Mixed Case Complaints and 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).
called "mixed cases" because EEOC usually handles discrimination cases (but not
cases involving termination or constructive discharge); and because MSPB has
jurisdiction over all termination cases with or without discrimination claims. It is called
"mixed" because the two agencies (EEOC and MSPB) can both handle such cases,
although generally "mixed cases" are appealable to MSPB and not to EEOC. MSPB's
decision on a "mixed case" can be appeal to EEOC's Office of Federal Operations
(OFO) only on the issues of discrimination. See OFO appeals.
him or her:
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.
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. See Federal EEO
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.
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).
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).
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).
are to do so within 180 days of hearing request, per EEOC Directive. But the latter
rarely follow the Directive.
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. See OFO Appeals.
Complainants and Appeals."
Page 1: Definitions and Procedures
Page 2: Appealable Actions, Election to Proceed, and Procedures for Handling Dual
Page 3: Non Jurisdiction Dismissal
Page 4: Processing Mixed Case Complaints Filed at the Agency
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