6.533.10 Procedure for mixed-case appeals

In Economou v. Caldera, 286 F.3d 144 (2d Cir. 2002), the court explained:

29 C.F.R. § 1614 governs federal sector equal employment opportunity.

Section 1614.302 explains that "[a]n aggrieved person may initially file a mixed case complaint with an agency [the EEO] pursuant to this part or an appeal on the same matter with the MSPB. . ., but not both." (footnote omitted) 29 C.F.R. § 1614.302(b) (1998)(emphasis added). Section 1614.107(d) emphasizes the exclusive nature of an initial filing with the MSPB or EEO by listing among the reasons for which the EEO may dismiss a complaint that, "the complaintant has raised the matter . . . in an appeal to the Merit Systems Protection Board and § 1614.301 or § 1614.302 indicates that the complainant has elected to pursue the non-EEO process." 29 C.F.R. § 1614.107(d) (1998). (footnote omitted)

   This binding "election" between the MSPB and EEO remedies occurs as soon as a formal petition is filed in either forum. 29 C.F.R. § 1614.302(b) ("whichever [the MSPB appeal or the EEO complaint] is filed first shall be considered an election to proceed in that forum"). As § 1614.301 explains, "[a]n election to proceed [with an EEO action] is indicated only by the filing of a written complaint; use of the pre-complaint process . . . does not constitute an election for purposes of this section." 29 C.F.R. § 1614.301(a)(emphasis added). Thus, according to the plain language of the governing regulations, the filing of the first formal petition determines the appropriate forum for agency review.

In Seay v. Tennessee Valley Authority, 339 F.3d 454 (6th Cir. 2003), the court explained:

A "mixed case" complaint "is a complaint of employment discrimination filed with a federal agency based on race, color, religion, sex, national origin, age or handicap related to or stemming from an action that can be appealed to the Merit Systems Protection Board (MSPB)." 29 C.F.R. § 1614.302(a)(1). A "mixed case" complaint may be filed with the employer-agency's EEO process (pursuant to 29 C.F.R. § 1614.302) or with the MSPB (pursuant to 5 C.F.R. § 1201.151), but not with both. Id. § 1614.302(b). If the "mixed case" complaint is filed with the federal agent's EEO process and a FAD ["Final Agency Decision"] is not issued within 120 days of the date of filing, "the complainant may appeal the matter to the MSPB at any time thereafter as specified at 5 C.F.R. 1201.154(b)(2) or may file a civil action as specified at § 1614.310(g), but not both." Id. § 1614.302(d)(1)(i); see also 5 U.S.C. § 7702(a)(2) (noting that an agency decision on a "mixed case" complaint "shall be a judicially reviewable action unless the employee appeals the matter to the [MSPB]").

In Coffman v. Glickman, 328 F.3d 619 (10th Cir. 2003), the court explained:

   The statutes and implementing regulations that create the mechanism by which federal employees may assert claims of unlawful employment discrimination are complex and require careful attention by the employee. Summarized briefly, the process allows a federal employee who asserts claims of unlawful discrimination in conjunction with a challenge to an adverse employment action to either file an EEO complaint with the employing agency or appeal directly to the MSPB. 5 U.S.C. § 7702(a); 29 C.F.R. 1614.302; 5 C.F.R. §§ 1201.151-1201.157. Whichever action is taken first is considered an election to proceed in that forum. 29 C.F.R. § 1614.302(b).

   The MSPB is authorized by 5 U.S.C. § 7702(a)(1)4 to review both the adverse action as well as the unlawful discrimination claims. The decision of the MSPB becomes a judicially reviewable action on the date it is issued. 5 U.S.C. § 7702(a)(3)(A). The employee may obtain de novo review of the MSPB decision in a "mixed" appeal by filing an action in federal district court. 29 C.F.R. § 1614.310(b); see also Harms v. IRS, 321 F.3d 1001, 1005 (10th Cir. 2003); 5 U.S.C. § 7703(b)(2)6; Christo v. Merit Systems Protection Board, 667 F.2d 882, 884 (10th Cir. 1981); Williams, 983 F.2d at 179; Wall, 871 F.2d at 1542-43; Wells, 228 F.3d at 114.

   The rationale behind this statutory scheme is to promote uniformity in treatment of unlawful discrimination claims brought by federal employees relative to those brought by their private sector counterparts. Christo, 667 F.2d at 884-85, citing to S. REP. NO. 969, 95th Cong., 2d Sess., reprinted in 1978 U.S.C.C.A.N. 2775, 2785. These statutes and regulations are designed to ensure that federal employees, just as private sector employees, after exhausting their administrative remedies, can seek de novo review of claims of unlawful employment discrimination in a federal district court.

Coffman, 328 F.3d at ___ (footnotes omitted).