UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
FREDERICK SCHLOTTMAN, )
)
Plaintiff, )
)
v. ) Civil Case No. 11-752 (RJL)
)
HILDA L. SOLIS, in her official capacity )
as SECRETARY, u.s. DEPARTMENT ) F I L E D
OF LABOR, )
) FEB 2 7 2012
Defendant' ) Clerk. U.S. Districf & Bankrupt'cy
Courts for the District of Co|umbia.
1.’$ opp’n ar 1 & 10.
4 Plaintiff additionally argues that he was not adequately informed of his rights to appeal.
Pl.’s Opp’n at 17-20. However, plaintiff was informed of his right to appeal to the
MSPB in the Notice of Termination During Probation Period (Def.’s Ex. 1) and of his
right to file an EEO complaint in the Notice of Right to File Discrimination Complaint
(Def.’s Ex. 4). This Court also notes that plaintiff had the assistance of counsel in
navigating the administrative framework.
6
Under the CSRA, a "mixed case" is defined as "an adverse personnel action
subject to appeal to the MSPB coupled with a claim that the action was motivated by
discrimination." Butler v. West, 164 F.3d 634, 638 (D.C. Cir. 1999) (citing 5 U.S.C.
§ 7702). A "mixed case appeal" is
[A]n appeal filed with the MSPB that alleges that an
appealable agency action was effected, in whole or in part,
because of discrimination on the basis of race, color, religion,
sex, national origin, disability, age, or genetic inforrnation.
29 C.F.R. l614.302(a)(2). Under the CSRA savings provision, "when an employee files
his or her mixed-case appeal in a timely manner, but with the wrong agency, the proper
agency must treat the appeal as having been timely filed there." Frank v. Ridge, 310 F.
Supp. 2d 4, 9 (D.D.C. 2004) (citing Mz`ller v. Dep ’t of Army, 987 F.2d 1552, 1555 (Fed.
Cir. 1993)), ajj"a’ sub nom. Frank v. Cherto]j§ 171 F. App’x 860 (D.C. Cir. 2005).5 But,
the mixed case appeal must nevertheless be filed within thirty days of the challenged
action_here, plaintiff’s termination on January 3l, 2009. 5 C.F.R. § 1201.154(a).
Here, even assuming that plaintiff filed a mixed case appeal with the MSPB, the
savings provision does not apply because it requires that the mixed case appeal be timely
5 The CSRA savings provision states, "[i]n any case which an employee is required to file
any action, appeal, or petition under this section and the employee timely files the action,
appeal, or petition with an agency other than the agency with which the action, appeal, or
petition is to be filed, the employee shall be treated as having timely filed the action,
appeal, or petition as of the date it is filed with the proper agency." 5 U.S.C. § 7702(f`).
7
filed. Since neither plaintiffs appeal to the MSPB nor his appeal to the EEOC was
timely filed, his case must be dismissed.6
CONCLUSION
For all of the foregoing reasons, the defendant’s Motion to Dismiss is GRANTED.
An Order consistent with this decision accompanies this Memorandum Opinion.
Matm
RICHARD J.‘BE?))N
United States District Judge
6 Although plaintiff’s whistleblower complaint was timely, unfortunately for plaintiff, the
savings provision only applies to complaints filed pursuant to 5 U.S.C. § 7702, not to
whistleblower complaints filed under 5 U.S.C. § 1221. Because plaintiffs complaint to
the OSC included only allegations of whistleblowing, it was not a mixed case complaint.
29 C.F.R. § l6l4.302(a)(1) (definition of mixed case complaint). Further, plaintiff’ s
appeal of the OSC decision was reviewable by the MSPB only on grounds of
whistleblowing, and thus, its mixed case jurisdiction was not invoked. Newcastle v.
Dep ’t of T reasury, 94 M.S.P.R. 242, 246 (2003) ("[Individual Rights of Appeal ("IRA")]
appeals under the WPA are not subject to the provisions of 5 U.S.C. § 7701 or § 7702,
and the Board, therefore, lacks jurisdiction to adjudicate the merits of the personnel action
at issue in an IRA appeal and lacks the authority to decide, in conjunction with an IRA
appeal, the merits of an appellant’s allegation of prohibited discrimination." (citation
omitted)).