MIXED CASES
ELECTIONS OF REMEDIES
EEOC EXCEL 2012
PETER BROIDA
1
WHAT ARE THE FORUMS?
EEO
MSPB
GRIEVANCE/ARBITRATION
2
WHY ONE FORUM RATHER
THAN OTHER?
EEO—early ADR; investigation at cost of the
agency, but only deals with EEO issues. 45 days
to go to EEO counselor.
MSPB—quicker than EEO at early stages; good
on questions of civil service law; addresses both
EEO and issues on the merits divorced from
EEO considerations. 30 days to start appeal.
Grievance/Arbitration—addresses both EEO and
merits issues; arbitration usually more favorable
to employees as to penalty determinations.
But: arbitration can only occur with the
consent and at the request of the union.
3
WHAT GOES THROUGH EEO?
Any personnel action
Normally not a preliminary step, e.g., a
proposal or a PIP unless that step is
alleged to be retaliatory
4
USUAL EEO PROCESS
COUNSELING
ADR
COMPLAINT
FAD
OFO
ROI
EEOC
HEARING AND
DECISION
COURT
5
WHAT CAN BE APPEALED
TO MSPB?
Adverse action under 5 USC 7513:
(1) a removal;
(2) a suspension for more than 14 days;
(3) a reduction in grade;
(4) a reduction in pay; and
(5) a furlough of 30 days or less; or
Chapter 43 performance based removal or reduction in
grade (other than probationers or probationary
supervisors/managers): 5 USC 4303(e).
6
USUAL MSPB PROCESS
APPEAL
INITIAL
DECISION
PETITION FOR
REVIEW TO MSPB
FEDERAL
CIRCUIT
7
ADD THE COMPLEXITY OF AN
EEO ALLEGATION TO MSPB
Brings into play the Mixed Case
Only operative as to cases within MSPB
jurisdiction.
8
SO, WHAT’S A MIXED
CASE/APPEAL?
EEOC Regulation: 29 CFR 1614.302
(a) Definitions —(1) Mixed case complaint. 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 genetic information related to or stemming from an
action that can be appealed to the Merit Systems Protection
Board (MSPB). The complaint may contain only an allegation of
employment discrimination or it may contain additional allegations
that the MSPB has jurisdiction to address.
(2) Mixed case appeals. A mixed case appeal is an appeal filed 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
genetic information.
9
ELECT EEO OR MSPB
MSPB: 5 CFR 1201.154
(a) Where the appellant has been subject to an action appealable to the Board,
he or she may either file a timely complaint of discrimination with the agency
or file an appeal with the Board no later than 30 days after the effective
date, if any, of the action being appealed, or 30 days after the date of the
appellant's receipt of the agency’s decision on the appealable action,
whichever is later.
(b) If the appellant has filed a timely formal complaint of discrimination with the
agency:
(1) An appeal must be filed within 30 days after the appellant receives the
agency resolution or final decision on the discrimination issue; or
(2) If the agency has not resolved the matter or issued a final decision on
the formal complaint within 120 days, the appellant may appeal the matter
directly to the Board at any time after the expiration of 120 calendar days.
Once the agency resolves the matter or issues a final decision on the formal
complaint, an appeal must be filed within 30 days after the appellant
receives the agency resolution or final decision on the discrimination issue.
10
EEOC ELECTION REGULATION
EEOC: 29 CFR1614.302(b):
Election. An aggrieved person may initially file a mixed case complaint with an agency
pursuant to this part or an appeal on the same matter with the MSPB pursuant to 5
CFR 1201.151, but not both. An agency shall inform every employee who is the
subject of an action that is appealable to the MSPB and who has either orally or in
writing raised the issue of discrimination during the processing of the action of the
right to file either a mixed case complaint with the agency or to file a mixed case
appeal with the MSPB. The person shall be advised that he or she may not initially
file both a mixed case complaint and an appeal on the same matter and that
whichever is filed first shall be considered an election to proceed in that forum. If a
person files a mixed case appeal with the MSPB instead of a mixed case complaint
and the MSPB dismisses the appeal for jurisdictional reasons, the agency shall
promptly notify the individual in writing of the right to contact an EEO counselor within
45 days of receipt of this notice and to file an EEO complaint, subject to § 1614.107.
The date on which the person filed his or her appeal with MSPB shall be deemed to
be the date of initial contact with the counselor. If a person files a timely appeal with
MSPB from the agency’s processing of a mixed case complaint and the MSPB
dismisses it for jurisdictional reasons, the agency shall reissue a notice under §
1614.108(f) giving the individual the right to elect between a hearing before an
administrative judge and an immediate final decision.
11
FROM MSPB TO EEOC
1201.157 Notice of right to judicial review.
Any final decision of the Board under 5 U.S.C. 7702 will
notify the appellant of his or her right, within 30 days
after receiving the Board's final decision, to petition the
Equal Employment Opportunity Commission to consider
the Board's decision, or to file a civil action in an
appropriate United States district court. If an appellant
elects to waive the discrimination issue, an appeal may
be filed with the United States Court of Appeals for the
Federal Circuit as stated in §1201.120 of this part.
12
MIXED CASE FROM EEO TO
MSPB
COUNSELING
ADR
COMPLAINT
FAD
OFO
ROI
MSPB
HEARING//PFR
DECISION
U.S. DISTRICT
COURT
EEO & TITLE 5
ISSUES
13
LET’S REVIEW
14
IF YOU BEGIN WITH EEO
RATHER THAN MSPB
45 days to start counseling; follow through
with complaint
29 CFR 1614.302:
c) Dismissal. (1) An agency may dismiss a
mixed case complaint for the reasons
contained in, and under the conditions
prescribed in, §1614.107.
15
COMMON REASONS FOR
DISMISSING THE EEO COMPLAINT
Prior MSPB appeal on the same matter;
The same matter has been raised through
negotiated grievance procedure [more on
this later]
Counseling or complaint is untimely;
Covered discrimination or reprisal is not
alleged.
16
ASSUMING THE COMPLAINT IS
ACCEPTED ON THE MIXED CASE
Investigation as usual.
ADR is always a possibility.
Agency issues ROI + Final Agency Decision.
Employee then obtains hearing by filing
appeal with MSPB within 30 days from
receipt of the FAD.
17
MIXED CASE GOES TO THE
MSPB
29 CFR 1614.302(d)((1):
(i) If a final decision is not issued within 120 days of the
date of filing of the mixed case complaint, the
complainant may appeal the matter to the MSPB at any
time thereafter as specified at 5 CFR 1201.154(b)(2) or
may file a civil action as specified at §1614.310(g), but
not both; and
(ii) If the complainant is dissatisfied with the agency's final
decision on the mixed case complaint, the complainant
may appeal the matter to the MSPB (not EEOC) within
30 days of receipt of the agency's final decision;
18
IF YOU END UP AT OR START
WITH MSPB
30 days to appeal—all issues (merits,
penalty, EEO);
Step 1: Initial decision.
Back Pay Act remedies and remedies,
including damages under Title VII and
Rehabilitation Act
Occasional corrective action order in
disability cases;
19
Continuing with MSPB
After initial decision:
discretionary petition for review with MSPB
headquarters [leading to final decision]
End up with final decision of MSPB
[including initial decisions that become
final if no PFR is filed]
One option: abandon EEO issues and go on
the merits to the US Court of Appeals for
the Federal Circuit
20
Continuing with MSPB
Option 2: If the interest is litigation of EEO
issues following the final MSPB decision:
Go to OFO (with possible further MSPB
proceedings if discrimination/reprisal is
found);
Go to district court (instead of or in
addition to OFO) and have the district
court review (jury trial) EEO issues and
civil rights issues.
21
MSPB COMPLICATIONS
CONSTRUCTIVE ACTIONS
Allegedly Forced
Retirements
Resignations
Requested Downgradings
Actions generally considered voluntary and
not appealable
22
ACTIONS BECOME CONSTRUCTIVELY
ADVERSE AND APPEALABLE
Working conditions were
discriminatory
discriminatorily harassing
retaliatory
lacked accommodation for a disability
And as a result employee had no other choice but
to resign, retire, take a downgrading
Then MSPB has jurisdiction.
23
IF NO MSPB JURISDICTION,
THEN EEOC HAS JURISDICTION
EEOC may find that the actions complained of by
the employee at MSPB
Were sufficiently discriminatory to warrant a
finding of a constructive adverse action, or
They were not that bad, but still constitute
discrimination or reprisal and require entry of a
remedy under the EEO laws
24
IF THERE’S BOTH AN EEO
COMPLAINT AND MSPB APPEAL
If the agency or MSPB AJ questions MSPB
jurisdiction, agency holds EEO complaint
in abeyance until the MSPB AJ rules on
jurisdiction.
1614.302(c)(2)(ii)
25
BUT IF THERE’S NO MSPB JURISDICTION
MD-110 GUIDANCE
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
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.
MD 110, Chap. 4, Part II, Sec. B-4(b).
26
ONE MORE COMPLICATION
Matter appealed to MSPB is inextricably
intertwined with matters pending and
within the jurisdiction of EEOC.
Cases are lacking in clarity.
EEOC judges do what they want, e.g.,
holding onto cases that might otherwise
properly be heard by MSPB.
27
CONTRACT GRIEVANCE
PROCESS
More complications:
Involvement of FLRA
Involvement of MSPB
Involvement of EEOC
Involvement of the courts
28
REMEMBER THE BROAD JURISDICTION
OF THE EEO PROCESS
Any personnel action
Any protected status, reprisal
29
WHAT’S THE SCOPE OF A
GRIEVANCE PROCESS?
Broader than the EEO system
Broader than MSPB
30
DEFINITON OF GRIEVANCE
5 USC 7103
(9) “Grievance" means any complaint ‐‐
(A) By any employee concerning any matter relating to the
employment of the employee;
(B) By any labor organization concerning any matter
relating to the employment of any employee; or
(C) By any employee, labor organization, or agency
concerning
(i) The effect or interpretation, or a claim of breach, of
a collective bargaining agreement; or
(ii) Any claimed violation, misinterpretation, or
misapplication of any law, rule, or regulation affecting
conditions of employment.
31
EXCLUSIONS
5 USC 7121(c)
Hatch Act issues
retirement, life or health insurance
national security removal
examination/certification/appointment
[probationers]
position classification not involving
reduction in grade or pay
32
GRIEVANCE ELECTION
5 USC 7121(d):
– An employee affected by [discrimination] which
also falls under the coverage of the grievance
procedure may raise the matter under a
statutory procedure or the grievance procedure,
but not both.
– An employee shall have exercised the option to
raise the matter under either a statutory or a
negotiated procedure when the employee
initiates an action under the statutory procedure
or files a grievance, whichever occurs first.
33
EEOC REG: CHOOSE BETWEEN
GRIEVANCE AND EEO PROCESS
5 CFR 1614.301
When a person is employed by an agency subject to 5 U.S.C. 7121(d) and is covered by a collective
bargaining agreement that permits allegations of discrimination to be raised in a negotiated
grievance procedure, a person wishing to file a complaint or a grievance on a matter of alleged
employment discrimination must elect to raise the matter under either part 1614 or the negotiated
grievance procedure, but not both.
An election to proceed under this part is indicated only by the filing of a written complaint; use of the
pre-complaint process as described in §1614.105 does not constitute an election for purposes of
this section.
An aggrieved employee who files a complaint under this part may not thereafter file a grievance on the
same matter.
An election to proceed under a negotiated grievance procedure is indicated by the filing of a timely
written grievance.
An aggrieved employee who files a grievance with an agency whose negotiated agreement permits
the acceptance of grievances which allege discrimination may not thereafter file a complaint on
the same matter under this part 1614 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.
Any such complaint filed after a grievance has been filed on the same matter shall 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 this part. The dismissal of such a complaint shall advise the complainant of the
obligation to raise discrimination in the grievance process and of the right to appeal the final
grievance decision to the Commission.
34
EEOC REVIEW AUTHORITY
29 CFR 1614.401
(d) A grievant may appeal the final decision of the agency,
the arbitrator or the Federal Labor Relations Authority
(FLRA) on the grievance when an issue of employment
discrimination was raised in a negotiated grievance
procedure that permits such issues to be raised. A
grievant may not appeal under this part, however, when
the matter initially raised in the negotiated grievance
procedure is still ongoing in that process, is in arbitration,
is before the FLRA, is appealable to the MSPB or if 5
U.S.C. 7121(d) is inapplicable to the involved agency.
35
TYPICAL ARBITRATION IF A CHAPTER 75 OR 43
CASE AND NO EEO CLAIM
GRIEVANCE
ARBITRATION
AWARD
FEDERAL
CIRCUIT
36
TYPICAL ARBITRATION IF EEO CLAIM BUT NO
CHAPTER 75 OR 43 CASE
NO MSPB INVOLVEMENT
GRIEVANCE
COURT
?
ARBITRATION
OFO
AWARD
FLRA
37
FLRA REVIEW IF NO ADVERSE
OR PERFORMANCE ACTION
File exceptions to the Award with FLRA under 5 CFR 2425.6:
Contrary to any law, rule or regulation
The arbitrator Exceeded his or her authority; OR
was biased; OR
Denied the excepting party a fair hearing; OR
OR the award:
Fails to draw its essence from the parties' collective bargaining agreement; or
Is based on a nonfact; or
Is incomplete, ambiguous, or contradictory as to make implementation of the
award impossible; or
Is contrary to public policy.
38
IF AWARD INVOLVES ADVERSE
OR PERFORMANCE ACTION
5 USC 7121(f): Selection of the negotiated
procedure in no manner prejudices the
right of an aggrieved employee to request
MSPB to review the final decision in the
case of any personnel action that could
have been appealed to the Board, or,
To request EEOC to review a final decision
in any other matter involving a complaint
of discrimination.
39
WHAT IS APPEALABLE TO
MSPB?
Action: long term suspension, discharge,
performance-based action, reduction in
pay or grade
Process: If challenge the arbitration award
and allege discrimination to MSPB
40
TYPICAL ARBITRATION IF A
CHAPTER 75 OR 43 CASE & EEO
GRIEVANCE
DISTRICT
COURT
ARBITRATION
AWARD
EEOC
OFO
MSPB
41
MSPB REVIEW
5 CFR 1201.154 [excludes Postal Service]
(d) If the appellant has filed a grievance with the agency under a negotiated grievance
procedure, he may ask the Board to review the final decision on the grievance if
he alleges before the Board that he is the victim of prohibited discrimination.
Usually, the final decision on a grievance is the decision of an arbitrator.
The appellant's request for Board review must be filed within 35 days after the date of
issuance of the decision or, if the appellant shows that he or she received the
decision more than 5 days after the date of issuance, within 30 days after the date
the appellant received the decision.
The appellant must file the request with the Clerk of the Board, Merit Systems Protection
Board, Washington, DC 20419.
The request for review must contain:
(1) A statement of the grounds on which review is requested;
(2) References to evidence of record or rulings related to the issues before the Board;
(3) Arguments in support of the stated grounds that refer specifically to relevant
documents, and that include relevant citations of authority; and
(4) Legible copies of the final grievance or arbitration decision, the agency decision to
take the action, and other relevant documents. Those documents may include a
transcript or tape recording of the hearing.
42
MSPB PROPOSED REGULATION
5 CFR 1201.155(b) [proposed June 7, 2012]
If the negotiated grievance procedure permits
allegations of discrimination, the Board will
review only those claims of discrimination that
were raised in the negotiated grievance
procedure. If the negotiated grievance
procedure does not permit allegations of
discrimination to be raised, the appellant may
raise such claims before the Board
43
COURT REVIEW
If EEO allegations are dropped, civil service
issues can go from award or MSPB review
of award to Federal Circuit.
If EEO allegations remain, the court review
is to de novo review (possible jury trial or
summary judgment) in district court; with
review of civil service issues in district
court acting as the Federal Circuit.
44
AGENCY REVIEW OF THE
ARBITRATION AWARD?
FLRA does not review awards through the
exceptions process in adverse actions and
Performance actions: 5 USC 7122(a)
Employee can go to MSPB or Federal
Circuit or OFO or district court.
Agency has nowhere to appeal. SOL unless
the agency gets OPM to intervene on a
civil service law issue.
45
And that's all there is. There isn't
any more.
Goodbye.
46