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Last revision: April 22, 1996
§1614.302 Mixed case complaints.
(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 or handicap 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, handicap or age.
(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.
(c) Dismissal. (1) An agency may dismiss a mixed case complaint
for the reasons contained in, and under the conditions prescribed in,
1614.107.
(2) An agency decision to dismiss a mixed case complaint on the
basis of the complainant's prior election of the MSPB procedures shall
be made as follows:
(i) Where neither the agency nor the MSPB administrative judge
questions the MSPB's jurisdiction over the appeal on the same matter,
it shall dismiss the mixed case complaint pursuant to 1614.107(d) and
shall advise the complainant that he or she must bring the allegations
of discrimination contained in the rejected complaint to the attention
of the MSPB, pursuant to 5 CFR 1201.155. The dismissal of such a
complaint shall advise the complainant of the right to petition the
EEOC to review the MSPB's final decision on the discrimination issue.
A dismissal of a mixed case complaint is not appealable to the
Commission except where it is alleged that 1614.107(d) has been
applied to a non-mixed case matter.
(ii) Where the agency or the MSPB administrative judge questions
the MSPB's jurisdiction over the appeal on the same matter, the agency
shall hold the mixed case complaint in abeyance until the MSPB's
administrative judge rules on the jurisdictional issue, notify the
complainant that it is doing so, and instruct him or her to bring the
allegation of discrimination to the attention of the MSPB. During
this period of time, all time limitations for processing or filing
under this part will be tolled. An agency decision to hold a mixed
case complaint in abeyance is not appealable to EEOC. If the MSPB's
administrative judge finds that MSPB has jurisdiction over the matter,
the agency shall dismiss the mixed case complaint pursuant to
1614.107(d), and advise the complainant of the right to petition the
EEOC to review the MSPB's final decision on the discrimination issue.
If the MSPB's administrative judge finds that MSPB does not have
jurisdiction over the matter, the agency shall recommence processing
of the mixed case complaint as a non-mixed case EEO complaint.
(d) Procedures for agency processing of mixed case complaints.
When a complainant elects to proceed initially under this part rather
than with the MSPB, the procedures set forth in subpart A shall govern
the processing of the mixed case complaint with the following
exceptions:
(1) At the time the agency advises a complainant of the acceptance
of a mixed case complaint, it shall also advise the complainant that:
(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(a) 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 20 days of receipt of the
agency's final decision;
(2) Upon completion of the investigation, the notice provided the
complainant in accordance with 1614.108(f) will advise the
complainant that a final decision will be issued within 45 days
without a hearing; and
(3) At the time that the agency issues its final decision on a
mixed case complaint, the agency shall advise the complainant of the
right to appeal the matter to the MSPB (not EEOC) within 20 days of
receipt and of the right to file a civil action as provided at
1614.310(a).