Mixed Case Complaints and MSPB Appeals

• See 29 C.F.R. Section 1614.302, Mixed case complaints (2010); 5 U.S.C. Section 7702; 5 C.F.R. Part 1201, Subpart E, Procedures for Cases Involving Allegations of Discrimination (2011).

Cases involving termination (or constructive discharge) as result of discrimination are called "mixed cases," because the federal agency’s EEO office handle discrimination cases (including termination or constructive discharge claims), and because MSPB has jurisdiction over all termination cases and suspensions lasting more than 14 days—with or without discrimination claims raised jointly.  It is called "mixed" because the two agencies (the federal EEO office and MSPB) can both handle cases involving termination, constructive discharge, or suspension/constructive suspension/involuntary leave of 15 days or more.

Termination, suspension of 15 days or more, or forced leave of 15 days or more are called “otherwise appealable actions” in MSPB proceedings. These actions should be appealed with MSPB, not with EEO or EEOC (for hearing). In MSPB appeals, you can allege discrimination in affirmative defense and harmful procedural errors, if applicable.

Therefore, filing with agency EEO office will delay the process considerably—way more than 180 days—as I will explain shortly. But, you have the advantage of having the agency investigate on the termination or suspension and will receive a Report of Investigation (ROI), which in turn may contain evidence in your favor, if any. (Agency’s EEO office will only investigate EEO matters, not other matters that MSPB can examine, such as harmful procedural error or Chapters 43 or 75 issues, per 5 U.S. Code.) But if you had skipped the agency’s EEO investigation and had filed an appeal directly with MSPB (MSPB.gov) within 30 days of receipt of the otherwise appealable action, MSPB (the Board) will authorize you to engage in discovery, which is another way of obtaining evidence.

If the “otherwise appealable actions” are filed with federal agency’s EEO office counselor, as you have the election right to choose between agency’s EEO proceedings and MSPB hearing proceedings. Once your informal EEO complaint is filed with EEO counselor, and then once your formal EEO complaint is filed with the agency’s EEO director/manager, the agency must investigate and produce Report of Investigation (ROI) within 180 days of your filing a formal EEO complaint (alleging those otherwise appealable actions as discriminatory/retaliatory). With issuance of the ROI you will receive a notice of election rights: to forge EEOC hearing and opt for issuance of the Final Agency Decision (FAD), or to seek EEOC hearing. You should choose FAD. You cannot choose EEOC hearing on the “otherwise appealable actions.” If you did (by mistake), EEOC hearing will be scheduled eventually but the administrative judge (AJ) will issue a decision on all pending claims except for the “otherwise appealable actions.” AJ should inform you from the outset that he or she lacks jurisdiction on the otherwise appealable actions. You need to request FAD immediately, so that you may appeal it to MSPB.

Once the Final Agency Decision (FAD) is issued, you can appeal it with MSPB (MSPB.gov) within 30 days of issuance.

A typical mixed case scenario: You filed a formal discrimination complaint on 5-day suspension, then when terminated, you filed termination with EEO office within 45 days of occurrence. (Again, the termination should be filed with MSPB within 30 days of termination, not with EEO office.) The agency investigates and issues an ROI. You should request EEOC hearing on the 5-day suspension only, while you request a FAD on the termination. Again, you should not request EEOC hearing on termination. Once FAD is issued on termination, you can appeal it with MSPB within 30 days of receipt.

MSPB issues its final decision when your petition for review (PFR) is denied, or when your request for reconsideration (of the decision issued on your PFR) is denied. MSPB AJ’s Initial Decision becomes final Board decision, if PFR was not filed.

MSPB's final decision involving a  "mixed case" can be appeal to EEOC's Office of Federal Operations (OFO) only on the issues of discrimination. Thereafter, the EEO claims therein can be further filed with U.S. District Court for judicial review. Or, you canskip the OFO petition and file directly with U.S. District Court only on discrimination claims for judicial review.

The MSPB final decision can be appealed to U.S. Circuit Court for the Federal Circuit - if only the discrimination part in the appeal is excluded. (Because the discrimination part can be reviewed by U.S. District Court.) U.S. Circuit Court for the Federal District lacks jurisdiction on EEO claims.

An Initial Decision issued by MSPB admin. judge, overturned by the MSPB/Board on a mixed case involving Appellant’s attorney’s errors. See Remand Order of 5/17/24.

➤ If a person files a complaint on removal issue with EEO office, the Agency must inform him or her

of the right to file either a mixed case complaint with the agency [EEO office] or to file a mixed case appeal with the MSPB, [... and] that he or she may not initially file both a mixed case complaint [to EEO office] and an appeal [to MSPB] on the same matter and that whichever is filed first shall be considered an election to proceed in that forum. 29 C.F.R. Section 1614.302(b) (bold added).

However, if you filed an EEO on removal or suspension of 15 days or more (or on issues such as layoff or demotion that MSPB has jurisdiction), you may still file MSPB appeal within 30 days after receipt of the Agency resolution or final agency decision on the complaint; or alternatively you may file an appeal with MSPB at any time after the expiration of 120 calendar days if the agency has not resolved the matter or issued a final agency decision within the 120-day period on your EEO complaint.  See 5 C.F.R. Section 1201.154(b).

In other words, you can file a MSPB appeal within 30 days of receipt of Final Agency Decision on your EEO claim on removal, or after 120 days from your formal EEO complaint on removal (if no Report of Investigation is issued after 120 days of your formal EEO complaint).

• Normal federal EEO process involves: informal complaint, formal complaint, issuance of Report of Investigation with option to request EEOC hearing or to request Final Agency Decision; EEOC hearing and/or Final Agency Decision. 

➤ A complex scenario

Let us suppose that a federal employee was reprimanded, denied promotion, and harassed based on his sex or age or disability, etc.; and he filed an EEO claim alleging such discrimination.  After he filed, he was terminated in retaliation. The case becomes a "mixed" case.  Now, (Option 1) he can file the termination issue with MSPB, while keeping the other (old) issues with EEO intact.  Or, (Option 2) he can combine all issues into one by asserting an affirmative defense in his MSPB appeal, stating that he was discriminated and retaliated against when he was terminated (in addition to asserting) that he was terminated without just ground in violation of Douglas Factors; and then further assert that he was reprimanded, denied promotion, and harassed based on sex, age, and disability, etc.  In other words, in the affirmative defense in MSPB appeal, he can assert discrimination on all other issues he previously filed with EEO as well as allege violation of Douglas Factors with respect to removal. This way all issues would be combined into one MSPB appeal case. Or, (Option 3, which is the best) he can separate the issues into two: one with EEO/EEOC hearing (for all issues other than removal) and another for MSPB (for removal only).  In this scenario, he should only appeal removal to MSPB without raising other issues such as reprimand and denied promotion, etc. He may still assert discrimination as the underlying motive of removal as well as Douglas Factors violations.

MSPB decisions involving discrimination claims (or mixed case claims) can be appealed to OFO only on the discrimination component, not on the Douglas Factor violations over which MSPB normally has jurisdiction (in non-mixed cases). Agency's EEO process or EEOC (in the hearing) does not deal with the Douglas Factors violations, unless you claim that the Douglas Factors are violated based on your race, sex, age, disability, etc. (which amounts to claiming discrimination in the first place).

➤ Another complex scenario

Let us suppose that a federal employee was terminated and she filed an EEO discrimination claim, instead of appealing it to MSPB, and for some odd reasons (such as she already had some pending EEO issues involving prior issues), the EEO Director accepted the termination issue for investigation.  (This should not happen; but it may.)  She is stuck with EEO formal investigation; because she "elected" to file with EEO and not with MSPB on her removal.  When the investigation is completed, as it should within 120 days of filing a formal EEO complaint , and the Report of Investigation (ROI) is issued; she will be given a chance to elect either EEOC hearing or MSPB hearing.  If she wants to appeal to MSPB on removal and to include all non termination issues, she may assert affirmative defense (claiming discrimination on all other non-termination issues) to do so in her MSPB appeal.  Or, she may elect EEOC by send the EEOC hearing request or request Final Agency Decision (in lieu of the hearing).

Again, she may still file MSPB appeal within 30 days after receipt of the Agency resolution or final agency decision on the complaint; or alternatively she may file an appeal with MSPB at any time after the expiration of 120 calendar days if the agency has not resolved the matter or issued a final agency decision within the 120-day period on her EEO complaint. See 5 C.F.R. Section 1201.154(b).

MSPB judges are required to render a decision with 180 days of appeal.  EEOC judges are to do so within 180 days of hearing request, per EEOC Directive.  But the latter rarely follow the Directive.

If you filed an EEO discrimination claim on your termination, and then filed a MSPB appeal the next day, you have "elected" to go with the Agency's EEO process. It is not advisable to do so because Agency may sit on your claim and refuse to acknowledge or investigate your claim, stating that you are no longer employed by the Agency, etc. and hoping that you will simply disappear from their sight. Even if your removal EEO claim is accepted for investigation by Agency, it will take 180 to complete the investigation (never sooner); and at the end of the investigation period you will be given a notice of right to request an EEOC hearing, or to forgo that right and to request Final Agency Decision (FAD). FAD is appealable to Office of Federal Operations (OFO) -the highest wing of EEOC on federal EEO process.

An MSPB Initial Decision on a mixed case over turned by the MSPB/Board involving Appellant attorney errors. See a Remand Order issued on 5/17/24.

➤ More Mixed Case resources

See EEOC's Management Directive (MD Chapter 4) on the "Mixed Case Complainants and Appeals."

Or, download by page:

Disclaimer: The information contained in this page are subject to change.  EEO 21, LLC does not take responsibility for any errors or misrepresentation contained therein.

Disclaimer

• Mr. Lee is not an attorney but can represent clients in federal administrative processes, including EEOC hearings and MSPB hearings.

• Mr. Lee does not practice law and cannot provide attorney-client protection privileges.  However, as any union shop steward can, Mr. Lee can represent federal employees at any administrative proceeding including those referenced above.

• Mr. Lee cannot and does not represent clients at court proceedings.