At the initial counseling session, the 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) S/he must be employed in a federal agency subject to the provisions of 7121(d); and
(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.
(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) a right to have his/her allegations of discrimination addressed under 29 C.F.R. Part 1614.
(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) Allegations of discrimination that are raised by employees not covered by 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 (e.g. a five day suspension from work) under a collective bargaining agreement not covered by 7121(d).(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.
(b) The notice of abeyance shall state that the abeyance is instituted pursuant to 1614.301(c) and that time limits for processing the complaint contained in 1614.106 and for appeal to the Commission contained in 1614.402 will also be held in abeyance until fifteen (15) days following the issuance of the final decision on the grievance.
(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.
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.
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) competitive service employees not serving a probationary period under an initial appointment;
(2) career appointees to the Senior Executive Service;
(3) non-competitive service 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 with two or more years of current continuous service; and
(1) reduction-in-grade or removal for unacceptable performance;
(2) removal, reduction in grade or pay, suspension for more than fourteen (14) days, or furlough for thirty (30) days or less for such cause as will promote the efficiency of the service;
(3) separation, reduction-in-grade, or furlough for more than 30 days, when the action was effected because of a reduction-in-force;
(4) reduction-in-force action affecting a career SES appointee;
(5) reconsideration decision sustaining a negative determination of competence for General Schedule employees; and
(6) disqualification of an employee or applicant because of a suitability determination.
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 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 C.1 above).
If the MSPB administrative judge finds that MSPB has jurisdiction over the claim, the agency shall dismiss the mixed case complaint under 1614.107(a)(4).
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.
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.
If an aggrieved person files a mixed case appeal with MSPB and 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 1614.107. The complaint will be processed as a non-mixed case. See 1614.302(b).
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:
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, NE
Suite 5SW12G
Washington, DC 20507
or sent by facsimile to:
(202) 663-7022
1. Employees of the U.S. Postal Service, the Postal Rate Commission, and the Tennessee Valley Authority are not subject to 5 U.S.C. 7121(d).
2. The following employees generally do not have a right to appeal to the MSPB:
1. Probationary employees (see 5 C.F.R. 315.806 for exceptions);
2. Non-appropriated fund activity employees;
3. Excepted service employees with less than two years current continuous service; and
4. Employees serving under a temporary appointment limited to one year or less.
This page was last modified on December 12, 2008.