Federal employees got a bit of good news last month when the United States Court of Appeals for the District of Columbia struck down a district court’s attempt to keep federal employees from being able to litigate non-discrimination claims as part of a “mixed case” complaint: one which can be filed in federal district court when no administrative decision is issued after 120 days.
This decision, Ikossi v. Department of the Navy
, together with two prior Court of Appeals decisions, Butler v. West
and Evano v. Reno
, form a trilogy of cases that produce a roadmap that should that should enable federal employees the right to join a federal Whistleblower Protection Act claim together with a Title VII discrimination claim and proceed to federal court on the entire claim in federal district court when the agency fails to issue a final administrative decision within 120 days.
According to Michael Kohn, who is General Counsel to the National Whistleblower Center and served as lead counsel in the Ikossi case:
“the most effective way to escape the reach of the MSPB and the Federal Circuit’s stranglehold on whistleblower claims is for those individuals who can raise a Title VII discrimination claim in to file a “mixed case” complaint with a federal agency’s Equal Employment Opportunity (‘EEO”) office claiming that the adverse action flowed from unlawful discrimination and as a result of having engaged in protected whistleblower conduct.”