Fourth Circuit: MSPB Can't Adjudicate "Mixed Case" of EEO Claims, IRA Appeals
This case law update was written by James P. Garay Heelan, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2012. Mr. Heelan represents federal personnel across the Executive Branch, including career senior executives, law enforcement officers, foreign service officers, intelligence officers, and agencies in matters of federal personnel and employment law.
The Merit Systems Protection Board (MSPB) lacks jurisdiction to address equal employment opportunity (EEO) claims in “individual right of action” whistleblower reprisal appeals, the U.S. Court of Appeals for the Fourth Circuit recently held. On the same reasoning, the Court held that federal employees could not bring a “mixed” case with those two kinds of claims in the federal district courts.
In 2015, an Assistant Special Agent-in-Charge (ASAC) position became vacant within the Special Operations Division of the Drug Enforcement Administration (DEA). Special Agent (SA) Robert Zachariasiewicz wanted the job, and he complained to his supervisors when DEA filled the position non-competitively. When DEA later reassigned Zachariasiewicz to Headquarters, he alleged the involuntary transfer violated agency policy. Later, in 2016, DEA reassigned Zachariasiewicz to a different Group Supervisor position in a different office.
While at Headquarters, Zachariasiewicz applied for four GS-15 positions and complained that he was being “blacklisted” when he was not selected. He alleged that DEA personnel told him to “keep [his] bag shut” or face retaliation because he “would effectively have a bulls-eye on his back.” In February 2016, his supervisor confirmed he would not recommend Zachariasiewicz for a promotion due to his fear of retaliation by more senior management.
Undeterred, Zachariasiewicz applied in June 2017 for another ASAC vacancy, and this time, he was identified as the most highly qualified candidate. However, at the behest of DEA’s Chief of Operations, another candidate was selected for “diversity” as the Acting Deputy Administrator allegedly informed Zachariasiewicz.
Three days after learning he was rejected for the ASAC position, Zachariasiewicz filed a discrimination complaint with DEA’s Equal Employment office. He then withdrew his EEO complaint based on his belief that he could instead choose to pursue a remedy before the Merit Systems Protection Board. Eventually, after bringing whistleblower reprisal allegations to the Office of Special Counsel (OSC), Zachariasiewicz filed an “individual right of action” on his claims with the MSPB.
At MSPB, Zachariasiewicz asserted that DEA denied him promotion opportunities both in retaliation for his protected whistleblower activity and because of his race and gender. After the MSPB dismissed some of those claims for lack of jurisdiction, Zachariasiewicz withdrew his MSPB appeal and sued the Department of Justice and the Attorney General in U.S. District Court for the Eastern District of Virginia.
The District Court granted the appellees’ motion to dismiss Zachariasiewicz’s lawsuit for lack of jurisdiction. Zachariasiewicz then appealed his case to the U.S. Court of Appeals for the Fourth Circuit.
The Fourth Circuit acknowledged that federal statute allows federal employees to skip internal agency EEO investigation and review, and raise EEO claims at the MSPB as affirmative defenses to adverse employment actions such as demotions and terminations. Such actions are called “mixed cases.” The Court also acknowledged that EEO laws also allows individuals to pursue remedy for adverse employment actions in federal district courts. Crucially, however, the Fourth Circuit held “only those personnel actions that an employee can challenge before the MSPB in the first instance case serve as the basis for a mixed case.”
Because Zachariasiewicz’s non-selection claims needed to first be addressed at OSC, they could not properly be challenged before the MSPB “in the first instance.” For that reason, the Fourth Circuit held the MSPB could not address his EEO and whistleblower reprisal claims together in the same appeal. And, by that same logic, Zachariasiewicz could not bootstrap his whistleblower reprisal claims to his EEO claims and bring them together in federal district court.
The Fourth Circuit then remanded the appeal to the Eastern District of Virginia for that court to determine whether it had jurisdiction over Zachariasiewicz’s EEO claims.
Read the full case here: Zachariasiewicz v. DOJ.
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