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 post does not seek to explain the “ins and outs” of every situation that could arise in a mixed case. This post 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 you have 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 you want to allege that action was motivated by improper discrimination or reprisal for protected EEO activity, then you have a mixed case. In a mixed case, you have the right to choose which forum you want to raise your claim in first – the MSPB or the EEOC. If you first challenge the mixed-case action in the EEOC, you have what is called a “mixed-case complaint”. If you first challenge the mixed-case action in the MSPB, you have 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.

Mixed Case Complaint – MD 110, Chapter 3, 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, handicap, or reprisal related to or stemming from an action that may be appealed to the Merit Systems Protection Board ( MSPB). The complaint may contain only an allegation of employment discrimination or it may contain additional non-discrimination allegations that the MSPB has jurisdiction to address. If you file 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 you, when you file a complaint, that if a Final Agency Decision (FAD) is not issued within one hundred and twenty (120) days after you file your mixed case complaint, you may appeal the matter to the MSPB at any time thereafter or you can 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. There will be a post on this matter soon.

When you file a mixed-case complaint, the Agency must tell you that if you are dissatisfied with the Final Agency Decision (FAD) on the mixed case complaint, you may appeal the matter to the MSPB – not the EEOC – within 20 days of receipt of the FAD;

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 you that you have a right to appeal the matter to the MSPB (not EEOC) within 20 days after you received 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 your appeal in the exact same manner that it processes any appeal, and you will carry the burden of proof on your 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 your EEO complaint as a mixed case complaint, or when you file a mixed case appeal and the Agency wants to argue that your EEO complaint was filed first.

Another issue that arises with mixed cases is determining which forum is better to initiate you claim in – the EEOC or MSPB. This is a question that cannot be answered in a blog, as it depends entirely on the particular facts of your case.

No post on this website is legal advice, is meant to be legal advice, and certainly does not serve as a substitute for legal advice. Information is power, and we are providing this information to give you, the federal employee, with some power. This information is not widely or easily accessible to Federal Employees.

It is best to consult with a lawyer familiar with Merit Systems Protection Board (MSPB) appeals or a lawyer familiar with Federal employee EEO complaints to discuss the facts and law of your particular case. If you think that you have a mixed case, or if you have questions about how to handle your mixed case complaint or mixed case appeal, contact an EEO and MSPB attorney at the Law Offices of Eric L. Pines, PLLC, to schedule a telephone consultation.