As noted in Chapter 2, Section IV.B and Appendix C of this Management Directive, different procedures apply to certain related processes. The relationship between 29 C.F.R. Part 1614 EEO complaints, Merit Systems Protection Board (MSPB) actions, grievances filed pursuant to negotiated grievance procedures, notices of intent to sue in Age Discrimination in Employment Act (ADEA) complaints and the alternative available in Equal Pay Act (EPA) complaints are set out more specifically here. All time frames in this Chapter are expressed in calendar days.
A "mixed case complaint" is a complaint of employment discrimination filed with a federal agency based on race, color, religion, sex, national origin, age, disability, or reprisal related to or stemming from an action that may be appealed to the MSPB. The complaint may contain only a claim of employment discrimination or it may contain additional non-discrimination claims that the MSPB has jurisdiction to address. 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, disability, age, or reprisal. There is no right to a hearing before an EEOC Administrative Judge on a mixed-case complaint.
EEOC regulations provide for processing discrimination complaints on claims that are otherwise appealable to the MSPB. Two determinations must be made to decide if the mixed case regulations apply. First, the employee must have standing to file such an appeal with the MSPB. Second, the claim that forms the basis of the discrimination complaint must be appealable to the MSPB.
(1) competitive service employees not serving a probationary or trial period under an initial appointment;
(2) career appointees to the Senior Executive Service;
(3) non-competitive service veterans preference eligible employees with one or more years of current continuous service (e.g., postal employees and attorneys with veterans preference); and
(4) non-preference eligible excepted service employees who have completed their probationary period or with two or more years of current continuous service (e.g., attorneys).
(1) probationary employees (but see 5 C.F.R. § 315.806, allowing appeals alleging discrimination based on party affiliation, marital status, procedural deficiencies);
(2) certain non-appropriated fund activity employees;(2)
(3) employees serving under a temporary appointment limited to one year or less; and
(4) employees of the Central Intelligence Agency, the General Accounting Office, the United States Postal Service, the Postal Rate Commission, the Panama Canal Commission, the Tennessee Valley Authority, and the Federal Bureau of Investigation.
(1) reduction in grade or removal for unacceptable performance;
(2) removal, reduction in grade or pay, suspension for more than fourteen (14) days, or furlough for thirty (30) days or less for cause that will promote the efficiency of the service;
(3) separation, reduction in grade, or furlough for more than 30 days, when the action was effected because of a reduction-in-force;
(4) reduction-in-force action affecting a career appointee in the Senior Executive Service;
(5) reconsideration decision sustaining a negative determination of competence for a general schedule employee; and
(6) disqualification of an employee or applicant because of a suitability determination.
(1) If an individual files a mixed case appeal with the MSPB before filing a mixed case complaint with the agency, and the agency does not dispute MSPB jurisdiction, the agency must thereafter dismiss any complaint on the same claim, regardless of whether the claims of discrimination are raised in the appeal to the MSPB.(3)
(2) The agency or the EEOC Administrative Judge must advise the complainant that s/he must bring the claims of discrimination contained in the dismissed complaint to the attention of the MSPB, pursuant to 5 C.F.R. § 1201.151, et seq.
(3) Where an agency has not accepted a complaint for processing, i.e., has disposed of the complaint on procedural grounds, the resulting final agency decision is appealable to the Commission. § 1614.302(d)(1); Abegglen v. Department of Energy, EEOC Appeal No. 01966055 (October 9, 1998).
The agency shall hold the mixed case complaint in abeyance until the MSPB Administrative Judge rules on the jurisdictional issue, notify the complainant that it is doing so, and instruct him/her to bring the discrimination claim to the attention of MSPB. During this period, all time limitations for processing or filing the complaint will be tolled. An agency decision to hold a mixed case complaint in abeyance is not appealable to EEOC. If the MSPB Administrative Judge finds that MSPB has jurisdiction over the claim, the agency shall dismiss the mixed case complaint and advise the complainant of the right to petition EEOC to review MSPB's final decision on the discrimination issue. If the MSPB administrative judge finds that MSPB does not have jurisdiction over the claim, the agency shall recommence processing of the mixed case complaint as a non-mixed case EEO complaint.
If an employee first files a mixed case complaint at the agency and then files a mixed case appeal with the MSPB, the agency should advise MSPB of the prior agency filing and request that the MSPB dismiss the appeal without prejudice.
If an employee elects to file a mixed case complaint, the agency must process the complaint in the same manner as it would any other discrimination complaint, except :
It is incumbent upon federal agency personnel responsible for processing discrimination complaints to inform complainants or potential complainants of the following procedures available to them in pursuing an age discrimination complaint.
An aggrieved person may file an administrative age discrimination complaint with the agency pursuant to 29 C.F.R. Part 1614. If the aggrieved person elects to file an administrative complaint, s/he must exhaust administrative remedies before s/he may file a civil action in U.S. District Court. Exhaustion of administrative remedies occurs when the agency takes final action or 180 days after filing the complaint if no final action is taken. See § 1614.201; see also Chapter 9, Sections II and III, of this Management Directive.
An aggrieved person may bypass the administrative complaint process and file a civil action directly in U.S. District Court provided that the aggrieved person first provides the Commission with a written notice of intent to sue under the ADEA. The notice to the Commission must be filed within 180 days of the date of the alleged discriminatory action. Once a timely notice of intent to sue is filed with the Commission, the aggrieved person must wait at least thirty (30) days before filing a civil action.
The following is a statement of the procedures and a delineation of the responsibilities on the part of the aggrieved person, the Commission, and the agency with respect to the filing and processing of notices of intent to sue under the ADEA.
It is the responsibility of the aggrieved person to provide the Commission with a written notice of intent to sue within 180 days of the date of the alleged discriminatory action.
Equal Employment Opportunity Commission
Office of Federal Operations
Federal Sector Programs
131 M Street, NE
Washington, DC 20507
or mailed to:
Equal Employment Opportunity Commission
Office of Federal Operations
Federal Sector Programs
P.O. Box 77960
Washington, DC 20013
or faxed (if no more than ten pages) to:
(1) statement of intent to file a civil action under Section 15(d) of the Age Discrimination in Employment Act of 1967, as amended;
(2) name, address, and telephone number of the employee or applicant;
(3) name, address, and telephone number of the complainant's designated representative, if any;
(4) name and location of the federal agency or installation where the alleged discriminatory action occurred;
(5) date on which the alleged discriminatory action occurred;
(6) statement of the nature of the alleged discriminatory action(s); and
(7) signature of the complainant or the complainant's representative.
a. Upon receipt of a notice of intent to sue, the Commission will promptly notify the concerned agency (and all persons named in the notice as prospective defendants in the action, if any), in writing, of its receipt of the notice of intent to sue and will provide the agency with a copy of the notice. Commission contact with the concerned agency will normally be through the agency headquarters level Office of Equal Employment Opportunity or similarly designated office, as the case may be. A copy of the Commission's notification will be provided to the aggrieved person and/or his/her representative, if any. Additionally, the Commission will take any appropriate action to ensure the elimination of any unlawful practice.
b. Where an aggrieved person files a civil action before the agency has completed its inquiry, or before the Commission has reviewed the agency's disposition, the Commission will terminate the inquiry and will take no further action on the notice of intent to sue.
Upon receipt of a notice of intent to sue, an agency must review the claim(s) of age discrimination and conduct an inquiry sufficient to determine whether there is evidence that unlawful age discrimination has occurred. Agencies may determine their method of review/inquiry and the method may vary depending on the scope and complexity of the claims. Agencies are encouraged to make good faith efforts to resolve disputes.
An aggrieved individual does not have to file an administrative complaint before filing a lawsuit under the Equal Pay Act (EPA). If an aggrieved individual nonetheless wants to file an administrative complaint, it will be processed like Title VII complaints under Part 1614. Complainants in EPA cases should be notified of the statute of limitations (two years or, if a willful violation is alleged, three years), which applies even if the individual files an administrative complaint, and of the right to file directly in a court of competent jurisdiction without first providing notice to the Commission or exhausting administrative remedies.
Chapter 3 | Table of Content | Chapter 5
1. These are not all-inclusive lists of employees who have or lack standing to appeal to the MSPB and these lists may change over time. Questions concerning whether an employee may appeal an action to the MSPB should be referred to the personnel office at the agency or to the MSPB.
2. For example, pursuant to 5 U.S.C. § 2105(c), the MSPB lacks jurisdiction to hear appeals filed by employees of the Army and Air Force Exchange. Perez v. Army and Air Force Exchange Service, 680 F.2d 779 (D.C. Cir. 1982).
3. An EEOC Administrative Judge may dismiss the mixed case complaint pursuant to § 1614.109(b).
This page was last modified on December 12, 2008.
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