Chapter 4 PROCEDURES FOR RELATED PROCESSES

As noted in Chapter 2, Section IV.B and Appendix D 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, genetic information, 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, genetic information, or reprisal. There is no right to a hearing before a Commission Administrative Judge on a mixed case complaint.

The Commission 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. For information on who can file and the actions that can be appealed to the MSPB see 5 C.F.R. § 1201.3. Note that because the MSPB does not have jurisdiction to hear non-appealable matters, complaints not containing those matters should be processed by the agency under the 1614 process and not mixed with matters that are appealable to the MSPB through amendment, consolidation or held in abeyance. See Complainant v. Inter-American Foundation, EEOC Appeal No. 0120132968, (Jan. 8, 2014) (wherein the Commission essentially overturned the doctrine of inextricably intertwined). We note, however, that a proposed action merges with the decision on an appealable matter - for example, a proposed removal merges into the decision to remove. See Wilson v. Dep't. of Veterans Affairs, EEOC Appeal No. 0120122103 (September 10, 2012).

1. Election to Proceed Is Required
   1. The regulations provide that a covered individual may raise claims of discrimination in a mixed case either as a direct appeal to the MSPB or as a mixed case EEO complaint with the agency, but not both. 29 C.F.R. § 1614.302(b).
   2. Whatever action the individual files first is considered an election to proceed in that forum. 29 C.F.R. § 1614.302(b). Filing a formal EEO complaint constitutes an election to proceed in the EEO forum. Contacting an EEO Counselor or receiving EEO counseling does not constitute an election.
   3. Where an aggrieved person files an MSPB appeal and timely seeks counseling, counseling may continue pursuant to 29 C.F.R. § 1614.105, at the option of the parties. In any case, counseling must be terminated with notice of rights pursuant to 29 C.F.R. §§ 1614.105(d), (e), or (f).
2. Procedures for Handling Dual Filing
   1. Where the agency does not dispute MSPB jurisdiction

      (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.^[1]

      (2) The agency or the Commission's 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, that is, has disposed of the complaint on procedural grounds, the resulting final agency decision is appealable to the Commission. 29 C.F.R. § 1614.302(c)(1); Abegglen v. Dep't. of Energy, EEOC Appeal No. 01966055 (Oct. 9, 1998).

   2. Where the agency or the MSPB Administrative Judge questions MSPB jurisdiction

      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 the 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 the Commission. 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 the Commission to review the MSPB's final decision on the discrimination issue. If the MSPB Administrative Judge finds that the 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.

   3. Where a complainant files with the agency first

      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 the MSPB of the prior agency filing and request that the MSPB dismiss the appeal without prejudice.

3. Processing Where MSPB Dismisses a Mixed Case Appeal Because It Finds No Jurisdiction (That Is, the Case Is Not Mixed)
   1. If an individual files a mixed case appeal with the MSPB instead of a mixed case complaint, and the MSPB subsequently dismisses the appeal as non-jurisdictional, the agency must inform the individual that s/he may contact an EEO Counselor within forty-five (45) days to raise the discrimination claim(s) and that the filing date of the mixed case appeal will be deemed to be the date the individual initially contacted the EEO Counselor.
   2. If the individual filed the appeal after the agency issued an agency final decision on the mixed case complaint or after the agency failed to issue a final decision on the mixed case complaint within 120 days, (pursuant to 5 C.F.R. § 1201.154(b)(2)), the agency must provide the complainant with a thirty (30) day notice of right to a hearing and decision from a Commission Administrative Judge or an immediate final decision by the agency pursuant to 29 C.F.R. § 1614.108(f) and thereafter proceed as in a non-mixed case.
4. Processing Mixed Case Complaints Filed at the Agency

   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:

   1. Upon completion of the investigation, the agency must notify the complainant that a final decision will be issued within forty-five (45) days without a hearing before a Commission Administrative Judge.
   2. Upon the filing of a complaint, the agency must advise the complainant that if a final decision is not issued within 120 days of the date of filing the mixed case complaint, the complainant may appeal the claim to the MSPB at any time thereafter, as specified in 5 C.F.R. §§ 1201.154(a) & (b), or may file a civil action as specified in 29 C.F.R. § 1614.310(g), but not both.
   3. Also upon the filing of a complaint, the agency must notify the complainant that if s/he is dissatisfied with the agency's final decision on the mixed case complaint, s/he may appeal the claim to the MSPB (not the Commission) within thirty (30) days of receipt of the agency's final decision pursuant to 5 C.F.R. § 1201.154(a).
   4. Within forty-five (45) days following completion of the investi­gation, the agency must issue a final decision without a hearing before a Commission Administrative Judge. 29 C.F.R. § 1614.302(d)(2).
   5. Upon issuance of the agency's final decision on a mixed case complaint, the agency must advise the complainant of the right to appeal the claim to the MSPB (not the Commission) within 30 days of receipt of the notice and of the right to file a civil action as provided in 29 C.F.R. §§ 1614.310 and 1614.310(a).

1. When an aggrieved employee is covered by a collective bargaining agreement that permits claims of discrimination to be raised in a negotiated grievance procedure, the employee must elect to file an EEO complaint or a grievance. The underlying principle is that an aggrieved employee who has a choice of forums in which to proceed cannot go forward in more than one forum (unless the employing agency is exempt from coverage of 5 U.S.C. § 7121(d)). This is true "irrespective of whether the agency has informed the individual of the need to elect or of whether the grievance has raised an issue of discrimination." 29 C.F.R. § 1614.301(a).
2. If an employee first files a grievance and thereafter files a complaint of discrimination on the same claim, the complaint must be dismissed without prejudice to the complainant's right to proceed through the negotiated grievance procedure, including the right to appeal to the Commission from a final decision as provided in subpart D of Part 1614 (Appeals and Civil Actions). The dismissal of the complaint must advise the complainant of the obligation to raise discrimination claims in the grievance process and of the right to appeal the final grievance decision to the Commission. 29 C.F.R. § 1614.301(a).

1. The U.S. Postal Service and the Tennessee Valley Authority are examples of two agencies not covered by 5 U.S.C. § 7121(d). In such agencies, an aggrieved individual may file a complaint pursuant to Part 1614 and also a grievance pursuant to a collective bargaining agreement involving the same claim.
2. In such agencies, complaints filed pursuant to Part 1614 may be held in abeyance where a grievance is filed on the same claim, if written notice of the abeyance is provided.
3. Complaints may be held in abeyance until a final decision is issued on the grievance.

There is nothing that prevents an employee from using an agency's administrative process, as opposed to a negotiated grievance process, and the EEO complaint process. See Diefenderfer v. Dep't. of Transportation, EEOC Appeal No. 01980578, (Oct. 7, 1998). However, the Commission has consistently held that utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Black v. Dep't. of the Interior, EEOC Appeal No. 0120110122 (Aug. 19, 2011).

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 29 C.F.R. § 1614.201; see also Chapter 9, Sections II and III of this Management Directive.

Alternatively, 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.

1. The Aggrieved Person

   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.

   1. Notices of intent to sue must be delivered to the Commission in one of the following ways:

      hand delivered to:

      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 may soon be submitted through the Commission's electronic document submission portal or fax at (202) 663-7022.

   2. The notice of intent to sue should be dated and must contain the following information:

      (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.

2. The Commission
   1. 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.
   2. 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.
3. The Agency

   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.