Mixed Case or Mixed Appeal

EEOC, MSPB, Mixed Case or Mixed Appeal

The world of federal employee labor relations, like other similar fields of practice, is incredibly nuanced.  Many times, we are asked the difference in such nuances and mixed cases and appeal definitions are constant questions.

As provided in 29 CFR 1614.302 (2013); (see also 5 CFR 1201.151 and 5 USC 7702)

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 complaint may contain only an allegation of employment discrimination or it may contain additional allegations that the MSPB has jurisdiction to address.

Whereas,

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

A key distinction to consider is that MSPB appeal (Merit Systems Protection Board) is available only in cases in which the adverse action is within Board jurisdiction; for example, a removal or suspension for more than 14 days. See,  5 USC 7512 ; 5 USC 7513 (a), (d); 5 USC 7701 (a). If MSPB has jurisdiction to review the agency action against an employee, the Board is also authorized to adjudicate the employee’s claims of discrimination that would otherwise be outside Board jurisdiction. See, 5 USC 7702 (a)(1); 29 CFR 1614.302. This type of case is referred to as a “mixed case appeal.” See, 29 CFR 1614.302 (a)(2). See also, Conforto v. Merit Systems Protection Board, 113 LRP 16708 (Fed. Cir. 2013).

Warning

29 CFR 1614.302 (a) (2) (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 1201.151 , but not both. An agency 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 action of the right to file either a mixed case complaint with 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 complaint, 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. If 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 § 1614.108(f) giving the individual the right to elect between a hearing before an administrative judge and an immediate final decision.

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