case only involved Smith’s appeals to the Board on the two 14-day suspensions.

You see, Smith started out filing two complaints with the Equal Employment Opportunity Commission, appealing the two suspensions and the later removal. The EEOC dismissed for lack of jurisdiction, indicating the MSPB was the proper forum. Here is what the Administrative Judge for EEOC actually said in his dismissal:

“The two complaints are related, because the back-to-back disciplinary suspensions totaling 28 days (in this case) culminated in Smith’s removal (in the second case).“I find that the 28-day suspension and the removal issues are appealable only to the [Board].” (quoted in court’s Opinion, p. 2)

So, Smith petitioned the MSPB to review the two 14 day suspensions. With a straight face apparently, the Board dismissed, since it had no jurisdiction to review appeals from suspensions of 14 days or less, and “two such suspensions cannot be combined to confer Board jurisdiction.” (Opinion, p. 2)

Probably by now pretty confused, Smith went to the appeals court. He argued that because he was suspended twice for 14 days and the aggregate therefore was more than 14 days, then the Board has jurisdiction. He cited the statements by the EEOC AJ as authority for the proposition of adding the two suspensions together to create Board jurisdiction. (Opinion, p. 3)

“We disagree,” said the court, calling Smith’s reliance on the statements made by the EEOC administrative judge “misplaced.”  As the court explains further,

“The statement by the administrative judge that the two suspensions and the removal action were related correctly reflects that both complaints presented ‘mixed cases’ but is of no consequence on the question of Board jurisdiction. The further statement by the administrative judge that the two 14-day suspensions ‘totaled’ 28 days is also correct but cannot alter the fact that the suspensions arose out of separate infractions, were imposed on separate dates, and extended over non-overlapping periods….The administrative judge was thus incorrect both in characterizing the suspensions as ‘back-to-back’ and in concluding that they were appealable to the Board.” (Id., pp. 3-4)


About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.