Explanation of the Mixed Case For Federal Employees With Overlapping MSPB and EEO Complaints

One of the most challenging aspects of Federal employee employment law is the concept of the “mixed case”. The rules and procedures governing a “mixed-case” are so complicated that this article does not seek to explain the “ins and outs” of every situation that could arise in a mixed case. This article only seeks to explain generally what a mixed case is and how a mixed case should be handled.

So let’s start there. What is a “mixed-case”? A “mixed-case” occurs when a Federal Employee has the statutory right to challenge an Agency action in two forums with overlapping jurisdiction – the Equal Employment Opportunity Commission (EEOC) and the Merit Systems Protection Board (MSPB). If an Agency takes an adverse action which is appealable to the MSPB, and the Federal Employee wants to allege that action was motivated by improper discrimination or reprisal for protected EEO activity, then the employee has what is called a mixed case.

In a mixed case, the Federal Employee has the right to choose which forum he or she wants to first raise their claim – the MSPB or the EEOC. If the employee first challenges the mixed-case action in the EEOC, he/she has what is called a “mixed-case complaint”. If the Federal Employee first challenges the mixed-case action in the MSPB, he/she has what is called a “mixed-case appeal”.

The only difference in the two processes is the path they take to get to a ruling by the appropriate judge. Let’s discuss that in more detail.

If the Federal Employee files a mixed-case complaint, the agency must process the complaint in the same manner as it would any other discrimination complaint. However, there are a few differences:

The Agency must tell the Federal Employee, when he/she files a complaint, that if a Final Agency Decision (FAD) is not issued within one hundred and twenty (120) days after the complaint is filed, the Federal Employee may appeal the matter to the MSPB at any time thereafter or file a civil action in certain federal courts. N.B. – Be wary of leaving the administrative process to file in any federal court – this can prove to be a very dangerous proposition.

The Agency must issue a FAD within 45 days after the date the investigation is completed. When the Agency issues a FAD in a mixed case complaint, the Agency must tell the Federal employee that he/she has a right to appeal the matter to the MSPB (not EEOC) within 20 days after receipt of the FAD – this is different from the typical time to appeal to the MSPB, which is 30 days from the date of the adverse action.

Mixed Case Appeal – A “mixed-case appeal” is 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, handicap, or age. The MSPB will process the appeal in the exact same manner that it processes any appeal, and the Federal Employee will carry the burden of proof on the discrimination claims.

The biggest issue with mixed-cases involves the dual filing of the matter in the EEOC and the MSPB. This often occurs when the Agency fails to identify and process the EEO complaint as a mixed case complaint, or when the employee files a mixed case appeal and the Agency wants to argue that the EEO complaint was filed first.

Another issue that arises with mixed-cases is determining which forum is better to initiate the claim in – the EEOC or MSPB. This is a question that cannot be answered in an article such as this, as it depends entirely on the particular facts of the employee’s case.