Kloeckner v. Solis
2011 U.S. App. LEXIS 9727
8th Cir.2011Background
- Kloeckner filed an EEO complaint in June 2005 alleging hostile work environment and sex/age discrimination and retaliation.
- DOL charged her with being absent without leave from June 13 to July 22, leading to an amended EEO complaint including a removal charge.
- Kloeckner was removed from employment effective July 21, 2006, while her EEO complaint remained pending.
- Removal is an adverse action that can be appealed to the MSPB, creating a mixed case when paired with the EEO claim.
- Kloeckner initially appealed the removal to the MSPB in August 2006, then moved to dismiss without prejudice to amend the filing to include discrimination removal.
- The EEOC heard the EEO portion and the final agency action in October 2007 upheld the removal and found no discrimination or retaliation; she later filed suit in district court seeking review as a timely appeal but the MSPB dismissed as untimely; the district court dismissed for lack of exclusive jurisdiction in favor of the Federal Circuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court or Federal Circuit has jurisdiction over a mixed case. | Kloeckner argues district court review is proper for a case of discrimination. | Secretary contends MSPB discrimination merits must be reviewed in the Federal Circuit; untimely MSPB filing bars district court review. | Federal Circuit exclusive jurisdiction since MSPB did not reach merits. |
| Whether a dismissed untimely mixed-case appeal qualifies as a case of discrimination under §7703(b)(2). | Kloeckner asserts the dismissal on procedural grounds should not remove district court review. | The dismissal on procedural grounds in a mixed case triggers district court review of discrimination issues. | Court follows Ballentine, holding review lies in Federal Circuit where MSPB did not decide merits. |
Key Cases Cited
- Ballentine v. MSPB, 738 F.2d 1244 (Fed. Cir. 1984) (discerned district court vs. appellate review for mixed cases; merits decision triggers separate review)
- Downey v. Runyon, 160 F.3d 139 (2d Cir. 1998) (rejects Ballentine on textual grounds; supports district court review for certain mixed cases)
- Harms v. IRS, 321 F.3d 1001 (10th Cir. 2003) (holds district court review of certain MSPB dismissals available when no merits decision)
- Powell v. Department of Defense, 158 F.3d 597 (D.C. Cir. 1998) (recognizes interplay of CSRA review provisions; reliance on Ballentine framework)