Mixed Cases in the Federal EEO Complaint Process

The Federal sector’s equal employment opportunity (EEO) process addresses complaints of employment discrimination filed by Federal employees, applicants, and former employees. Generally, these cases are within the jurisdiction of the U.S. Equal Employment Opportunity Commission (EEOC). Mixed cases contain allegations of discrimination but relate to or stem from certain personnel matters that can be appealed to the U.S. Merit Systems Protection Board (MSPB).[1] Thus, while the EEOC and the MSPB generally adjudicate different types of cases, sometimes, their jurisdictions overlap. Due to this complexity, mixed cases can cause confusion.

This article defines mixed cases, describes how they are processed, and identifies frequent challenges and how to address them.

Historical Background

To understand a mixed case, it helps to first understand the history of the EEOC and the MSPB. Previously, the Civil Service Commission (CSC) adjudicated all Federal employee claims, including those of discrimination. However, the Civil Service Reform Act of 1978 abolished the CSC, established the MSPB for adjudicating employee appeals regarding civil service laws, and granted the EEOC jurisdiction over hearings and appeals involving discrimination in the Federal sector.[2]

As a result of this structure, the EEOC and the MSPB generally adjudicate different types of cases, but their jurisdictions overlap at times. As noted, the EEOC has primary responsibility for adjudicating complaints of employment discrimination, whereas the MSPB has jurisdiction over appeals specifically involving a removal, a suspension for more than 14 days, a reduction in grade, a reduction in pay, or a furlough of 30 days or less.[3] Some of these appeals may also involve allegations of discrimination, however. In adjudicating such cases, the MSPB will analyze the allegations of discrimination but will apply different legal standards and burdens of proof than those applied in complaints of employment discrimination adjudicated by the EEOC.

What Is a Mixed Case?

A mixed case is a matter that can be appealed to the MSPB while also containing allegations of discrimination typically adjudicated by the EEOC. To initiate a mixed case, an employe can file either a mixed case complaint or a mixed case appeal.

In a mixed case complaint, an employee files a formal EEO complaint with an agency’s EEO office alleging discrimination that includes a claim related to an agency action appealable to the MSPB.[4] The agency must investigate the complaint and issue a final decision with appeal rights to the MSPB.[5]

In a mixed case appeal, an employee files an appeal directly with the MSPB, alleging an adverse action was affected, in whole or in part, by discrimination.[6] This type of mixed case does not involve formal processing by an agency’s EEO office and the MSPB renders a decision on the appeal.[7]

How Is a Mixed Case Processed?

Generally, an employee who files a mixed case complaint has 30 days after receiving the agency’s final decision to file an MSPB appeal.[8] If the agency does not issue a final decision within 120 days of the date a mixed case complaint was filed, the employee can appeal to the MSPB at any time after, but no later than 30 days after receiving an agency resolution or final decision on the discrimination issue.[9]

For filing an appeal directly with the MSPB, the employee has 30 days after the effective date, if any, of the action being appealed or 30 days after the date of the employee’s receipt of the agency’s decision, whichever is later.[10] If the employee establishes that the MSPB has jurisdiction over the appeal, the employee is entitled to a hearing before an MSPB administrative judge (AJ).[11] An MSPB AJ renders an initial decision, which the MSPB generally adopts as the final decision within 35 days.[12] During this 35-day period, an employee or the agency may file a petition for review (PFR) challenging the initial decision.[13] However, the MSPB only grants a PFR under limited circumstances.[14]

When an employee disagrees with the MSPB’s initial decision or the decision to uphold the initial decision on PFR, they may petition the EEOC.[15] If the EEOC disagrees with the MSPB’s determinations with respect to discrimination, the EEOC may return the case to the MSPB for a decision.[16] Aside from the processes available at the MSPB and the EEOC, an employee also has the right to file a mixed case in district court.[17]

Frequent Challenges and How to Address Them

Due to the complexity of mixed cases, some challenges frequently arise. This section describes those challenges and how to address them.

Ensure the MSPB Has Jurisdiction

Although the MSPB has jurisdiction over most employees, some agencies and appointments are excluded from mixed case jurisdiction. This can lead to mistakes, such as providing improper appeal rights or filing in the improper forum. Thus, it is important for the EEO office providing appeal rights and the employee trying to exercise MSPB appeal rights to ensure that the MSPB has jurisdiction over the agency and the employee’s appointment type.[18]

For example, certain claims from probationary employees and those serving a trial period are limited and do not allow a mixed case appeal to the MSPB.[19] The MSPB also does not have jurisdiction over employees from certain agencies (such as many agencies associated with the intelligence community) or in certain positions (such as political appointees or reemployed annuitants).[20]

Process Complaints with Mixed and Non-Mixed Claims According to the Respective Regulations

Within the same complaint, employees may allege some claims of discrimination that are appealable to the MSPB and others that are not.[21] This can lead to challenges in complaint processing, as such complaints may involve overlapping witnesses and documentation. In these cases, the complaint is split in two. The non-mixed claims are processed pursuant to 29 C.F.R. sections 1614.108-110, which provide the right to elect a final decision by the agency or a hearing before an EEOC AJ. The mixed claims are processed pursuant to the procedures set forth at 29 C.F.R. section 1614.302(d), which culminate in the issuance of a final decision that includes MSPB appeal rights.[22]

Be Careful When Dual Filing a Case

An employee may file a mixed case complaint or an MSPB appeal, but not both. Dual filing may lead to a dismissal in the intended forum. The law considers an employee to have made an election by filing an MSPB appeal or a formal EEO complaint.[23] If an employee files in both forums, the later filing will end in dismissal. For example, the agency will dismiss a mixed case complaint upon learning the employee had already filed an MSPB appeal on the same matter.[24] Similarly, the MSPB will consider an employee to have elected the mixed complaint process if an employee has filed an EEO complaint before filing an appeal with the MSPB.[25]

Thus, employees and their representatives should be careful when dual filing a case to ensure the proper election. Furthermore, agency officials, such as the EEO office and agency counsel, should keep each other updated to prevent redundant processing once an employee has made an election.

EEO Rights for Appeals and Complaints Differ After MSPB Dismisses for Lack of Jurisdiction

If the MSPB dismisses an appeal for lack of jurisdiction, the next step for employees and agencies may be confusing. If the MSPB finds no jurisdiction with respect to a mixed case appeal, the agency must inform the employee of the right to contact an EEO counselor within 45 days.[26] If the MSPB finds no jurisdiction with respect to a mixed case complaint that was timely appealed to the MSPB, the agency must provide the employee notice of the right to request a hearing before an EEOC AJ or an immediate final decision.[27]

Do Not Combine Issues Previously Considered “Inextricably Intertwined” with Mixed Claims

Claims that are closely related can be confusing to process. When an employee alleges claims within the EEOC’s jurisdiction as well as mixed claims, the agency processes these claims separately.[28] This is true regardless of whether the claims may have been previously considered “inextricably intertwined” under a doctrine that has since been discarded. The only exception is when a proposed action merges with an imposed action to become appealable to the MSPB.[29]

For example, if an employee alleged claims of (1) hostile work environment, (2) failure to provide a reasonable accommodation, (3) proposed removal, and (4) removal, claims 1 and 2 would be within the EEOC’s jurisdiction while claims 3 and 4 would be within the MSPB’s jurisdiction.[30] Keeping this jurisdictional difference in mind can help prevent prolonged proceedings.

Separate Claims That Arose Prior to a Constructive Discharge Claim

Constructive discharge claims and the claims leading up to them can be difficult to process. In a constructive discharge claim, an employee alleges that the employer discriminatorily creates working conditions that are so difficult, unpleasant, or intolerable that a reasonable person in the aggrieved person’s position would feel compelled to resign.[31] When an employee alleges a claim of constructive discharge, the claims leading up to it (such as harassment and failure to accommodate claims) may fall within the EEOC’s jurisdiction.

Meanwhile, the constructive discharge claim itself could mean the matter is a mixed case. A constructive discharge claim will be within the MSPB’s jurisdiction if the employee can show that the circumstances surrounding the challenged action (such as a resignation or retirement) meet the MSPB’s standard for considering the action involuntary and tantamount to an actual removal.[32] Constructive discharge claims that do not meet this standard will be dismissed by the MSPB for lack of jurisdiction. At that point, the agency must continue case processing in accordance with MD-110.[33]

Thus, employees, EEO offices, and agency representatives should carefully track cases involving constructive discharges and involuntary actions cases along with the cases involving the underlying actions (such as harassment and failure to accommodate claims). It is possible that both may ultimately end up in the EEO process.

Conclusion

The EEOC and the MSPB generally adjudicate different types of cases but, sometimes, their jurisdictions overlap. Mixed cases may cause confusion because they can be appealed to the MSPB while also containing allegations of discrimination typically within the EEOC’s jurisdiction. This article provides employees and EEO practitioners with answers to frequent questions about mixed cases. The EEOC hopes this information helps readers to better understand mixed cases and avoid common challenges.

[1] 29 C.F.R. § 1614.302.

[2] Pub. L. No. 95-454, 92 Stat. 1111 (1978).

[3] 5 U.S.C. § 7512.

[4] 29 C.F.R. § 1614.302(a)(1).

[5] 29 C.F.R. § 1614.302(d)(3); Management Directive 110 (MD-110) Chap. 4 II.B.4.e.

[6] 29 C.F.R. § 1614.302(a)(2); 5 U.S.C. §7702; MD-110 Chap. 4 II.A.

[7] 29 C.F.R. § 1614.302(a)(2); 5 C.F.R. § 1201.151.

[8] 29 C.F.R. § 1614.302(d)(1)(ii).

[9] 29 C.F.R. § 1614.302(d)(1)(i); 5 C.F.R. § 1201.154(b)(2).

[10] 5 C.F.R. § 1201.22(b)(1).

[11] 5 C.F.R. § 1201.24(d).

[12] 5 C.F.R. §§ 1201.41(b)(15); 1201.113.

[13] 5 C.F.R. § 1201.114(e).

[14] These circumstances include an erroneous finding of material fact, an erroneous interpretation or application of statute or regulation that would warrant a different outcome, or certain new and material evidence or legal argument. See 5 C.F.R. § 1201.115.

[15] 5 U.S.C. § 7702(b)(1); 29 C.F.R. § 1614.303.

[16] 5 U.S.C. § 7702(b)(3)-(5); 29 C.F.R. § 1614.305(c)-(e). In extremely rare cases, when the MSPB disagrees with the EEOC, the MSPB may refer the case to a special panel to adjudicate which entity’s decision holds. See 29 C.F.R. § 1614.306. For example, in Alvara v. Department of Homeland Security, 121 M.S.P.R. 613 (2014), a special panel held that the Commission had made a reasonable interpretation of discrimination law and that the decision in the case was reasonable.

[17] 5 U.S.C. § 7702; Perry v. Merit Systems Protection Board, 582 U.S. 420, 423 (2017); 29 C.F.R. § 1614.310.

[18] MD-110 Chap. 4 II.B; see, e.g., Cox v. Department of Agriculture, EEOC Appeal No. 01A13221 (Aug. 1, 2002) (remanding claim involving probationary termination to the agency when employee had been improperly provided mixed case appeal rights and ordered the agency to provide right to request hearing or final decision).

[19] 5 U.S.C. § 7511; 5 C.F.R. § 1201.3(a).

[20] 5 C.F.R. § 752.401(d).

[21] 29 C.F.R. § 1614.302(a)(1).

[22] MD-110 Chap. 4 II.B.4.

[23] 29 C.F.R. § 1614.302(b); MD-110 Chap. 4 II.B.1.

[24] See Deangelo C. v. Department of Homeland Security, EEOC Appeal No. 0120152120 (Nov. 13, 2015), which affirmed the agency’s dismissal of the mixed case complaint. Although the employee had initiated EEO counseling the same day he filed an MSPB appeal, the employee was considered to have made an election upon filling a formal complaint (not upon initiating EEO counseling).

[25] See Moore v. Department of Justice, 112 M.S.P.R. 382 ¶ 19 (2009), which found that, because the employee elected to pursue the mixed case complaint procedures, she was required to wait 120 days from the date she filed her formal complaint before filing an MSPB appeal.

[26] 29 C.F.R. § 1614.302(b); MD-110 Chap.4 II.B.3.a.

[27] 29 C.F.R. § 1614.302(b); MD-110 Chap. 4 II.B.3.b.

[28] 29 C.F.R. §§ 1614.108-1614.110, 1614.302(d).

[29] See Complainant v. Inter-American Foundation, EEOC Appeal No. 0120132968 (Jan. 8, 2014); MD-110 Chap. 4 II.B.

[30] See Leanne H. v Department of Veterans Affairs, EEOC Appeal No. 2021000070 (Aug. 23, 2022).

[31] See MD-110 Appendix D.

[32] See Cano v. U.S. Postal Service, 107 M.S.P.R. 284 ¶¶ 6-7 (2007) (stating that an employee-initiated action such as a resignation or retirement may be within MSPB’s jurisdiction and tantamount to removal when, for example, it is coerced and involuntary based upon discrimination).

[33] MD-110 Chap.4 II.B.3; see Selene M. v. Department of Defense, EEOC Appeal No. 2022004506 at n.2 (Sept. 19, 2024), describing the process of remand from the MSPB AJ in a constructive discharge claim. In Selene M., the MSPB AJ issued an initial decision dismissing complainant’s constructive discharge claim for lack of jurisdiction. The complainant did not file a petition for review with the full MSPB and, thus, the MSPB AJ’s decision became final insofar as the MSPB’s review was concerned. Case processing continued at the EEOC, however. Notably, the EEOC has its own established elements which a complainant must prove to substantiate a claim of constructive discharge: (1) a reasonable person in the complainant's position would have found the working conditions intolerable; (2) conduct that constituted discrimination against the complainant created the intolerable working conditions; and (3) the complainant’s involuntary resignation resulted from the intolerable working conditions. See Selene M., EEOC Appeal No. 2022004506 at *5 citing Walch v. Department of Justice, EEOC Request No. 05940688 (Apr. 13, 1995). In this case, the EEOC held that the complainant did not establish that she was constructively discharged.