U.S. Department of Commerce
Manual for Processing Discrimination Complaints
Part II, Section A, Chapter 9
MIXED CASE COMPLAINTS

This chapter concerns complaints involving mixed cases. A mixed case alleges discrimination or retaliation in connection with an adverse action or other issue that may be appealed to the MSPB. The procedures used to process mixed case complaints are the same as those used in other complaints with some exceptions, as explained in this chapter. EEOC regulations concerning processing of mixed case complaints are at 29 C.F.R. § 1614.302.

Issues that may be appealed to the MSPB. The MSPB is an independent federal agency created to ensure that federal agencies make employment decisions in accordance with merit system principles. The MSPB adjudicates employee appeals of agency actions. To hear an appeal, the MSPB must have jurisdiction over both the action and the individual filing the appeal.

Employees and others who are entitled to appeal specific actions vary depending on the laws and regulations covering the specific action. Generally, those who may appeal agency actions to the MSPB are:

• employees in the competitive service who have completed a probationary period; and
• employees in the excepted service with at least two years of continuous service.

Probationary employees have very limited appeal rights, including the right to appeal a termination based on marital status or political affiliation.

Most federal employees may appeal certain personnel actions to the MSPB. These include:

• adverse actions;
• removals;
• suspensions of more than 14 days;
• reductions in grade or pay;
• furloughs of 30 days or less;
• performance-based removals or reductions in grade;
• denials of within-grade increases;
• certain reduction-in-force actions;
• denials of restoration to duty or reemployment rights;
• removals from the Senior Executive Service; and
• Office of Personnel Management determinations in employment suitability and retirement matters.

See 5 C.F.R. §§ 1201.2, 1201.3 for a complete list of actions that may be appealed to the MSPB.

Constructive discharge. Constructive discharge -- an allegation that an employee was forced to resign or retire because of working conditions that would be intolerable to a reasonable person -- is considered a type of removal and is appealable to the MSPB.

Election of Procedures. Complainants must choose between filing either an EEO complaint (mixed case complaint) or an MSPB appeal (mixed case appeal). They cannot do both. A person makes an election of procedures by filing a formal EEO complaint or an MSPB appeal. The action that is filed first is considered the complainant's choice and subsequent claims filed concerning the same allegations in other proceedings will be dismissed. Initiating EEO counseling is not considered an election of procedures.

Remedies. Remedies available for discrimination allegations are identical in both procedures and claims for compensatory damages can be raised in both forums.

EEO Counseling

EEO counseling on mixed case issues is identical to counseling any other issues, except that Counselors must advise complainants that they have to choose whether to raise their allegations before the MSPB or in the EEO complaint process.

Complainants raising mixed case allegations should be given the option to use mediation. If they choose to have their dispute mediated, they should be advised that this does not affect the time limit for filing MSPB appeals. Mediation will continue if a complainant files an MSPB appeal unless the complainant chooses to withdraw from the mediation process.

Formal EEO Complaint Process

A complainant’s decision to file a formal EEO complaint in a mixed case is considered an election to proceed in the EEO forum rather than in the MSPB forum.

Formal complaint processing procedures for mixed case complaints differ from regular procedures in the following ways:

• Complainants filing mixed case complaints do not have the right to a hearing before an EEOC AJ. They receive FADs by the Department based on the written record in the complaint, including the ROI. Complainants must be notified that the Department will issue a FAD within 45 days of issuing the ROI.
• EEOC regulations require OCR to issue a FAD on a mixed case complaint in a shorter time frame: within 120 days from the date the complaint is filed. If 120 days have passed and the Department has not issued a FAD, the complainant may appeal the claim to the MSPB or may file a civil action without completing the administrative process, but not both.

Appeal Process

The appeal process for mixed case complaints differs from the appeal process for other EEO complaints. Initial appeals of agency merit decisions in mixed case complaints are made to the MSPB instead of the EEOC. The appeal process works as follows:

• A complainant may file an appeal with the MSPB (a) within 30 days from the date the FAD is issued or (b) any time after 120 days if the FAD has not been issued.
• The MSPB's decision may be appealed to the EEOC within 30 days of the complainant's receipt of the decision. If the EEOC disagrees with the MSPB, the MSPB is given an opportunity to adopt the EEOC's decision.
• If the MSPB does not adopt the EEOC's decision, the appeal is referred to a Special Panel made up of representatives from both the MSPB and the EEOC. The Special Panel issues a final decision on the appeal.
• The Special Panel's decision may be appealed to the appropriate United States district court.

Right to File a Civil Action

Instead of completing this administrative appeal process, a complainant may file a civil action in court.

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