The employee only gets one bite at the apple. If the employee files an MSPB appeal on a removal and raises discrimination as an affirmative defense, then files an EEO complaint arguing hostile work environment in which the removal is one of the acts alleged, then EEOC will defer to the MSPB appeal process for the removal and consider the EEO hostile environment complaint without the removal being considered as one of the continuing incidents. Otherwise, the employee would get two reviews of his removal, and that’s just not going to happen because it doesn’t make sense.
It’s worth noting that in an MSPB appeal where discrimination has been raised as an affirmative defense, the employee can seek review of the MSPB’s findings of discrimination by the EEOC. This review only considers findings of discrimination and not findings based on civil service law. 5 USC 7702(b)(1). If the EEOC disagrees with the MSPB, it must immediately refer the matter back to MSPB and MSPB then has 30 days to consider the EEOC’s decision. 5 USC 7702(c). If there’s a disagreement, we’re headed to the Special Panel. We’ll tackle that topic another time!
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