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NEWS AND CASE ALERT
February 13th, 2023 | Issue #15-1
TABLE OF CONTENTS
MSPB CONSIDERS TIMING OF MIXED-CASE APPEALS


MORE TIMELINESS ISSUES—FROM THE FLRA


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MSPB CONSIDERS TIMING OF MIXED-CASE APPEALS
Civil service law has its complexities. One is the processing of mixed-case complaints. A strange amalgam of EEOC and MSPB regulations, the process is designed to blend the expertise of the two agencies. In the end-game for both systems, there is the application of joint expertise, but only after an appellant has taken a case through the Board and then on to the EEOC, a process that takes years. Dunn v. USPS, CH-0752-16-0505-I-1 (NP 2/9/2023), considered the initial steps of the mixed case process, further complicated by the use of a negotiated grievance procedure.
Following his removal in March 2015, Mr. Dunn contacted the agency EEO office in April to protest disability discrimination, but he did not pursue the EEO case to the point of filing a formal EEO complaint. He later filed a grievance, but the grievance was denied on August 20, 2015, by an arbitrator as untimely filed. Mr. Dunn again contacted an EEO counsel a few days after the arbitrator’s decision. As before, he alleged disability discrimination as to the removal. He advised the EEO office that the date of the incident was August 20—the date of the arbitration decision—rather than the date in April when he’d been removed. An EEO investigation ensued. The agency issued a FAD finding no discrimination on June 20, 2016, and on July 20, 2016, Mr. Dunn filed his Board appeal.
Let’s pause to look at the regulations.
From EEOC—
29 CFR 1614.105(a)(1):
An aggrieved person must initiate contact with a Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.
29 CFR 1614.105(d):
Unless the aggrieved person agrees to a longer counseling period under paragraph (e) of this section, or the aggrieved person chooses an alternative dispute resolution procedure in accordance with paragraph (b)(2) of this section, the Counselor shall conduct the final interview with the aggrieved person within 30 days of the date the aggrieved person contacted the agency's EEO office to request counseling. If the matter has not been resolved, the aggrieved person shall be informed in writing by the Counselor, not later than the thirtieth day after contacting the Counselor, of the right to file a discrimination complaint. The notice shall inform the complainant of the right to file a discrimination complaint within 15 days of receipt of the notice, of the appropriate official with whom to file a complaint and of the complainant's duty to assure that the agency is informed immediately if the complainant retains counsel or a representative.

29 CFR 1614.106:
(b) A complaint must be filed within 15 days of receipt of the notice required by § 1614.105 (d) . . .
29 CFR 1614.302(d):
At the time that the agency issues its final decision on a mixed case complaint, the agency shall advise the complainant of the right to appeal the matter to the MSPB (not EEOC) within 30 days of receipt and of the right to file a civil action as provided at § 1614.310(a).
And from MSPB—
5 CFR 1201.154:
(b) If the appellant has filed a timely formal complaint of discrimination with the agency:
(1) An appeal must be filed within 30 days after the appellant receives the agency resolution or final decision on the discrimination issue; or
(2) If the agency has not resolved the matter or issued a final decision on the formal complaint within 120 days, the appellant may appeal the matter directly to the Board at any time after the expiration of 120 calendar days. Once the agency resolves the matter or issues a final decision on the formal complaint, an appeal must be filed within 30 days after the appellant receives the agency resolution or final decision on the discrimination issue.
The agency accepted Mr. Dunn’s formal complaint, filed well after Mr. Dunn’s removal, for investigation and issued a FAD, leading to his Board appeal within 30 days.
So, what’s a Board to do?
What the Board did was to first note the EEOC regulations requiring the pre-complaint process within 45 days of the effective date of the challenged action, leading to the opportunity to file a formal EEO complaint and a Board appeal within 30 days of a FAD. The process, determined the Board required timely filing of the formal EEO complaint and Board appeal.
The initial contact with the EEO counselor was not followed by a timely EEO complaint. The second contact with the counselor exceeded the 45 days allowed for counseling by several months. Failure to follow through on the first counselor contact was not excused because the EEO counselor informed Mr. Dunn it would be more prudent to proceed with a grievance before filing a formal EEO complaint. The notice from the agency concerning the timing of the EEO complaint was clear. Per the Board, Mr. Dunn did not act with due diligence, although the Board did not say why he could not reasonably rely on the EEO counselor’s statement about use of the grievance procedure (suggesting the possibility of an extension of the counseling period to accommodate use of the grievance process under the labor contract).
And what of the agency’s decision to conduct an investigation and issue a FAD following the second counselor contact and formal EEO complaint? Said the Board:
Both the Board and the Equal Employment Opportunity Commission have indicated that an agency’s acceptance and investigation of a complaint with no finding on the issue of timeliness is not a waiver of the time limit for initiating contact with an EEO counselor. Landingham, 81 M.S.P.R. 77, ¶ 10; Ziman v. U.S. Postal Service, EEOC Appeal No. 01842595, 1986 WL 635226 at 8 (July 23, 1986).
Will this be the end of litigation for this appeal? Mr. Dunn could take the matter to EEOC OFO or to a federal district court and allow either authority, or perhaps both, to consider the timeliness issue. Either way, it will be a few years we wait for a result. Stay tuned.
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MORE TIMELINESS ISSUES—FROM THE FLRA
FLRA reaffirmed its precedent to state that the time for exceptions from an arbitrator’s award runs from its issuance, not from the time the arbitrator denies reconsideration of the award—assuming the reconsideration request does not result in a modification of the award (and even then the basis for challenging the award is limited to the extent of the modification). Under AFGE Local 3197 and VA Puget Sound Health Care System, 73 FLRA 425, 426–27 (2023):
The Authority may not extend or waive the time limit for filing exceptions to an arbitration award. The Authority has repeatedly held that a party’s filing of a motion for reconsideration or clarification of an arbitration award does not affect the award’s finality for purposes of filing exceptions. However, where an arbitrator modifies an award in response to such a motion, the time limit for filing exceptions to the modified award begins upon service of the modified award. Such exceptions will be timely only as to alleged deficiencies that result from the modification.
[T]he Union asks the Authority to reverse its precedent that states a motion for reconsideration does not affect an award’s finality for exception-filing purposes. The Union asserts that federal courts treat motions for reconsideration and motions for clarification differently, treating the former as a post-trial motion that makes a decision final only once the motion is denied.
We see no basis for reversing the Authority’s well-established precedent on this issue. For purposes of assessing whether arbitration exceptions are timely, the pivotal determination is what the arbitrator does in response to a post-award motion—not what that motion is labeled. If the arbitrator’s response to a motion does not modify the previous award in a way that gives rise to the exceptions, then the filing period begins with the previous award—not the arbitrator’s response to the motion.
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