MSPB has jurisdiction over violations of Veterans' Preference in hiring/promotion pursuant to Title
    5 U.S.C. Section 3330a(d)(1).  The Board has jurisdiction over denied promotion in retaliation for
    whistleblowing.  See 5 U.S.C. § 2302(a)(2)(A)(i).  It also has jurisdiction over denied promotion in
    discrimination based on uniformed service.  See 38 U.S.C. §§ 3311, 4324.

    US Postal employees cannot appeal to MSPB unless he or she is a managerial employee, a
    supervisory employee, or a personnelist; or is eligible for veterans' preference.  See 5 U.S.C.
    Chapter 75 governing MSPB's jurisdiction.  However, he or she may appeal to MSPB if he or she is
    partially recovered from a compensable injury such as injuries pertaining to the Workers'
    Compensation Program.  See 5 C.F.R. Section 353.304(c).  Under certain circumstances, a
    restoration (of light duty position) may be so unreasonable as to constitute a denial of restoration  
    that is within the MSPB's jurisdiction.  See Myrick v. US Postal Service, 21 M.S.P.R. 79, 81 n.2
    (1984).

    Probationary federal employees can appeal on a limited bases (i.e., on issues involving adverse
    actions mentioned above involving partisan politics and other violations, but not for discrimination
    under Title VII or violation of Douglas Factors; see Title 5 C.F.R., §315.806).  



    MSPB appeals can be filed by visiting: www.mspb.gov-->File Appeal-->New Appeal.

    If an appeal is filed with MSPB, the Agency (the defendant) has the burden of proof before the Board to
    justify its action adversely taken against you for which you have appealed to the Board.  In addition to
    discrimination matters, the Douglas Factors, the Prohibited Personnel Practices, and other issues under
    the Board jurisdiction are appealable to the Board.  

    Removal Based On Unacceptable Performance

    However, when an individual is removed from federal employment based on unacceptable performance
    under the Title 5 U.S.C. Part 43 (check your SF-50 to see if Chapter 43 is cited), the Douglas Factors do not
    apply.  Rather, Agency in such cases must substantiate that: (1) the individual's performance failed to meet
    the established performance standards in one or more critical elements of his position; (2) the agency
    established performance standards and critical elements and communicated those to the individual at the
    beginning of the performance appraisal period; (3) the agency warned the individual of the inadequacies of
    his performance during the appraisal period and gave him an adequate opportunity to improve; and (4)
    after an adequate improvement period, the individual's performance remained unacceptable in at least
    one critical element.  From MSPB AJ Patricia M. Miller's Order dated January 25, 2012.   

    Mixed Cases

    MSPB may consider issues involving unlawful discrimination in a "mixed case" (including termination as
    result of denied reasonable accommodations in a disability discrimination case).  You must raise
    discrimination as part of your affirmative defense.  If you do, you assume the burden of proof for
    establishing discrimination.

    (Generally, "constructive discharge" issues involving non-probationary federal employees are appealable
    only to the MSPB, and not to EEOC.  See EEOC's Equal Employment Opportunity Management Directive;
    29 C.F.R. Part 1614, (EEO-MD-110) ("MD-110"), Chapter 4, Section II.B., pages 4-2 through 4-5.  "When
    allegations of discrimination are alleged in connection with an alleged involuntary resignation or
    retirement, they may be addressed only insofar as they are related to the issue of voluntariness.  The
    Board will not consider whether such evidence meets the test for proof of discrimination established under
    the civil rights laws ... or ... on prohibited personnel practices.  See ...71 MSPR 574, 578-80 (1996); ... 53
    MSPR 434, 438-39 (1992)."  Sited from a Judge's conference report (SF 0752-07-0642-I-1).)

    Any and all disciplinary actions less than 15-day suspensions are not considered by MSPB except as a
    background information or as part of the affirmative defense, if raised, involving discrimination claims (in a
    case within the MSPB's jurisdiction such as a "mixed case").  You can present disciplinary actions of less
    than 15-day suspensions to establish the pattern of discriminatory practice, if you want to argue that your
    removal or suspension of 15 days or more was the culmination of the continuing discriminatory practice by
    the Agency.  

    Filing MSPB Appeal after filing a formal discrimination complaint on termination, 15 days suspension or
    more, or on any action appealable to the MSPB:

    You may file MSPB appeal within 30 days after receipt of the Agency resolution or final decision on the
    complaint or at any time after the expiration of 120 calendar days if the agency has not resolved the matter
    or issued a final decision within the 120-day period.  See 5 C.F.R. Section 1201.154(b).

    Requesting the Board Review of the Arbitration Decision involving Discrimination Claims

    In non-postal cases, requests for review of arbitration decisions properly are reviewed by the full Board
    and not by the Board’s administrative judges.  See 5 U.S.C. § 7121(d);  Ariza v. Department of Education,
    36 M.S.P.R. 54, 55 n.1 (1988).  Request for review must be sent to:

           The Clerk of the Board
            Merit Systems Protection Board
            1615 M Street, NW.
            Washington, DC  20419

    Or, if the case has MSPB docket number, e-file at www.mspb.org  File Appeal  Pleading.

    A request for review of an arbitrator’s decision must be filed within 35 days after the date of issuance of the
    decision, or, if the appellant shows that the decision was received more than five days after the date of
    issuance, within 30 days after  the appellant received the
    decision.  5 C.F.R. § 1201.154(d).  

    The scope of the Board’s review of an arbitrator’s award is limited; such awards are entitled to a greater
    degree of deference than initial decisions issued by the Board’s administrative judges.  Weaver v. Social
    Security Administration, 94 M.S.P.R. 447, ¶ 8 (2003);  Higgs v. Social Security Administration, 71 M.S.P.R.
    48, 50 (1996).  The Board will modify or set aside an arbitration decision only where the arbitrator has
    erred as a matter of law in interpreting civil service law, rule, or regulation.   Weaver, 94 M.S.P.R. 447, ¶ 8.  
    Absent legal error, the Board cannot substitute its conclusions for those of the arbitrator, even if it would
    disagree with the arbitrator’s decision.  Id.  


    MSPB Hearing

    Note: MSPB (or "the Board") does not recognize or may not be aware of the Agency's (EEO) Investigative
    File, including the Report of the Investigation or Final Agency Decision rendered on EEO matters, unless
    you submit it (or parts of it) to MSPB as evidence before the hearing.  

    Once your appeal is accepted, the MSPB administrative judge issues an Acknowledgment Order and
    Scheduling Order to set up a pre-hearing conference and a hearing.  These Orders must be adhered to,
    as they contain important deadlines.  If you miss the deadlines, your case may be severely weakened as
    result.  The Order governs the protocols pertaining to the entire hearing process and proceeding.  It
    contains the important deadlines pertaining to filing a motion, responding to a motion, pre-hearing
    requirements, etc.  (See below for more detail.)  See a sample of Acknowledgment Order.

    Judges are required to issue a decision within 180 days of appeal (to MSPB).  So, unlike EEOC hearings,
    MSPB hearings move swiftly.

    You have a right to request relevant and material information and documents from the Agency.  This right
    can be exercised by engaging in the discovery authorized by the judge via Acknowledgment Order, which
    involves serving the Agency counsel your Interrogatories and Request for Production of Documents.  The
    discovery request must be initiated within 20 days of issuance of the Acknowledgment Order.  See
    discoveries for more information.

    The Agency is required to file its narrative response to your appeal within a certain days of your appeal.  
    The Agency narrative response, along with the attachments therein, is admitted as part of the Board's
    record, which can be referred to during the hearing or in the motions you may file.  In a similar fashion, you
    will be asked to file a prehearing report.  Your prehearing report should include an inventory of documents
    and a list of witnesses and their contact information; statement of facts and argument; and supporting
    documents you want to submit as part of record.  Documents in your prehearing report should be marked
    with a set of tabs different from the Agency's tabs.  (See the Acknowledgment Order for specific guideline.)  

    All submissions must be served to the judge and to the Agency's designated counsel with a certificate of
    service attached.  There is a short discovery period within which you can send interrogatives for the
    Agency's decision maker to respond and can demand the Agency to produce documents.  The Agency will
    most likely require you to respond to its interrogatories and request for document production as well.  
    Discovery requests must be sent to the agency counsel, not to the judge.  Any problems or unresolved
    issues during the discovery period can be addressed by filing a motion to the judge.  (More on discovery
    requests and how to obtain documents and information from the Agency.)

    MSPB does not consider any motion for a decision without a hearing or for a summary judgment, as
    EEOC does.

    At the prehearing conference--which is usually conducted by phone among the judge, you (the appellant)
    and Agency counsel--the issues to be addressed at the hearing are identified and determined (issues
    involving discrimination, Douglas factors, Prohibited Personnel Practices, and others); and witnesses and
    evidence admission are disputed, agreed upon, and/or ruled by the judge.  After the prehearing, the judge
    may issue a conference report summarizing the prehearing discussions, determinations, and on what
    was agreed upon by both parties.

    At the MSPB hearing (which can also be conducted via phone or video conference) the judge announces
    the issues to be examined.  The order of the witness appearance may be decided.  The witnesses are
    questioned, cross-examined, and re-addressed.  Evidence are presented or referred to from the prior
    submissions admitted into record.  The closing arguments from both sides are heard.  Judges like to
    complete the hearing within a day or two.  The hearing transcript may be purchased from the Board once it
    is made available.

    The judge's decision may be appeal for a further review by the Board.  The Board's review, however, will
    only address issues involving judge's legal errors involving application of law or procedures and on
    judge's unethical conduct, if any.

    If and when the Board issues a decision on a "mixed case," the appellant may petition EEOC (Office of
    Federal Operations) for review of the Board's decision concerning discrimination claims only.

    Unlike EEOC hearing, MSPB hearing is open to public, unless the judge closes it for protection of witness
    or for other valid reasons.
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