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MIXED CASES ELECTIONS OF REMEDIES

EEOC EXCEL 2012PETER BROIDA

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WHAT ARE THE FORUMS?

EEO

MSPB

GRIEVANCE/ARBITRATION

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WHY ONE FORUM RATHER THAN OTHER?

EEO—early ADR; investigation at cost of the agency, but only deals with EEO issues. 45 days to go to EEO counselor.

MSPB—quicker than EEO at early stages; good on questions of civil service law; addresses both EEO and issues on the merits divorced from EEO considerations. 30 days to start appeal.

Grievance/Arbitration—addresses both EEO and merits issues; arbitration usually more favorable to employees as to penalty determinations.

But: arbitration can only occur with the consent and at the request of the union.

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WHAT GOES THROUGH EEO?

Any personnel action

Normally not a preliminary step, e.g., a proposal or a PIP unless that step is alleged to be retaliatory

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USUAL EEO PROCESS

COUNSELING ADR COMPLAINT ROI

FAD EEOCHEARING AND DECISION

OFO

COURT

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WHAT CAN BE APPEALEDTO MSPB?

Adverse action under 5 USC 7513:

(1) a removal;(2) a suspension for more than 14 days;(3) a reduction in grade;(4) a reduction in pay; and(5) a furlough of 30 days or less; or

Chapter 43 performance based removal or reduction in grade (other than probationers or probationary supervisors/managers): 5 USC 4303(e).

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USUAL MSPB PROCESS

APPEAL INITIAL DECISION

PETITION FOR REVIEW TO MSPB

FEDERAL CIRCUIT

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ADD THE COMPLEXITY OF AN EEO ALLEGATION TO MSPB

Brings into play the Mixed Case

Only operative as to cases within MSPB jurisdiction.

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SO, WHAT’S A MIXED CASE/APPEAL?

EEOC Regulation: 29 CFR 1614.302

(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, disability, or genetic information 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, disability, age, or genetic information.

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ELECT EEO OR MSPBMSPB: 5 CFR 1201.154

(a) Where the appellant has been subject to an action appealable to the Board, he or she may either file a timely complaint of discrimination with the agency or file an appeal with the Board no later than 30 days after the effective date, if any, of the action being appealed, or 30 days after the date of the appellant's receipt of the agency’s decision on the appealable action, whichever is later.

(b) If the appellant has filed a timely formal complaint of discrimination with the agency:(1) An appeal must be filed within 30 days after the appellant receives the agency resolution or final decision on the discrimination issue; or(2) If the agency has not resolved the matter or issued a final decision on the formal complaint within 120 days, the appellant may appeal the matter directly to the Board at any time after the expiration of 120 calendar days. Once the agency resolves the matter or issues a final decision on the formal complaint, an appeal must be filed within 30 days after the appellant receives the agency resolution or final decision on the discrimination issue.

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EEOC ELECTION REGULATION

EEOC: 29 CFR1614.302(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.

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FROM MSPB TO EEOC

1201.157 Notice of right to judicial review.

Any final decision of the Board under 5 U.S.C. 7702 will notify the appellant of his or her right, within 30 days after receiving the Board's final decision, to petition the Equal Employment Opportunity Commission to consider the Board's decision, or to file a civil action in an appropriate United States district court. If an appellant elects to waive the discrimination issue, an appeal may be filed with the United States Court of Appeals for the Federal Circuit as stated in §1201.120 of this part.

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MIXED CASE FROM EEO TO MSPB

COUNSELING ADR COMPLAINT ROI

FAD MSPB HEARING//PFRDECISION

OFO

U.S. DISTRICTCOURT

EEO & TITLE 5 ISSUES

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LET’S REVIEW

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IF YOU BEGIN WITH EEO RATHER THAN MSPB

45 days to start counseling; follow through with complaint

29 CFR 1614.302:

c) Dismissal. (1) An agency may dismiss a mixed case complaint for the reasons contained in, and under the conditions prescribed in, §1614.107.

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COMMON REASONS FOR DISMISSING THE EEO COMPLAINT

Prior MSPB appeal on the same matter;

The same matter has been raised through negotiated grievance procedure [more on this later]

Counseling or complaint is untimely;

Covered discrimination or reprisal is not alleged.

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ASSUMING THE COMPLAINT IS ACCEPTED ON THE MIXED CASE

Investigation as usual.

ADR is always a possibility.

Agency issues ROI + Final Agency Decision.

Employee then obtains hearing by filing appeal with MSPB within 30 days from receipt of the FAD.

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MIXED CASE GOES TO THE MSPB

29 CFR 1614.302(d)((1):

(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(b)(2) 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 30 days of receipt of the agency's final decision;

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IF YOU END UP AT OR START WITH MSPB

30 days to appeal—all issues (merits, penalty, EEO);

Step 1: Initial decision.

Back Pay Act remedies and remedies, including damages under Title VII and Rehabilitation Act

Occasional corrective action order in disability cases;

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Continuing with MSPB

After initial decision:discretionary petition for review with MSPB headquarters [leading to final decision]

End up with final decision of MSPB [including initial decisions that become final if no PFR is filed]

One option: abandon EEO issues and go on the merits to the US Court of Appeals for the Federal Circuit

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Continuing with MSPB

Option 2: If the interest is litigation of EEO issues following the final MSPB decision:

Go to OFO (with possible further MSPB proceedings if discrimination/reprisal is found);

Go to district court (instead of or in addition to OFO) and have the district court review (jury trial) EEO issues and civil rights issues.

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MSPB COMPLICATIONSCONSTRUCTIVE ACTIONS

Allegedly Forced

Retirements

Resignations

Requested Downgradings

Actions generally considered voluntary and not appealable

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ACTIONS BECOME CONSTRUCTIVELY ADVERSE AND APPEALABLE

Working conditions were

discriminatory

discriminatorily harassing

retaliatory

lacked accommodation for a disability

And as a result employee had no other choice but to resign, retire, take a downgrading

Then MSPB has jurisdiction.

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IF NO MSPB JURISDICTION, THEN EEOC HAS JURISDICTION

EEOC may find that the actions complained of by

the employee at MSPB

Were sufficiently discriminatory to warrant a finding of a constructive adverse action, or

They were not that bad, but still constitute discrimination or reprisal and require entry of a remedy under the EEO laws

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IF THERE’S BOTH AN EEO COMPLAINT AND MSPB APPEALIf the agency or MSPB AJ questions MSPB

jurisdiction, agency holds EEO complaint in abeyance until the MSPB AJ rules on jurisdiction.

1614.302(c)(2)(ii)

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BUT IF THERE’S NO MSPB JURISDICTION MD-110 GUIDANCE

Where the agency or the MSPB Administrative Judge questions MSPB jurisdiction. The agency shall hold the mixed case complaint in abeyance until the MSPB Administrative Judge rules on the jurisdictional issue, notify the complainant that it is doing so, and instruct him/her to bring the discrimination claim to the attention of MSPB. During this period, all time limitations for processing or filing the complaint will be tolled.

An agency decision to hold a mixed case complaint in abeyance is not appealable to EEOC. If the MSPB Administrative Judge finds that MSPB has jurisdiction over the claim, the agency shall dismiss the mixed case complaint and advise the complainant of the right to petition EEOC to review MSPB’s final decision on the discrimination issue. If the MSPB administrative judge finds that MSPB does not have jurisdiction over the claim, the agency shall recommence processing of the mixed case complaint as a non-mixed case EEO complaint.

MD 110, Chap. 4, Part II, Sec. B-4(b).

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ONE MORE COMPLICATION

Matter appealed to MSPB is inextricably intertwined with matters pending and within the jurisdiction of EEOC.

Cases are lacking in clarity.

EEOC judges do what they want, e.g., holding onto cases that might otherwise properly be heard by MSPB.

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CONTRACT GRIEVANCE PROCESS

More complications:

Involvement of FLRA

Involvement of MSPB

Involvement of EEOC

Involvement of the courts

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REMEMBER THE BROAD JURISDICTION OF THE EEO PROCESS

Any personnel action

Any protected status, reprisal

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WHAT’S THE SCOPE OF A GRIEVANCE PROCESS?

Broader than the EEO system

Broader than MSPB

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DEFINITON OF GRIEVANCE

5 USC 7103(9) “Grievance" means any complaint ‐‐(A) By any employee concerning any matter relating to the

employment of the employee;(B) By any labor organization concerning any matter

relating to the employment of any employee; or(C) By any employee, labor organization, or agency

concerning (i) The effect or interpretation, or a claim of breach, of a collective bargaining agreement; or(ii) Any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affectingconditions of employment.

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EXCLUSIONS

5 USC 7121(c)

Hatch Act issues

retirement, life or health insurance

national security removal

examination/certification/appointment [probationers]

position classification not involving reduction in grade or pay

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GRIEVANCE ELECTION

5 USC 7121(d):– An employee affected by [discrimination] which

also falls under the coverage of the grievance procedure may raise the matter under a statutory procedure or the grievance procedure, but not both.

– An employee shall have exercised the option to raise the matter under either a statutory or a negotiated procedure when the employee initiates an action under the statutory procedure or files a grievance, whichever occurs first.

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EEOC REG: CHOOSE BETWEEN GRIEVANCE AND EEO PROCESS5 CFR 1614.301

When a person is employed by an agency subject to 5 U.S.C. 7121(d) and is covered by a collective bargaining agreement that permits allegations of discrimination to be raised in a negotiated grievance procedure, a person wishing to file a complaint or a grievance on a matter of alleged employment discrimination must elect to raise the matter under either part 1614 or the negotiated grievance procedure, but not both.

An election to proceed under this part is indicated only by the filing of a written complaint; use of the pre-complaint process as described in §1614.105 does not constitute an election for purposes of this section.

An aggrieved employee who files a complaint under this part may not thereafter file a grievance on the same matter.

An election to proceed under a negotiated grievance procedure is indicated by the filing of a timely written grievance.

An aggrieved employee who files a grievance with an agency whose negotiated agreement permits the acceptance of grievances which allege discrimination may not thereafter file a complaint on the same matter under this part 1614 irrespective of whether the agency has informed the individual of the need to elect or of whether the grievance has raised an issue of discrimination.

Any such complaint filed after a grievance has been filed on the same matter shall be dismissed without prejudice to the complainant's right to proceed through the negotiated grievance procedure including the right to appeal to the Commission from a final decision as provided in subpart D of this part. The dismissal of such a complaint shall advise the complainant of the obligation to raise discrimination in the grievance process and of the right to appeal the final grievance decision to the Commission.

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EEOC REVIEW AUTHORITY

29 CFR 1614.401(d) A grievant may appeal the final decision of the agency,

the arbitrator or the Federal Labor Relations Authority (FLRA) on the grievance when an issue of employment discrimination was raised in a negotiated grievance procedure that permits such issues to be raised. A grievant may not appeal under this part, however, when the matter initially raised in the negotiated grievance procedure is still ongoing in that process, is in arbitration, is before the FLRA, is appealable to the MSPB or if 5 U.S.C. 7121(d) is inapplicable to the involved agency.

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TYPICAL ARBITRATION IF A CHAPTER 75 OR 43 CASE AND NO EEO CLAIM

GRIEVANCE ARBITRATION AWARD

FEDERALCIRCUIT

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TYPICAL ARBITRATION IF EEO CLAIM BUT NO CHAPTER 75 OR 43 CASENO MSPB INVOLVEMENT

GRIEVANCE ARBITRATION AWARD

FLRAOFOCOURT

?

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FLRA REVIEW IF NO ADVERSE OR PERFORMANCE ACTION

File exceptions to the Award with FLRA under 5 CFR 2425.6:

Contrary to any law, rule or regulation

The arbitrator Exceeded his or her authority; ORwas biased; ORDenied the excepting party a fair hearing; OR

OR the award:

Fails to draw its essence from the parties' collective bargaining agreement; orIs based on a nonfact; orIs incomplete, ambiguous, or contradictory as to make implementation of the

award impossible; orIs contrary to public policy.

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IF AWARD INVOLVES ADVERSE OR PERFORMANCE ACTION

5 USC 7121(f): Selection of the negotiated procedure in no manner prejudices the right of an aggrieved employee to request MSPB to review the final decision in the case of any personnel action that could have been appealed to the Board, or,

To request EEOC to review a final decision in any other matter involving a complaint of discrimination.

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WHAT IS APPEALABLE TO MSPB?

Action: long term suspension, discharge, performance-based action, reduction in pay or grade

Process: If challenge the arbitration award and allege discrimination to MSPB

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TYPICAL ARBITRATION IF A CHAPTER 75 OR 43 CASE & EEO

GRIEVANCE ARBITRATION AWARD

MSPBEEOCOFO

DISTRICTCOURT

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MSPB REVIEW5 CFR 1201.154 [excludes Postal Service](d) If the appellant has filed a grievance with the agency under a negotiated grievance

procedure, he may ask the Board to review the final decision on the grievance if he alleges before the Board that he is the victim of prohibited discrimination. Usually, the final decision on a grievance is the decision of an arbitrator.

The appellant's request for Board review must be filed within 35 days after the date of issuance of the decision or, if the appellant shows that he or she received the decision more than 5 days after the date of issuance, within 30 days after the date the appellant received the decision.

The appellant must file the request with the Clerk of the Board, Merit Systems Protection Board, Washington, DC 20419.

The request for review must contain:(1) A statement of the grounds on which review is requested;(2) References to evidence of record or rulings related to the issues before the Board;(3) Arguments in support of the stated grounds that refer specifically to relevant

documents, and that include relevant citations of authority; and(4) Legible copies of the final grievance or arbitration decision, the agency decision to

take the action, and other relevant documents. Those documents may include a transcript or tape recording of the hearing.

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MSPB PROPOSED REGULATION

5 CFR 1201.155(b) [proposed June 7, 2012]

If the negotiated grievance procedure permits allegations of discrimination, the Board will review only those claims of discrimination that were raised in the negotiated grievance procedure. If the negotiated grievance procedure does not permit allegations of discrimination to be raised, the appellant may raise such claims before the Board

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COURT REVIEW

If EEO allegations are dropped, civil service issues can go from award or MSPB review of award to Federal Circuit.

If EEO allegations remain, the court review is to de novo review (possible jury trial or summary judgment) in district court; with review of civil service issues in district court acting as the Federal Circuit.

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AGENCY REVIEW OF THE ARBITRATION AWARD?

FLRA does not review awards through the

exceptions process in adverse actions and

Performance actions: 5 USC 7122(a)

Employee can go to MSPB or Federal Circuit or OFO or district court.

Agency has nowhere to appeal. SOL unless the agency gets OPM to intervene on a civil service law issue.

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And that's all there is. There isn't any more.

Goodbye.