95. Mixed Case Complaints

  1. Mixed Case Complaint: A "mixed case complaint" is a complaint of employment discrimination based on race, color, religion, sex, age, national origin or disability (physical or mental) related to or stemming from a personnel action that can be appealed to the Merit Systems Protection Board (MSPB).

  2. Mixed Case Appeal: A "mixed case appeal" is an appeal filed directly with the MSPB that alleges an appealable EOUSA action was effected, in whole or in part, because of such discrimination.

  3. Appealable Matters: Most MSPB appealable matters fall into the following six categories:

    1. Reduction-in-grade or removal for unacceptable performance;

    2. Removal, reduction-in-grade or pay, suspension for more than 14 days, or furlough for 30 days or less for cause that 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 reduction in force;

    4. Reduction-in-force action affecting a career appointee in the Senior Executive Service (SES);

    5. Reconsideration decision sustaining a negative determination of competence for a general schedule employee; and

    6. Disqualification of an employee or applicant because of suitability determination.

  4. The following employees generally do not have rights to appeal to the MSPB:

    1. probationary employees;

    2. non-appropriated fund activity employees, and

    3. employees serving under a temporary appointment limited to one year or less.

  5. Election: An aggrieved person may initially file a mixed case complaint with the EEO staff or an appeal on the same matter with the MSPB, but not both. Whatever action is filed first is considered an election to proceed in that forum. Filing a formal EEO complaint constitutes an election to proceed in the EEO forum. Contacting an EEO Counselor or receiving EEO counseling does not constitute an election.

  6. Timely Filing with MSPB: An employee has thirty (30) calendar days from the date of the alleged discriminatory act to file a mixed case appeal.

[cited in USAM 3-5.211]

Updated September 19, 2018