29 CFR 1614.302 - Mixed case complaints
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29 CFR  § 1614.302  -  Mixed case complaints.

§ 1614.302 Mixed case complaints.

(a)        Definitions

(1)        Mixed case complaint. A mixed case complaint is a complaint of employment
discrimination filed with a federal agency based on race, color, religion, sex, national
origin, age, disability, or genetic information related to or stemming from an action that
can be appealed to the Merit Systems Protection Board (MSPB). The complain t may
contain only an allegation of employment discrimination or it may contain additional
allegations that the MSPB has jurisdiction to address.

(2)        Mixed case appeals. A mixed case appeal is an appeal filed with the MSPB
that alleges t hat an appealable agency action was effect ed, in whole or in part,
because of discrimination on the basis of race, color, religion, sex, national origin,
disability, age, or genetic information.

(b)        Election. An aggrieved person may initially file a mixed case complaint with an
agency pursuant to this part or an appeal on the same matter with the MSPB pursuant
to _5 CFR 1201. 1 51 , but not both. An angency shall inform every employee who is
the subject of an action that is appealable to the MSPB and who has either orally or in
writing raised the issue of discrimination during the processing of the act ion of the
right to file either a mixed case complain t wit h the agency or to file a mixed case
appeal with the MSPB. The person shall be advised that he or she may not initially file
both a mixed case complaint and an appeal on the same matter and that whichever is
filed first shall be considered an election to proceed in that forum. If a person files a
mixed case appeal with the MSPB instead of a mixed case complaint and the MSPB
dismisses the appeal for jurisdictional reasons, the agency shall promptly notify the
individual in writing of the right to contact an EEO counselor within 45 days of receipt
of this notice and to file an EEO com plain t, subject to § 1614.107. The date on which
the person filed his or her appeal with MSPB shall be deemed to be the date of initial
contact  with the counselor. I f a person files a timely appeal with MSPB from the
agency's processing of a mixed case complaint and the MSPB dismisses it for
jurisdictional reasons, the agency shall reissue a notice under § 1614.l 0S(f) giving
the individual the right to elect between a hearing before an administrative judge and
an immediate final decision.

(c)        Dismissal.

(1)        An agency may dismiss a mixed case complaint for the reasons contained in,
and under the conditions prescribed in, § 1614.107.

(2)        An agency decision to dismiss a mixed case complaint on the basis of the
complainant's prior election of the MSPB procedures shall be made as follows:

(i)        Where neither the agency nor the MSPB administrative judge questions the
MSPB's jurisdiction over the appeal on the same matter,  it  shall dismiss the mixed
case complaint pursuant to § 1 614 . 107( a )( 4.) and shall advise the complainant
that he or she must bring the allegations of discrimination contained in  the rejected  
complaint  to the  attention of  the MSPB,  pursuant to 5 CFR 1201. 1 55 . The
dismissal of such a complaint shall advise the complainant of the right to petition the
EEOC to review the MSPB's final decision on the discrimination issue. A dismissal of
a mixed case complaint is not appealable to the Commission except where it is
alleged that § 1614.107(a)(4) has been applied to a non-mixed case matter.

(ii)        Where the agency or the MSPB administrative judge questions the MSPB's
jurisdiction over th e appeal on the same matter, the agency shall hold the mixed case
complaint in abeyance until the MSPB's administrative judge rules on the
jurisdictional issue, notify the complainant that it is doing so, and instruct him or her to
bring the allegation of discrimination to the attention of the MSPB. During this period of
time, all time limitations for processing or filing under this part will be tolled. An
agency decision to hold a mixed case complaint in abeyance is not appealable to
EEOC. If  the MSPB's administrative judge finds that MSPB has jurisdiction over the
matter,  the judge  shall  dismiss the  mixed  case  complaint  pursuant   to  § 1614 .
107( a )( 4.}, and advise the complainant of the right to petition the
EEOC to review the MSPB's final decision on the discrimination issue. If the MSPB's
administrative judge finds that MSPB does not have jurisdiction over the matter, the
agency shall recommence processing of the mixed case complaint as a non-mixed
case EEO com plaint.

(d)        Procedures for  agency processing of mixed case complaints. When a
complainant elects to proceed initially under this part rather than with the MSPB, the
procedures set fort h in subpart A shall govern the processing of the mixed case
complaint with the following exceptions:

( 1 ) At the time the agency advises a complainant of the acceptance of a mixed case
complaint, it shall also advise the complainant that:

(i)        If a final decision is not issued within 120 days of the date of filing of the mixed
case complaint, the complainant may appeal the matter to the MSPB at any time
thereafter as specified at  5 CFR 1201. 1 54( b) ( 2) or may file a civil action as
specified at § 1614.310(9), but not both; and

(ii)        If the complainant is dissatisfied with  the agency's final decision on the mixed
case complaint, the complainant may appeal the matter to the MSPB (not EEOC)
within 30 days of receipt of the agency's final decision;

(d)        Procedures for agency processing of mixed case complaints. When a
complainant elects to proceed initially under this part rather than with the MSPB, the
procedures set forth in subpart A shall govern the processing of the mixed case
complaint with the following exceptions:

(1)        At the time the agency advises a complainant of the acceptance of a mixed
case complaint, it shall also advise the complainant that :

(i)        If a final decision is not issued within 120 days of the date of filing of the mixed
case complaint, the complainant may appeal the matter to the MSPB at any time
thereafter as specified at 5 CFR 1201.1 54 ( b) ( 2) or may file a civil action as
specified at § 1614.310(9), but not both; and

(ii)        If the complainant is dissatisfied with the agency's final decision on the mixed
case complaint, the complainant may appeal the matter to the MSPB (not EEOC)
within 30 days of receipt of the agency's final decision;

(2)        Upon completion of the investigation, the notice provided the complainant in
accordance with § 1614.108(f) will advise the complainant that a final decision will be
issued within 45 days without a hearing; and

(3)        At the time that the agency issues its final decision on a mixed case complaint,
the agency shall advise the complainant of the right to appeal the matter to the MSPB
(not EEOC) within 30 days of receipt and of the right to file a civil action as provided at
§ 1614.310(c1).