ABMC Federal Sector Employment Discrimination Complaint Process
The American Battle Monuments Commission is committed to ensuring that EEO complaints filed by employees and applicants for employment are given fair and timely consideration to eliminate discrimination based on race, color, sex, national origin, religion, age, physical or mental disability and/or reprisal for participation in the EEO process, or opposition to unlawful discrimination. As part of this commitment, the ABMC offers mediation to resolve workplace disputes. Mediation is a voluntary alternative dispute resolution process that is available in all stages of the complaint process.
A complaint may be processed either as an individual complaint, class complaint, mixed complaint, mixed case appeal, or a grievance depending on the circumstances involved. The procedures related to each of these processes are summarized below.
Individual Complaint Procedures
As an employee, former employee, or job applicant, you may file an individual complaint if you believe that an ABMC personnel action, policy, practice, or decision is discriminatory.
You must first contact an Equal Employment Opportunity (EEO) counselor within 45 calendar days of the date of the agency’s action(s) leading to perceptions of employment discrimination or within 45 calendar days of the effective date of the employment matter or effective date of the personnel action. The goal of the EEO counselor is to facilitate an informal resolution when possible.
The EEO counselor will (a) provide information to you concerning how the complaint process works, including your rights and obligations, time limits and appeal procedures, (b) assist you in framing the potential complaint and defining the issues, (c) inform you of the option to attempt to resolve the matter at issue through mediation, and (d) attempt to resolve the matter informally. Unless there is a time extension as described below, the EEO counselor will complete counseling and conduct a final interview if no resolution is reached within 30 calendar days from date of your initial Pre-Complaint contact. At this point, the counselor will issue to you the notice of right to file a discrimination complaint with the ABMC Director of EEO.
You will receive information about mediation, including the facts that your participation must be voluntary and that discussions during mediation sessions are confidential. Some issues are not appropriate for mediation. The EEO office will advise you if the issue you have raised is inappropriate. If the issues you present in counseling are appropriate, the EEO counselor may offer mediation to you. If you receive an offer to mediate and all parties agree to mediate, mediation will replace traditional counseling. However, if mediation is unsuccessful, the EEO counselor will notify you of your right to file a discrimination complaint.
The 30-day counseling period may be extended for up to an additional 60 calendar days if you: (a) agree to such an extension in writing, prior to the expiration of the 30-day period, or (b) choose to participate in mediation. If the matter is not resolved within 90 calendar days, the EEO counselor will give you in writing the notice of the right to file a discrimination complaint.
Filing, Amending, and Consolidating Formal Complaints
If you decide to file a complaint, you must file a formal complaint within 15 calendar days of receiving the notice of the right to file a discrimination complaint. The complaint must be sufficiently precise to describe generally the ABMC personnel action, policy, practice, or decision that forms the basis of your complaint and limited to the matters discussed with the EEO counselor. The formal complaint should be filed by you or your representative.
The EEO counselor will provide a written report to you and the Director of EEO after being advised of your filing of a formal complaint.
The Director of EEO will acknowledge receiving your complaint, review the EEO counselor’s report, and notify you in a letter of the claim(s) asserted and those accepted for investigation. If the claim(s) asserted and those accepted for investigation differ, the Director of EEO will explain the reasons for such difference(s), including whether the agency is dismissing the complaint in part.
At any time before the investigation is finished, you may amend your complaint with issues or claims like or related to those raised in your pending complaint. If you wish to amend your complaint, you should submit a request, in writing, of the proposed amendment to the Director of EEO within 45 days of the date of the incident you believe to be discriminatory, or in the case of a personnel action, within 45 calendar days of the effective date of the action. After the investigation is concluded, you should submit a written request to or file a motion with the Administrative Judge of the Equal Employment Opportunity Commission (EEOC) to amend your complaint to include issues or claims like or related to those raised in your pending complaint. If you seek to amend your complaint with new claim(s) that are not like or related to your claim(s) raised in a pending complaint, the Director of EEO will notify you in writing that you must seek Pre-complaint counseling on the new, unrelated claim.
If you file two or more independent complaints at any time before issuance of the notice of the right to hearing or a final ABMC decision without a hearing, the Director of EEO will consolidate your complaints for processing after notifying the parties. Consolidated complaints will be heard by one EEOC Administrative Judge if you request a hearing. The Director of EEO will issue one decision regarding the consolidated complaints if you request a final ABMC decision.
The Director of EEO will assign an investigator to develop impartial and appropriate factual information on the claims raised in your complaint that have been accepted for processing. The investigator is authorized to obtain information relevant to the complaint, including documents and statements made under a penalty of perjury, oath, or affirmation from ABMC and other Federal employees who have knowledge of the events surrounding the complaint. If you choose to mediate in the formal complaint stage and mediation is unsuccessful, you may revert to the formal complaint process at the same stage at which the process was halted.
The ABMC must complete the investigation, including the report of investigation, within 180 calendar days of the date your complaint was filed. The report of investigation will contain relevant documents and information, including affidavits or other sworn statements acquired during the investigation. Upon completion of the investigation, a copy of the report of investigation will be furnished to you and your representative.
When the investigation is complete, except in mixed cases as described below, the Director of EEO will notify you of your right to request either, a hearing before an EEOC Administrative Judge or a final ABMC decision without a hearing. You will also be advised of your right to file a civil action in an appropriate Federal district court at any time after 180 calendar days have elapsed from the date of filing the formal complaint.
The hearing process is intended to be an extension of the investigative process. The hearing is designed to ensure that both parties have a fair and reasonable opportunity to explain their position(s), supplement the record, and examine and cross-examine witnesses.
If you wish to have a hearing, you must send a written request directly to the appropriate EEOC Field Office within 30 calendar days of receiving the report of investigation and must provide the Director of EEO with a copy of the request for a hearing. Within 15 calendar days of receiving notice of your request for a hearing, the Director of EEO will forward a copy of the report of investigation to the EEOC for assignment of an Administrative Judge and to the ABMC representative who will represent the agency in the hearing process.
Final ABMC Actions
Following an Administrative Judge’s Decision. If you elect to have a hearing, the Administrative Judge will issue a dismissal, a summary judgment decision, or a decision on the merits of your complaint. When one of these events occurs, the ABMC must take final action on your complaint by issuing a final order within 40 calendar days of receiving the hearing file and the Administrative Judge’s decision. If the Administrative Judge issues a decision finding discrimination, the 40-day period begins when the Administrative Judge issues a final decision regarding remedies and attorney’s fees.
The final ABMC order will inform you whether the agency will fully implement the decision of the Administrative Judge and will contain notice of your right to appeal to the EEOC. If the final ABMC order does not fully implement the Administrative Judge’s decision, the agency must simultaneously file an appeal with the EEOC and attach a copy of the appeal to the final order.
If ABMC dismisses your complaint in its entirety, receives a request from you for an immediate final ABMC decision, or does not receive a reply from you or your representative to the notice of the right to request a hearing or an immediate final ABMC decision, the Director of EEO will take final action by issuing a final ABMC decision on your complaint. The decision will be issued within 60 calendar days of notifying you of the dismissal of your complaint or receiving notice of your request for an immediate final decision or your failure to timely reply to the notice of the right to request a hearing or an immediate final ABMC decision.
The final ABMC decision will consist of an analysis of the report of investigation, findings on the merits of each issue in your complaint, or as appropriate, the rationale for dismissing any claims in your complaint, and will notify you of your right to appeal to the EEOC, or to file a civil action in an appropriate Federal district court. If discrimination is found, the final ABMC decision will also include appropriate remedies and relief and notice of appropriate appeal rights.
Class Complaint Procedures
A class complaint is a written complaint of discrimination filed by a group of individuals who claim to have been subjected to discrimination. A class complaint is filed on behalf of a class by an agent of the class alleging that (1) the class is so numerous that a consolidated complaint of the members of the class is impractical, (2) there are questions of fact common to the class, (3) the claims of the agent of the class are typical of the claims of the class, and (4) the agent of the class, or if represented, the representative, will fairly and adequately protect the interests of the class.1 The procedures for processing class complaints are summarized below.
The time limits for contacting an EEO counselor, possible extension of time limits, and the time limits for filing a formal class complaint are the same as those outlined above under individual complaint procedures.
If you, as a class agent, wish to file a class complaint you must first contact an EEO counselor as outlined under individual complaint procedures. The sole exception to the mandatory counseling prerequisite allows a class agent to move for class certification at any reasonable point in the process when it becomes apparent that there are class implications to the claim raised in an individual complaint.2 If there are class implications raised in your complaint, you, as the class agent, may seek class certification at any reasonable point in the process, usually no later than the conclusion of discovery. If you move for class certification after completing the counseling process, additional counseling is not required.
The 30-day counseling period may be extended for up to an additional 60 calendar days if you (a) agree to such an extension in writing, prior to the expiration of the 30-day period, or (b) choose to participate in mediation. If the matter is not resolved within 90 calendar days, the EEO counselor will issue the notice of the right to file a discrimination complaint.
Certification or Dismissal
Within 30 calendar days of receiving a class complaint, the ABMC must designate an agency representative and forward your complaint, along with a copy of the EEO counselor’s report and any other relevant information, to the EEOC for assignment of an Administrative Judge to accept or dismiss the class complaint.
The Administrative Judge will examine the class complaint, the counselor’s report, and any other relevant information to determine whether (a) the prerequisites of class certification criteria, that is, numerosity, commonality, typicality, and adequacy of representation are met, (b) the allegations in the complaint are specific and detailed, (c) the prerequisite of Pre-complaint counseling is met, (d) the complaint meets any of the criteria for dismissal, and (e) the class agent unduly delayed in moving for class certification.
An individual complaint that is filed before or after the class complaint is filed and comes within the definition of the class claim(s) will not be dismissed but will be included within the class complaint. If the class complaint is dismissed at the certification stage, the individual complaint may still proceed unless there is a basis for dismissal. If the class complaint proceeds to a hearing, individual claims may be presented by the class representative at the liability stage of the process or may be presented at the remedy stage by the class members. If the class complaint is dismissed at the certification stage, members of the class may not proceed with an individual complaint unless they have timely filed individual complaints.
Within 30 calendar days of receiving a decision dismissing a class complaint for failure to meet the criteria of a class complaint, the Director of EEO will acknowledge receiving any individual complaints and will process each individual complaint that was included in the class complaint.
Class members may not “opt out” of the defined class. However, class members do not have to participate in the class or file a claim for individual relief. All class members will have the opportunity to object to any proposed settlement and to file claims for individual relief if discrimination is found.
Hearing procedures in class complaints are the same as those applied to hearings under the individual complaint procedures described above.
Final ABMC Actions
Following an Administrative Judge’s Decision on the Merits/Class Certification. Whenever a class complaint is involved, the Administrative Judge will first issue a decision to certify or dismiss the class complaint. When this occurs, the ABMC must take final action on the complaint by issuing a final order within 40 calendar days of receiving the Administrative Judge’s decision. The final order must notify the class agent whether the ABMC will implement the decision of the Administrative Judge and of the agent’s right to appeal to the EEOC.
If the ABMC fully implements the Administrative Judge’s decision certifying the class complaint, it must notify all class members of the acceptance of the complaint, using all reasonable means, such as mailing correspondence to the last known address or other method of distribution, within 15 calendar days of receiving the Administrative Judge’s decision or within a reasonable time from as specified in the decision.
If the final ABMC order does not fully implement the decision of the Administrative Judge, the ABMC must simultaneously appeal the Administrative Judge’s decision and attach a copy of the appeal to the final order.
Following an Administrative Judge’s Report of Findings and Recommendations. The ABMC must issue a decision to accept, reject, or modify the Administrative Judge’s findings and recommendations within 60 calendar days of receiving the report of findings and recommendations. If ABMC does not issue the final decision within 60 calendar days, the Administrative Judge’s findings and recommendations will become the final ABMC decision. The ABMC will transmit its final decision to the class agent within five days of the expiration of the 50-day period.
Mixed Case Procedures
A mixed case complaint is a complaint of employment discrimination filed with the ABMC based on race, color, religion, sex, national origin, age, disability, or reprisal related to or stemming from an action that may be appealed to the MSPB.3 A mixed case appeal is an appeal filed directly with the MSPB that alleges that an appealable ABMC action resulted, in whole or in part, because of discrimination on the basis of race, color, religion, sex, national origin, disability, age, or reprisal. You may file either a mixed case complaint or a mixed case appeal, but not both. The choice is made when you file a timely appeal with the MSPB or a formal complaint of discrimination with the ABMC. Whatever action you file first is considered to be an election to proceed in that forum.
Mixed Case Complaints
A mixed case complaint may contain only claim(s) of employment discrimination or may contain both discrimination and nondiscrimination claims that the MSPB has jurisdiction to address.
If you choose to file a mixed case complaint, your complaint will be processed under the same procedures outlined above for individual discrimination complaints, with the following exceptions: (a) there is no right to a hearing before the EEOC, and (b) the final ABMC decision must be issued within 120 calendar days.
After completing the investigation and forwarding the report of investigation to you and your representative, the Director of EEO will issue a final ABMC decision that may be appealed to the MSPB, not the EEOC. You may request a hearing if you appeal the final ABMC decision to the MSPB.
Final ABMC Actions
The final ABMC decision is made within 45 calendar days after completion of the investigation. If you are dissatisfied with the final ABMC decision, you may appeal to the MSPB within 30 calendar days of receiving the final decision.
If a final ABMC decision is not issued within 120 calendar days from the date of filing the mixed case complaint you may appeal to the MSPB within one year of the expiration of the time limit or may file a civil action, but not both.
Mixed Case Appeals
A mixed case appeal is filed directly with the MSPB. If you first file an appeal with the MSPB, the claim is processed under MSPB procedures.
You may file either a mixed case complaint or a mixed case appeal, but not both. If you attempt to file both a mixed case complaint and a mixed case appeal, one of the following will occur:
1. If you first file a mixed case complaint with the ABMC and then file a mixed case appeal with the MSPB, the Director of EEO will advise the MSPB of the prior complaint filed with the ABMC and request that the MSPB dismiss the appeal.
2. If you file a mixed case appeal with the MSPB before filing a mixed case complaint with the ABMC, and there is no dispute relating to the MSPB’s jurisdiction, the Director of EEO will dismiss any discrimination complaint on the same subsequently filed claim, regardless of whether the discrimination claims are raised in the appeal to the MSPB and will advise you to raise such claims in connection with your MSPB appeal.
3. If you file a mixed case appeal with the MSPB before filing a mixed case complaint the ABMC and the ABMC disputes the MSPB’s jurisdiction, the Director of EEO will inform you that the ABMC will suspend processing the mixed case complaint until the issue on jurisdiction is resolved and will notify the MSPB of the discrimination claim(s). If the MSPB dismisses a mixed case appeal because it lacks jurisdiction, the Director of EEO will process your complaint as an individual complaint as outlined above. However, if the MSPB determines that it has jurisdiction, the Director of EEO will dismiss your complaint.
4. If you have one or more complaints pending with the ABMC, the agency representative will file a motion with the MSPB to consolidate your non-mixed case claims with the mixed case appeal. Such claims will be held in suspension until the MSPB issues a decision on the motion. If the MSPB fails to consolidate your complaints, the Director of EEO will proceed with processing your complaints under the individual complaint procedures as outlined above. If the MSPB agrees to consolidate your complaints, the ABMC will dismiss your pending complaints.
Age Discrimination Complaints
As an alternative to the procedures outlined above, you may bypass the administrative complaint process and file a civil action directly in an appropriate Federal district court if your claim is based on age discrimination, but you must first provide the EEOC with a written notice of intent to sue under the Age Discrimination in Employment Act (ADEA). If you file a timely notice of intent to sue with the EEOC, you must wait at least 30 calendar days before filing a civil action.
A notice of intent to sue must be filed within 180 calendar days of the alleged discriminatory action with the Equal Employment Opportunity Commission, online through the EEOC Public Portal or mailed to—
Equal Employment Opportunity Commission
Washington Field Office
131 M Street, NE Fourth Floor, Suite 4NWO2F
Washington, DC 20507-0100
The Director of EEO will review the claim(s) of age discrimination and conduct an inquiry sufficient to determine whether there is evidence that unlawful age discrimination occurred.
Equal Pay Act Complaints
You have a right to file a discrimination complaint or a civil action in an appropriate Federal district court if you are alleging wage-based discrimination under the Equal Pay Act (EPA). If you elect to file a discrimination complaint, it will be processed under the discrimination complaint procedures as described above. The EPA has no procedural requirements that you must satisfy before filing a civil action.
If you file a discrimination complaint rather than a civil action, the Director of EEO will notify you of the applicable time limitations for filing a civil action – two years or if a willful violation is alleged, three years – and of the right to file a civil action directly without first providing notice to the EEOC or exhausting administrative remedies.
A complainant, grievant, class agent, class member or petitioner may appeal to the EEOC when an issue of employment discrimination is raised, either alone or in connection with a complaint, grievance, or settlement.
As a complainant, you may appeal the ABMC’s dismissal of or final ABMC action on a complaint and alleged failures to comply with a settlement agreement in accordance with 29 CFR 1614.504.
As the class agent that files a class action EEO complaint, you may appeal (a) an Administrative Judge’s decision accepting or dismissing all or part of a class complaint, (b) a final ABMC decision on the merits of the complaint, (c) an Administrative Judge’s decision to vacate a proposed resolution of a class complaint, and (d) an agency’s alleged noncompliance with a settlement agreement in accordance with 29 CFR 1614.504.
As a class member or petitioner, you may appeal (a) an Administrative Judge’s decision (i) finding a proposed resolution fair, adequate, and reasonable to the class as a whole if the class member filed a petition to vacate the resolution, or finding that the petitioner is
not a member of the class and did not have standing to challenge the resolution and (ii) finding that a proposed resolution is not fair, adequate, and reasonable to the class as a whole; (b) the final ABMC decision on a claim for individual relief under a class complaint; and (c) ABMC’s alleged noncompliance with a resolution accordance with §1614.504.
ABMC must appeal if it elects (a) not to fully implement an Administrative Judge’s decision to dismiss or on the merits of a complaint, and (b) in a class complaint, not to fully implement an Administrative Judge’s certification decision. ABMC may appeal an Administrative Judge’s decision to vacate a proposed resolution of a class complaint on the grounds that it is not fair, adequate, and reasonable to the class as a whole.
Filing the Appeal
Appeals must be filed within 30 calendar days of receiving the ABMC’s dismissal of a complaint, final decision, or final action and order not fully implementing an Administrative Judge’s decision.4 With the exception of appeals involving mixed case complaints, all appeals must be filed with the EEOC, online through the EEOC Public Portal or mailed to—
Equal Employment Opportunity Commission
Washington Field Office
131 M Street, NE Fourth Floor, Suite 4NWO2F
Washington, DC 20507-0100You must furnish a copy of the appeal to the opposing party at the same time it is filed with the EEOC. As an appellant, you must certify the date and method by which service was made on the opposing party.
Right to File a Civil Action
Individual and Class Complaints and Claims. As a complainant, class agent, or claimant who has alleged violation of Title VII, ADEA, or the Rehabilitation Act filed in one of the procedures outlined above, you may file a civil action in an appropriate Federal district court according to the following time frames:
1. Within 90 calendar days of receiving notice of the final ABMC decision on an individual or class complaint or claim unless an appeal is filed with the EEOC.
2. After 180 calendar days from the date of filing an individual or a class complaint or claim with the ABMC, and if there has been no decision or final action on the complaint or claim.
3. Within 90 calendar days of receiving the final EEOC decision on the appeal.
4. After 180 calendar days from the date of filing an appeal with the EEOC, if there has been no final EEOC decision.
Mixed Cases. As mixed case complainant, you may file a civil action in an appropriate Federal district court—
1. Within 30 calendar days of receiving notice of the final ABMC decision unless an appeal is filed with the MSBP.
2. Within 30 calendar days of receiving notice of the final MSPB decision unless a petition to consider the MSPB decision filed with the EEOC.
3. Within 30 calendar days of receiving notice of the EEOC decision not to consider the final MSPB decision or notice of the EEOC decision to concur with the final MSPB decision.
4. Within 30 calendar days of receiving notice of the MSPB’s concurrence and adoption of the EEOC decision, if the initial MSPB and EEOC decisions are different.
5. Within 30 calendar days of receiving notice of the Special Panel decision, if the MSPB disagrees with the EEOC decision and reaffirms its initial decision, with or without modification.
6. After 120 calendar days of filing a formal complaint with the FTC if there has been no final ABMC decision or appeal filed with the MSPB.
7. After 120 calendar days of filing an appeal with the MSPB if there is no decision on the appeal.
8. After 180 calendar days of filing a petition for consideration with the EOC if there has been no decision on the petition, no MSPB reconsideration decision, or no Special Panel decision.
Age Discrimination Complaints. As complainant or class agent, you may file a civil action after giving the EEOC no less than 30 calendar days written notice of intent to file a civil action.
Equal Pay Act Complaints. As complainant or class agent, you may file a civil action in an appropriate Federal district court within two years of an alleged violation of the EPA, regardless of whether you have filed an administrative complaint under any procedures outlined above. If the alleged violation is willful, a civil action may be filed within three years of the alleged violation regardless of whether administrative complaint processing occurred. See EPA discussion above.
Right to Representation
Any person involved in the discrimination complaint process, including class agents, claimants, and witnesses, has the right to representation. Costs associated with such representation are the responsibility of the employee. The Director of EEO should be immediately informed if representation is obtained.
Right to Use Official Time
All ABMC employees involved in the complaint process, including complainants, agents, witnesses, and representatives, are entitled to use a reasonable amount of official time. Reasonable refers to whatever time is appropriate to allow for a complete presentation of the relevant information associated with the complaint and to respond to ABMC/EEOC requests for information. Time spent in meetings and hearings with ABMC and EEOC officials is automatically considered reasonable. It is also reasonable for managers and supervisors to expect their employees to spend most of their time doing the work for which they are employed. Ordinarily, employees and their immediate supervisors should arrive at a mutual understanding as to the amount of official time to be used prior to the use of such time. The time will vary depending on the nature and complexity of the complaint and the ABMC’s needs to have its employees available to perform their normal duties on a regular basis.
Right to Anonymity
You are entitled to remain anonymous during the pre-complaint process. If you decide to file a formal complaint, your identity will not be kept confidential during the formal complaint process. When a complaint reaches the formal stage, the complaint file may be opened to those who are involved and need access to it.
Freedom from Retaliation
Complainants and their representatives, EEO professionals, witnesses, and all other persons involved in the presentation and processing of an EEO complaint must be free from restraint, interference, coercion, discrimination, or retaliation with respect to their participation in the EEO complaint process. It is illegal to discriminate against employees because they have opposed any practice that is deemed unlawful under Title VII or have made a charge, testified, assisted, or participated in any manner in an EEO proceeding, including pre-complaint counseling, investigations, or hearings.
Title VII of the Civil Rights Act (Title VII), Rehabilitation Act, the Age Discrimination in Employment Act (ADEA), and the Equal Pay Act (EPA) provide for an appropriate
remedy in accordance with 29 CFR Part 1614, subpart E when discrimination is found. The relief is designed to provide full relief, that is, restore the person as nearly as possible to the position they would have occupied if the discrimination had not occurred. The relief provided may include one or more of the following elements in appropriate circumstances:
- Corrective or preventive actions taken to cure or correct the source of the identified discrimination, such as, hiring, reinstatement, reasonable accommodation, promotion, back pay, front pay or other actions that will make an individual “whole” that is put the person in the condition they would have been in if discrimination had not occurred;
- Nondiscriminatory placement in the position the person would have occupied if the discrimination had not occurred;
- Stopping the specific discriminatory practices involved;
- Compensatory damages for intentional discrimination for actual monetary losses and future monetary losses;
- An award of back pay under Title VII, the ADEA, the Rehabilitation Act, and the EPA; and
- Reasonable attorney’s fees in the administrative complaint are available under Title VII or the Rehabilitation Act, but not under the ADEA and the EPA at the administrative level.
Adverse Inference. When either a complainant or the ABMC fails to respond fully and in a timely fashion to a request for relevant documents or information, an adverse inference may be drawn.
Binding Election. An election to pursue a complaint in a particular forum, once made, is binding and irrevocable. An election is made when you file an appeal with the MSPB or a formal EEO complaint.
Duty To Preserve Evidence. When you file a complaint, the ABMC must take care to preserve any and all evidence with potential relevance to your complaint. This is a continuing obligation that begins as soon as your complaint is filed and continues throughout the processing of the complaint. If a class complaint is involved, this obligation begins before the class has been certified.
Time Limits. Any time period specified in this notice will be computed by counting as the first day the day following the event, such as the day after receiving a notice. When the last day falls on a Saturday, Sunday, or Federal holiday, the time period will be extended to include the next business day.
1 An agent of the class is a class member who acts for the class during the class complaint process.
2 The term “move” in this context means that you must make your intention to process the complaint as a class action clear to the investigator if the complaint is still in the investigation phase of the process, to the Administrative Judge if the complaint is at the hearing phase of the process, or to the agency if the investigation has been completed and you have not elected to proceed to a hearing. You may make your intention clear through a letter, a formal motion, or any means that effectively informs the ABMC investigator if the matter is within the investigation phase of the process, or the Administrative Judge of your intent to pursue a class action.
3 Most appealable actions fall into the following six categories: reduction in grade or removal for unacceptable performance; removal, reduction in grade or pay, suspension for more than 14 days, or furlough for 30 days or less for cause that will promote the efficiency of the service; separation, reduction in grade, or furlough for more than 30 days, when the action was effected because of a reduction-in-force action affecting a career appointee in the Senior Executive Service; reconsideration decision sustaining a negative determination of competence for a General Schedule employee; and disqualification of an employee or applicant because of suitability determination.
The following categories of employees generally have a right to appeal to the MSPB and, therefore, to initiate a mixed case complaint or appeal (a) competitive service employees not serving a probationary or trial period under an initial appointment, (b) career appointees to the Senior Executive Service, (c) non-competitive service preference-eligible employees with one or more years of current continuous service (e.g., attorneys with veterans preference), and (d) non-preference- eligible excepted service employees who have completed their probationary period or who have two or more years of current continuous service (e.g., attorneys).
4 If you are represented by an attorney of record, the 30-day time limit will begin to run from the date of receipt by the attorney of the notice of dismissal, final action, or final decision.