Appendix D EEO-MD-110 INFORMATION ON OTHER PROCEDURES

Management Directive 110

1. Negotiated Grievance Procedures in Collective Bargaining Agreements
   1. Aggrieved Person Makes Election

      At the initial counseling session, the EEO Counselor must inform the aggrieved person of the possible applicability of the election of remedies provisions from the Civil Service Reform Act of 1978, 5 U.S.C. § 7121(d), concerning negotiated grievance procedures.

      1. In order for an aggrieved person to be covered under 5 U.S.C. § 7121(d), both of the following conditions must be met:
         1. (1) S/he must be employed in a federal agency subject to the provisions of 5 U.S.C. § 7121(d); and
         2. (2) S/he must be covered by a collective bargaining agreement at the agency where the grievance arises. The agreement must also permit allegations of discrimination to be raised in the negotiated grievance procedure.
      2. If these conditions are met, then the EEO Counselor must inform the aggrieved person that 5 U.S.C. § 7121(d) applies. This means that the aggrieved person must be informed of the requirement that s/he choose one (not both) of the following:
         1. (1) a right to have his/her allegations of discrimination addressed in the negotiated grievance procedure of the collective bargaining agreement with a caution that the opportunity to raise allegations of discrimination will be lost if not raised in the grievance process; or
         2. (2) a right to have his/her allegations of discrimination addressed under 29 C.F.R. Part 1614.
         3. (3) An election to proceed under Part 1614 is indicated only by the filing of a formal complaint, in writing. Use of the pre-complaint process does not constitute an election to proceed under Part 1614.
         4. (4) Allegations of discrimination that are raised by employees not covered by 5 U.S.C. § 7121(d) are to be processed as EEO complaints under Part 1614 regardless of whether they are also pursuing a grievance on the same claim (for example, a five-day suspension from work) under a collective bargaining agreement not covered by 5 U.S.C. § 7121(d).^[1]
            1. (a) Under § 1614.301(c), the complaint may be held in abeyance while the grievance on the same claim is processed. The abeyance shall terminate without further notice upon the issuance of a final decision on the grievance. The complaint may be held in abeyance only if the aggrieved is provided written notice of the abeyance.
            2. (b) The notice of abeyance shall state that the abeyance is instituted pursuant to 29 C.F.R. § 1614.301(c) and that time limits for processing the complaint contained in 29 C.F.R. § 1614.106 and for appeal to the Commission contained in 29 C.F.R. § 1614.402 will also be held in abeyance until fifteen (15) days following the issuance of the final decision on the grievance.
            3. (c) If the EEO complaint is held in abeyance, the time limits for processing are tolled until a final decision is rendered in the grievance process.
   2. Election Is Final
      1. Pursuant to 29 C.F.R. § 1614.301, EEO Counselors are required to inform an aggrieved person that once s/he decides which forum s/he will use the negotiated grievance procedure in a collective bargaining agreement covered by 5 U.S.C. § 7121(d) or Part 1614 the aggrieved person is precluded from using the other forum to address the same claim. This preclusion holds regardless of whether discrimination is actually raised. For example, if an aggrieved person elects to have a dispute involving a claim of discrimination addressed under the terms of a collective bargaining agreement by filing a grievance, s/he could not also file a formal complaint of discrimination under Part 1614 on the same claim. This bar to a subsequent formal EEO complaint would hold true even if the complainant failed to raise the discrimination claim in the grievance, as long as the grievance process could have addressed the discrimination allegations.
      2. If an agency issues a decision rejecting the grievance either because the individual is not covered by the collective bargaining agreement, the collective bargaining agreement does not contain a provision that allows allegations of discrimination to be raised in the grievance process, or the grievance was untimely filed, the agency shall include appeal rights to the Commission. The case shall be processed as a complaint under Part 1614. 29 C.F.R. § 1614.301(b).
   3. Appeals

      Unless the grievance is a mixed case, the complainant has the right to appeal a final decision on his/her grievance that contains a discrimination allegation to the Commission as provided in subpart D of 29 C.F.R. Part 1614. If the grievance is a mixed case, the complainant has the right to appeal to MSPB.

2. Mixed Cases
   1. MSPB Mixed Case Complaints and Appeals

      In addition to negotiated grievance procedures, an aggrieved person may present an allegation that constitutes a mixed case. A mixed case is one which alleges discrimination in connection with a claim which is also appealable to the MSPB. Two criteria determine whether a case is a mixed case.

      1. The employee has standing to file an appeal to the MSPB; and
      2. The allegations which form the basis of the discrimination complaint can be appealed 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.

   2. Choosing a Forum

      If both criteria for a mixed case are met, the EEO Counselor must notify an aggrieved person that s/he must choose the forum in which s/he wishes to proceed. Where a negotiated grievance can also be filed, the EEO Counselor must explain that the aggrieved person must choose to proceed in one of three forums: the MSPB appeal process, the internal EEO process, or the negotiated grievance process (see Section A.1 above).

      1. The EEO Counselor is initially responsible for identifying mixed cases and for advising aggrieved persons of their right to pursue the claim as a mixed case complaint or as a mixed case appeal. The EEO Counselor must identify mixed cases early in order to ensure that aggrieved persons are fully informed of their complaint processing options.
      2. An aggrieved person may choose to raise allegations of discrimination in a mixed case either as an appeal to the MSPB ("mixed case appeal") or as a discrimination complaint with the agency under 29 C.F.R. Part 1614 ("mixed case complaint") but not both. Whichever action the employee files first is considered an election to proceed in that forum.
      3. An election to proceed under 29 C.F.R. Part 1614 is made when the aggrieved person files a formal complaint in writing. Use of the EEO counseling process is not an election to proceed under Part 1614.
      4. If an employee chooses to file an appeal with the MSPB on a mixed case, the agency must thereafter dismiss any subsequently filed complaint on the same claim, regardless of whether the allegations of discrimination are raised in the appeal to the MSPB. Upon dismissal, the agency must advise the employee to raise the allegations of discrimination in connection with his/her appeal to the MSPB.
      5. Where the agency disputes MSPB jurisdiction, (for timeliness, coverage, or any other reason), the agency shall notify the complainant that it is holding the mixed case complaint in abeyance until the MSPB Administrative Judge rules on the jurisdictional issue. During this period, all time limitations for processing or filing 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 the MSPB has jurisdiction over the claim, the agency shall dismiss the mixed case complaint under 29 C.F.R. § 1614.107(a)(4).

      6. If the employee elects to file a mixed case complaint under Part 1614, the agency must process the complaint in a manner substantially similar to any other discrimination complaint, except that the employee is not entitled to a hearing before a Commission Administrative Judge. An aggrieved person's appeal rights will be to the MSPB, not the Commission. Following a final decision from the MSPB, an aggrieved person may petition the Commission to consider that decision as it pertains to the allegations of discrimination.
   3. Constructive Discharge

      A discriminatory constructive discharge occurs when the employer discriminatorily creates working conditions that are so difficult, unpleasant, or intolerable that a reasonable person in the aggrieved person's position would feel compelled to resign. In other words, the aggrieved person is essentially forced to resign under circumstances where the resignation is tantamount to the employer's termination or discharge of the employee.

      Similarly, in coerced or involuntary retirement cases, the aggrieved person alleges that s/he was essentially forced to retire, for example, because of age, and the retirement decision was not voluntary. Discriminatory coercion or involuntary retirement allegations are, if supported, tantamount to the employer discharging the employee.

      1. MSPB dismissal may "unmix" a case

         An employee with MSPB appeal rights who alleges that s/he was constructively discharged or coerced into retirement because of discrimination should be advised to file a mixed case complaint or a mixed case appeal. Where the merits of the claim of discrimination cannot be reached for lack of jurisdiction, the case will be considered no longer mixed.

      2. An unmixed appealBreferral to counseling

         If an aggrieved person files a mixed case appeal with the MSPB and the MSPB dismisses the appeal for lack of jurisdiction, the agency shall promptly notify the individual in writing of the right to contact an EEO Counselor within forty-five (45) days of receipt of this notice and to file an EEO complaint, subject to 29 C.F.R. § 1614.107. The complaint will be processed as a non-mixed case. See 29 C.F.R. § 1614.302(b).

      3. A complainant in a case that becomes an "unmixed" complaint after completion of the agency=s investigation and subject to the notice set forth at 29 C.F.R.§ 1614.108(f) need not be referred back to EEO counseling and the 29 C.F.R.§ 1614.108(f) notice should be issued.
      4. When a mixed case complaint is "unmixed" by a finding by the MSPB of no jurisdiction, the individual has a right to elect between a hearing before a Commission Administrative Judge or an immediate final decision. See 29 C.F.R. § 1614.302(b).
3. Age Discrimination in Employment Act Complaints

   When a person contacts an EEO Counselor with a complaint of age discrimination, the EEO Counselor must make the person aware of two important options:

   1. The person may choose to file a formal complaint under 29 C.F.R. Part 1614; or
   2. The person may bypass the administrative complaint process in Part 1614 and file a civil action directly in an appropriate U.S. District Court after first giving the Commission not less than thirty (30) days notice of intent to file such action. Such notice must be filed within 180 days after the date of the alleged discrimination. The notice may be mailed to the Commission Headquarters at the following address:

      Equal Employment Opportunity Commission
      Office of Federal Operations
      Federal Sector Programs
      P.O. Box 77960
      Washington, DC 20013

      hand delivered to:

      Equal Employment Opportunity Commission
      Office of Federal Operations
      Federal Sector Programs
      131 M Street N.E.
      Suite 5SW12G
      Washington, DC 20507

      or sent by facsimile to:

      (202) 663-7022

   3. Because it is not clear which statute of limitations applies, an aggrieved person choosing to bypass the administrative process should initiate the civil action as soon as possible after the expiration of the 30-day waiting period that follows the notice of intent to sue.

   D. Equal Pay Act

   1. When a person contacts an EEO Counselor with a complaint of wage-based sex discrimination, the EEO Counselor should advise the person that s/he may file a civil action in a U.S. District Court within two years, or three years if the violation is willful, of the date of the alleged violation, regardless of whether s/he has pursued an administrative action against the agency. The EEO Counselor further should advise the person that the filing of an EEO complaint under Part 1614 alleging a violation of the EPA does not toll the time for filing a civil action.
   2. The EEO Counselor further should advise the person that if s/he seeks to allege a violation of Title VII=s prohibition against sex discrimination based on the same allegation, s/he must raise the Title VII allegation in the administrative process even if s/he files a civil action on the EPA allegation.
   3. The EEO Counselor also should advise the person that notwithstanding the two/three-year limitations period applicable to the current action under the EPA, in order to present an administrative EPA claim, the aggrieved person must contact an EEO Counselor within forty-five (45) days of the date the aggrieved person becomes aware of or reasonably suspects a violation of the EPA.

   E. Discrimination Based on Marital Status, Political Affiliation, Status as a Parent

   1. Laws Enforced By the Commission -

      Discrimination based on an individual's status as a parent (prohibited under Executive Order 13152) is not a covered basis under the laws enforced by the Commission. However, there are circumstances where discrimination against caregivers may give rise to sex discrimination under Title VII or disability discrimination under the ADA. See Enforcement Guidance: Unlawful Disparate Treatment of Workers with Caregiving Responsibilities.

      Federal government employees may file claims of discrimination under the Part 1614 EEO process on any of the bases covered under the laws the Commission enforces, and/or may also utilize additional complaint procedures provided by their agency or described below.

   2. Civil Service Reform Act- The Civil Service Reform Act of 1978 (CSRA), as amended, also protects federal government applicants and employees from discrimination in personnel actions (see "Prohibited Personnel Practices") based on race, color, sex, religion, national origin, age, disability, marital status, political affiliation, or on conduct which does not adversely affect the performance of the applicant or employee -- which can include sexual orientation or transgender (gender identity) status. The Office of Special Counsel (OSC), and the Merit Systems Protection Board (MSPB), enforce the prohibitions against federal employment discrimination codified in the CSRA. For more information, see Addressing Sexual Orientation and Gender Identity Discrimination in Federal Civilian Employment and OPM's Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace and OSC's Prohibited Personnel Practices and How to File a Complaint.
   3. Executive Orders - Additionally, federal agencies retain procedures for making complaints of discrimination on any bases prohibited by Executive Orders.

      For Example,

      Executive Order 13152 states that "status as a parent" refers to the status of an individual who, with respect to an individual who is under the age of 18 or who is 18 or older but is incapable of self-care because of a physical or mental disability, is: a biological parent, an adoptive parent, a foster parent, a stepparent, a custodian of a legal ward, in loco parentis over such individual, or actively seeking legal custody or adoption of such an individual. The Executive Order authorized OPM to develop guidance on the provisions of the Order.

^[1]Employees of the U.S. Postal Service, the Postal Regulatory Commission, and the Tennessee Valley Authority are not subject to 5 U.S.C. § 7121(d).