HEATHER WHITE, A PARTNER AT THE FEDERAL PRACTICE GROUP, PENS A COLUMN FOR FEDSMITH ON MIXED CASE COMPLAINTS
Posted By smay || 24-Feb-2020
Heather White February 21, 2020
The Fifth Circuit court of appeals recently decided a case which is the perfect illustration why federal employees should avoid filing mixed case complaints, at all costs.
For those who have never had the pleasure, a mixed case complaint can be filed when an employee who has an administrative EEO complaint also has a claim which is appealable to the MSPB – basically, a removal, a demotion, or a suspension of more than 14 days.
Often, unfortunately, appealable actions can occur after an employee has already initiated an EEO complaint, and there is an understandable temptation to simply add the demotion, removal or suspension to the same complaint process for efficiency’s sake.
It makes particular sense when the employee is alleging that the removal or demotion was a form of reprisal for the EEO complaint itself, or was a continuation of the discrimination that was the subject of a preexisting EEO complaint. The employee could be excused for assuming that, after allowing the agency to investigate a removal or demotion as a claim in an EEO complaint, the removal would then go with the other claims to the EEOC for a hearing with a focus on the allegations of discrimination.
But in fact, it’s the opposite. The employee’s EEO claims will usually be lost and the employee is limited to appealing the agency’s decision on the removal or demotion to the MSPB.
In Punch v. NASA, the employee filed an EEO complaint, and then was terminated on performance grounds. She filed a mixed case complaint which then went to the Board for review of only the removal.
The Board sustained the removal and Ms. Punch appealed to the Federal Circuit. To reach the appellate court, she had to certify that she was not pursuing any EEO bases for the removal.
Ms. Punch also had an EEO complaint which she had filed which concerned the events which occurred before the removal occurred. Eventually, the Federal Circuit dismissed her appeal of the removal because of the EEO complaint which it concluded was about the same claims she had promised not to pursue.
The federal district court then dismissed her EEO lawsuit saying it was about the same issues as the previously filed MSPB and Federal Circuit actions.
In short, this unfortunate case shows how employees can be blocked from a fair hearing of MSPB-appealable adverse action and EEO claims once they get combined into one mixed case complaint.
The mixed case complaint process allows an agency to package a removal or demotion with an EEO complaint, and then issue a decision on the appealable issue (99% of the time finding that, what do you know? – they did nothing wrong), and then limits the employee’s ability to appeal the FAD to the MSPB.
In other words, employees think they are going to be able to take their removal to the EEOC, but instead is their EEO claims will go unheard at the MSPB because the Board only has jurisdiction over removals, demotions or lengthy suspensions. Thus, instead of having a really compelling and powerful package of EEO claims topped off by a termination, the termination supersedes and effectively prevents the other claims from receiving a hearing.
If you have EEO claims – of discrimination or retaliation for EEO activity, file an EEO complaint within 45 days to preserve your claims. If something subsequently happens that could be appealed to the MSPB – termination, demotion, etc. – do not agree to include this appealable issue as part of your EEO complaint.
Instead, keep that issue separate from your EEO complaint and file an appeal of the suspension or other adverse action directly to the MSPB. In this way, though it is a nuisance to manage two separate processes, your different claims can receive a fair hearing in the proper forum.
The Federal Practice Group represents employees in EEO and MSPB appeals. Our jobs would be a lot easier if all federal sector employment claims could be heard in one process, but for now that’s not how it works. If you ever find yourself being urged to file a mixed case complaint, just say no.