Some employment discrimination complaints can be appealed to the Merit Systems Protection Board (MSPB). In these cases, the employee has to choose to keep on with the complaint as a "mixed case complaint" (under 29 CFR 1614) or a "mixed case appeal" before the MSPB. Whichever gets filed first is the method that will be used (29 CFR 1614.302).
Handling Procedures
Mixed case complaints are handled the same as other complaints with the following exceptions:
- The agency has only 120-calendar days from the date of the filing of the mixed case complaint to issue a final decision
- Complainant may appeal the matter to the MSPB, or file a civil action any time hereafter
- The complainant has 30-calendar days from receipt of the agency's decision to appeal to the MSPB, not the EEOC
- Once the investigation is finished, the complainant does not have the right to request a hearing before an EEOC AJ
- Agency must issue a decision with 45-calendar days
Once a final decision is received from the MSPB, it can be petitioned for the EEOC to review.
Civil Action Timelines for Mixed Case Matters
Individuals who want to file a civil action in mixed case matters must file within 30 days (not 90 days) of receipt of:
- Agency's final decision
- MSPB's final decision
- EEOC's decision on a petition to review
A civil action may be filed after 120-caledar days from the date of filing the mixed case complaint with the agency or the mixed case appeal with the MSPB (as long as there has been no final decision on the complaint or appeal) or 180-calendar days after filing a petition to review with the EEOC (as long as the EEOC has not issued a decision) (29 CFR 1614.310).