Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.
A case at the Merit Systems Protection Board (MSPB) is scheduled for a jurisdictional hearing after the Board reversed an administrative judge’s dismissal for lack of jurisdiction. At the same time, the case is pending appeal to the Office of Federal Operations on dismissal from the Equal Employment Opportunity Commission (EEOC), which originally dismissed the complaint because of the previous MSPB decision on jurisdiction.
The filer wants to pursue the EEO if the pending appeal is ruled in his favor. How does he protect his rights to MSPB while the EEO decision is pending, in case EEO rules against him on the mixed case issue? Would MSPB entertain a motion to dismiss with prejudice until the Office of Federal Operations rules on the processing of the complaint?
The answer depends on whether MSPB has jurisdiction. This question can only be answered by the MSPB. You may raise all your EEO issues at the MSPB, but you may not receive a hearing at the EEOC on an issue when the MSPB has jurisdiction.
Bill Bransford is managing partner of Shaw Bransford & Roth PC.
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