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).

    Cases involving termination (or constructive discharge) as result of discrimination are
    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.

    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.  See Federal EEO
    process.)  

    A complex scenario:  Let 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 supposed 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.   See OFO Appeals.

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

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