EQUAL EMPLOYMENT OPPORTUNITY
DATE: October 24, 2003
To the Heads of Federal Agencies
- SUBJECT. Deletion of language in Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110) (1999) related to the processing of equal employment opportunity (EEO) administrative complaints which are related to or stemming from an action that may be appealed to the Merit Systems Protection Board (MSPB).
- PURPOSE. The Office of Federal Operations (OFO) has been notified by the MSPB that EEO MD-110, Chapter 4, Section II.B.4.d., improperly advises parties with regard to MSPB procedures and jurisdiction. The referenced Section advises agency representatives to file a motion with an MSPB Administrative Judge to consolidate matters which are not within their jurisdiction with matters which are properly before the MSPB Judge. OFO has been advised that this Section, which was introduced in EEO MD-110 in 1999 in order to clarify procedures for mixed case processing and reduce the fragmentation of EEO complaints which may be pending in both the EEOC Part 1614 process and the MSPB appeal process, is improper procedurally, in that it constitutes a request for an MSPB Judge to hear matters which may not be within the jurisdiction of the MSPB. The purpose of this bulletin is to delete Section II.B.4.d in Chapter 4 of EEO MD-110.
- EFFECTIVE DATE. Immediately.
- AUTHORITY. This bulletin is issued pursuant to EEO-MD-101, EEO Management Directives & Bulletins, and EEOC’s obligation and authority under section 717 of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-16; sections 501 and 505 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791 and 794a; section 15 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 633a; section 6(d) of the Fair Labor Standards Act of 1938, as amended (the Equal Pay Act), 29 U.S.C. § 206(d); Reorganization Plan No. 1 of 1978, 3 C.F.R. § 321 (1978) and Executive Order 11478, 3 C.F.R. § 803 (1966-1970 Compilation) reprinted in 42 U.S.C. § 2000e note, issued in 1969, and Executive Order 12106, 44 Fed. Reg. 1053 (1979).
- POLICY INTENT. The policy intent of this bulletin is to advise federal agency heads that Section II.B.4.d in Chapter 4 of EEO MD-110, advising parties to file motions before MSPB Administrative Judges to accept jurisdiction over non-mixed matters with other matters properly within the jurisdiction of the MSPB, is rescinded and that the suggested procedure should no longer be followed. This information may also be helpful to complainants, EEO Directors, agency investigators, and agency representatives in understanding and following EEOC regulations governing the processing of mixed case complaints and appeals in the EEO administrative complaint process. See 29 C.F.R. § 1614.302 (1999).
- APPLICABILITY AND SCOPE. The provisions of this bulletin apply to all federal departments, agencies and units covered by 29 C.F.R. Part 1614 as described in 29 C.F.R. § 1614.103.
- Agency. When the term “agency” is used in this bulletin, it refers to all departments, agencies and units covered by the 29 C.F.R. Part 1614 regulations as described in 29 C.F.R. § 1614.103.
- Agency representative. When the term “agency representative” is used in this bulletin, it refers to any or all agency employees whose job duties include defending the agency’s personnel policies and/or actions. The term is not limited to attorneys employed in an agency’s Office of General Counsel or Office of Legal Counsel. The term also includes non-attorney employees whose job duties include defending the agency’s personnel policies and/or actions, for example, labor relations specialists.
- Mixed case complaint. The term “mixed case complaint” refers to a complaint of employment discrimination filed with a federal agency based on race, color, religion, sex, national origin, age, disability or reprisal related to or stemming from an action that may be appealed to the MSPB.
Mixed case appeal. The term “mixed case appeal” refers to an appeal filed directly 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 reprisal.
- EEO-MD-101 at 8.c. mandates that the heads of federal agencies shall be responsible for the prompt and effective compliance with Equal Employment Opportunity Management Directives and Bulletins within their organizations.
- Heads of federal agencies or their designee(s) shall ensure that they delete Section II.B.4.d in Chapter 4 of EEO MD-110 from their existing copies of EEO MD-110. They shall promptly advise appropriate agency offices and representatives of this amendment, and that EEOC no longer advises parties to move MSPB Administrative Judges to assert jurisdiction over non-mixed matters not directly related to an appealable action.
Agencies shall immediately delete Section II.B.4.d in Chapter 4 of EEO MD-110 from their existing copies of EEO MD-110, including footnote 4 in the referenced Section. The deleted language is as follows:
d. Where a complainant has pending a non-mixed case complaint or a series of non-mixed case complaints and the claims raised in those complaints are inextricably intertwined with an appeal on a claim that is appealable to the MSPB(FN4)
The agency should file with the MSPB a motion to consolidate the non-mixed case claim with the mixed case appeal. Upon filing the motion, the non-mixed case complaints will be held in abeyance pending a decision by the MSPB administrative judge on the agency's motion. If the MSPB administrative judge should fail to consolidate the non-mixed case complaints, they shall be processed pursuant to § 1614.106, et seq. Time for processing will commence to run without notice, fifteen (15) days following the decision denying jurisdiction. The time periods are to run from the time processing ceased. This means that if processing of the non-mixed claim ceased on the seventieth (70th) day, the count of days will begin with day 71. If the MSPB Administrative Judge consolidates, the mixed case complaint should be dismissed.
(FN4) This provision is specifically meant to address those situations where a series of events, connected in time or type, culminate in an appealable action against a person with standing to appeal to the MSPB. For example: minor discipline, warnings or other claims may form the basis for a non-mixed case, but ultimately lead to suspension in excess of 14 days or termination; similarly, an allegedly discriminatory performance evaluation and subsequent placement on a performance improvement plan are non-mixed claims that may culminate in denial of a within-grade promotion, or even in removal, both of which are appealable to the MSPB.
- REPORTING REQUIREMENTS. None.
- INQUIRIES. Further information concerning this bulletin may be obtained by contacting:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
Carlton M. Hadden, Director
Office of Federal Operations