Imagine you’re a federal employee who just received a removal notice, and you believe discrimination or retaliation is the real reason. You’re suddenly facing a “mixed case” – an adverse action like a firing or suspension coupled with a claim of unlawful discrimination. What do you do? File an appeal with the MSPB? Lodge an EEO complaint? Both? Neither? The choices are confusing, the clock is ticking, and your career is on the line.

At the National Security Law Firm (NSLF), we understand how overwhelming this situation feels. Mixed cases are legally complex and emotionally charged. This plain-English guide will walk you through everything you need to know to protect your federal employment rights. We’ll explain what exactly a mixed case is (using definitions from 5 U.S.C. § 7702 and EEOC/MSPB guidance), how jurisdiction works (which forum has authority and when), and the procedural paths you can take – whether a mixed case EEO complaint or a mixed case MSPB appeal. We’ll also break down critical concepts like the 120-day rule, hearing rights, and your options for judicial review under the Civil Service Reform Act. Along the way, we’ll provide real case law examples that show how these cases play out and how courts have handled jurisdictional questions.

This guide is part of our Federal Employment Defense Hub, a collection of resources to help federal employees defend their careers. If you’re currently in the throes of a mixed case or want personalized advice, don’t hesitate to reach out for help. (NSLF offers free consultations, and even flexible financing options – more on that below.)

SCHEDULE A FREE CONSULTATION – Discuss your mixed case with an experienced federal employment attorney today.

What Is a “Mixed Case”? (Adverse Action + Discrimination Claim)

A mixed case is a term defined by law for federal employee disputes that combine two elements: (1) an adverse personnel action serious enough to appeal to the Merit Systems Protection Board (MSPB), and (2) an allegation that the action was based on unlawful discrimination or retaliation. In plainer terms, it’s when a federal employee challenges something like a removal, suspension of more than 14 days, demotion, or other major adverse action and at the same time claims the motive for that action violated federal anti-discrimination laws (such as Title VII for race, sex, religion, etc., the ADEA for age, the Rehab Act for disability, or retaliation for prior EEO activity).

  • Statutory Definition: Under 5 U.S.C. § 7702, a mixed case is one in which an employee “has been affected by an action which [he or she] may appeal to the MSPB, and alleges that a basis for the action was discrimination prohibited by” federal law. In short, if you’re a covered federal employee with MSPB appeal rights and you believe the appealable action taken against you was due to discrimination (or retaliation for EEO activity), you have a mixed case on your hands.
  • EEOC Definition: The EEOC’s federal-sector regs similarly define a mixed case complaint as “a complaint of employment discrimination…related to or stemming from an action that can be appealed to the MSPB.” A mixed case appeal is “an appeal filed directly with the MSPB that alleges an appealable agency action was effected, in whole or in part, due to discrimination.” Notably, if you go the EEO complaint route in a mixed case, you do not have the usual right to an EEOC hearing before an AJ.(more on this later). The case will ultimately be decided either by the MSPB or in court, not by an EEOC judge at a hearing.

Examples of Mixed Cases: Suppose a federal agency removes an employee for alleged misconduct, but the employee believes this punishment was actually because she is a whistleblower and also due to her gender (sex discrimination). The whistleblower reprisal claim would go through a different process (the Office of Special Counsel/MSPB as an IRA appeal, which is separate), but her gender discrimination coupled with removal makes it a mixed case. Or imagine a federal employee suspended for 30 days allegedly for performance issues, who also files an EEO complaint saying the real reason is his race. That’s a mixed case: a suspension over 14 days is appealable to MSPB, and he’s alleging race discrimination. Non-Examples: If your issue is only discrimination without an appealable action (e.g. a poor performance review or minor reprimand you believe is discriminatory), that’s a pure EEO case, not a mixed case, because the MSPB can’t hear a garden-variety discrimination claim absent a major adverse action. Conversely, if you’re appealing an adverse action with MSPB but not alleging any discrimination, that’s just a regular MSPB appeal (no EEO component). Mixed cases lie at the intersection of these two legal pathways.

Understanding Your Rights and Forums in a Mixed Case

Mixed cases are unique because two different systems overlap: the MSPB appeals process and the federal EEO complaint process. Both systems have authority, but you must navigate them carefully. This section breaks down who has jurisdiction, how “election of forum” works, and the timelines and procedures that govern mixed cases. We’ll also highlight key case law that has clarified where these cases should be heard.

Election of Forum: MSPB or EEO – You Have to Choose (and Timing Matters)

In a mixed case, you have an important initial choice: proceed with an MSPB appeal or file an EEO discrimination complaint within your agency. You cannot do both at the same time for the same matter – whichever you file first is deemed your election of forum. This is by regulation: “a covered individual may raise claims of discrimination in a mixed case either as a direct appeal to MSPB or as a mixed case EEO complaint with the agency, but not both… Whatever action the individual files first is considered an election.”

  • Contacting an EEO Counselor is Not an Election: It’s worth noting that simply consulting an EEO counselor (the required first step in the EEO process) does not count as making your election. You can talk to an EEO counselor about the situation and even go through informal counseling or mediation without forfeiting your right to file an MSPB appeal. An election happens only when you file a formal complaint or file an MSPB appeal. So, if you’re undecided, initiating EEO counseling within 45 days of the action preserves your rights while you weigh options. But once you file that formal EEO complaint or submit the MSPB appeal, the die is cast – you’ve chosen your forum.
  • MSPB Appeal vs. Mixed Case Complaint: Filing an MSPB appeal means you’re taking your case straight to the Merit Systems Protection Board. Filing a mixed case complaint means you’re starting with your agency’s EEO office. We’ll explain the procedures of each route in the next section. Just remember, you cannot pursue both simultaneously. If you try, one of them will be dismissed. For example, if you file a formal EEO complaint and then also file an MSPB appeal about the same matter, the MSPB will typically dismiss the appeal (or the agency will ask MSPB to dismiss it) because you already chose the EEO route. Conversely, if you appeal to MSPB first, the agency’s EEO office must dismiss any subsequent EEO complaint on the same issues.
  • If You File in the Wrong Forum First: Sometimes employees make an election only to have the forum say, “Actually, we don’t have jurisdiction.” For instance, you might file an MSPB appeal believing your removal qualifies, but MSPB later rules they lack jurisdiction (perhaps because you’re not a covered employee or you missed the deadline). If MSPB dismisses your case for jurisdictional reasons, you’re not out of luck – you can then file a discrimination complaint with your agency’s EEO office after that dismissal. The rules even say the date you filed with MSPB will count as the date of initial EEO contact, so you don’t miss any filing deadlines. Essentially, the system gives you a do-over in the EEO process if your MSPB appeal was kicked out on jurisdictional grounds. Similarly, if you first filed an EEO complaint and it turns out the action wasn’t actually appealable to MSPB (i.e., it wasn’t truly a mixed case matter), the EEOC regulations allow that complaint to proceed as a regular (non-mixed) EEO case.

Practical Tip: To preserve your rights, mark your calendar with the deadlines for both forums. MSPB appeals generally must be filed within 30 days of the effective date of the action (e.g., within 30 days of your removal date). EEO complaints require contacting a counselor within 45 days of the action. These deadlines still apply in mixed cases. Many employees initially go to EEO counseling (since 45 days is a short fuse) and decide during or after counseling whether to pivot to MSPB or proceed with an EEO complaint. Just remember, if you hit day 30 with no MSPB appeal filed, you’ve lost the MSPB route unless there’s a valid excuse to extend time. And if you let day 45 pass without at least contacting EEO, you could lose the EEO route (unless an exception for late contact applies). Timeliness is critical, even while you weigh your options.

Mixed Case Complaint vs. Mixed Case Appeal: Two Paths to Justice

Once you make your election, the process diverges depending on the forum. Here’s a step-by-step look at how a mixed case EEO complaint proceeds versus a mixed case MSPB appeal, and how they might intersect down the line:

Path 1: Mixed Case EEO Complaint (Agency EEO Route)

  1. EEO Counseling (Pre-Complaint): As with any discrimination complaint, you must start by contacting your agency’s EEO counselor within 45 days of the adverse action (e.g., within 45 days of receiving your removal or suspension decision). You can engage in informal counseling or ADR. This stage is to attempt an informal resolution. (Remember, this step doesn’t lock you in; you can still choose MSPB before filing the formal complaint.)
  2. Formal Complaint Filing: If not resolved in counseling, you can file a formal EEO complaint with your agency, alleging that the appealable action (removal, suspension, etc.) was motivated by discrimination/retaliation. When the agency accepts it as a mixed case complaint, they know special rules apply. Importantly, you will not get an EEOC hearing with an AJ in this process. By regulation, once you choose the EEO route in a mixed case, you give up the usual right to have an EEOC administrative judge hold a hearing on your complaint. Instead, the case stays within the agency/EEC process up to a point.
  3. Agency Investigation: The agency’s EEO office will investigate your claims (interview witnesses, gather documents) just like a normal EEO complaint. This can take up to 120 days. Under EEOC Management Directive 110, agencies are instructed to process mixed case complaints with the same diligence as regular complaints, except for the hearing part.
  4. No Hearing – Agency Final Decision (FAD): After investigation, you do not get to request an EEOC hearing. The agency must issue a Final Agency Decision (FAD) on your mixed case complaint, generally within 120 days of when you filed it. In fact, the regulations require the agency to inform you, upon finishing the investigation, that a final decision will be issued within 45 days without a hearing. This FAD will say whether the agency finds discrimination or not (unsurprisingly, agencies often conclude they did nothing wrong). The FAD will also address the merits of the adverse action to the extent they overlap with the discrimination issue.
  5. Appeal or Lawsuit: If you’re unhappy with the agency’s decision (or if the agency fails to issue a decision within 120 days of your complaint), you have two main options at that point: appeal to the MSPB or file a civil action in U.S. District Court. You cannot appeal a mixed case FAD to the EEOC – appeals go to MSPB, not the EEOC. You must appeal to the MSPB within 30 days of receiving the FAD. Alternatively, you can skip MSPB and go straight to filing a lawsuit in district court (more on judicial review in a moment). Note that if the agency blew the 120-day deadline and never issued a FAD, you can treat that as a constructive denial and appeal directly to MSPB anytime after day 120, or file suit – this is the 120-day rule in action.

In summary, the EEO route in a mixed case gives the agency the first shot at resolving the matter (with a binding timeline), but denies you an EEOC hearing, pushing you toward MSPB or court if you disagree. It can be quicker to an agency decision, but that decision is by the agency itself.

Path 2: Mixed Case MSPB Appeal (Direct Appeal Route)

  1. Filing the Appeal: Instead of going to the EEO office, you can file an appeal with the MSPB. This must generally be done within 30 days of the effective date of the adverse action (or receipt of the decision notice). You file using MSPB’s e-Appeal online or by mail, and indicate that you are raising discrimination claims as part of your case (the MSPB appeal form specifically asks if you allege discrimination). This is called a “mixed case appeal.”
  2. MSPB Jurisdiction Check: Early in the process, the MSPB administrative judge (AJ) will confirm that MSPB has jurisdiction. This means verifying that you’re an employee with appeal rights (for example, most competitive service employees with at least 1 year of tenure, or preference-eligible veterans in excepted service, etc.) and that the action you’re appealing (removal, suspension >14 days, etc.) is one the MSPB can hear. If there’s any doubt (say, you’re a probationary employee who might not have MSPB rights, or your appeal was filed late), the MSPB AJ might ask for briefs or hold a hearing on just the jurisdiction issue. If MSPB finds it lacks jurisdiction – e.g., they conclude your case isn’t appealable – they will dismiss the appeal. As noted, if that happens, you can then proceed with an EEO complaint without losing much time. But assuming jurisdiction is confirmed, the case moves forward.
  3. Proceedings and Hearing: In an MSPB mixed case appeal, you get the benefit of the full MSPB hearing process. This is like a trial but somewhat less formal. You and the agency will engage in discovery (exchange relevant information), file motions, and eventually have a hearing before the MSPB judge. You have a right to an in-person (or videoconference) hearing in an MSPB appeal in most instances, as long as you request it. At the hearing, the agency carries the burden to prove the charges and that the penalty was reasonable, and you carry the burden to prove the alleged discrimination or retaliation. You can present witness testimony, cross-examine the agency’s witnesses, and introduce evidence of both the merits (e.g., “I didn’t actually commit the misconduct alleged” or “this punishment is too harsh”) and the discrimination (e.g., “similarly situated coworkers of a different race weren’t fired” or “a manager made biased comments”). The MSPB judge will consider both issues: the underlying civil service lawfulness of the action and whether unlawful discrimination occurred.
    • It’s important to note that MSPB can adjudicate virtually all types of discrimination as defenses in a mixed case: race, color, sex, religion, national origin, age, disability, genetic info, and retaliation for EEO activity. One exception: MSPB won’t decide pure claims under statutes like the Whistleblower Protection Act’s IRA appeals, or veterans’ USERRA claims in the same appeal. (Those have their own processes.) But Title VII, ADEA, Rehab Act claims are all fair game in a mixed case appeal. The discrimination claim in an MSPB hearing is essentially treated as an affirmative defense – if you prove that discrimination was a motivating factor (or for age/retaliation, the “but-for” cause) of the action, MSPB can order relief even if the agency’s charges are otherwise supported.
  4. Initial Decision: The MSPB AJ will issue an Initial Decision after the hearing (or after the written record if you waived a hearing). This decision will contain findings on both the adverse action and the discrimination claim. For example, the judge might uphold the removal, finding the agency proved misconduct and there was no discrimination. Or the judge might mitigate the penalty or reverse the action if the agency failed to justify it – and separately analyze whether discrimination was proven. The judge could also find discrimination occurred and order corrective action on that basis. We’ll discuss remedies shortly, but the MSPB has authority to provide the full relief for discrimination (including back pay and compensatory damages) if you prevail.
  5. Petition for Review or Finality: If either party is unhappy with the AJ’s Initial Decision, they can petition the full MSPB Board for review (essentially an appeal within MSPB). However, as of this writing, the MSPB Board is catching up on backlogs, so often the AJ’s decision becomes the final word if not appealed. In any case, once the MSPB’s decision is final, the next step is either judicial review or (uniquely for mixed cases) a possible review by the EEOC on the discrimination issue.

In short, the MSPB route gets you a day in court (hearing) sooner, before a neutral judge, but it’s one process handling both aspects of the case.

Appeals, 120-Day Rule, and Judicial Review: What Happens After the Agency or MSPB Decision?

If you went EEO route first: As noted, you can appeal an adverse FAD to the MSPB within 30 days. When MSPB gets such an appeal, it effectively turns into the same scenario as a mixed case appeal described above – you’ll now have an MSPB hearing on both the adverse action and discrimination claims. One key twist: if the agency took too long (more than 120 days) to issue the FAD, you don’t have to wait – you can go straight to MSPB after day 120, even without a FAD. This is the 120-Day Rule in practice: it prevents agencies from stalling a mixed case indefinitely. Likewise, if 120 days pass with no final MSPB decision after you appealed, you can jump out to file a lawsuit. (In Ikossi v. Dept. of Navy, the D.C. Circuit held that once 120 days elapsed after filing an MSPB mixed-case appeal, the employee was free to go to court – the case couldn’t be dismissed for lack of jurisdiction at that point.)

If you went MSPB route first: After the MSPB final decision (whether an AJ’s decision that became final or a Board ruling on petition for review), you have a special choice in a mixed case that isn’t present in a regular MSPB appeal: you can either file in U.S. District Court or ask the EEOC to review the MSPB’s decision on the discrimination issues. You cannot appeal a mixed case to the Federal Circuit Court of Appeals – even if MSPB decided against you, the law routes “cases of discrimination” to the district court. The U.S. Supreme Court made this crystal clear in the case of Kloeckner v. Solis: “A federal employee who claims an appealable agency action violates an anti-discrimination statute should seek judicial review in district court, not the Federal Circuit, regardless of whether MSPB decided the case on procedural grounds or on the merits.” In other words, all roads lead to the district court for mixed cases – it’s the proper forum for judicial review, as opposed to the Federal Circuit which normally handles MSPB appeals without discrimination. The Supreme Court reaffirmed this in Perry v. MSPB, holding that even if MSPB dismisses a mixed case on jurisdictional grounds (i.e. doesn’t reach the merits), the review still goes to district court.

So, what about that EEOC review option? Under 5 U.S.C. § 7702 and the EEOC’s regulations, if MSPB issues a final decision on your discrimination claim and you’re unhappy, you can petition the EEOC’s Office of Federal Operations (OFO) to consider the decision. You must do this within 30 days of the MSPB final decision. The EEOC will essentially act like an appellate body reviewing the MSPB’s handling of the discrimination issues. However, the EEOC’s powers here are limited: they can concur with MSPB or disagree. If the EEOC agrees with MSPB (or simply decides not to review), that’s the end of administrative line – you then have 30 days to file a lawsuit in district court. If the EEOC disagrees and finds discrimination where MSPB didn’t, a conflict arises. That conflict is resolved by a special body called the Special Panel, composed of representatives from MSPB and EEOC (and a chairman appointed by the President). The Special Panel reviews the matter and issues a final decision binding on the MSPB. After a Special Panel decision, you again can go to court if you want (and likely the agency would if they lost). This EEOC/MSPB ping-pong scenario is relatively rare – most often, employees choose to go straight to court after an MSPB decision rather than wait for an administrative tug-of-war. Bottom line: as a federal employee in a mixed case, you ultimately have a right to a de novo trial in federal court on your discrimination claims, and that court can also review the MSPB’s action (usually the court will give deference to MSPB on the civil service issues but will consider the discrimination claim fresh, with the possibility of a jury trial on that issue).

Hypothetical (Mixed Case Paths): Miranda is a GS-13 who was removed from federal service for “unauthorized absence,” but she believes the real reason is retaliation for prior EEO complaints (Title VII retaliation) and disability discrimination. She has a mixed case. She contacts an EEO counselor immediately, but also knows the MSPB 30-day clock is ticking. After some thought, Miranda elects to file an MSPB appeal (mixed case appeal) on day 29. Because she filed MSPB first, the agency EEO office dismisses the formal complaint she had been drafting, informing her that MSPB will handle it. The MSPB judge holds a hearing. The agency proves Miranda did have unauthorized absences, but evidence shows her supervisor had approved telework due to her medical condition and then reneged – suggesting possible disability bias. The MSPB judge issues a decision mitigating the removal to a 30-day suspension, finding the removal too harsh, but not finding discrimination (in the judge’s view, the agency’s actions were wrong but not proven to be discriminatory). Miranda disagrees on the discrimination part. She now has options: she could file in district court within 30 days, pursuing her disability discrimination and retaliation claims anew (with a right to jury trial on those). Or she could ask EEOC’s OFO to review the MSPB decision. She chooses the latter, hoping EEOC will see the bias. The OFO, however, agrees with MSPB and finds no discrimination. That decision arrives 3 months later. At that point Miranda proceeds to file a civil action in federal court within 30 days, as is her right. The district court will now hear her case; MSPB’s findings on the absences might be part of the record, but her discrimination claims will be considered afresh (and she can even demand a jury). Had Miranda instead started with an EEO mixed case complaint, the timeline would differ: the agency would investigate and issue a FAD (say, denying discrimination) within 120 days. She could then appeal that to MSPB and get a hearing anyway – effectively ending up in the same place but several months later – or go directly to court. This example shows there are multiple layers of review available; the strategic choice is which sequence puts you in the strongest position.

Choosing the Best Path: Mixed Case Complaint vs. MSPB Appeal

With both avenues mapped out, how do you choose the best path for your situation? The “right” choice depends on your case’s specifics and your goals. Below are some strategic considerations to help guide that decision. (Of course, every case is unique – an experienced federal employment attorney can provide personalized advice on this critical choice.)

  • Speed of Resolution: If your priority is a faster resolution or getting before a neutral judge quickly, MSPB appeal is generally faster. MSPB is required to process appeals expeditiously; a hearing and initial decision often occur within a few months. The EEO complaint route can take longer to get to a decision – there’s a lengthy investigation (up to 120 days, sometimes extended) and then the agency has 120 days to issue the FAD. You might be looking at 6+ months just to get a decision from the agency, which you might then appeal to MSPB anyway. In a mixed case, the fast-track option is often MSPB first, especially if you want an independent decision-maker sooner. (One exception: if your agency is known for actually settling or deciding cases favorably early, you might try the complaint route, but that’s uncommon.)
  • Strength of Your Discrimination Evidence vs. Merits of the Adverse Action: Consider where your strongest arguments lie. MSPB appeals allow you to win even if you can’t ultimately prove discrimination, because the MSPB judge could find the adverse action was not supported by the evidence or too severe. For example, if you have a strong case that the alleged misconduct never happened or the penalty was disproportionate, MSPB is a good forum – MSPB judges regularly mitigate or overturn agency actions on procedural or factual grounds (e.g., lack of evidence, due process violations, etc.), even absent discrimination. The EEO route, on the other hand, focuses only on discrimination. The agency’s EEO decision-maker isn’t going to overturn your removal because of a lack of evidence or fairness; they only decide whether discrimination occurred. If you can’t prove discriminatory intent, the fact that the removal was unfair or overkill won’t save you in the EEO process – you’d lose, and the removal stands. So if your discrimination evidence is a bit thin but the action itself is highly arguable on its merits, MSPB is the smarter path. Conversely, if the adverse action is well-supported (say, you did have misconduct, but others weren’t punished) and your key argument is disparate treatment, you can still raise that in MSPB, but you might worry an MSPB judge will focus on the misconduct and not recognize subtle discrimination. In such a scenario, some employees might prefer the jury trial route in the long run – meaning they might file a mixed case complaint, get the FAD, and then go straight to district court for a fresh look by a judge/jury. That is a longer play, though, and skips the MSPB hearing opportunity.
  • Desire for an EEOC AJ or Jury: Some employees feel more confident having their case heard in an environment focused on discrimination (EEOC) or by a jury of peers. However, remember: in a true mixed case, you cannot get an EEOC AJ hearing – that’s off the table. Your “day in court” would come with an MSPB judge or in a U.S. District Court. A jury trial is only available in the district court stage. If having a jury decide your discrimination claim is important to you (for example, in high-stakes cases with emotional harm, some prefer a jury’s potential sympathy), then ultimately you’ll be heading to district court. You can still go through MSPB first and then to court, which many see as getting two chances to win (once before MSPB, and if that fails, again de novo in court). There’s an argument that going to MSPB first is a “free shot” – if you win at MSPB, great; if not, you’re no worse off and can still go to court. The only downside is the time and expense of the MSPB litigation, and the fact that the agency gets a preview of your case and can use your MSPB testimony in court. But many attorneys will still favor taking the MSPB shot, because you might win reinstatement and back pay at MSPB long before a court case would conclude, or even settle the case after an MSPB outcome.
  • Retaliation or Additional Claims: If your case involves whistleblower retaliation in addition to EEO discrimination, be aware that whistleblower claims (IRA appeals) can’t be joined in a mixed-case MSPB appeal. You might have to file those separately with the Office of Special Counsel (OSC) or as an IRA appeal. Navigating multiple claims (e.g., Title VII and WPA) can be tricky and might influence your strategy (this is where a lawyer’s guidance is crucial). Sometimes it might be advantageous to pursue the MSPB adverse action appeal (with discrimination) and separately pursue a whistleblower complaint through OSC – or vice versa – and then potentially consolidate in court. Just remember, whistleblower reprisal allegations do not confer district court jurisdiction like discrimination does – those typically go to the Federal Circuit unless combined with a discrimination claim in a mixed case. This area gets complex fast, so get advice if you’re in this boat.
  • Settlement Outlook: Consider where you might have more leverage to settle. Some agencies are more likely to settle in the EEO process (perhaps to avoid a finding of discrimination), while others take MSPB cases more seriously (to avoid reversal of an action). In a mixed case, you might get two bites at settlement – during the EEO investigation stage and again during MSPB mediation. With MSPB’s fast timeline, agencies sometimes come to the table once they see you filed an appeal. On the other hand, some agencies may prefer offering a resolution in an EEO setting before a case becomes public at MSPB. Your agency’s culture and the specifics of your case matter here.

Bottom line: There is no one-size-fits-all answer. If the adverse action’s merits are weak, MSPB is a strong forum. If your case is primarily about proving bias and you’re comfortable eventually going to court, the EEO-to-court route can work (but you could do MSPB-to-court as well). Many attorneys lean toward filing an MSPB appeal in close calls, to preserve that option and because you can still exit to court if needed. However, be mindful of deadlines – don’t miss the MSPB window if you’re considering it. If you start EEO and change your mind, you can withdraw the EEO complaint and file MSPB within 30 days of the action (assuming you’re still within 30 days; if not, you might be stuck in EEO).

If you’re truly unsure, consult with a federal employment lawyer as soon as possible. An attorney can assess your evidence and the forum tendencies (MSPB judges vs. agency EEO offices, etc.). At NSLF, for example, we often strategize using a “dual-path” approach – we evaluate both avenues and sometimes even prepare to litigate in either forum, ensuring we don’t miss a step. Next, we’ll look at how these cases are actually evaluated by the decision-makers in each forum, which might further inform your decision.

How Agencies, EEOC, and MSPB Evaluate Mixed Case Claims

One common concern is, “Will the person deciding my case really understand the discrimination part and the civil service part?” In mixed cases, the evaluation of claims can indeed vary depending on who is handling it and where. Here’s an inside look at how agencies, EEOC administrative judges, and MSPB judges approach these cases:

  • Agency EEO Offices (Investigation & FAD Stage): When you file a mixed case complaint with your agency, the EEO office will assign an investigator to gather facts on your discrimination allegations. The agency knows that if you don’t get relief, you might appeal to MSPB, so in theory they should investigate thoroughly and within the required time. In practice, agencies often still approach the case like any EEO complaint – the investigator compiles a report (ROI) with documents and witness interviews, and then an agency official (often in a central EEO office) writes the Final Agency Decision. This official will consider whether discrimination is proven by a preponderance of the evidence. They are also supposed to consider any “nondiscrimination” claims within MSPB jurisdiction that you raised, which could include whether the agency had cause to discipline you. However, many FADs in mixed cases focus narrowly on the EEO issues (e.g., comparing how similarly situated employees were treated, checking if there’s direct evidence of bias, etc.). The agency is essentially judging itself, so unsurprisingly FADs almost always side with management unless there’s very strong evidence of discrimination. They might write, for example, “We find that management had legitimate, nondiscriminatory reasons for removing Complainant, and Complainant did not prove these reasons were a pretext for discrimination.” It’s a bit like the fox guarding the henhouse, but it’s a necessary step. Agencies will seldom concede that their action was unjustified or discriminatory at the FAD stage. Therefore, don’t be discouraged if your FAD is a rubber-stamp denial – that is common, and you still have your appeal rights.
  • EEOC Administrative Judges (in Limited Roles): As we discussed, you generally won’t have an EEOC AJ hearing in a mixed case complaint. However, EEOC AJs can get involved in a couple of scenarios. One is if there’s a dispute about whether your case is truly mixed. For example, if you filed an EEO complaint and the agency claims you already filed MSPB or that your case isn’t mixed, an EEOC AJ may rule on that procedural issue (like dismissing a complaint that should be before MSPB, or vice versa). Another scenario: if you erroneously filed with MSPB and they bounced it for no jurisdiction, and you go back to EEO, you might then eventually end up with an EEOC AJ hearing if it’s no longer a mixed case (say MSPB ruled you have no appeal right, then it’s just a pure EEO case). But in a proper mixed case, EEOC AJs mostly come into play at the appellate stage – if you petition the EEOC to review an MSPB decision. In that review, it’s actually the EEOC’s Office of Federal Operations (OFO) that handles it (composed of EEOC attorneys, not an AJ holding a new hearing). They will review the MSPB record and decide if they think MSPB got the discrimination ruling right or not. The EEOC’s perspective tends to be employee-friendly on EEO issues. They might scrutinize whether MSPB correctly applied EEO law and give the benefit of the doubt to the employee if the MSPB analysis was lacking. But again, this is an appellate paper review, not a new evidentiary hearing. If EEOC disagrees with MSPB, they effectively advocate for the employee and kick it to the Special Panel. The Special Panel will then consider both MSPB’s view and EEOC’s view. In the end, though, most cases won’t get this far unless there’s a particularly contentious issue of discrimination law. Many employees choose to go to court instead of petitioning EEOC because court offers a brand-new trial and potential jury – something EEOC/OFO cannot provide in this context.
  • MSPB Administrative Judges: MSPB AJs are accustomed to handling adverse action cases (like removals, suspensions) and they also handle discrimination defenses in those cases. When you raise discrimination in an MSPB appeal, the AJ will usually bifurcate the issues conceptually: first, did the agency prove its charge and is the penalty reasonable under the circumstances (applying the Douglas factor analysis for penalties)? Second, if the agency met its burden, the AJ looks at your discrimination claim – you have to prove that even if the agency had a valid reason, the real reason or a motivating part was discrimination or retaliation. The MSPB AJ will apply familiar standards (often the McDonnell Douglas burden-shifting framework or “but-for” test for age and retaliation). For instance, if you claim race discrimination, the AJ will consider whether you showed a prima facie case (e.g. you’re in a protected group, treated harshly, etc.), whether the agency articulated a legitimate reason (yes, e.g. misconduct), and then whether your evidence shows that reason is a pretext hiding discrimination. MSPB judges, being specialists in federal employment, tend to be quite detail-oriented and might be skeptical of discrimination claims without clear evidence. They will expect to see things like comparators (similarly situated employees of a different race/sex who were treated differently), biased statements by management, suspicious timing, etc. It’s not uncommon for MSPB AJs to rule in favor of an employee on a procedural issue or downgrade a penalty, but deny the discrimination claim because they weren’t convinced of a discriminatory motive. This doesn’t mean MSPB judges never find discrimination – they do on occasion, especially with strong facts. But anecdotally, employees sometimes feel MSPB judges focus more on whether the agency had cause to act and less on the EEO nuances. Knowing this, if you litigate at MSPB, you should build a strong record of any and all evidence of bias: inconsistencies in the agency’s explanation, comparative data, testimony from witnesses indicating bias, etc. One benefit: if you lose on discrimination at MSPB, you get a fresh shot in court, as we noted. And importantly, if you win on discrimination at MSPB, the agency cannot appeal that to the Federal Circuit – the fight would be in district court if they wanted to contest it, which often they won’t because you could then get a jury. They might instead comply with the MSPB order or try to settle.
  • Federal Courts (District Court): Though not an “administrative” forum, it’s worth noting how a district court will evaluate a mixed case if it gets that far. In district court, you effectively have a civil trial of your discrimination claims (and any retaliation claim). This is de novo, meaning the court does not have to defer to what the MSPB or agency decided on the discrimination issues. You can introduce new evidence, call witnesses, and a jury (or judge in a bench trial) will decide if discrimination or retaliation occurred. The MSPB’s findings on the merits of the adverse action (e.g., whether you actually did commit the misconduct) may be entered into evidence, but they are not binding on the court. However, practically, if MSPB sustained the charges, the agency will use that as part of its defense (“look, even an MSPB judge found we had good cause to remove him”). The court can agree or not, but since your legal claim in court is discrimination (e.g., Title VII), the focus is on whether the agency’s reason was a pretext for bias. If you didn’t contest the underlying misconduct, that might make your court case harder because the agency’s reason appears legitimate – you then must show others weren’t fired for the same offense or you were targeted due to your protected status. On the flip side, if MSPB or the record shows you didn’t actually do what the agency said, that can bolster your discrimination case (as it did in Ikossi, where the court emphasized a right to full discovery and fact-finding on the discrimination claim, not just relying on the admin record). Courts will also enforce the 120-day rules and other timelines strictly – if you go to court too early or too late, they can dismiss for failure to exhaust or timeliness. But assuming you navigate properly, the court is the great equalizer: you get an impartial judge (and possibly jury) viewing the case afresh, with the “substantial evidence” standard that governed MSPB replaced by the “preponderance of evidence” standard in court for proving discrimination.

In sum, agencies tend to defend their actions staunchly (so expect an unfavorable initial decision), MSPB judges give you a fair shot but require clear proof to rule for you on discrimination, and courts provide an opportunity to fully litigate discrimination claims with all the tools of discovery and a trial. Knowing these tendencies, you can tailor your strategy: for example, you might use the MSPB hearing to pin down agency witnesses (creating transcripts you can use in court later), or use the EEO investigation to gather documents before an MSPB appeal. Each step is a chance to build your case, and inconsistencies in the agency’s story across these forums can be very useful evidence.

Remedies and Outcomes: What Can You Get in a Mixed Case?

One of the most important aspects of any case is the remedy – what you stand to gain if you win, or lose if you don’t. Mixed cases, because they involve both adverse action appeals and discrimination claims, can offer a wide range of remedies. Here’s what’s on the table:

  • Reinstatement / Correction of Action: If you were removed, demoted, or suspended, getting your job back (or grade/pay back) is often goal #1. Both MSPB and the EEOC (and courts) have the power to order reinstatement. If your removal is overturned (whether due to lack of just cause or discrimination), you return to your position (or a comparable one if, say, the original job no longer exists). For a suspension or demotion, the action can be canceled and expunged from your records. In a settlement, sometimes an agency will agree to a clean record or a reassignment. Reinstatement also comes with back pay.
  • Back Pay and Lost Benefits: Under the law, if an unjustified or discriminatory action caused you to lose pay, you are entitled to back pay plus interest. MSPB will order back pay for the period you were out of work (or the difference in pay if demoted) as part of its decision if you win. The Back Pay Act covers this for MSPB decisions. Likewise, if discrimination is found (by EEOC or a court), back pay is a standard remedy. This includes lost wages, lost within-grade increases, and sometimes lost benefits like retirement contributions, accrued leave, etc., that you missed because of the action. Ensure that any decision or settlement accounts for all forms of compensation you lost (including overtime, differentials, etc., if applicable).
  • Compensatory Damages: In discrimination cases (under Title VII, ADA/Rehab Act, etc., but not under the ADEA which limits remedies), you can receive compensatory damages for the harm you suffered. This covers things like emotional distress, pain and suffering, and other non-pecuniary losses. Federal law caps these damages (for Title VII/Rehab Act) based on the employer’s size – for federal agencies (which are large employers), the cap is typically $300,000 for combined emotional damages. You can also recover out-of-pocket costs caused by the discrimination (e.g., medical expenses for stress-related treatment, job search costs, etc.). MSPB can award compensatory damages if it finds discrimination (the Board follows EEOC precedent on determining the amount). EEOC AJs (in other cases) do this routinely up to the caps. A court can also award these, and a jury would determine the amount (again, not exceeding the cap). It’s important to present evidence of how the action and discrimination affected you (depression, anxiety, reputational harm, etc.) to substantiate a damages claim. Note: If you win purely on civil service grounds (say MSPB says the agency didn’t prove misconduct) without reaching a finding of discrimination, you won’t get compensatory damages – those hinge on a discrimination finding. But you would still get reinstatement and back pay in that scenario.
  • Attorney Fees: Both Title VII (and related EEO laws) and the MSPB statute allow a prevailing employee to recover reasonable attorney fees from the agency. MSPB will award fees if you win your appeal (or significantly gain relief) and if payment of fees is “warranted in the interest of justice.” In discrimination findings, fees are essentially automatic to a prevailing plaintiff. This is important because it enables employees to obtain counsel; if you win, the agency pays your attorneys, not you (or reimburses you). If you settle, you can negotiate for fees as part of the settlement. Be aware: if you lose, you generally don’t have to pay the agency’s fees (federal agencies usually cannot get fees against you except in very frivolous case situations, which are rare).
  • Other Equitable Relief: Additional remedies can include things like removal of negative records from your file (e.g., deleting documentation of a wrongful suspension), posting of notices (the agency might have to post a notice that it violated discrimination laws, per EEOC remedies), policy changes or training (in a settlement or EEOC order, the agency might be required to train managers or adjust policies to prevent future discrimination). If the case involved a failure to accommodate (disability), a remedy might include providing the accommodation. In retaliation cases, sometimes reassigning a bad supervisor can be a remedy, or other measures to ensure no future harassment.
  • Relief if Partially Successful: It’s possible to win on one aspect and not another. For example, MSPB might uphold that you committed some misconduct but find the penalty should be mitigated (say, from removal to a 30-day suspension) – you’d get reinstated with back pay minus 30 days, but no damages (unless discrimination was also found). Or MSPB could deny your appeal on the merits of the firing but the court later finds discrimination – in which case the court can order your reinstatement, back pay, damages, etc. An interesting nuance: if MSPB upholds your removal but you prove discrimination in court, the usual remedy under the civil rights laws is also reinstatement, back pay, etc., because discrimination was the cause of the firing. So either way, a discrimination victory usually erases or corrects the adverse action. Even a settlement often results in you resigning with a clean record or a neutral reference, rather than a removal on your record, plus possibly a monetary payout (lump sum of back pay or damages).
  • No Double Recovery: You can’t recover the same thing twice. If, say, MSPB already gave you back pay and then you go to court and win discrimination, you won’t get back pay again for the same period (but you could get damages and maybe additional back pay if the MSPB period didn’t cover it all, like if the case dragged on).
  • Remedies if You Lose: If you do not prevail, the status quo stands – the removal or discipline remains in effect, and you typically do not get anything (and cannot recover damages or fees). In some instances, if you only partially prevail (e.g., MSPB finds a procedural error and orders a redo of the action rather than outright reversal), your situation might be in limbo pending further agency action. But in many mixed cases, it’s an all-or-nothing outcome: either the action is overturned or it isn’t. That’s why understanding the strengths of your case is so important when deciding how far to take it.

To illustrate, consider a mixed case where you win: The MSPB judge finds that yes, you were subjected to discrimination when you were suspended for 30 days, while others were not punished for similar conduct. The judge orders the 30-day suspension cancelled and your record cleared of it, and directs the agency to pay you 30 days of back pay with interest. Because discrimination was proven, the judge also awards you, say, $30,000 in compensatory damages for the stress and harm the suspension caused (maybe you proved you had medical bills and emotional distress). The agency must also pay your attorney’s fees. Additionally, MSPB could order the agency to post a notice to all employees about the finding of discrimination and implement any needed corrective action so it doesn’t recur. You’re made financially whole and vindicated.

Now consider if you lose: The MSPB (or agency FAD) says no discrimination, and that the agency’s action was proper. You remain removed (or suspended without back pay), you get no damages, and you have to bear your attorney costs. However – you still have the option to take it to court. In court, the slate on discrimination is wiped clean and you can try to convince a judge/jury. If you ultimately lose there as well, then the removal stands and your case is essentially over (barring an appeal to a Court of Appeals, which is possible in purely legal issues but fact findings of a jury are usually final).

The array of remedies means a mixed case is high stakes for both sides. Agencies know they could be on the hook for significant back pay and damages (and potentially have to reinstate someone they fired). Employees have a lot to gain – or to lose in terms of continued unemployment – which is why these cases can be intensely litigated. Always claim all remedies you’re entitled to. For instance, if you’re in MSPB and you win, remember to file your attorney fee motion and documentation timely. Or if you settle, don’t forget to account for retirement service credit if you were removed (agencies can sometimes agree to put you on LWOP status to cover a gap, etc.). A knowledgeable attorney will ensure any remedy or settlement is comprehensive.

Hypothetical Scenarios to Illustrate Your Options

To tie together how these pieces play out, let’s walk through a couple of hypothetical mixed case scenarios. These examples are clearly marked as hypotheticals – they’re not real people, but they reflect common fact patterns federal employees might face.

Hypothetical 1: The Double-Forum Dilemma – John is a federal IT specialist who was removed for “lack of candor” in an investigation. John believes this is actually because he filed an age discrimination complaint last year (so he suspects retaliation). He’s 55 and has noticed management making ageist jokes. After his removal, John is torn on whether to file an MSPB appeal or an EEO complaint.

John contacts an NSLF federal employment attorney. They discuss evidence: John does have some emails suggesting his supervisor was irritated by the EEO complaint (“Here goes John playing the age card again,” one email said). However, the investigation report on John also documents some inconsistencies in his statements (the basis for “lack of candor”). The attorney explains John has a mixed case – appealable removal + claim of retaliation (protected EEO activity is covered by Title VII’s retaliation clause). They weigh options:

  • MSPB route: John could file an MSPB appeal within 30 days and get a hearing. The MSPB judge will look at whether “lack of candor” was proven. If John can show he actually was truthful and the charge is a stretch, he could win on the merits regardless of retaliation. Even if the charge has some merit, he could argue the penalty of removal is overly harsh (maybe he had a long good record). Separately, he can argue the removal was retaliation for his prior EEO activity, using the supervisor’s email and timing (the removal came 2 months after his EEO case settled) as evidence of motive. The MSPB judge could find in John’s favor on either ground – or might uphold the removal if they believe the agency had cause and the retaliation evidence isn’t strong enough. John would then have the right to go to court if he loses.
  • EEO route: John could instead file a mixed case complaint with the agency’s EEO office. The agency would investigate the retaliation claim. It’s likely the deciding official will say, “No, we removed him for lack of candor, not because of his age complaint,” and issue a FAD upholding the removal. John wouldn’t have a hearing in this process. After that, John could appeal to MSPB anyway (just later) or go straight to court. Going EEO first might give him additional evidence if, say, in the investigation the supervisor admits something useful. But it also delays any potential reinstatement via MSPB.

John decides to go MSPB first. He files the appeal, and his attorney helps gather affidavits from coworkers that his statements in the investigation were misunderstood (supporting that the charge is overblown) and that his supervisor made age-related remarks. At the MSPB hearing, the agency struggles to prove John intentionally deceived investigators – it looks more like a misunderstanding. The MSPB judge decides the charge is not fully proven and, even if it were, removal was an excessive penalty. She orders John reinstated with back pay. She also comments that while retaliation wasn’t conclusively proven, she doesn’t need to reach it given she’s reversing the removal on other grounds. John is back to work in a few months, and the agency, to avoid further fight, offers a settlement of a clean record and an extra $20,000 (which John accepts). By choosing MSPB, John got a faster neutral review and ultimately a favorable outcome. Had he gone EEO first, he might still be waiting for a decision with no income.

Hypothetical 2: The Persistent Discrimination Claim – Linda is a federal supervisor who was demoted (a reduction in grade) after an incident at work. She alleges the action is because of sex discrimination – she’s one of few women in her division and says her male manager has always treated her more harshly than men. She also filed an EEO complaint about sexist remarks a year ago, so retaliation might be in play too. The agency says she was demoted for “failure to meet a critical project deadline.” Linda contends that the real issue was a male colleague caused the delay but wasn’t punished.

Linda files a mixed case EEO complaint with her agency, alleging sex discrimination and reprisal. The agency investigates, but 120 days pass with no final decision. At this point, Linda has the right to elevate the matter. Instead of waiting longer, she decides to appeal to MSPB (as allowed after day 120 of a mixed complaint). MSPB gets the case and sets a hearing. At the hearing, Linda presents evidence that three male supervisors missed the same deadline on other projects and were not demoted – only she was. The male manager who decided her demotion also had made a comment previously that “maybe this project was too tough for a woman.” The MSPB judge is not impressed with the agency’s explanation, finding it suspicious that only Linda suffered such a severe penalty. He rules in Linda’s favor, ordering her reinstated to her higher grade with back pay, and explicitly finds that sex discrimination was a likely motive. He cites the comparator evidence and the comment as proof of bias. He also awards Linda compensatory damages for the distress and career harm (let’s say $50,000). The agency decides not to contest the discrimination finding (to avoid a court battle or EEOC review), and complies with the order. Linda is made whole.

Had Linda not had strong comparators, the MSPB judge might have just reversed the demotion on fairness grounds (if he thought the penalty was too harsh compared to others) without labeling it discrimination. But in this hypothetical, her evidence was strong, and MSPB can and did give her complete relief. If MSPB had ruled against her, Linda was prepared to go to district court and have a jury hear how she was treated differently – something she was willing to do for full vindication.

These hypotheticals show the thought process and possible outcomes. Every case will differ – for some, the MSPB path yields a result; for others, only a court will. The key is that mixed case employees have multiple venues and chances to be heard, which is a benefit, but it requires careful navigation to use effectively.

Why Choose NSLF to Fight Your Mixed Case?

Facing a mixed case is daunting – it’s a maze of legal procedures, tight deadlines, and high stakes. This is where the National Security Law Firm (NSLF) can be your strongest ally. We don’t just know the law; we know the strategy to make it work for you. Here’s why federal employees across the country turn to NSLF when their careers are on the line in MSPB and EEO battles:

  • Veteran-Founded, D.C.-Based, Nationwide Representation: NSLF was founded by veterans and former federal officials. We operate like a mission-driven unit – disciplined, precise, and relentless. Based in Washington, D.C., we’re at the heart of federal employment law, but we represent federal employees nationwide. From California to Virginia, we’ve got your six.
  • 100+ Years of Combined Insider Knowledge: Our legal team isn’t guessing how federal agencies work – we’ve been on the inside. Our attorneys include former agency counsel and Judge Advocate General (JAG) officers who have advised federal managers on discipline and EEO matters. This insider experience is invaluable – it’s like hiring a defense attorney who used to be a prosecutor. We know the tactics agencies use, the mistakes they often make, and where to probe for weaknesses in their case. When we say we understand your agency’s playbook, we truly do. That means we can anticipate their moves and counter them effectively to protect your rights.
  • Attorney Review Board “War Room”: Every mixed case at NSLF gets the benefit of our Attorney Review Board (ARB) – a sort of internal “war room” where multiple NSLF attorneys collaborate and pressure-test your case from all angles.  This collective approach (with over a century of combined experience in the room) ensures no stone is left unturned. It’s like having an entire legal special forces team planning your case. We spot issues others miss and develop dual-path strategies (EEO and MSPB) to keep your options open. Before any major hearing or filing, your case gets the ARB treatment – meaning it’s as sharp and strong as it can be.
  • Dual-Path Strategy Experience: Mixed cases are our wheelhouse. We have successfully navigated clients through the MSPB/EEO overlap, securing victories and favorable settlements. Whether it’s advising you on the initial forum election or pursuing both an MSPB appeal and a federal lawsuit in tandem, we excel at the chess game of dual-forum litigation. Our team has handled cases before MSPB judges, EEOC AJs, agency deciding officials, and in federal courts. That breadth of experience means we’re equally comfortable cross-examining witnesses at an MSPB hearing as we are drafting federal court briefs on nuanced jurisdictional issues. We will map out a plan from Day 1 that accounts for all possible twists – if the agency does X, we’ll do Y; if the MSPB judge rules A, we’re ready to do B. This kind of foresight can make the difference between winning and losing in mixed cases that often span multiple venues and months (or years). We keep your case one step ahead at all times.
  • Proven Results and 5-Star Client Service: Our commitment to clients is reflected in our track record and our reviews. We’re proud to have 4.9-star Google reviews – real clients whom we’ve helped through some of the toughest fights of their careers. Federal employees we represented often remark on our responsiveness, dedication, and the outcomes we achieved. We invite you to see for yourself what others have said about NSLF – our results and reputation speak volumes. We know how critical these cases are for your livelihood and your dignity, and we treat every case (and client) with the utmost respect and urgency.

When you choose NSLF, you’re not just hiring a lawyer – you’re gaining a partner and protector in your fight. We understand the federal workplace, we understand the stakes, and we have a passion for justice. We take the weight off your shoulders so you can focus on your life while we focus on your case. Your battle is our battle. We will guide you through the mixed case maze with empathy – recognizing the stress and emotions you’re dealing with – and with authority – developing a legal strategy that is savvy and unrelenting.

Ready to take the next step? Book your free consultation and let’s talk about your situation. In a quick, confidential call, we’ll listen to your story and give you an initial roadmap. There’s no obligation, just information and support. We’re confident that after speaking with our team, you’ll know you have an ally who truly “gets it” and has the skills to make a difference.

Schedule your free consultation now – it’s easy and can be done online in minutes. Don’t let confusion or fear paralyze you. The sooner you have a plan, the better your chances of success. Let NSLF put our insider knowledge and relentless advocacy to work for you.

The National Security Law Firm: It’s Our Turn to Fight for You.