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.”