When you allege an affirmative defense of discrimination or retaliation as the reason why the Agency took adverse action (such as discipline or removal) against you, the MSPB processes this case as a mixed case.
For example, sometimes an employee has an EEO complaint pending when an adverse action occurs. In that situation, you have one of two options:
You can either amend your EEO complaint to include the adverse action by seeking EEO counseling on the adverse action, or
You can file an appeal with the MSPB and allege discrimination or retaliation as an affirmative defense, including the applicable EEO allegations in the MSPB hearing.
Even if you do not have an EEO complaint pending when the adverse action is taken, you can still go to EEO to initiate EEO counseling regarding the discriminatory or retaliatory adverse action. The normal EEO process will follow until the Report of Investigation (ROI) is completed. After the ROI is completed, instead of being offered an EEO hearing, the Agency should forward the case to the MSPB because the MSPB is the only entity which has jurisdiction over adverse actions. The MSPB will hear both the adverse action claim and the discrimination and/or retaliation claim.
The employee's other option, upon receiving an adverse action, is to proceed directly to the MSPB, as discussed above, and allege discrimination or retaliation as an affirmative defense, if applicable. After a mixed case is before an AJ, the AJ processes the mixed case just like a regular non-mixed case. However, the AJ should apply both the laws regarding discrimination and retaliation and adverse action law in coming to his or her decision.