I often joke with people that if you get a chance to drive in New York City…Don’t!  I could say the same about if you get the chance to litigate a federal employee wrongful termination and discrimination mixed case, except I am not sure I would be joking when I said do not do it!  Indeed, many courts have quipped about the many landmines and mass confusion that occurs trying to decipher which court should have jurisdiction over such cases.  Perhaps a small bit of clarity will occur soon as the Supreme Court has the case of Kloeckner v. Solis, Labor Secretary (DOL) on the docket.    

The facts behind the case involve Carolyn Kloeckner believing that she was the victim of age and sex discrimination.  Based upon this belief, she filed an equal employment opportunity (EEO) charge.  After filing the charge, she did not return to work and was ultimately terminated.  The termination prompted her to amend her EEO allegation to include retaliation and also to file an Merit System Protection Board (MSPB) appeal.  However, she dismissed the MSPB appeal without prejudice about a month later and the Board gave her a deadline to re-file should she desire.  The EEO process did not go as she had planned and having the option of either appealing the adverse ruling into a federal district court or to the MSPB (but not both), she decided to re-file the MSPB appeal.   Unfortunately for her, the Board deemed the re-filing to be untimely and dismissed the appeal.  She then figured that since the MSPB did not take on the appeal, she was free to file in a federal district court and pursue her discrimination claim.  Think again, as the 8th circuit court said not so fast my friend!  The court ruled that when she filed with the MSPB, her case, which involved a discrimination element, the dismissal of the appeal necessitated that she appeal to the Federal Circuit and not to the federal district court.

This is the important sticking point because the appeal was dismissed on procedural grounds and never reached the merits of her discrimination claim (or her wrongful termination claim for that matter).   Normally, in a mixed case where there are discrimination and nondiscrimination issues at play, once the MSPB issues a decision on the merits, the aggrieved complainant can file a de novo appeal to any federal district court with jurisdiction.  However, until the MSPB reaches a decision on the merits, any appeal as to procedural or other threshold matters has been deemed appealable to the federal circuit court, where the appeal is reviewed on an abuse of discretion (much higher standard so much more difficult for the appealing party to succeed) standard. 

Confused yet?  It gets better.  The circuit courts have been struggling over issues like when is a MSPB decision “on the merits” versus merely procedural, and what exactly determined a “case of discrimination” that triggers this whole jurisdictional conundrum?  Can Carolyn’s case be deemed a case of discrimination before the MSPB when the MSPB never even considered the merits of her claim in dismissing it immediately upon filing as untimely?  Should she be left with going through an appeals process where she can only deal with the timeliness issue and may never get to have the discrimination arguments heard by a court (the 8th Circuit Court noted that even if she could have appealed to the federal district court, they would have only been able to deal with the timeliness issue and not the merits of her argument anyway.  However, if this is true the court would have at least reviewed that issue on the lower de novo standard).  Joining the 8th circuit’s analysis is the 9th, D.C., and 5th circuit – with the 6th and 7th circuits appearing to be in concert with them but not having dealt with this precise issue.  On the other side of the street the 2nd and 10th circuits have reached decisions favorable to Carolyn Koeckner’s analysis. 

The question presented to the Supreme Court is:  If the MSPB decides a mixed case without determining the merits of the discrimination claim, is the court with jurisdiction over the claim the Court of Appeals for the Federal Circuit or a district court?  All of this confusion is emanating from sections 7702(a)(1) and 7703(b)(2) of the Civil Service Reform Act of 1978 (CSRA). 

While the CSRA obviously needs amended to clear up this nightmare, I do not see that happening in the near future.  Therefore, hopefully a SCOTUS decision will add a tad more clarity to this confusing issue.  I think the best option is to eliminate the MSPB’s ability to rule on discrimination cases.  The administrative law judges could consider the evidence if they wish but those issues would not control the decision making as to whether or not the person was wrongfully terminated and deserved a financial remedy and/or or reinstatement.  The discrimination issues would be left to the EEO process to decide.  It may create a situation where an employee could then appeal a decision from the MSPB to the Federal Circuit and an EEO decision to a district court, but this is no different than a private sector employee that can appeal an unemployment compensation denial (with a similar just cause standard and that similarly can here but does not need to consider discrimination arguments when deciding a case) to court and also file a discrimination or retaliation case in federal district court after an EEOC ruling. 

Alternatively, a system could be created where a person who has filed with the EEO and later gets terminated has to decide whether to stay in the EEO process or to appeal to MSPB and lose the ability to simultaneously pursue the EEO process into court.  This would basically leave the MSPB process as the sole remedial path for the employee and would not be any different than what federal courts normally allow when they let employees sign away their rights to litigate their Title VII causes of action in court and instead have to use the arbitration as the forum.  Is there truly a major difference between an arbitral forum and the MSPB?  Both processes allow for some discovery, a hearing and the ability to question and cross examine witnesses. 

Whatever happens with the case, Congress needs to eventually step in and clear up this issue and create a more clear path to case resolution than the chaos that currently exists.  If you actually read this entire blog post and still think about litigating these cases, I have a therapist I would like to introduce you to!