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How Do I Know Where to File or Appeal My Case?

As a federal employee, if you feel that you are being discriminated against because of your race, color, sex, national origin, religion, age, disability, and/or prior EEO activity, you have 45 calendar days from when you knew or should have known of the discriminatory personnel action or most recent act of harassment in which to file an informal EEO complaint with your employing agency’s EEO office.

Once the pre-complaint EEO counseling is completed in 30 or 90 days, you have 15 calendar days in which to file a formal EEO complaint with your agency’s EEO office. The agency then has 180 calendar days in which to investigate your formal complaint. Thereafter, you will receive a Report of Investigation (ROI) and will have 30 calendar days to request an EEOC hearing. Thereafter, your EEOC Case will proceed through discovery to an evidentiary hearing before an EEOC administrative judge. Whichever party loses before the judge can file a written appeal of the judge’s decision to the EEOC’s Office of Federal Operations (OFO).

If you lose your OFO appeal, you will have 90 calendar days in which to file a civil action with your local United States District Court. Whichever party loses on the district court can file an appeal to the U.S. Court of Appeals with jurisdiction over the district court. The losing party in the court of appeals may be able to petition the Supreme Court of the United States to review the case.

If you’re a federal whistleblower who has suffered negative personnel actions and/or hostile work environment harassment in retaliation for your whistleblower disclosures, you can file a whistleblower retaliation complaint with the Office of Special Counsel (OSC), which will investigate and attempt to resolve your complaint. If OSC closes your complaint without action or more that 120 days have elapsed since you filed your complaint, without receiving a case closure letter from OSC, you may opt out of the OSC complaint process and file an Individual Right of Action appeal with the U.S. Merit Systems Protection Board (MSPB or “the Board”).

Your IRA appeal will then proceed through discovery and a hearing before a Board administrative judge. Whichever party loses before the judge may file a written petition for review (PFR) with the full Board. If you lose your PFR, you may be able to file an appeal with the U.S. Court of Appeals for the Federal Circuit followed by a a petition to the Supreme Court to review the case.

If you receive an adverse action, which means a removal, a demotion in grade, a reduction in basic pay, or a suspension without pay for 15 days or more, you can appeal directly to the MSPB and forego the OSC complaint process.

If you are covered by a union contract, you may be able to file a grievance through your union which may invoke arbitration in your case. Exceptions to arbitrator decisions may be filed with the Federal Labor Relations Authority (FLRA), the MSPB, and/or the district court.

Each complaint or appellate process is different, so it is vital that you understand where you and a skilled federal employment attorney should focus your efforts when pursuing the alternatives for filing a grievance, complaint, or appeal in your case. Our award-winning and top-rated federal employment attorneys at John P. Mahoney, Esq., Attorneys at Law share where you should look to file and/or appeal your federal employment case.

Retirement Appeals

If you are denied your request for federal employee retirement benefits, including an application for disability retirement, by the Office of Personnel Management (OPM), your case does not have to end there. You do have the right to request reconsideration of its initial denial decision to OPM within 30 calendar days of your retirement benefits denial. This reconsideration can help you fight for your retirement benefits, but you may still face denial of benefits.

If you have been denied your retirement benefits and faced a denial following your reconsideration request, you may be able to appeal your case to the Merit Systems Protection Board (MSPB) for the hearing and PFR process described above. When filing an OPM request for reconsideration and/or filing an MSPB appeal, you have the right to be represented by an attorney. In that circumstance, you should seek representation for your case by an experienced federal employment attorney.

Whistleblower Claims

If you believe that you are facing retaliation for a whistleblower claim, you can appeal the performance action to the U.S. Office of Special Counsel (OSC) for corrective action. From there, you can also appeal your OSC ruling with the MSPB if you believe that your ruling is inadequate. You may also directly appeal your case to the MSPB if your matter includes an adverse action, such as suspensions of 15 days or more, furloughs of less than 30 days, reductions in pay, demotions in grade or removals.

Whistleblowers can appeal cases of retaliation, as they are protected by the Whistleblower Protection Enhancement Act of 2012. See 5 U.S.C. § 2302. This act makes it illegal for those with the authority to take personnel actions from doing so to retaliate against a whistleblower for their disclosure and protects federal employees who wish to report wrongdoing or illegal activities in their agencies.

Disciplinary Appeals

If your performance as a federal employee is deemed to be unacceptable in one or more of the critical elements of your annual performance standards, your agency is required to place you on a performance improvement plan. If you do not improve your performance so that it is no longer unacceptable, your agency will propose your removal or demotion in grade. If you’ve received notice of a proposed adverse action, or have had a performance action taken against you, you can appeal that action to the MSPB. With the risk associated with the performance action, you should not fight the action on your own and should retain a skilled federal disciplinary action appeals attorney to advocate for your case.

With a trusted federal disciplinary action attorney, you also have the options to reply orally and in writing to the agency’s proposed adverse action, as well as engaging in settlement negotiations with your agency prior to its decision in an attempt to reach a solution to your proposed adverse action prior to filing and litigating a complaint, union grievance, or appeal with the MSPB. Your federal employment attorney will guide you through your options and select the best method in which you will fight your disciplinary action.

EEOC Appeals

If you believe that your EEOC case did not adequately address your concerns or case, you have the option of appealing to the EEOC’s Office of Federal Operations (OFO) for an appellate decision within 30 days of receiving your EEOC case decision.

When pursuing an EEOC OFO appeal, it is crucial that you include all necessary evidence and information in the record that proves you have met your burden of proof that you have been discriminated against and that the EEOC judge errored in ruling against you. Since subsequent EEOC Requests for Reconsideration are rarely granted, you should have a strong team behind you when working on your initial EEOC OFO appeal, as it will likely be the final decision in your case before you may have to file a civil action in the U.S. district court.

Top-Rated, Award-Winning Federal Employment Attorneys

When facing a grievance, complaint, or appeal, you should not go at it alone. The risks are too great to make mistakes or approach your appeal without the proper skill and experience needed. If you attempt to file a complaint or appeal with the wrong agency, or beyond the deadline to complain or appeal, you may miss the opportunity to litigate your appeal with the proper agency. To protect your best interests, you should hire a skilled federal employment attorney to guide you through the appeals process and advocate for your legal rights.

Our top-rated and award-winning federal employment attorneys at John P. Mahoney, Esq., Attorneys at Law understand the intricacies of the complaint and appeals processes you may need to pursue in your federal employment appeals case.

Are you pursuing an appeal of a past ruling in your federal employment case? Schedule a consultation with our federal employment team at John P. Mahoney, Esq., Attorneys at Law by calling (202) 759-7780 or contacting us online.

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