U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Washington, D.C. 20507

Office of

Legal Counsel

December 9, 2013

William D. Spencer

Clerk of the Board

Merit Systems Protection Board

1615 M Street NW

Washington, DC 20419

Mr. Spencer: 

This letter responds to the Merit Systems Protection Board (MSPB or “Board”) request 

for written comments concerning four separate proposals to amend regulations governing “how 

jurisdiction is established over Board appeals.” 78 Fed. Reg. 67076 (Nov. 8, 2013). The Equal 

Employment Opportunity Commission (EEOC) has an interest in these proposals to the extent 

that federal employees file “mixed” cases falling under the jurisdiction of both the EEOC and 

MSPB. Such cases allege both prohibited personnel practices under civil service laws enforced 

by the MSPB and also unlawful employment discrimination under laws enforced primarily by 

the EEOC, which include the Equal Pay Act of 1963, as amended, title VII of the Civil Rights 

Act of 1964, as amended, the Age Discrimination in Employment Act of 1967, as amended, the 

Rehabilitation Act of 1973, as amended, and the Genetic Information Nondiscrimination Act of 

2008. 

Whether the MSPB dismisses a claim for jurisdictional reasons, as opposed to issuing a 

decision on its merits, affects the EEOC’s jurisdiction over the employment discrimination 

allegations. If the MSPB declines to take jurisdiction, the EEOC also cannot take jurisdiction

directly from the MSPB’s dismissal. See, e.g. Complainant v. Department of Justice, EEOC 

Appeal No. 0120113297 (Sept. 26, 2013). Instead, EEOC regulations require the defendant 

agency either to inform the claimant of her right to contact an EEO Counselor (if the 

discrimination issue was first raised in a “mixed case appeal” directly with the MSPB), 29 C.F.R. 

§ 302(b), or to resume the administrative EEO process from the point where the claimant sought 

MSPB jurisdiction (if the discrimination was first alleged in a “mixed case complaint” via the 

administrative EEO process). 29 C.F.R. § 302(c). 

The EEOC has jurisdiction over a “mixed” employment discrimination claim without

first returning it to earlier stages of the administrative EEO process only when the MSPB 

accepted jurisdiction and issued a decision on its merits. See 5 C.F.R. § 1201.151 - .175 (MSPB 

regulations involving employment discrimination appeals); 29 C.F.R. § 1614.302 - .308 (EEOC 

regulations for “mixed” claims). In these cases, the MSPB decision must give the claimant 

notice of her right to petition the EEOC for review of the employment discrimination issues in 

the decision. 5 C.F.R. § 1201.157. Should the EEOC disagree with the MSPB’s ruling on the

employment discrimination claims, federal regulations provide a mechanism for resolving these 

substantive disputes. 29 C.F.R. §§ 1614.305 - .309 (EEOC regulations to share findings with 
MSPB and conduct a “Special Panel”); 5 C.F.R. §§ 1201.171-.175 (MSPB regulations for 

Special Panel). 

The EEOC has no comment concerning how the MSPB chooses to define its own 

jurisdiction under any of the four proposals in its Federal Register notice. Nonetheless, we have 

anecdotally observed employment discrimination cases become lost or significantly delayed 

when the defendant agency fails to further process a claim pursuant to its obligations after an 

MSPB dismissal for lack of jurisdiction. For this reason, we recommend that the Board remind

the defendant agencies of their obligation in an order appended to its dismissals for lack of 

jurisdiction. For example, the MSPB could remand the dismissed claim to the agency, with 

instructions that it “continue processing the employment discrimination allegations consistent 

with its obligations under 29 C.F.R. Part 1614.” It would further highlight this concern if such a 

requirement were enshrined in regulation, or contained in Board policy guidance. 

Ensuring that a forum exists for employment discrimination claims also requires that 

appellants be aware of their obligations to alert the Board of employment discrimination 

allegations. We note that Proposals C and D both detail, either in proposed regulatory language 

or a supplemental “Matrix” document, the specific requirements for stating a claim, or 

establishing MSPB jurisdiction, under a variety of statutes and other authorities enforced by 

MSPB, except for employment discrimination. If the Board decides to adopt a jurisdictional 

regulation and/or supplemental materials that contain such detailed information about every 

other type of claim, we request that it also cross-reference the filing requirements for claims of 

employment discrimination identified in MSPB Regulation 5 C.F.R. § 1201.153. 

Should you have any questions or otherwise wish to discuss our comments, please feel 

free to contact Assistant Legal Counsel Corbett Anderson at (202) 663-4579, or Senior Attorney 

Advisor Raymond Peeler at (202) 663-4537.

Sincerely, 

Peggy R. Mastroianni

Legal Counsel