MSPB Termination

In the United States, government employees' rights in the workplace are protected by the Merit Systems Protection Board, or MSPB. It most commonly hears claims dealing with discrimination, retaliation, and whistleblowing. However, its authority extends beyond those areas, and it also has the power to determine whether a variety of adverse employment decisions (such as terminations, demotions, suspensions, removals, or furloughs) should stand. The Merit Systems Protection Board helps to make sure that government employers are not engaging in prohibited personnel practices and that all employment decisions follow the proper procedures.

The MSPB's decisions are guided by a set of nine principles intended to promote the rights of federal employees. These principles include commitments to selection and advancement based on merit, equal pay for equal work, fair treatment and integrity in the workplace, and access to education and training for all employees. The MSPB principles also include a commitment to protect employees from arbitrary action, favoritism, coercion, or retaliation.

Government employees enjoy the same protections against workplace discrimination that civilian employees do. Discrimination based on race, sex, national origin, age, or any other protected class is considered a prohibited personnel practice and government employers who do so have likely violated the law. It is also prohibited to treat an employee or applicant differently because of any conduct that does not affect their or others' performance, and doing so is grounds for action by the MSPB. Officials in charge of employment decisions must only take into account recommendations based on personal knowledge, general qualifications, or evaluations based specifically on work performance, aptitude, and character. Employment decisions that are arbitrary, based on personal favoritism, or based on political action are also appealable. Government employees with authority over personnel decisions are explicitly prohibited from coercion based on political affiliation or taking action against an employee because of their refusal to engage in certain political activity.

The Merit Systems Protection Board can overturn an employment decision even when there are no allegations of discrimination. For example, adverse actions may be overturned if the employer did not give adequate notice of the decision, did not give an employee sufficient time to correct their performance, or did not treat an employee in a fair, consistent way throughout the process. However, it is also important to note that not all personnel actions can be appealed to the MSPB, and not all government employment is covered by the MSPB.

In some cases, you are able to bring your claim directly to the MSPB. If your employer takes an appealable action against you, and the MSPB has jurisdiction to hear your case, it may also consider a claim that the action was taken for a prohibited reason. If you can successfully claim that your agency based its employment decision on a prohibited reason, that claim is an affirmative defense to termination. This means that the employment decision is invalid, even if the agency shows that it followed all the correct procedures while terminating your employment.

The deadline to appeal an employment decision to the Merit Systems Protection Board is very strict. Generally, you must file an MSPB appeal within 30 days of the adverse action you wish to challenge. The MSPB will then assign a judge to conduct a hearing in the case. Once the judge issues their decision, you will only have 35 days to file an appeal with the three-member board in Washington, D.C. This area of the law can be extremely complicated, and the Austin employment lawyers at Wiley Walsh P.C. may be able to help you through the process and offer advice on the best way forward. If you are a federal employee and feel that you have a valid claim to bring to the Merit Systems Protection Board, you can contact us by filling out our intake form or calling our office at (512) 271-5527.