And Now a Word With … EEOC AJ Michael Rhoades

March 18, 2025

I enjoy commuting to work during an ice storm. I really need to spend more time on social media. If only there were more streaming services to which I could subscribe. I miss when car phones were 80 pounds.

These are some phrases you’re not likely to hear – ever. Oh, and here’s another one: Mixed cases are so easy to navigate.

We caught up with EEOC Administrative Judge Michael Rhoades – of the Chicago district – about this critical topic.

FELTG: Why do so many people struggle with mixed cases?

MR: Mixed cases can be very difficult to handle for a variety of reasons. As a threshold matter, as noted by the United States Supreme Court, the statutory framework surrounding mixed case processing is not the clearest. During oral argument in Perry v. Merit Systems Protection Board Justice Alito commented, “nobody who is not a lawyer, and no ordinary lawyer could read these statutes and figure out what they are supposed to do” and joked whoever drafted the statutory framework for these processes was, “somebody who takes pleasure out of pulling the wings off flies.” Also complicating the matter is that agency employees working in EEO offices and legal advisors assisting in the accept/dismiss process may not have been exposed to these issues. Some agencies have the additional muddying factor of certain categories of employees having MSPB appeal rights while others do not. Past changes in how the EEOC and MSPB handle mixed case processing, such as the processing of “inextricably intertwined” matters, can also create further uncertainty with an already confusing issue.

FELTG: What’s the most important thing for EEO staff to know about mixed cases when they first receive a complaint?

MR: It is very important for EEO staff to have clear understanding of what type of issues are appealable to the MSPB and which employees have MSPB appeal rights. For the Board to have jurisdiction over an appeal it must have jurisdiction over both the action and the employee filing the appeal. While the EEOC has jurisdiction over all sorts of actions, learning the specific, limited types of “adverse actions” the MSPB has jurisdiction over will catch most mixed case complaints. If EEO staff keep an eye out for these at the time of acceptance and properly identify these issues, much of the confusion and delay can be avoided. EEO staff should also remember that where a matter is proposed and later implemented, the proposal “merges” with the decision and should not remain as a separate unmixed issue. EEO staff should also have knowledge of constructive adverse actions and how these matters should be handled.

FELTG: What is the most common mistake and/or misconception in terms of choice of venue?

MR: The most common misconception is that employees get to choose whether to have their appeal heard before the MSPB or the EEOC. When I question whether the EEOC has jurisdiction over something because it appears to be a mixed case issue, it is not uncommon for employees (and even attorneys) to state they, “elected to pursue the matter before the EEOC.” If the Board has jurisdiction over the matter and the employee has Board appeal rights, with limited exceptions, the matter cannot proceed to an EEOC administrative hearing. An employee may elect to file a mixed case appeal directly with the MSPB or a mixed case complaint with the EEO office. If they file a mixed case complaint, however, this election only determines whether the matter is investigated pursuant to 29 CFR 1614 prior to receiving a final agency decision with appeal rights to the MSPB.

FELTG: Where do mistakes in the process most often happen?

MR: The most common mistake is not identifying mixed case issues at the time of acceptance which results in these issues being treated as unmixed issues. Instead, EEO offices need to clearly identify these at the time of acceptance because complainants have different rights for mixed case issues. The acceptance letter needs to accurately reflect and articulate their options. Another common slipup occurs when a complainant initiates EEO contact for precursor unmixed issues that they believe are discriminatory and are later subject to an adverse action which may be appealed to the MSPB. The amendment may be made, but oftentimes no one realizes that these new issues are subject to mixed complaint processing. The acceptance/amendment letter needs to clearly identify the mixed issues that will receive a Final Agency Decision (FAD) appealable to the MSPB and which issues can be heard before the EEOC.

A similar frequent error happens when mixed issues are identified at the time of acceptance, however, when the investigation is complete the EEO office mistakenly informs the employee that they have a right to an EEOC hearing on all issues. Instead, a FAD should be issued on mixed issues and only unmixed issues are heard by the EEOC.

FELTG: What are some of the impacts of improper mixed case processing? 

MR: Mistakes can lead to extremely lengthy delays and can also deprive employees of correct due process rights. The MSPB considers the procedural and substantive merits of a limited number of disciplinary actions, while the EEOC considers a broader range of issues but asks only if the action is discriminatory or retaliatory. As a result, it is imperative that these issues are identified early and properly routed to ensure employees are afforded the proper scope of review. [email protected]

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