The DIGEST Of Equal Employment Opportunity Law

Volume XV, No. 4

Office of Federal Operations

Fall Quarter 2004

Inside

Selected EEOC Decisions on:

Article

UNDERSTANDING THE "MIXED CASE" PROCESS

SELECTED EEOC DECISIONS

Adverse Inferences

Failure to Adequately Develop Record Subjects Agency to Adverse Inference. The agency completed its investigation two and one-half years before it issued a FAD and failed to provide any documentation with respect to the selectees who were chosen for a position sought by complainant. The Commission noted that the agency's seemingly intentional failure to adequately develop the record subjected it to an adverse inference. EEOC found that, if the appropriate documentation had been provided, it would have established that complainant was not selected for the position due to race and national origin discrimination. Hashimoto v. Department of Housing and Urban Development, EEOC Appeal No. 01A24642 (May 11, 2004).

Appeals

Dismissal of Complainant's Appeal as Untimely. The appeal was filed approximately two months after receipt of the final agency decision (FAD). Although complainant stated that her father was hospitalized and underwent a number of surgical procedures, she failed to show that she herself was incapacitated and unable to file a timely appeal within the requisite 30 days of receipt of the FAD. Arvites v. Department of Transportation, EEOC Appeal No. 01A42199 (May 14, 2004), request for reconsideration denied, EEOC Request No. 05A41015 (July 26, 2004).

Dismissal of Agency's Appeal as Untimely. The agency agreed to implement the AJ's finding of discrimination but appealed the order regarding back pay, compensatory damages, and attorney's fees. The agency was required to file its appeal within 40 days of its receipt of the AJ's decision. The Commission found that the latest date that the agency could file its appeal was December 2, 2003. However, the agency's appeal was filed on December 4, 2003. The Commission dismissed the agency's appeal, and the AJ's decision became the agency's final order by operation of law. Harlow v. Department of Homeland Security, EEOC Appeal No. 07A40042 (June 14, 2004).

Attorney's Fees

Attorney's Fees Awarded in Connection With Petition for Enforcement. The Commission found that complainant was entitled to an award of attorney's fees where it took the agency three years to comply with EEOC's order in a prior decision. Clark v. United States Postal Service, EEOC Appeal No. 01A33483 (July 15, 2004).

Back Pay

Complainant Must Be Ready, Willing, and Able to Work to Recover Back Pay. In a previous decision, the Commission had ordered the agency, as part of the remedies awarded for disability discrimination, to compensate complainant for any lost pay when he was reassigned from a full-time to a part-time position. In its compliance report to EEOC, the agency stated that complainant did not lose any pay due to the change in his work status and had been reassigned to a full-time regular position effective in May 1997. The Commission agreed with the agency that complainant was not entitled to back pay and noted that complainant was off from work for a medical condition from April 1997, until he retired in May 2000, and, in fact, remained totally disabled. Wright v. United States Postal Service, EEOC Petition No. 04A30043 (June 16, 2004).

Compensatory Damages

Agency Denial of Compensatory Damages Award Improper. Subsequent to a finding of hostile environment and national origin discrimination by EEOC, the agency sent an inquiry to complainant's counsel of record regarding the issue of damages. Complainant was not aware that the attorney had been disbarred, leaving complainant without legal representation. In addition, after one letter to complainant was returned due to a change of address, the agency continued its efforts to contact complainant at the wrong address. The agency did not attempt to communicate with complainant, an agency employee, through its internal systems. Finally, the Commission noted that the record contained evidence, including complainant's testimony, of some entitlement to non-pecuniary damages. The matter was remanded to the agency with an order to seek objective evidence from complainant concerning her entitlement to damages. Avila v. Department of the Navy, EEOC Appeal No. 01A31841 (May 20, 2004).

Continuing Violations

Continuing Violation Not Found. The Commission found that complainant's claims, that he was not selected for various positions in 1994 and 1995, were untimely raised with an EEO Counselor. Citing the U.S. Supreme Court's decision in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), EEOC noted that each nonselection constituted a separate actionable unlawful employment practice and that these discrete acts were not actionable if time barred. Complainant's timely claim, that he was not selected for positions in 1996, could not be used to render timely the 1994 and 1995 nonselections. Anisman v. Department of the Treasury, EEOC Appeal No. 01A40496 (May 18, 2004), request for reconsideration denied, EEOC Request No. 05A40967 (July 28, 2004).

Continuing Violation Found. The Commission found that allegations, which were part of a claim of harassment, were timely under Morgan, supra. Accordingly, EEOC noted that a complaint alleging a hostile work environment will not be time barred if all acts are part of the same unlawful practice and at least one of the acts falls within the filing period. The Commission declared that the individual actions cited in the complaint, including being the subject of pre-disciplinary interviews and replaced by other employees in performing complainant's work, did not represent discrete acts, but, instead, served as examples of the overall claim of hostile environment harassment. Bena v. United States Postal Service, EEOC Appeal No. 01A33825 (May 19, 2004).

Disability Law-Prohibited Pre-Offer Inquiries

Agency Ordered to Revise its Pre-Employment Process to Comply with the Rehabilitation Act. An applicant for employment who identified herself as eligible for Schedule A positions, but did not otherwise explain the nature of her disability, was required to fill out an obsolete form SF-177, "Statement of Physical Ability for Light Duty Work," before her position interview. The Commission found that the form posed disability-related questions and, by using the form prior to making an offer of employment, the agency violated the Rehabilitation Act. Although EEOC found no discrimination in the nonselection because the vacancy was closed due to a lack of funding and thus complainant could not show the necessary causal nexus between her disability and nonselection the Commission ordered the agency to revise its pre-employment process to eliminate the prohibited inquiries. Kelly v. Department of Commerce, EEOC Appeal No. 01A30554 (May 11, 2004).

Equal Pay Act

Hiring of Male Nurse Did Not Violate the EPA. The Commission found that the agency did not violate the Equal Pay Act when it hired a male Licensed Practical Nurse (LPN) at a higher rate than that earned by the complainants. The comparative employee was initially offered the position at a lower salary and refused the offer because it was below his current salary. The comparative employee then submitted additional information, which resulted in the agency making him a second offer at the higher salary. The agency proved, by a preponderance of the evidence, that the salary difference fell into a permissible statutory exception. Specifically, because of a shortage of LPNs, the agency had difficulty attracting qualified candidates and offered the comparative a salary to match what he was making in the private sector. Thus, the salary difference was due to a reason other than gender. In addition, the agency also made offers to two female applicants that were above the minimum rate due to the same shortage. Antosz, et al., v. Department of Veterans Affairs, EEOC Appeal No. 07A30031, (May 13, 2004), request to reconsider denied, EEOC Request No. 05A40934, (August 11, 2004).

Findings of Discrimination

(What follows is a selection of recent Commission decisions finding discrimination and awarding appropriate relief to the complainants.)

--Under the ADEA and Title VII

Agency Fails to Articulate Legitimate, Non- Discriminatory Reason in Age and Race Case. The Commission found that complainant was subjected to race and age discrimination when she was not selected for a position with the agency. The agency merely offered two short affidavits stating that complainant was not the best qualified candidate for the position. These affidavits were neither specific, clear, nor individualized. Instead, the rationale was so generalized and conclusory as to offer no substantive explanation for the agency's action. The Commission ordered the agency to place complainant in the position, with all seniority, benefits, and back pay. EEOC also directed the agency to conduct a supplemental investigation with regard to the issue of compensatory damages. Boston v. United States Postal Service, EEOC Appeal No. 01A42074 (May 26, 2004).

--Under Disability Law

Agency Liable for Failure to Provide Reasonable Accommodation. Complainant - a full-time distribution clerk (modified) - requested, via a note from her physician, a lumbar chair with armrest to accommodate the disabling effects of an injury affecting her leg, knee, hip, back, and neck. EEOC noted that the agency was aware of complainant's limitations and of the need for accommodation, but neither provided the requested chair nor established a defense for failing to do so, e.g., that providing the chair would entail undue hardship. The Commission found that the agency failed to act in good faith and thus was also liable for compensatory damages, which EEOC ordered the agency to investigate. In addition, the Commission ordered the agency to ensure that the chair was available for complainant's use whenever she was on duty, and to consider disciplining the agency officials responsible for failing to provide complainant with reasonable accommodation. Tate v. United States Postal Service, EEOC Appeal No. 01A24423 (April 1, 2004), request to reconsider denied, EEOC Request No. 05A40756 (June 24, 2004).

Nonselection Violated the Rehabilitation Act. The agency subjected complainant, who was hearing impaired, to disability discrimination when it did not select him for the position of Tax Examining Assistant. The Commission rejected the agency's assertion that it would be an undue hardship to provide complainant with a requested Telecommunications Device for the Deaf (TDD) as an accommodation. While communicating via telephone was an essential function of the position, complainant would have been able to perform the function with the TDD/Relay, and there was no evidence that the device would have adversely affected the number of calls responded to by the agency, or otherwise lead to unsatisfactory customer service. Further, there was no evidence that providing complainant with the TDD would have been unduly costly, significantly disrupt the agency's operations, or fundamentally alter the nature of the agency's operation. The Commission ordered the agency to offer complainant the position, with back pay and other benefits, as well as provide him with the TDD if he accepted the offer. Onyeka v. Department of the Treasury, EEOC Appeal No. 01A33115 (May 20, 2004).

Disability Discrimination and Harassment Found. Complainant, who had sustained a back injury at work, was accommodated by the agency for a period of approximately 10 years until a new supervisor was assigned to complainant's unit. The supervisor assigned complainant job duties on a daily basis that required him to exceed his medical limitations and threatened to fire him. Complainant experienced two relapses as a result of the supervisor's actions and underwent emergency back surgery. The Commission found that the agency failed to reasonably accommodate complainant's condition. In addition, EEOC found that complainant was subjected to harassment by the supervisor when he was continually assigned duties outside of his limitations and threatened with discipline. As part of the remedies awarded, the Commission directed the agency to pay complainant $125,000 in compensatory damages. Hernandez v. United States Postal Service, EEOC Appeal No. 07A30005 (July 16, 2004).

--Under Title VII

Sex-Based and Retaliatory Harassment Leads to Award of $125,000 in Non-Pecuniary Compensatory Damages. The Commission found that complainant was subjected to gender-based and retaliatory harassment with regard to various adverse actions by her supervisor. These actions included demeaning remarks, ignoring her at meetings, failing to share information pertinent to her program, and understaffing complainant's department. Finally, complainant was subjected to a tangible employment action when she was reassigned out of her area to a non-supervisory position that she neither requested nor desired. While complainant requested a new supervisor who would not harass her, she did not request to leave her area or request to be placed in a non- supervisory position. In addition, management did not discuss the reassignment with complainant prior to sending her the letter of reassignment. In affirming the AJ's damages award, the Commission noted the testimony of complainant's rheumatologist that the stress of discrimination substantially worsened her rheumatoid arthritis and lupus auto-immune diseases directly affected by stress. The physician also noted that complainant suffered from depression and anxiety due to a worsening of her conditions. The doctor further stated that complainant would need to receive aggressive treatment (i.e., chemotherapy) indefinitely and, possibly, for the rest of her life. Further, complainant would not be able to have children. Complainant's husband also testified to the effects of the discrimination on her, stating that she had been destroyed emotionally, that her relationship with her stepson was affected, and that she needed help dressing herself due to the severity of her arthritis. George v. Department of Health and Human Services, EEOC Appeal No. 07A30079 (July 21, 2004).

Religious-Based Harassment. The Commission found that complainant was harassed based on his religion (Islam), when, after September 11, 2001, he received several warning letters from his supervisors. In the prior seven years, complainant had only two warning letters. However, after September 11, 2001, he received approximately 25-30 warnings without evidence to support the agency's assertions that performance problems had occurred as the agency had alleged. EEOC also found that complainant's supervisors made derogatory remarks about his religion, expressed hostility toward him, and falsely reported that complainant threatened a supervisor with a knife. The Commission concluded that complainant was unlawfully harassed by his supervisors when he was subjected to unwelcome verbal conduct based on his religion, and that the behavior complained of during the relevant period was both sufficiently severe and pervasive to render the work environment hostile after September 11, 2001. As part of the relief ordered, the Commission directed the agency to reassign the managers found to have harassed complainant from complainant's chain of command and consider disciplining them. EEOC also ordered the agency to investigate complainant's entitlement to compensatory damages. Watson v. Department of Veterans Affairs, EEOC Appeal No. 01A33053 (April 28, 2004), request to reconsider denied, EEOC Request No. 05A40882 (July 21, 2004).

Retaliation: Transfer Based on Retaliatory Motive. In this case, the Commission concluded that the agency official's dislike of complainant's EEO activity was public and known to other employees. The Commission found that the agency's actions of moving complainant's office to less desirable quarters and involuntarily transferring him were based on a retaliatory motive. The Commission stated that an agency is liable when its actions are in retaliation for a complainant's EEO activity and are reasonably likely to deter complainant or others from protected EEO activity. As part of the remedies ordered, the Commission remanded the matter for a determination of compensatory damages. Tramontozzi v. Department of Veterans Affairs, EEOC Appeal No. 01A31249 (May 11, 2004). See also Cardozo v. Department of Homeland Security, a summary of which appeared in the Summer 2004 Digest, wherein complainant was not selected for a promotion, in retaliation for testifying at a hearing of a co-worker in an age discrimination matter. EEOC Appeal No. 07A30014 (June 2, 2004), request for reconsideration denied, EEOC Request No. 05A41037 (August 12, 2004).

Retaliation: Denial of Leave. Complainant was subjected to retaliation when his supervisor denied him use of annual leave, which had been advanced to him. Complainant had made a proper request for advanced annual leave, which was approved by his second-level supervisor. Nevertheless, complainant's immediate supervisor placed him in leave without pay status for one month. The Commission found that the agency failed to articulate a legitimate, nondiscriminatory reason for the action, noting contradictions in the supervisor's testimony. The supervisor failed to articulate how complainant's request for leave did not meet agency regulations or the normal practice of the office. Wilson v. United States Postal Service, EEOC Appeal No. 01A32467 (May 13, 2004), request for reconsideration denied, EEOC Request No. 05A40845 (August 23, 2004).

Sexual Harassment: Hostile Work Environment. The Commission found that complainant was sexually harassed by her male supervisor. While her co-workers did not give identical accounts, their accounts were sufficiently similar to support the complainant, e.g., the supervisor talking about a dream, sharing a hotel room, and staring at complainant. The accounts of female co-workers who gave statements about sexually-charged conduct by the supervisor lent further credence to complainant's version of events. The Commission found that this indicated a pattern by the supervisor, i.e., propositioning subordinate employees, sexual talk, and physical actions. The supervisor's deliberate bumping into complainant's backside, as well as caresses to complainant's arm, contributed to a sexually hostile environment. The complainant communicated to the supervisor, both orally and in body language, that his sexual conduct toward her was unwelcome. The Commission further found that the agency failed to exercise reasonable care to correct promptly or effectively the harassing behavior. The supervisor previously received a letter of warning for sexual harassment and moved to a different tour. Once there, he sexually harassed complainant and engaged in other sexually hostile conduct toward other subordinate employee. The Commission concluded that the agency had not satisfied its affirmative defense and was, therefore, liable for harassment of the complainant. As part of the remedial actions ordered, the Commission directed the agency to provide training of the agency officials involved in this case regarding their obligations under Title VII, with special emphasis on sexual harassment, including how to handle and process a claim of harassment. The Commission further ordered the agency to consider taking additional discipline against the supervisor. In addition, the Commission ordered the agency to investigate complainant's claim to compensatory damages. Briggs v. United States Postal Service EEOC Appeal No. 01A32026 (June 23, 2004).

Mootness

Claim Not Moot. Complainant's claim that he was issued a 14-day suspension was not rendered moot when the action was reduced to a letter of warning, which was eventually removed from his record. The suspension remained in complainant's file for approximately two years, and it was unclear from the record whether the interim events completely and irrevocably eradicated the effects of the alleged discrimination. Further, complainant's request that he be made whole would arguably encompass a request for compensatory damages. Lynch v. United States Postal Service, EEOC Appeal No. 01A33433 (May 26, 2004).

Same Claim

Claim Properly Dismissed. Complainant's claim that he was not promoted to the GS-14 level was properly dismissed as stating the same claim as that which had already been decided by the Commission. Complainant's citing a new comparative employee and raising the same matter as a claim under the Equal Pay Act did not create a new claim of discrimination. Doleshal v. Department of Health and Human Services, EEOC Appeal No. 01A40020 (July 29, 2004).

Settlement Agreements

Breach Found. The Commission found that the settlement agreement at issue was breached for the second time when a supervisor, in violation of the agreement that prohibited him from working or being present at the facility while complainant was employed there, had in fact been on the premises. EEOC ordered the agency to enforce the terms of the agreement. Blanc v. United States Postal Service, EEOC Appeal No. 01A42381 (June 16, 2004).

Stating a Claim

(In the following two decisions, the Commission found that the complainant had stated a claim.)

Stocco v. United States Postal Service, EEOC Appeal No. 01A41926 (May 14, 2004) (denial of posted bid, where complainant identified a protected basis in pre-counseling documents and the EEO Dispute Resolution Specialist's Inquiry Report).

Cowling v. United States Postal Service, EEOC Appeal No. 01A42338 (May 25, 2004) (agency official's requirement, rather than referral, that complainant meet with an EAP Counselor at a pre- appointed time).

(In the three cases cited below, the Commission found that complainants had not stated a claim.)

Ianuzzi v. Department of the Treasury, EEOC Appeal No. 01A41759 (May 19, 2004) (military preference is not a basis within the purview of the Commission's regulations and a complaint cannot be founded on that basis alone).

Hernandez v. Department of Veterans Affairs, EEOC Appeal No. 01A41699 (August 5, 2004) (a claim of discrimination and a hostile work environment based on the agency's decision not to engage in or offer ADR in a particular case cannot be the subject of an EEO complaint).

Long v. United States Postal Service, EEOC Appeal No. 01A42495 (June 24, 2004) (proper forum to express dissatisfaction with the outcome of a grievance, which allegedly violates a labor- management contract and is purportedly discriminatory in nature, is during the grievance process itself; it is inappropriate to use the EEO process to collaterally attack actions or decisions, which were part of the grievance process).

Timeliness

Contact With an EEO Counselor Timely Where Complainant Was Misled. The Commission found that complainant was misled by a senior management official into delaying her EEO contact. Complainant stated that, when she told the official of her allegations of sexual harassment, she was advised not to file an EEO complaint until the conclusion of an administrative investigation. While the official stated that he told complainant only that she should discuss the matter with her attorney, a union steward, or choice of counsel, the Commission noted that complainant could reasonably have interpreted the instructions as advice not to contact an EEO Counselor. Lopez v. United States Postal Service, EEOC Appeal No. 01A34556 (May 14, 2004).

Complainant Had Constructive Notice of Time Limitations. The Commission found that the agency's submission of specific evidence pertaining to the placement and content of an EEO Poster, which contained information regarding the time limitations on filing a complaint with an EEO Counselor, was sufficient to support dismissal of complainant's complaint for untimely EEO contact. Griffith v. United States Postal Service, EEOC Appeal No. 01A42569 (June 23, 2004).

Complaint Timely Filed: Insufficient Proof of Receipt. A notation in the record of a Notice of the Right to File a Complaint form that was purportedly "left" for complainant was insufficient to show that complainant actually received the form more than 15 days prior to filing her formal complaint. Thus, the dismissal was improper. Nicholas v. United States Postal Service, EEOC Appeal No. 01A42186 (July 27, 2004).

Complaint Timely Filed: Notice of Right to File Complaint Must Be Served on Attorney. The time frame for receipt of materials is computed from time of receipt by a complainant's attorney. Because the agency did not serve complainant's attorney with the necessary notice, the formal complaint was timely filed. Blakemore v. Department of the Navy, EEOC Appeal No. 01A42421 (August 5, 2004).

Faxed Letter Served as Timely-Filed Complaint. Complainant did not sign and return the agency's complaint form within the applicable 15-day period. She did, however, fax a letter to the agency the day after receiving the notice of the right to file a complaint, describing the facts and circumstances surrounding the incident complained of, and stating that she was being discriminated against. The letter was dated and signed by the complainant. Thus, the Commission found that complainant timely filed her formal complaint. Attwood- Johnston v. United States Postal Service, EEOC Appeal No. 01A33370 (July 29, 2004).

Complaint Untimely, Where Inter-Office Mail was Used. A complainant who, within the applicable time period, placed his complaint in an inter-office envelope and put it in the inter-office mail, assumed that his formal complaint was timely delivered. The complaint was date-stamped as received by the agency's EEO office beyond the 15-day limitation period. The Commission found that the complainant did not offer adequate justification to warrant an extension of the time limit for filing the complaint. Bostron v. Social Security Administration, EEOC Appeal No. 01A40790 (April 27, 2004), request to reconsider denied, EEOC Request No. 05A40860 (June 15, 2004).

UNDERSTANDING THE "MIXED CASE" PROCESS

The following article is written in Question and Answer format to help the reader understand the "mixed case" as it relates to the EEO process. It is not intended to be an exhaustive or definitive discussion of a complex area of law. For more detailed information and additional resources, the reader is advised to access the Commission's website at www.eeoc.gov and the Merit Systems Protection Board's (MSPB's) website at www.mspb.gov. In addition, the reader may consult EEOC's regulations pertaining to "mixed case" matters,explained more fully below, at 29 C.F.R. Section 1614.302; as well as EEOC's Management Directive (EEO-MD-110) for 29 C.F.R. Part 1614, Ch. 4, Section II at 4-1; and MSPB's regulations found at 5 C.F.R. Part 1201.

1. What is a "mixed case" claim?

A "mixed case" claim is a complaint of employment discrimination filed with a federal agency, related to or stemming from an action that can be appealed to the Merit Systems Protection Board (MSPB). Bases of discrimination include race, color, sex, national origin, religion, age, disability, and retaliation. The complaint may contain additional allegations that MSPB has jurisdiction to address.¹ For the purposes of this article, however, the focus is on EEO claims.

2. What is the Merit Systems Protection Board?

The MSPB is an independent quasi-judicial agency, which was established to protect federal merit systems against partisan political and other prohibited personnel practices and to ensure adequate protection for employees against abuses by agency management. As part of its mission, the Board adjudicates employee appeals of personnel actions over which MSPB has jurisdiction, such as removals, suspension, furloughs, and demotions. The MSPB's mission can be found at www.mspb.gov.

3. Can anyone bring an EEO discrimination claim to MSPB?

No. Only certain employees may appeal to the MSPB, and only concerning certain types of employment actions. In other words, a person must have the right to be heard before the MSPB, and that the individual's EEO claim must involve the type of claim over which the MSPB has jurisdiction. The MSPB will have no jurisdiction over the matter unless the complainant meets both criteria, i.e., the person has the employment status to appear before the MSPB; and his/her EEO claim that is, the agency's alleged action--is the kind of EEO claim that the MSPB can decide. Again, we are only referring to EEO matters in this article.

4. Who may appeal to the MSPB?

Those employees who generally have the right to appeal to the MSPB, and thus to file a mixed case complaint or appeal, include: (1) competitive service employees not serving a probationary or trial period under an initial appointment; (2) career appointees to the Senior Executive Service (SES); (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).

Examples of the types of employees who have a right to file a mixed case complaint or a mixed case appeal, as well as examples of the types of actions that are appealable to MSPB, can be found in EEO MD-110, at 4-2 and 4-3. These lists are not all-inclusive and are subject to change. Employees should be referred to the personnel office at the agency or to the MSPB itself, with questions concerning whether an employee may appeal an action to the MSPB.

Employees who generally do not have a right to appeal to the MSPB, from an EEO standpoint, include: (1)probationary employees (there may be other grounds for appeal, such as discrimination based on marital status or party affiliation); (2) certain non-appropriated fund activity employees; (3) employees serving under a temporary appointment limited to one year or less; and (4) employees of the Central Intelligence Agency, the Federal Bureau of Investigation, the United States Postal Service, and the Tennessee Valley Authority.

An example of an employee who did not have a right to file a mixed case claim, but whose complaint was mistakenly processed as such, is Weatherspoon v. United States Postal Service.² The complainant, after seeking EEO counseling, filed a formal complaint alleging discrimination on several protected EEO bases with regard to training, non-sexual harassment, and reassignment. The agency processed the complaint as a mixed case complaint, and at the conclusion of the investigation, complainant was provided with a copy of the investigative file and informed that a final agency decision (FAD) would be issued within 45 days of receipt of the investigative report. The agency issued the FAD and notified complainant that she had the right to appeal the decision to the MSPB or file a civil action in U.S. District Court within 30 days of receipt. The Commission found that the agency had improperly characterized complainant's complaint as a mixed case complaint. EEOC noted that Postal Service employees are generally excluded from MSPB coverage, pursuant to 5 U.S.C. § 2105(e), and do not have MSPB appeal rights unless they are eligible for veterans' preference and have a year of continuous service in the same or similar position.³ Complainant's complaint revealed that she did not have veterans' preference eligibility. The Commission, therefore, vacated the agency's finding of no discrimination and remanded the matter for the agency to process complainant's complaint as it would a non-mixed case, i.e., as it would any other EEO complaint without claims appealable to MSPB.

5. What types of employment actions are appealable to the MSPB?

Most appealable actions fall into the following six categories:

6. What is a mixed case appeal?

A mixed case appeal is an appeal filed directly with the MSPB that alleges that an agency action was effected , in whole or in part, because of discrimination on one or more of the bases referred to above, e.g., race, color, national origin, sex, age, or disability.⁴

7. What is the difference between a mixed case complaint and a mixed case appeal?

The distinction is best understood this way: a "complaint" is just that a complaint filed with an agency, just as one would file a regular EEO complaint, with a decision rendered on the complaint by the agency. An appeal, however, is simply an appeal filed directly with the MSPB.

8. So a mixed case complaint is the same as any other EEO complaint?

There are major differences in the way agencies process mixed case EEO complaints. To reiterate, bear in mind that complaint is called a "mixed case" complaint because it contains one or more claims that are appealable to the MSPB.

9. What are the major differences?

When a mixed case complaint is filed with an agency, and the agency accepts the issue or issues for investigation, the time for investigation is limited to 120 days, as opposed to 180 days for a non-mixed case complaint,⁵ after which the agency will issue its FAD. There is no right to a hearing before an EEOC Administrative Judge on a mixed case complaint.⁶ Appeals from the FAD are filed with MSPB and not with EEOC.⁷ If a complainant is dissatisfied with the final decision of the MSPB, a petition may be filed with the EEOC to review the MSPB decision on the allegation of employment discrimination.⁸ Should EEOC determine that it will consider the decision of the MSPB, EEOC may either concur or differ with the MSPB, or it may refer the case back to the MSPB for the taking of additional evidence.⁹ Unlike some other decisions issued by EEOC, a decision on a petition to review an MSPB decision is not subject to a request for reconsideration from either party. In Luongo v. United States Postal Service,¹⁰ complainant appealed the agency's decision on his mixed case complaint to EEOC. The Commission dismissed the appeal as being premature and noted that the agency had given complainant appeal rights to the MSPB under 29 C.F.R. §1614.302(d).

10. Can an individual file a mixed case complaint and mixed case appeal at the same time?

No. An election to proceed is required. The regulations provided 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 complaint with the agency, but not both.¹¹ Whichever action the individual files first is considered an election to proceed in that forum. Filing a formal complaint constitutes an election to proceed in the EEO forum. However, merely contacting an EEO Counselor or receiving EEO counseling does not constitute an election. Where an aggrieved person files an MSPB appeal and timely seeks EEO counseling, counseling may continue pursuant to 29 C.F.R. § 1614.105, at the option of the parties. In any event, counseling must be terminated with the appropriate notice of rights under that regulation, i.e., 29 C.F.R. § 1614.105.

11. What if an individual does a dual filing, and the agency does not dispute whether the case is appealable to the MSPB?

Where an appeal is first filed with the MSPB, the EEO Counselor must: (1) advise the complainant that MSPB must be informed of the alleged discrimination; (2) advise the complainant that the agency must dismiss a subsequent EEO complaint on the same matter; and (3) advise the complainant that s/he may appeal the MSPB's final decision on the discrimination issue(s) to the EEOC.

12. What happens when there is a dual filing and the agency questions whether the complaint is appealable to the MSPB?

The EEO Counselor must then advise the complainant as follows: (1) the agency will hold the complaint until an MSPB judge hands down a ruling; and (2) the complainant must inform the MSPB of the discrimination allegation. If the MSPB judge decides that the MSPB has jurisdiction of the appeal, the agency must: (1) dismiss the complainant that has been on hold; and (2) advise the complainant of his/her right to appeal the MSPB's final decision on the discrimination issue(s) to the EEOC. Where the MSPB judge determines that the MSPB lacks jurisdiction over the appeal, the agency must: (1) treat the complaint as a non-mixed complaint; and (2) inform the complainant that: (a) s/he has 45 days to contact an EEO Counselor; and (b) the date the appeal was initially filed with the MSPB will serve as the date the complainant contacted the EEO Counselor.

Footnotes

¹See 29 C.F.R. § 1614.302(a)(1).

²EEOC Appeal No. 01A42528 (June 22, 2004).

³See 5 U.S.C. § 7511; EEO MD-110, 4-2. 4-3 (November 9, 1999).

⁴See 29 C.F.R. § 1614.302(a)(2).

⁵See 29 C.F.R. § 1614.302(d)(1)(i).

⁶See 29 C.F.R. § 1614.302(d)(2)

⁷See 29 C.F.R. § 1614.302(d)(1)(ii) and (d)(3).

⁸29 C.F.R. § 1614.303.

⁹29 C.F.R. § 1614.305.

¹⁰EEOC Appeal No. 01A42552 (June 16, 2004).

¹¹See 29 C.F.R. § 1614.302(b).