from the United States District Court for the Southern
District of Texas
JONES, HO, and OLDHAM, Circuit Judges.
S. OLDHAM, CIRCUIT JUDGE
Punch says the National Aeronautics and Space Administration
("NASA") discriminated against her. She pursued her
claims before numerous tribunals-none of which found any
discrimination or other violation of law. But the merits of
her allegations are not before us. The issue here is
procedural. We must decide whether Punch pled her way out of
federal court by attempting to litigate her claims in several
mutually exclusive forums. The district court said yes. We
federal employee challenges an adverse employment action,
such as termination, a "complicated tapestry" of
statutes and regulations governs her claim. Butler v.
West, 164 F.3d 634, 637 (D.C. Cir. 1999). We think the
better metaphor is a road. But this trip is not for the
Civil Service Reform Act ("CSRA") gives federal
employees numerous job protections. One is the right to
challenge certain "serious personnel actions."
Perry v. Merit Sys. Prot. Bd., 137 S.Ct. 1975, 1979
(2017). The employee "may merely allege that the agency
had insufficient cause for taking the action under the
CSRA." Kloeckner v. Solis, 568 U.S. 41, 44
(2012). The employee "may also or instead
charge the agency with discrimination prohibited by another
federal statute." Ibid. This second type of
charge is called a "mixed case." Ibid.
(citing 29 C.F.R. § 1614.302).
the CSRA, employees face a series of mutually exclusive paths
to bring a "mixed case." Option 1 is an appeal to
the Merit Systems Protection Board ("MSPB"). The
MSPB is "an independent adjudicator of federal
employment disputes" that hears appeals from
"particularly serious" actions, such as
terminations of employment. Ibid.
the MSPB decides a mixed case, the road forks again. The
employee has three options for further review. First (Option
1.A), she can appeal to the Federal Circuit-but only if she
waives her discrimination claims and limits her appeal to
CSRA claims. 5 U.S.C. § 7703(b)(1). If she chooses
Option 1.A, she must file her appeal within 60 days of the
MSPB's decision. Id. § 7703(b)(1)(A).
(Option 1.B), the employee can instead keep pursuing her
mixed case. But the road for review forks once again. The
employee can immediately file suit in the appropriate federal
district court (Option 1.B.i). Id. §
7703(b)(2). Or the employee can take a further administrative
appeal to the EEOC (Option 1.B.ii). Id. §
7702(b)(1). And if she's unhappy with the EEOC's
resolution, the employee can sue in district court.
Id. §§ 7702(b)(3)(A), (b)(5)(A),
(b)(5)(B), (c), 7703(b)(2); see Perry, 137 S.Ct. at
1980. Thus, both of these options (1.B.i and 1.B.ii) allow
the employee to continue pursuing discrimination claims as
part of her mixed case, and both eventually lead to
litigation in district court. The employee's deadline to
file a complaint in district court is 30 days from the final
decision by the relevant administrative body-either the MSPB
or the EEOC, depending on the route she chooses. See
5 U.S.C. § 7703(b)(2).
employee need not start with the MSPB-or take any of the
roads running from it. There's another way. Call it
Option 2. An employee can file a mixed case complaint with
the agency's Equal Employment Opportunity
("EEO") office. 29 C.F.R. § 1614.302(b);
see also Kloeckner, 568 U.S. at 45. If the
agency's EEO office rules against the employee, she can
appeal to the EEOC. When the EEOC's decision becomes
final and reviewable, she can challenge it in district court.
See 29 C.F.R. § 1614.407. So Option 2, like
Options 1.B.i and ii, eventually leads to district court.
now to Punch's case. In early 2013, Punch worked as a
Program Analyst at NASA. On March 4, 2013, her supervisors
gave her a "notice of unacceptable performance" and
placed her on a "performance improvement plan." The
plan required her to successfully complete certain tasks
within her general job duties.
plan did not go well for Punch. She received an
"unacceptable" rating on her 2012-2013 performance
review. So in June 2013, Punch's supervisor recommended
her employment be terminated. NASA terminated her on August
alleged that NASA discriminated against her on the basis of
race, color, sex, and age (among other things). She also
alleged NASA discriminated against her by placing her on the
performance improvement plan, conducting the plan, and
terminating her employment. She also alleged her termination
violated the CSRA. In other words, she had a "mixed
case." As described above, Punch had several paths to
seek review of her mixed case. But instead of choosing
one path, Punch tried to choose all of
them. First Punch chose Option 1. Then she tried to choose
Option 2. But then she lost Option 1-so she tried to choose
Option 1.A. and 1.B. Procedural chaos ensued.
start, as Punch did, with Option 1. On September 5, 2013,
Punch timely appealed her termination to the MSPB. She argued
that NASA violated the CSRA by failing to provide the
necessary resources and support to complete the improvement
plan, that the same failures were discriminatory, and that
the whole thing was retaliation for discrimination complaints
she had submitted to NASA in the past.
MSPB affirmed NASA's decision. The MSPB's decision
letter instructed Punch that she had two options for pursuing
her mixed case. She could pursue all of it (both the CSRA
claims and the discrimination claims) in the district court
(Option 1.B.i). Or she could appeal to the EEOC (Option
1.B.ii). The MSPB also informed her that either filing would
need to be made within 30 days of Punch's receipt of the
decision letter. Punch received the letter on February 9,
2016, so her deadline to file in district court or appeal to
the EEOC was March 10, 2016.
Punch chose neither option. She instead purported to drop the
discrimination claims and to pursue only her CSRA claims in
the Federal Circuit (Option 1.A). She filed her petition for
review on April 5, 2016. Her petition did not purport to
press a mixed case. Indeed, Punch submitted a form to the
Federal Circuit certifying that "[n]o claim of
discrimination by reason of race, sex, age, national origin,
or handicapped condition has been or will be made in this
case." All of that makes sense because the Federal
Circuit has jurisdiction to review only CSRA claims. So far
so good, right?
fast. Three months after Punch chose Option 1 by
appealing to the MSPB, she also purported to choose
Option 2. On December 9, 2013, Punch also filed a
discrimination complaint with NASA's EEO office. As
pertinent here, Punch alleged (1) she received an
"unacceptable" performance rating, (2) her request
for reassignment was denied, (3) she was "denied
official time to work on [a] prior EEO complaint," and
(4) her supervisor proposed that Punch's employment be
complaint was handled by NASA's Office of Diversity and
Equal Opportunity ("ODEO"). NASA ODEO declined to
consider allegation (4) because the termination itself had
already been appealed to the MSPB. But it allowed three other
allegations to go forward through the EEO process (Option 2):
1) On June 6, 2013, you received an "unacceptable"
rating for your 2012-2013 appraisal due to your
supervisor's denial of your request for additional
resources (snag-it CD, sit/stand workstation, lightweight
laptop computer) that would have enabled you to perform your
job more effectively.
2) On June 19, 2013, your request for a reassignment and/or
modification to your scope of work was denied.
3) On July 8, 2013, you were denied official time to work on
your prior EEO complaint, Agency Docket No. NCN-13-JSC-00025.
Ultimately, NASA ODEO found no discrimination.
appealed NASA ODEO's final decision to the EEOC.
Regulations provide that if the EEOC has not issued a final
decision on such an appeal within 180 days, the claimant can
file suit in the appropriate federal district court. 29
C.F.R. § 1614.407(d). That deadline passed without an
EEOC decision. So on May 17, 2016, Punch filed an Option 2
lawsuit in the Southern District of Texas that's based,
she contends, solely on her NASA EEO complaint. If governed
by the 30-day deadline for seeking judicial review of an EEOC
action, the complaint was timely. See 5 U.S.C.
§ 7703(b)(2); 29 C.F.R. § 1614.407(d).
Option 2 complaint alleges Punch was denied the resources she
needed to complete the improvement plan, such as computer
software and training, and that NASA "retaliated against
Plaintiff by giving her an unacceptable rating on her
2012-2013 performance appraisal, proposing her removal from
the Agency on June 6, 2013, and refusing to allow her to
transfer to another manager." It also alleges she
"was retaliated against by being placed on a Plan and
eventually removed from her position" because of her
prior EEOC complaints.
Option 2 complaint prompted NASA to move to dismiss her
Option 1.A appeal to the Federal Circuit. That's ...