Monday, October 21, 2013

Dealing With the Conflict Between EEOC and MSPB Jurisdiction - The Mixed Case

Erica N. Cordova


The U.S. Equal Employment Opportunity Commission (EEOC) is a federal administrative agency responsible for enforcing federal laws prohibiting discrimination in the workplace. The EEOC has jurisdiction over claims arising under Title VII of the Civil Rights Act of 1964 (Title VII), the Pregnancy Discrimination Act (PDA), the Equal Pay Act of 1963 (EPA), the Age Discrimination in Employment Act of 1967 (ADEA), Title I of the Americans with Disabilities Act of 1990 (ADA), Sections 102 and 103 of the Civil Rights Act of 1991, Sections 501 and 505 of the Rehabilitation Act of 1973, and the Genetic Information Nondiscrimination Act of 2008.

A plaintiff must fit within one of the protected classes of individuals to bring a claim under one of the aforementioned laws. A person may belong to a protected class based upon race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, genetic information or prior EEO activity. There are different complaint processes which public sector and private sector employees must follow to pursue their discrimination claim with the EEOC.  The subject matter of this article concerns only federal employees seeking to bring a discrimination claim through the EEO process. Federal sector employment discrimination claims are adjudicated through an EEOC administrative hearings process, with Administrative Judges, to which private sector employees are not subject. This process is conducted pursuant to the rules set forth by Title 29 of the Code of Federal Regulations, Part 1614.

The U.S. Merit Systems Protection Board (MSPB) is a quasi-judicial federal agency responsible for protecting the federal merit system through its employee appeals functions. MSPB carries out its statutory responsibilities and authorities primarily by adjudicating individual employee appeals of adverse employment actions and by conducting merit systems studies. MSPB does not hear and decide discrimination complaints except when allegations of discrimination are raised in appeals from agency personnel actions brought before the Board. That responsibility generally belongs to the Equal Employment Opportunity Commission.

It is this overlap of federal sector EEOC jurisdiction and MSPB jurisdiction that is of concern for this article.
When a case may be filed before either the EEOC or the MSPB, this is called a mixed case. The disposition of mixed case complaints proceeds differently than the average claim filed before the EEOC. The primary source for guidance on this issue is the Code of Federal Regulations. However, the Regulations present complicated and confusing directives regarding the processing of mixed cases that on many levels are counterintuitive and inefficient. “This is probably the most complicated issue in federal service,” Del. Eleanor Holmes Norton, D-D.C., said at a hearing by the Subcommittee on the Federal Workforce and Agency Organization. Unfortunately, solving this issue has proven equally complicated and accordingly the issues with the mixed case framework remain unresolved and as mixed-up as ever.

Regulatory Procedures for the Processing of Mixed Cases

29 C.F.R. § 1614.302(a)(1) defines a “mixed case complaint” as 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.” A “mixed case appeal” is an “appeal filed with the MSPB that alleges that an appealable agency action was affected, in whole or in part, because of discrimination on the basis of race, color, religion, sex, national origin, disability, age, or genetic information.”

An aggrieved person may initially file a mixed case complaint with the agency-employer pursuant to 29 C.F.R. § 1614.302 or a mixed case appeal with the MSPB pursuant to 5 C.F.R. § 1201.151, but not both. If, however, the complainant does file his complaint with both the EEOC and the MSPB, whichever is filed first is considered an election to proceed in that forum.

If the complainant initially elects to proceed under the EEO process rather than the MSPB, the complaint shall proceed as any other non-mixed EEO complaint, except that:
(1) Upon completion of the EEO investigation, the agency will issue the complainant a final decision without a hearing;

(2) If a final decision is not issue issued within 120 days of the mixed case complaint filing date, the complainant may appeal the matter to the MSPB pursuant to 5 C.F.R. § 1201.154(b)(2) or may file a civil action pursuant to 29 C.F.R. § 1614.310(g), but not both; and

(3) If the complainant is dissatisfied with the agency’s final decision on the mixed case complaint, the complainant may appeal the matter to the MSPB (not EEOC) within 30 days of receipt of the agency’s final decision.

However, prior to a request for a hearing, an agency may dismiss a mixed case complaint where the complainant has raised the matter in a negotiated grievance procedure that permits allegations of discrimination or in an appeal to the MSPB when the complainant has elected to pursue the non-EEO process.

An agency decision to dismiss a mixed case complaint on the basis of prior MSPB election shall proceed as follows: 
(1) If neither the agency nor the MSPB administrative judge questions the MSPB’s jurisdiction over the appeal, the agency shall dismiss the mixed case complaint and advise the complainant that he must bring the discrimination allegations to the attention of the MSPB pursuant to 5 C.F.R. § 1201.155.
 However, this dismissal must advise the complainant of the right to petition the EEOC to review the MSPB’s final decision on the discrimination issue. Additionally, the dismissal of a mixed case complaint is not appealable to the Commission except when the complainant alleges that his case is, in fact, a non-mixed case.

(2) If the agency or the MSPB administrative judge questions the MSPB’s jurisdiction over the appeal, the agency shall hold the mixed case complaint until the MSPB administrative judge rules on the jurisdictional issue. If the MSPB administrative judge finds that the MSPB has jurisdiction, the agency shall dismiss the complaint and follow the same procedures discussed above. If the MSPB administrative judge finds that the MSPB does not have jurisdiction, the agency shall resume processing of the mixed case complaint as a non-mixed case EEO complaint.

Once it is established that the complainant has properly come before the MSPB administrative judge, the MSPB administrative judge will decide both the issue of discrimination and the appealable action. Once the MSPB has issued a decision, the complainant can then petition the EEOC to review the discrimination issues from any mixed case appeal decision of the Board. If the Commission decides to consider the decision of the Board, the Commission may either (1) concur with the decision of the Board, or (2) issue a written decision which differs from the decision of the Board to the extent that the Commission finds that the Board’s decision constitutes an incorrect interpretation of any law, rule, or regulation related to discrimination, or the evidence as a whole does not support the decision. The Commission then forwards its decision back to the MSPB.

After receipt of the Commission’s decision, the Board shall consider the decision and either (1) concur with the decision of the Commission, or (2) reaffirm or make revisions to the decision of the Board, to the extent that the Board finds that the Commission decision is based on an incorrect interpretation of any law, rule, or regulation, or the evidence in the record does not support the Commission decision. If the Board reaffirmed its decision in whole or in part, it will certify the matter immediately to a Special Panel. Once the Board receives a decision from the Special Panel on the matter, the Board will order the agency to take any action appropriate to carry out the decision of the Panel.

Problems with the Mixed Case Framework

Confused yet? Many practitioners and pro se litigants are and that is one of the main problems with the current mixed case framework – it is utterly confusing! It is like playing a game of ping-pong with federal sector mixed case litigants. “Mixed cases have always been problematic for practitioners”, and are even more so for the pro se litigant that has no formal legal training and has no clue where to even start with his mixed case. Considering that the overwhelming majority of federal sector complainants adjudicate their claims as pro se litigants or are represented by non-attorney representatives such as a union representative, this is a serious disadvantage for pro se litigants and non-attorney represented litigants to the fair adjudication of their complaints. “Since a mixed case involves both an adverse action appealable to the Merit Systems Protection Board, and an EEO complaint appealable to the Equal Employment Opportunity Commission, practitioners [and pro se litigants] must ask themselves: Where do I go, what do I file and when should I file it?” Unfortunately, these questions are more difficult to answer than these practitioners and pro se litigants might initially suspect.

If, for instance, you are a regular EEO practitioner, you may immediately find the relevant EEO provisions of 29 C.F.R. Part 1614 but may overlook the relevant MSPB provisions of 5 C.F.R. Part 1201 which outlines much of the substantive process for adjudicating a mixed case. If you were to overlook these MSPB provisions, you would be oblivious to the following important procedural aspects of adjudicating a mixed case. First, the complainant has the opportunity to petition the EEOC to review the MSPB decision, assuming the complainant elected to pursue the EEO process and then appealed the final agency decision to the MSPB. This opportunity for review by the EEOC is not something that a practitioner that only consulted 29 C.F.R. Part 1614 would ever guess is available because 29 C.F.R. Part 1614 explicitly says that the complainant must appeal to the MSPB, not the EEOC. Second, the MSPB may then review the EEOC’s decision on the MSPB’s decision. This is also something that your average practitioner would never guess because the MSPB and the EEOC each have its own designated appellate body which, of course, is not the other agency. Third, if after this ping-ponging of the complainant’s case back and forth between the EEO process and the MSPB, the EEOC and MSPB remain in disagreement, a Special Panel will be convened to resolve the dispute. 

Each of these are very important facets of the mixed case process that can easily be overlooked, to the detriment of his client, if the practitioner does not cross-reference 29 C.F.R. Part 1614 and 5 C.F.R. Part 1201. Even worse, the pro se litigant who may know nothing of federal regulations is forced to rely only upon the inadequate information provided in the notice attached to his final agency decision. While there are additional sources beyond the Code of Federal Regulations that are available to the savvy and well-financed practitioner to help him better understand the mixed case process, these types of resources that are easily accessible and low-cost for the pro se litigant are few and far between. 

In fact, while I have been able to locate a few low-to-no cost secondary sources which better explain the mixed case process, the problem for pro se litigants remains that (1) you must know where to look for this information, and (2) with most of these sources, you still need to have at least a decent understanding of law and legal terms generally, and a foundational understanding of the federal sector EEO process. At no point during my research have I been able to locate a published flowchart or any other mechanism capable of explaining this overly complicated mixed case process in the way that I have outlined it in the flowchart included below, for which no extensive prior legal knowledge is necessary to understand it.

There are also substantive problems with the current mixed case framework. Having the choice to pursue your claim via the EEO process is essentially useless as it is currently outlined for mixed case litigants. The litigant is not entitled to a hearing before an EEOC administrative judge and thus is relegated to receiving only a final agency decision on the matter. If the litigant pursues the EEO process rather than the MSPB process, there is a major conflict of interest in the investigative process and the issuance of the final agency decision. Pursuant to 29 C.F.R. Part 1614 which was revised in 1999, the EEOC relies on federal agencies to process the very complaints filed against them. This arrangement was chosen in large part due to the EEOC’s lack of resources. “This inherent conflict of interest has led to many instances of agencies failing to process complaints properly. While it may not be feasible for EEOC to take over the processing of informal complaints, at a minimum EEOC should take over the acceptance of complaints and the EEO investigative process to avoid obvious conflicts of interest.”

One of the major complaints about the current federal sector EEO process is that the agencies themselves are responsible for investigating the discrimination complaints against them – this is an unthinkable conflict of interest. Most agencies use contract investigators who have a disincentive to valuing quality over efficiency. Additionally, contractors are well aware that if their Report of Investigation tends to show that the agency did in fact discriminate, that they will not be rehired in the future for more investigations. Often, complainants have complained that investigators refused or failed to contact their witnesses or to accept rebuttal evidence to the claims of the management witnesses. Furthermore, an even greater problem exists when agencies have their own employees investigating complaints. When placed in control of the investigative and decision-making process, it is clear that the agencies have significant incentives to encourage biased or incomplete Reports of Investigation and issue findings of no discrimination in its final agency decisions based on those biased or incomplete Reports of Investigation. 

One proposed solution to this conflict of interest is to shift the responsibility for conducting investigations to the EEOC. “This would remove the inherent conflict of interest created when an agency investigates itself, ensure consistency, and should result in Reports of Investigation that are more complete. While this may involve shifting funding from the agencies to EEOC so that EEOC has the resources to hire investigators, in the end, more complete Reports of Investigation would lower discovery costs and make it easier for administrative judges to evaluate claims.”

Yet, the current mixed case framework seems intent on keeping the discrimination claims out of the hands of those that specialize in discrimination claims because the complainant has no right to a hearing. The current procedures allow a clearly conflicted agency to issue final agency decisions. It then allows the MSPB, which is inexperienced with discrimination issues, to review the final agency decision. Then, only after the MSPB has reviewed the final agency decision, does an experienced EEOC administrative judge have the opportunity to review the MSPB’s decision. Ultimately, if a disagreement remains between the EEOC and the MSPB on a matter, the issue is decided by a Special Panel rather than solely by the experienced EEO professionals at the EEOC. This is problematic because EEOC administrative judges handle cases involving discrimination and adverse actions on a daily basis, but the same cannot be said regarding the MSPB’s breadth of experience.

EEO laws were passed with the objective of eradicating unlawful discrimination in the workplace and the EEOC was established to serve as the primary specialized federal agency responsible for enforcing these EEO laws. Yet, now under the current mixed case framework, this primary authority has been stripped from the EEOC and given to either (1) the agencies, (2) the MSPB, or (3) the Special Panel, none of which grant the EEOC or its appellate body, the Office of Federal Operations (OFO), the ultimate authority that they would have when adjudicating a non-mixed case. There is nothing that prevents the EEOC from fairly and effectively adjudicating a mixed case complaint as it would any other non-mixed complaint. 

In fact, the facts of a mixed case can be so strikingly similar to a non-mixed case as to be virtually indistinguishable from cases that are before EEOC administrative judges every day. For example, consider the scenario in which we have a preference eligible veteran complainant who was suspended from his job at the United States Postal Service for fifteen days and believes he was suspended because of his race. This scenario would qualify as a mixed case because the complainant (1) is a preference eligible veteran employed by the Postal Service, (2) was suspended for more than fourteen days, and (3) is alleging unlawful discrimination. However, if we adjust the facts ever so slightly so that the scenario involves a preference eligible veteran complainant who was suspended from his job at the United States Postal Service for thirteen days and believes he was suspended because of his race, we get a different outcome. Now, by lessening his suspension by only two days, we no longer have a mixed case, even though the substantive facts remained virtually the same. EEOC administrative judges handle the same types of adverse actions that are appealable actions to the MSPB on a daily basis. Conversely, “MSPB administrative judges rarely find discrimination and average only about 10 cases per year.”

 Yet, for some reason, the regulations seem intent on essentially establishing the MSPB as the primary forum in which mixed case complainants should be pursuing their claims. Yes, it is true that the regulations give the complainant the opportunity to elect the EEO process instead of MSPB, but that election is virtually useless for most complainants because the agency is unlikely to issue a finding of discrimination against itself in its final agency decision. Yes, it is also true that the regulations give the complainant the opportunity to petition the EEOC to review the MSPB’s decision, but this also gives very little authority to the EEOC because the MSPB can subsequently question the EEOC’s decision on the MSPB decision. The current mixed case framework does not align with the overriding intent of EEO laws to eradicate unlawful discrimination in the workplace, nor the EEOC’s mandate to enforce those EEO laws.

While this framework greatly undermines the EEOC’s mandate to enforce EEO laws, it also undermines the authority of the MSPB because it allows each agency to second guess the other. In 2005, a Special Panel stated that the “MSPB may disagree with the EEOC only as to misinterpretations of civil service law, not discrimination law,” affirming the “due deference” principle and making it clear that “the EEOC and the MSPB must defer to each other in their respective areas of expertise.” If the EEOC and the MSPB must grant the other deference in their respective realms of expertise, should they not each simply be the exclusive forum in their realm of expertise, with appeals made to their respective appellate bodies rather than the other agency or a Special Panel?

Improving the Mixed Case Framework

Thus far, little has been done to improve the confusing and inefficient mixed case framework that is currently in place. Members of the Senior Executives Association suggested a “super court” that would handle all discrimination complaints and adverse action appeals, arguing that the idea would reduce the overlapping enforcement authorities of the MSPB, the EEOC, the Federal Labor Relations Authority and Office of Special Counsel. Others have criticized the “super court” idea as one that “has the potential to become more legalistic, more expensive, more intimidating and likely more time-consuming than the existing processes. . . [and] may well have the effect of discouraging employees from seeking redress from any discrimination experienced.” Though I find the argument for the “super court” compelling, I do, however, think that there is another way to improve the mixed case procedures without a costly overhaul of the entire system that is currently in place.

The first small change that would result in a drastic improvement of the mixed case procedures is to change to regulations to allow mixed case complainants the right to a hearing before an EEOC administrative judge. Without doing so, there are serious questions as to whether the complainant has been granted a fair opportunity to pursue his discrimination claim. Without the opportunity for a hearing before an EEOC administrative judge, the complainant is only entitled to a final agency decision issued by the same agency that the complainant is accusing of discrimination – this is a major conflict of interest as previously discussed. From there, the complainant may request that the MSPB review the final agency decision, but the MSPB is relatively inexperienced with handling discrimination claims. Then, the complainant finally has the opportunity to petition the EEOC to review his case but the problem remains because (1) the EEOC may choose whether or not to accept the petition, and (2) even at this stage the complainant still is not entitled to a hearing. 

Having the EEOC review the MSPB’s decision and having a hearing before an EEOC administrative judge are completely different. Many times, the sole purpose for an EEOC administrative judge conducting a hearing is that he or she wants to personally evaluate the credibility of the witnesses in the matter. It is true that in reviewing the MSPB’s decision, the EEOC administrative judge may request additional information. Yet, making a decision based on information contained in the Report of Investigation, which is often inherently biased in favor of the agencies, versus making a decision from evidence that was personally testified to in a hearing before an administrative judge can result in a drastically different outcome. For these discrimination allegations to be fairly adjudicated, it is imperative that the complainant has the right to a hearing before an EEOC administrative judge, otherwise the complainant’s only other suitable forum is federal court which is cost and time prohibitive for many complainants.

There are two points during the current mixed case process in which the EEOC hearing may be added: (1) Once the complainant elects to pursue the EEO process, allow for the EEOC hearing instead of the issuance of a final agency decision; or (2) Once the complainant petitions the EEOC for review of the MSPB decision, allow for the EEOC hearing. While the allowance of a hearing before an EEOC administrative judge at any point in the process would be an improvement, the best results would be achieved by allowing the EEOC hearing upon the initial election to pursue the EEO process. Under this model, the EEOC administrative judge will issue a decision on the discrimination claims only and appeals should be filed with OFO if either the complainant or the agency desires – just like any other non-mixed case. Any claims that are strictly adverse actions appealable to the MSPB should similarly be handled exclusively by the MSPB as it would handle any other appeal. 

However, if the discrimination allegations and the adverse action are so intertwined as to be inseparable (i.e. the preference eligible veteran Postal employee example mentioned above in which the complainant believes he was suspended because of his race), then the EEO process should serve as the initial forum for the complaint. Here, my model involves essentially reversing the current mixed case framework. Instead of the election process, complainants with inseparable mixed cases will always initially pursue the EEO process with a right to a hearing before an EEOC administrative judge. If the complainant is dissatisfied with the EEOC administrative judge’s decision, then the complainant may petition the MSPB to review the EEOC’s decision, but each agency must defer to the other in their respective areas of expertise. If after the EEOC reviews the MSPB’s decision on the EEOC decision, the agencies remain in disagreement, then the issue will be decided by the Special Panel. 

Critics might say that this model is essentially the same as the current mixed case framework and would not improve the current issues. However, this new model in which the EEOC serves as the initial forum for inseparable mixed cases, would drastically reduce the frequency of differing opinions between the EEOC and MSPB and result in an even rarer necessity for the already rare Special Panel. The main difference and reason for the need for a switch from the MSPB as the primary mixed case forum to the EEOC as the primary mixed case forum is the drastic differences in experience between the two agencies. The EEOC regularly handles complaints that involve both discrimination and adverse actions, while the MSPB remains relatively inexperienced with handling discrimination claims. By initially pursuing the EEO process, which is better equipped to handle discrimination and adverse action claims, rather than the MSPB process, the case is more likely to reach the proper outcome without the need for a lengthy appeals process or disagreements between the MSPB and EEOC that result in the need for a Special Panel.

Additionally, under any new model for mixed case procedures, I would strongly emphasize the need for full disclosure of the entire process to the complainant in a notice attached to responses to initial filings of mixed cases and decisions on mixed cases. Outlining the process in a clear and easy to understand format will clear up much of the confusion in this area which is necessary for the fair adjudication of these cases, especially considering the overriding presence of pro se litigants in the federal sector.


Currently, the mixed case framework remains completely mixed-up because: (1) it is utterly confusing for practitioners and pro se litigants alike; (2) it counterintuitively seems intent on keeping the discrimination claims out of the hands of the discrimination experts; (3) the relevant provisions are scattered throughout two different areas of the Code of Federal Regulations; (4) the current choice to elect the EEO process is essentially useless because of the inherent conflict of interest and the lack of a right to a hearing before an EEOC administrative judge; and (5) even with the “due deference” principle, the EEOC and MSPB undermine the other’s authority with the ping-ponging review system that is currently allowed. 

While some proponents of change have suggested drastic overhauls of the framework and the establishment of a “super court” to handle these claims, I strongly believe that this entire mixed-up area of mixed cases can be dramatically improved to increase fairness and efficiency by making three simple regulatory amendments that would: (1) grant the right to a hearing before an EEOC administrative; (2) adopt the EEOC as the primary forum for mixed cases, particularly inseparable mixed cases; and (3) require full disclosure of the mixed case process be attached in a notice to the complainant in response to his initial filing or any decision issued to the complainant. 

Erica N. Cordova is the Managing Attorney of HR Esquire - The Cordova Law Firm LLC. At HR Esquire, we believe in passing the savings along to our clients through our part-time law firm model. We strive to help small businesses develop a solid foundation and legal strategy so they can be successful. We will work to improve legal compliance and employee relations. Our goal is to improve your business' performance and provide legal advice for a successful human resources strategy via our Offsite General Counsel. Find out how we can help you and your business today! For a full copy of this article with citations, please email 

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