By Ernest Hadley

Our Executive Director, Bill Wiley, tells a story that it’s hard to do justice to in written form in no small part because I can’t really reproduce his wonderful Louisiana accent, but the story goes something like this. Many years ago, Bill was at a conference where a Baptist minister, who also happened to be a federal employee and well informed on civil service issues, gave the invocation. As he gave thanks for the many benefits of the Civil Service Reform Act, his invocation built to a crescendo in which he finally implored, “And, Lord, deliver us from mixed cases.” You don’t have to be of any particular religious persuasion, or even so inclined generally, to want deliverance from mixed cases. They are, quite frankly, the bane of everyone’s existence in this field. These are cases that bounce back and forth between the Equal Employment Opportunity Commission and the Merit Systems Protection Board in a jurisdictional morass—the very thing the mixed case provisions of the CSRA were meant to avoid.

In a recent case, however, the EEOC took a different approach to the mixed case jurisdictional problem involving a so-called “constructive discharge.” In Maurice W. Blount v. Secretary of Homeland Security, EEOC Appeal No. 0720070010 (October 21, 2009), the Commission solved the jurisdictional problem by finding that the complainant’s disability retirement was not a separate constructive discharge claim, but instead a consequence of a failure to accommodate. As a result, the jurisdictional problem goes away because removing the constructive discharge makes it a nonmixed case.

First, for the uninitiated a little background on the conundrum. A mixed case is when an employee who has been subjected to an action within the jurisdiction of the MSPB—for example, a removal or suspension of greater than 14 days—claims that the action was taken for reasons that are impermissible under EEO law. The employee can make an election to pursue the matter in the first instance through the EEO process as a “mixed case complaint” or take the matter directly to the MSPB as a “mixed case appeal.” An employee who elects the EEO process goes through counseling, filing a formal complaint, an investigation and ultimately receives a final agency decision. If the employee is dissatisfied with the FAD, he or she can file an appeal with the MSPB and request a hearing. Although there are some exceptions, hearings in mixed cases fall within the jurisdiction of the MSPB and not the EEOC.

Many mixed cases are relatively straightforward and pose no real problem. For example, if an agency removes an employee for misconduct and the employee alleges the removal is discriminatory, the action as well as the allegation of discrimination is clearly within MSPB jurisdiction. So, the employee can proceed directly to the Board for a hearing on both issues, or the employee can pursue an EEO complaint through investigation and a final agency decision and then proceed to the Board for a hearing.

Particularly problematic, though, has been those cases in which the employee raises claims that are, at least arguably, within the jurisdiction of the MSPB and related claims which are not within the Board’s jurisdiction. A classic scenario involves so-called constructive discharges or removals. For example, the employee claims that he or she is a qualified individual with a disability and that the agency has failed to provide reasonable accommodation. The employee further claims that the failure to accommodate has led to a constructive removal when, in the absence of accommodation, he or she applies for and receives disability retirement.

Here’s part of the problem: The Board has jurisdiction over allegations of discrimination only if it has jurisdiction over the challenged action. It has no independent jurisdiction over discrimination claims. When an employee files an appeal with the Board alleging a constructive discharge, the Boards treats the case as raising a jurisdictional issue. In other words, the Board only takes jurisdiction over the case if the employee proves that his or her removal was involuntary. Of course, at that point, the employee, by proving his or her actions were involuntary, has prevailed on the constructive removal claim. When the employee claims that discrimination is what made the removal involuntary, he or she is caught in the proverbial Catch 22. The Board won’t take jurisdiction over a discrimination claim unless it has jurisdiction over the action. In order for the Board to have jurisdiction, the employee has to prove the removal was involuntary but can’t rely on evidence of discrimination to do so because the Board has no jurisdiction over the discrimination claim unless the removal was involuntary. Are you with me so far?

Here’s the other part of the problem: If an EEO claim raises an action within MSPB jurisdiction, the EEOC has no jurisdiction to hold a hearing on that claim. So, what often happens in a case of an alleged constructive removal is that the EEOC administrative judge dismisses the constructive discharge claim, while retaining jurisdiction over the failure to accommodate claim, and sends the employee to the MSPB with the constructive removal. The Board inevitably finds that the removal was not involuntary and dismisses the case for lack of jurisdiction. Now, the claim of constructive removal comes back to the EEOC to be heard on the merits as a nonmixed case since the Board has determined that it has no jurisdiction over the employee’s claim.

Of course, bouncing back and forth between forums and exhausting appeals on jurisdictional issues can take years. There are children who have been born and started attending school in the time it takes to litigate jurisdictional issues in some mixed cases.

To alleviate the problem somewhat, the EEOC has carved out an exception to referring a mixed case to the Board. If the mixed and nonmixed claims are related, as is the case when an employee alleges a failure to accommodate leads to a constructive discharge, the EEOC can elect to retain jurisdiction over the entire case if it is otherwise “inextricably intertwined” in the EEO process. The decision on whether to retain jurisdiction is discretionary and many EEOC administrative judges will simply dismiss the mixed claim and send the employee to the MSPB for a jurisdictional determination.

In the Blount case, the complainant claimed that after suffering a stroke the agency failed to accommodate him by allowing him to work at home during his recovery. During the investigation, the complainant expanded his claim to include an allegation that the agency’s failure to accommodate him caused him to apply for and receive disability retirement. The Commission’s administrative judge determined that the constructive discharge claim was “inextricably intertwined” in the EEO process and retained jurisdiction over both claims. The judge found in favor of the complainant and the agency appealed arguing that the Commission lacked jurisdiction over the constructive discharge claim.

Though the precise language used by the Commission in Blount is a bit confusing in that it initially states that the administrative judge “correctly determined that the constructive discharge claim is inextricably intertwined in the EEO process,” it ultimately advanced an entirely different rationale on the Commission’s jurisdiction over the claim, explaining:

Although the AJ characterized complainant’s claim as one of constructive discharge, as stated above, we find that this claim is more properly classified as a denial of reasonable accommodation resulting in the inability to work. As such, the proper remedy following a finding that the complainant was not reasonably accommodated is to order the agency to provide a reasonable accommodation to complainant and reinstate him to the position in question, or to a substantially equivalent position.

The Blount case represents an interesting approach to the mixed case jurisdictional problem. Essentially, the Commission “unmixed” the case by finding that the retirement was not a separate action, but a direct consequence of the failure to accommodate. Because there was no longer a claim that was even arguably within the jurisdiction of the Board, the case fell entirely within the jurisdiction of the EEOC. In addition to reinstatement and back pay, the Commission upheld a $200,000 compensatory damage award by the judge but struck down a 21-year front pay award due to its reinstatement order.

Whether the Commission will now follow Blount remains to be seen. However, the rationale used in the case could easily be applied to a number of situations to “unmix” cases. For example, another recurring scenario is when a complainant alleges that a hostile environment has reached the point where he or she can no longer go to work. If the inability to report to work flows from the alleged hostile environment, then it presents no independent claim of constructive discharge and, therefore, presents no mixed case issue.

In the end, the Blount case may not provide deliverance from mixed cases but it could provide a clear basis for EEOC jurisdiction in many cases that might otherwise end up in the mixed case morass between the Commission and the Board.