Steven Crowe v. Christine Wormuth

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEVEN W. CROWE, No. 21-15802

Plaintiff-Appellant,

D.C. No.

v. 1:18-cv-00288-

ACK-RT

CHRISTINE WORMUTH, Secretary

of the Army,

Defendant-Appellee, OPINION

RYAN D. MCCARTHY,

Defendant-Appellee,

and

MARK T. ESPER, Secretary of the

Army, sued in his official capacity,

Defendant.

Appeal from the United States District Court

for the District of Hawaii

Alan C. Kay, District Judge, Presiding

Argued and Submitted October 14, 2022

Submission Withdrawn January 5, 2023

Re-argued and Re-submitted March 2, 2023

San Francisco, California

2 CROWE V. WORMUTH

Filed July 25, 2023

Before: Mary M. Schroeder, Johnnie B. Rawlinson, and

Daniel A. Bress, Circuit Judges.

Opinion by Judge Bress;

Concurrence by Judge Schroeder

SUMMARY *

Employment/Merit Systems Protection Board

The panel affirmed in part and vacated in part the district

court’s decision and remanded in an action brought by

Steven Crowe, a police officer at the Tripler Army Medical

Center in Honolulu, Hawaii, alleging that he had been

subjected to discrimination based on his sexual orientation

(bisexual) and race (Caucasian), retaliated against for

protected conduct, and ultimately terminated from his

employment.

Prior to his termination, Crowe filed a complaint with the

Equal Employment Opportunity (EEO) office alleging

sexual and race discrimination, retaliation, and a proposed

and later a formal termination. After he was terminated,

Crowe attempted to file a mixed case appeal with the Merit

Systems Protection Board (MSPB), seeking to appeal the

Army’s termination decision based on the affirmative

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

CROWE V. WORMUTH 3

defense of sexual orientation discrimination. The MSPB

upheld Crowe’s termination and Crowe filed suit in district

court.

The panel first vacated the district court’s decision that

Crowe failed to exhaust administrative remedies before the

MSPB with respect to his claims of pre-termination adverse

employment actions. The panel held that the MSPB lacked

jurisdiction to consider the pre-termination claims. Neither

the text nor the structure of the Civil Service Reform Act

(CSRA) supports the theory that the MSPB has pendent

jurisdiction to decide factually related claims of

discrimination associated with personnel actions outside the

list of “particularly serious” actions set forth in 5 U.S.C.

7512. Such discrimination claims must instead be exhausted

through the EEO process. The panel remanded for further

proceedings.

The panel affirmed the district court’s (1) determination

that Crowe failed to exhaust before the MSPB any other

theories of discrimination for his termination besides sexual

orientation, the only claim Crowe asserted; (2) grant of

summary judgment to the Army on Crowe’s Title VII claim,

finding there was no genuine dispute of material fact that

Crowe was terminated because of his misconduct at the

workplace, as opposed to his sexual orientation; and (3)

grant of summary judgment to the Army on Crowe’s CSRA

claim, finding that substantial evidence supported the

MSPB’s finding that Crowe regularly had sex at TAMC

during work hours.

Concurring, Judge Schroeder agreed with the majority’s

outcomes, including its conclusion to remand the pre-

termination claims to the district court, but noted the

unfortunate situation that two government entities are taking

4 CROWE V. WORMUTH

opposing positions with respect to the district court’s

jurisdiction to hear the pre-termination claims.

COUNSEL

Kevin Owen (argued), Gilbert Employment Law, Silver

Spring, Maryland; Elbridge W. Smith and Elbridge Z. Smith,

Smith Himmelmann AALC ALC, Honolulu, Hawaii; Mateo

Caballero, Caballero Law LLLC, Honolulu, Hawaii; for

Plaintiff-Appellant.

Stephen W. Fung (argued), Attorney; Katherine M. Smith,

Deputy General Counsel; Allison J. Boyle, General Counsel;

Office of the General Counsel, United States Merit Systems

Protections Board; Washington, D.C.; for Amicus Curiae

Merit Systems Protection Board.

Edric Ming-Kai Ching (argued), Assistant U.S. Attorney;

Clare E. Connors, United States Attorney; Office of the

United States Attorney, District of Hawaii; Honolulu,

Hawaii; for Defendants-Appellees.

CROWE V. WORMUTH 5

OPINION

BRESS, Circuit Judge:

“[T]he intersection of federal civil rights statutes and

civil service law has produced a complicated, at times

confusing, process for resolving claims of discrimination in

the federal workplace.” Kloeckner v. Solis, 568 U.S. 41, 49

(2012). In this case, we work in one wing of this difficult

area and consider whether the plaintiff failed to exhaust

certain claims before the Merit Systems Protection Board

(MSPB). This in turn requires us to examine the scope of

the MSPB’s jurisdiction in a so-called “mixed case,” in

which a federal employee alleges that a qualifying adverse

employment action (here, termination) was motivated in

whole or in part by unlawful discrimination. Our principal

holding is that the plaintiff did not fail to exhaust before the

MSPB his discrimination claims based on pre-termination

adverse employment actions because the MSPB lacked

jurisdiction to consider those claims.

We affirm in part, vacate in part, and remand for further

proceedings.

I

A

Plaintiff Stephen Crowe worked as a police officer at the

Tripler Army Medical Center (TAMC) in Honolulu, Hawaii.

Supervisory Police Officer Michael Ballesteros was

Crowe’s superior. In February 2016, Crowe complained to

Ballesteros that another officer, Kevin Oda, had called

Crowe a “fag” or “faggot” when introducing him. Crowe

alleges that Oda used this term on other occasions, both in

6 CROWE V. WORMUTH

specific reference to Crowe and as a word that he would use

generally.

Ballesteros oversaw an inquiry into this issue. In that

process, Officer Oda admitted using the derogatory term and

participated in counseling with Ballesteros. Shortly

thereafter, Officer Oda apologized to Crowe in a meeting

with Ballesteros. In a formal Memorandum of Counseling

to Officer Oda, Ballesteros wrote that “this type of language

use and behavior is degrading to many individuals and

unacceptable.” Officer Ballesteros maintained that, at the

time of Crowe’s complaint and the meeting, he did not know

Crowe’s sexual orientation.

A few months later, Officer Ballesteros received a

complaint from James Sewell, an employee in the TAMC

Emergency Department. Sewell alleged that Crowe had

aggressively confronted Sewell about a supposed

relationship between Sewell and a Ms. Garcia, who worked

as a medical assistant at TAMC and had previously dated

Crowe. Sewell, whose significant other was TAMC

employee Kiana Ah Lee Sam, took offense at Crowe

“spreading lies” about an alleged affair between Sewell and

Garcia. Sewell also noted that Crowe, as a law enforcement

officer, was carrying a gun when he confronted Sewell,

implying this made Sewell feel unsafe.

Officer Ballesteros brought Sewell’s complaint to his

superiors, who asked him to initiate an investigation. Officer

Ballesteros assigned the investigation to Officer Oda, the

first officer he saw. Ballesteros also chose Oda for the job

because as the “operations officer,” Oda was “capable of

doing investigations.” On Officer Ballesteros’s instruction,

Officer Oda interviewed four individuals—Garcia, Vasthi

CROWE V. WORMUTH 7

Tabangeura, Sam, and Sewell—and obtained sworn

statements from each.

Garcia admitted that for six months, she and Crowe had

sex three to four times per week during work hours in an

upstairs room at TAMC, during which time Crowe would

take off his duty belt that held his service weapon. Garcia

provided corroborating details about these intimate

encounters, including information about the room and how

other officers would cover for Crowe while he was with

Garcia. Garcia later recanted her testimony. After the Army

proposed removing Garcia for lying, Garcia withdrew her

recantation and stood by her original statement,

acknowledging that her workplace sexual relationship with

Crowe was “inexcusable.”

Tabangeura and Sam, who both worked as medical

administration specialists at TAMC, reported that Crowe

would spend hours of his shift gossiping with employees and

discussing his sex life with them. Tabangeura described how

Crowe showed her websites “where he goes to hookup with

girls,” as well as photos of the women “he’s hooking up

with.” Tabangeura further reported that Garcia had

disclosed to her that Garcia was having sex with Crowe in

the upstairs room, and that Crowe had himself told

Tabangeura about taking a “friend” to have sex in a locked

room on TAMC’s tenth floor. Tabangeura understood the

“friend” to be Garcia. Finally, Sewell described the incident

in which Crowe confronted him while on duty.

In May 2016, Crowe was placed on temporary detail

without his police powers and was restricted to

administrative duties. A month later, Crowe’s temporary

detail was extended indefinitely pending the investigation.

During the investigation, Crowe and his union representative

8 CROWE V. WORMUTH

met with Officer Ballesteros twice. In November 2016,

Ballesteros began the process of terminating Crowe by

issuing a notice of proposed removal. As relevant here, the

notice cited Crowe’s confronting Sewell, his on-duty sexual

activity with Garcia, and his inappropriate workplace

gossiping.

In February 2017, after considering the various witness

statements, along with Crowe’s response—and after

consulting with a subject-matter expert from the Civilian

Personnel Office—Officer Ballesteros’s superior, Deputy

Provost Marshal James Ingebredtsen, independently decided

to terminate Crowe from federal service.

B

Thus began a somewhat excruciating administrative

review process. Because the primary issue in this appeal is

whether Crowe properly exhausted his claims, we recount

this part of the procedural history in some detail.

1

In August 2016—after Crowe’s placement on indefinite

temporary detail but before Officer Ballesteros proposed

removing Crowe—Crowe filed a complaint with the Army’s

Equal Employment Opportunity (EEO) office. Crowe

alleged that he had been subjected to discrimination based

on his sexual orientation (bisexual) and race (Caucasian).

He alleged that discriminatory animus motivated the Army’s

decisions to investigate him and place him on administrative

detail.

On November 5, 2016, the day after Officer Ballesteros

proposed that Crowe should be fired, Crowe amended his

EEO complaint to assert a claim based on his proposed

termination. Crowe also asserted an additional basis for

CROWE V. WORMUTH 9

discrimination in the form of retaliation for his protected

activity, claiming that the Army was investigating and

seeking to terminate him in retaliation for complaining about

Officer Oda’s offensive comments. On February 23, 2017,

after Crowe was formally terminated from federal

employment, he amended his EEO complaint again, this

time to encompass his formal (as opposed to merely

proposed) termination.

In March 2017—after Crowe’s termination but before

any action was taken on his EEO complaint—Crowe

attempted to file a mixed case appeal with the MSPB,

seeking to appeal the Army’s termination decision. As we

noted above and describe at greater length below, a mixed

case is a claim by a federal employee challenging a

qualifying adverse employment action and alleging related

discrimination. Before the MSPB, and as relevant here,

Crowe opposed his termination based on the affirmative

defense of sexual orientation discrimination.

Initially, the MSPB Administrative Judge (AJ) dismissed

Crowe’s mixed case appeal without prejudice because

Crowe’s pending EEO complaint already encompassed his

termination, making it a “mixed case complaint.” Although

there are many disputed procedural issues in this case, it is

undisputed that Crowe could not challenge his termination

through a simultaneous EEO mixed case complaint and

MSPB mixed case appeal. See 29 C.F.R. § 1614.302(b)

(“An aggrieved person may initially file a mixed case

complaint with an agency pursuant to this part or an appeal

on the same matter with the MSPB pursuant to 5 CFR

1201.151, but not both.”). To cure this deficiency, Crowe

requested that the part of his EEO complaint relating to his

termination be voluntarily dismissed. The EEO office

granted the motion.

10 CROWE V. WORMUTH

Crowe then re-filed his mixed case appeal with the

MSPB, limited to the issue of his allegedly wrongful

termination. Before the MSPB, Crowe challenged the

sufficiency of the evidence supporting his termination and

alleged that his termination was based on sexual-orientation

discrimination. 1 Through this maneuver, Crowe split his

claims into separate proceedings before the MSPB and Army

EEO office. Before the MSPB, Crowe argued that there was

insufficient evidence to support his termination, which he

also claimed was motivated by sexual-orientation

discrimination. Before the Army’s EEO office, Crowe

challenged the pre-termination adverse employment

actions—the investigation of Crowe, the removal of his

police powers, his reassignment to administrative duties

(including the deprivation of overtime), and his proposed

removal—and claimed that those actions were themselves

motivated by multiple forms of unlawful discrimination,

alleging more bases for discrimination than he did before the

MSPB.

After a three-day hearing at which various witnesses

testified, the MSBP AJ upheld Crowe’s termination. The AJ

found that the Army had proven the grounds supporting

Crowe’s removal, that removal was a reasonable penalty,

and that Crowe had failed to establish the affirmative

1

In his re-filed MSPB appeal, Crowe also contended that the Army had

discriminated against him on the basis of his sex and race, and in

retaliation for complaining about Officer Oda’s offensive language. But

in subsequent status conferences before the MSPB AJ, Crowe narrowed

his claims to assert only sexual orientation discrimination and a now-

abandoned assertion of procedural error, in addition to his general

challenge to the sufficiency of the evidence supporting the Army’s

decision to remove him from service.

CROWE V. WORMUTH 11

defense of sexual orientation discrimination. The EEO

office, meanwhile, did not rule on Crowe’s claims, which

meant that after 180 days, Crowe could pursue relief in

federal court. 29 C.F.R. § 1614.407(b).

2

On July 27, 2018, Crowe filed this lawsuit in federal

district court. See 5 U.S.C. § 7703(b)(2); 28 U.S.C. §1331.

Crowe’s complaint raised both Title VII discrimination

claims, see 42 U.S.C. § 2000e, et seq., and a challenge under

the Civil Service Reform Act (CSRA) to the sufficiency of

the evidence supporting the MSPB’s decision sustaining his

termination, see 5 U.S.C. § 7513. But rather than sticking

with just the sexual orientation discrimination claim that he

had raised before the MSPB, Crowe’s Title VII claims

alleged discrimination based on his sex, race, and in

retaliation for engaging in protected activities (i.e., his

complaint against Officer Oda). These latter allegations of

discrimination related to the adverse actions taken before

Crowe’s termination. As we have discussed, Crowe had

previously raised these pre-termination discrimination

claims in his EEO complaints, but not before the MSPB.

The district court dismissed Crowe’s sex discrimination,

race discrimination, and retaliation claims for failure to

exhaust administrative remedies before the MSPB. The

court concluded that the MSPB would have had jurisdiction

over Crowe’s claims of pre-termination discrimination

because they were factually related to the claims concerning

his formal termination. Because Crowe had not pursued

these pre-termination discrimination claims before the

MSPB, the district court held that Crowe had failed to

exhaust his administrative remedies for those claims.

12 CROWE V. WORMUTH

On Crowe’s Title VII claim of wrongful termination

based on sexual orientation discrimination—the one claim

of discrimination that Crowe had raised before the MSPB—

the district court reached the merits and granted summary

judgment to the Army. The court concluded that Crowe had

not made out a prima facie case of sexual orientation

discrimination; the Army had legitimate non-discriminatory

reasons for terminating Crowe; and Crowe had not shown

pretext. Finally, the district court concluded that, under the

CSRA, substantial evidence supported the MSPB’s decision

sustaining Crowe’s removal.

Crowe timely appealed. We have jurisdiction under 28

U.S.C. § 1291. After we heard oral argument in this case,

the MSPB, which has independent litigating authority, see 5

U.S.C. § 1204(i), sua sponte filed an amicus brief

disagreeing with the district court’s (and Army’s) exhaustion

analysis. This meant that the Department of Justice

(representing the Army) and the MSPB were now taking

different positions on the exhaustion question and the scope

of the MSPB’s jurisdiction.

As a result of this development, we heard oral argument

a second time, at which the MSPB appeared as an amicus in

support of Crowe on the exhaustion issue. The district court,

which conscientiously evaluated the many complex

procedural issues in this case, did not have the benefit of the

MSPB’s views or the more comprehensive briefing and

argument we have now received on the exhaustion

questions.

II

The first and central issue we resolve is whether Crowe

properly exhausted his pre-termination discrimination

claims by pursuing them before the Army’s EEO office

CROWE V. WORMUTH 13

when he was at the same time appealing his termination to

the MSPB. The Army argues, and the district court agreed,

that Crowe failed to exhaust his pre-termination claims

because they were factually intertwined with the

discrimination claim he raised before the MSPB, such that

Crowe should have challenged all of the Army’s adverse

employment actions before that body. Crowe and the MSPB

maintain that this is incorrect because the MSPB did not

have jurisdiction over Crowe’s claims of pre-termination

discrimination.

We review the purely legal question of exhaustion de

novo. Farrell v. Principi, 366 F.3d 1066, 1067 (9th Cir.

2004). We hold that Crowe did not fail to exhaust before the

MSPB his claims of pre-termination discrimination. The

MSPB lacked jurisdiction over those claims, and so Crowe

acted properly in raising them in the EEO process at the

administrative level.

Given the highly complicated nature of the

administrative regime, our analysis must proceed in several

steps. In Part A, we lay out the basic mixed case scheme. In

Part B, we explain why Crowe’s position is correct as a

matter of statutory interpretation. In Part C, we address

circuit precedent and in Part D, agency precedent and

guidance. In Part E, we touch on the policy implications of

both our reading of the statute and the Army’s contrary

position. In Part F, we apply our holding to the facts of

Crowe’s case. And once we are done with that, we turn to

the remaining issues in this case.

A

We begin by setting forth the regime that governs

workplace protections for federal employees, as it relates to

so-called “mixed cases.” This is vast and rugged terrain, and

14 CROWE V. WORMUTH

we describe the governing framework only so far as is

necessary to comprehend the role of the MSPB and the

exhaustion issues that this case presents.

The Civil Service Reform Act of 1978 (CSRA)

“established a comprehensive system for reviewing

personnel action taken against federal employees.” Elgin v.

Dep’t of Treasury, 567 U.S. 1, 5 (2012) (quoting United

States v. Fausto, 484 U.S. 439, 455 (1988)). For certain

“particularly serious” adverse employment actions, the

affected federal employee may appeal his agency’s

employment decision to the MSPB, “an independent

adjudicator of federal employment disputes.” Kloeckner v.

Solis, 568 U.S. 41, 44 (2012); 5 U.S.C. §§ 7512, 7701. Thus,

“[i]f (but only if) the action is particularly serious—

involving, for example, a removal from employment or a

reduction in grade or pay—the affected employee has a right

to appeal the agency’s decision to the MSPB.” Kloeckner,

568 U.S. at 44. We will have more to say below about the

specific types of adverse employment actions that are

appealable to the MSPB. But the key point for present

purposes is that not every type of employment action can be

appealed to that authority. 2

If a federal employee does suffer a qualifying personnel

action appealable to the MSPB, he may raise before that

adjudicatory body a civil service claim under the CSRA.

2

In addition to the MSPB’s appellate jurisdiction over certain adverse

employment actions, the MSPB has jurisdiction over other matters not

relevant here. See 5 C.F.R. § 1201.3. Crowe’s appeal does not concern

these matters, nor does it implicate the special provisions applicable to

claims of whistleblower reprisal. See 5 U.S.C. § 1221(a). Our decision

is limited to the MSPB’s jurisdiction over mixed cases challenging the

“particularly serious” adverse employment actions listed in 5 U.S.C.

§ 7512.

CROWE V. WORMUTH 15

Perry v. MSPB, 582 U.S. 420, 424 (2017). That type of

claim essentially maintains that the agency lacked a

sufficient basis for taking the adverse action. See Kloeckner,

568 U.S. at 44. Crowe raised such a CSRA claim here, and

we discuss it further below in Part V. If a federal employee’s

appeal before the MSPB is limited to such a civil-service-

only claim, the MSPB’s decision can be appealed, but only

to the Federal Circuit. See 5 U.S.C. § 7703(b)(1); Perry, 582

U.S. at 422 (“If an employee asserts rights under the CSRA

only, MSPB decisions, all agree, are subject to judicial

review exclusively in the Federal Circuit.”).

Federal employees also receive protections under federal

civil rights laws, such as Title VII of the Civil Rights Act of

1964. In the absence of an accompanying CSRA claim, a

federal employee who wishes to pursue a claim of wrongful

discrimination under the civil rights laws must follow the

usual exhaustion rules that apply to such claims. See 29

C.F.R. §§ 1614.105, 1614.106; Sloan v. West, 140 F.3d

1255, 1259 (9th Cir. 1998), abrogated on other grounds by

Perry, 582 U.S. at 434 & n.8. That requires filing a

complaint with the EEO office of the employee’s agency,

with the option to appeal to the EEOC and then a follow-on

lawsuit in federal district court. 29 C.F.R. §§ 1614.401(a),

1614.110, 1614.407; Perry, 582 U.S. at 422; Sloan, 140 F.3d

at 1259.

When a federal employee suffers a qualifying adverse

employment action that is appealable to the MSPB and

attributes the agency’s decision, in whole or part, to unlawful

discrimination, the employee has what is known as a “mixed

case.” Perry, 582 U.S. at 422; Washington v. Garrett, 10

F.3d 1421, 1428 (9th Cir. 1993); 29 C.F.R. § 1614.302.

Implementing regulations define a “mixed case complaint”

as “a complaint of employment discrimination filed with a

16 CROWE V. WORMUTH

federal agency based on race, color, religion, sex, national

origin, age, disability, or genetic information related

to or stemming from an action that can be appealed to the

Merit Systems Protection Board (MSPB).” 29 C.F.R.

§ 1614.302(a)(1). Similarly, a “mixed case appeal” is “an

appeal filed with the MSPB that alleges that an appealable

agency action was effected, in whole or in part, because of

discrimination on the basis of race, color, religion, sex,

national origin, disability, age, or genetic information.” 29

C.F.R. § 1614.302(a)(2).

A federal employee with a “mixed case” has a unique set

of procedural options. See Kloeckner, 568 U.S. at 44–45

(explaining that “[t]he CSRA and regulations of the MSPB

and [EEOC] set out special procedures to govern such a

case—different from those used when the employee either

challenges a serious personnel action under the CSRA alone

or attacks a less serious action as discriminatory”). One

option is for the employee to file a discrimination complaint

with his agency’s EEO office, “much as an employee

challenging a personnel practice not appealable to the MSPB

could do.” Id. at 45. If that decision is unfavorable to the

employee, or if the EEO office does not rule within a certain

period of time, the employee may then appeal his mixed case

to the MSPB (making it a mixed case appeal), or he may skip

the MSPB and file directly in federal district court. 29

C.F.R. § 1614.302(d)(1); Perry, 582 U.S. at 424; Sloan, 140

F.3d at 1259.

If the employee does not wish to start the process by

filing an internal EEO complaint with his agency, he may

instead begin his mixed case by appealing the adverse action

straight to the MSPB as a “mixed case appeal” (i.e.,

appealing the agency’s underlying decision to take a

qualifying adverse action against the employee). 5 C.F.R.

CROWE V. WORMUTH 17

§ 1201.154(a); 29 C.F.R. § 1614.302(b); Kloeckner, 568

U.S. at 45. Once the mixed case reaches the MSPB—either

as an appeal from the agency’s final decision in the EEO

process or as a direct appeal from the adverse employment

action that is filed initially with the MSPB—the MSPB may

provide a final decision on both parts of the employee’s

mixed case. 5 U.S.C. § 7702(a)(1). Any party has the option

to petition for review before the full Board. 5 C.F.R.

§ 1201.114. After the MSPB issues a final decision, or after

a specified amount of time has passed without a decision, the

employee may choose either to seek further administrative

review of his discrimination claim before the EEOC, 5

U.S.C. § 7702(b), or to bring his case in the appropriate

federal district court (not the Federal Circuit). 5 U.S.C. §§

7702(e), 7703(a)(1), (b)(2); 29 C.F.R. § 1614.310; Perry,

582 U.S. at 425; Kloeckner, 568 U.S. at 45. 3

Importantly, when an employee has a mixed case, he

must initiate the administrative process in either his agency’s

EEO office or the MSPB—but he cannot litigate the mixed

case in both. 29 C.F.R. § 1614.302(b).

B

This case involves the interaction between the mixed

case regime and the doctrine of exhaustion of administrative

remedies. As a general matter, that doctrine requires a

plaintiff to pursue relief through an available administrative

3

There is also an additional potential review by a “special panel”

comprised of a representative from the EEOC and MSPB and a third

person who is appointed by the President and confirmed by the Senate

for a six-year term. 5 U.S.C. § 7702(d); Sloan, 140 F.3d at 1260. The

decisions of this panel may also be appealed to the district court. 5

U.S.C. § 7702(d)(2)(A). The details of the special panel process are

beyond the scope of this appeal.

18 CROWE V. WORMUTH

agency process before filing suit in federal court. See, e.g.,

Woodford v. Ngo, 548 U.S. 81, 88–89 (2006). Thus,

although the scheme we have outlined above does give

federal employees with mixed cases some options in terms

of the administrative process they wish to pursue, they must

exhaust one of the available processes before filing a case in

federal court. See 5 U.S.C. § 7703(b)(2) (CSRA); 42 U.S.C.

§ 2000e-16(c) (Title VII); 29 C.F.R. § 1614.310; Brown v.

General Servs. Admin., 425 U.S. 820, 832 (1976); Punch v.

Bridenstine, 945 F.3d 322, 328 (5th Cir. 2019).

The primary exhaustion question in this case is whether

Crowe was required to exhaust before the MSPB claims

relating to his pre-termination adverse employment

actions—the investigation into Crowe, the changes to his

duties, and his proposed termination. To answer the

exhaustion question, we must examine in greater depth the

scope of the MSPB’s jurisdiction in mixed cases. If the

MSPB lacks jurisdiction to consider claims of discrimination

relating to these types of adverse actions, Crowe would of

course not have been required to raise these claims before

the MSPB.

As we referenced above, a federal employee “may

submit an appeal to the Merit Systems Protection Board

from any action which is appealable to the Board under any

law, rule, or regulation.” 5 U.S.C. § 7701(a). With some

exceptions not relevant here, the CSRA specifies that the

“actions covered” for purposes of the MSPB’s jurisdiction

are: “(1) a removal; (2) a suspension for more than 14 days;

(3) a reduction in grade; (4) a reduction in pay; and (5) a

furlough of 30 days or less.” Id. § 7512. These are the

“particularly serious” adverse personnel actions that we

referenced above. Kloeckner, 568 U.S. at 44.

CROWE V. WORMUTH 19

It is clear from the statute that in the absence of one of

the five qualifying “particularly serious” adverse actions, the

MSPB lacks jurisdiction. As we have stated, “[t]he MSPB

does not possess jurisdiction over claims that do not fall into

one of the five ‘adverse action’ categories outlined in 5

U.S.C. § 7512.” Sloan, 140 F.3d at 1260; see also

Kloeckner, 568 U.S. at 44 (explaining that the MSPB has

jurisdiction “[i]f (but only if)” the employment action is one

of the statutorily prescribed “particularly serious” actions).

There is no suggestion that Crowe’s pre-termination adverse

personnel actions fall into any of the five qualifying actions

set forth in § 7512. These actions on their own would not be

appealable to the MSPB.

The Army argues that in this case, however, Crowe was

required to bring these claims before the MSPB. Its theory

is one of pendent jurisdiction. The Army maintains that

because Crowe’s termination was a qualifying action over

which the MSPB had jurisdiction under § 7512, Crowe was

thereby required to exhaust before the MSPB any pre-

termination discrimination claims that were factually related

to his termination. According to the Army, “[w]here a

plaintiff initially filed an EEO complaint relating to matters

that eventually culminate in an action appealable to the

MSPB, and he subsequently appeals that matter to the MSPB

as a mixed case . . . , he is required to exhaust all related

claims . . . in the MSPB before filing a civil action.”

The problem with this argument is that it lacks any basis

in the text of the CSRA. “The Board has only that

jurisdiction conferred on it by Congress.” Cruz v. Dep’t of

Navy, 934 F.2d 1240, 1243 (Fed. Cir. 1991) (en banc).

When construing the jurisdictional limits Congress has

authored, we must give effect to the statute’s plain and

ordinary meaning, reading the language as a whole and

20 CROWE V. WORMUTH

evaluating the words used with an eye to the surrounding

textual context. E.g., S.F. Herring Ass’n v. U.S. Dep’t of the

Interior, 33 F.4th 1146, 1152 (9th Cir. 2022).

The CSRA spells out the MSPB’s jurisdiction over

mixed cases:

(a)(1) Notwithstanding any other provision

of law, and except as provided in paragraph (2)

of this subsection,[ 4] in the case of any employee

or applicant for employment who--

(A) has been affected by an action which

the employee or applicant may appeal to the

Merit Systems Protection Board, and

(B) alleges that a basis for the action was

discrimination prohibited by [one of several

antidiscrimination laws] . . .

the Board shall, within 120 days of the

filing of the appeal, decide both the issue of

discrimination and the appealable action in

accordance with the Board’s appellate

procedures under section 7701 of this title

and this section.

5 U.S.C. § 7702(a)(1).

Nothing in the text of this provision states that if the

MSPB has jurisdiction over a sufficiently serious adverse

employment action (like a termination), that it then has

4

The reference in § 7702 to “except as provided in paragraph (2) of this

subsection” does not carve out an exception to the MSPB’s jurisdiction.

It is merely a reference to the fact that the employee may initially pursue

his mixed case in his agency through the EEO process. See 5 U.S.C.

§ 7702(a)(2).

CROWE V. WORMUTH 21

pendent jurisdiction over claims for all other allegedly

discriminatory personnel decisions that are factually related

to the jurisdiction-enabling adverse action. Instead, the

statutory text in § 7702 runs directly counter to that

suggestion. Subsection (a)(1)(A) provides that for the

MSPB to have jurisdiction, the employee must “ha[ve] been

affected by an action which the employee or applicant may

appeal to the Merit Systems Protection Board.” Id.

§ 7702(a)(1)(A) (emphasis added). The MSPB in that

circumstance may then determine whether “a basis for the

action was discrimination prohibited by” various listed anti-

discrimination laws. Id. § 7702(a)(1)(B) (emphasis added).

The specific use of the singular—“the action”—is a clear

reference to the appealable “action” that gave rise to the

MSPB’s jurisdiction, that is, one of the specifically

identified “particularly serious” adverse employment actions

set forth in § 7512. Kloeckner, 568 U.S. at 44. The Army

points to the last part of § 7702(a)(1), which states that the

MSPB shall “decide both the issue of discrimination and the

appealable action.” 5 U.S.C. § 7702(a)(1) (emphasis added).

But the “issue of discrimination” is in context discrimination

in connection with “the action” that the employee is

permitted to appeal to the MSPB. It is not any issue of

discrimination, or any issue of discrimination that is

factually related to the appealable adverse action. The

statute does not say either of those things. Sections 7512 and

7702 are instead narrowly drawn to give the MSPB

jurisdiction to consider certain adverse personnel actions, as

well as unlawful discrimination in relation to those actions.

But here, the MSPB’s jurisdiction extends no further. If

Congress, contrary to § 7512, had wanted to give the MSPB

the authority to consider discrimination claims in connection

with lesser adverse employment actions over which it would

22 CROWE V. WORMUTH

otherwise lack jurisdiction, Congress “could have just said

so.” Kloeckner, 568 U.S. at 52.

Our construction of the statute makes some sense given

the role of the MSPB. The MSPB “was created to ensure

that all Federal government agencies follow Federal merit

systems practices.” 5 C.F.R. § 1200.1. But the MSPB’s

jurisdiction is reserved for the more significant adverse

employment actions. Kloeckner, 568 U.S. at 44. The

MSPB, tasked with monitoring the federal civil service rules,

Sloan, 140 F.3d at 1258–59, evaluates certain adverse

employment actions irrespective of the reasons why they

may be invalid. When federal employees allege wrongful

discrimination before the MSPB, courts have thus regularly

described these employees as raising an “affirmative

defense” to an adverse employment action. See, e.g., Jonson

v. FDIC, 877 F.3d 52, 56 n.5 (1st Cir. 2017); Diggs v. Dep’t

of Hous. & Urb. Dev., 670 F.3d 1353, 1355 (Fed. Cir. 2011)

(per curiam); Butler v. West, 164 F.3d 634, 636 (D.C. Cir.

1999); Williams v. Dep’t of Army, 715 F.2d 1485, 1487 (Fed.

Cir. 1983) (en banc). Indeed, before the MSPB, Crowe

himself described his alleged sexual orientation

discrimination as an “Affirmative Defense” to his removal.

It would be inconsistent with the long-held understandings

of the role of the MSPB and the function of the

discrimination objection in a mixed case appeal to treat

Crowe as having affirmative defenses to lesser personnel

decisions over which the MSPB does not have jurisdiction

in the first place.

In sum, neither the text nor structure of the CSRA

supports the theory that if the MSPB has jurisdiction over a

mixed case, it then has pendent jurisdiction to decide

factually related claims of discrimination associated with

personnel actions outside the list of “particularly serious”

CROWE V. WORMUTH 23

actions set forth in 5 U.S.C. § 7512. Such discrimination

claims must instead be exhausted through the EEO process.

C

Ninth Circuit precedent on the exhaustion question

before us is relatively limited, but our reading of the

statutory text is consistent with our case law. In particular,

our decision in Kerr v. Jewell, 836 F.3d 1048 (9th Cir. 2016),

is supportive of Crowe’s position. In that case, a federal

employee at the Fish and Wildlife Service (FWS) alleged

that, on the basis of her sex and religion, she was given a

poor performance review, a warning letter, and a 60-day

reassignment to a different duty station. Id. at 1050–51. She

also alleged that she was removed from employment for the

same discriminatory reasons. Id.

We explained that the plaintiff’s “Title VII claims

challenging the less serious personnel actions (the negative

performance evaluation, the warning letter, and the 60-day

detail) had to be presented to FWS’s EEO office.” Id. at

1055. But we noted that her “Title VII claims challenging

her removal (her mixed case) could have been presented

initially to either FWS’s EEO office or the MSPB.” Id.

(emphasis in original). Consistent with our interpretation of

the CSRA, Kerr did not treat as part of the employee’s mixed

case those discrimination claims that related to the lesser

adverse employment actions that were not otherwise within

the MSPB’s jurisdiction. And we adhered to that

understanding even though it is apparent that the various

claims of discrimination were all factually related. See id. at

1051–52.

Our decision in Sloan does not suggest any different

approach. Sloan did not involve the exhaustion of

administrative remedies. Regardless, as we noted above,

24 CROWE V. WORMUTH

Sloan specifically recognized that “[t]he MSPB does not

possess jurisdiction over claims that do not fall into one of

the five ‘adverse action’ categories outlined in 5 U.S.C.

§ 7512.” 140 F.3d at 1260. Sloan did note at one point that

“the MSPB may not exercise jurisdiction over a claim of

discrimination that is completely divorced from a personnel

action otherwise within its jurisdiction pursuant to § 7512.”

Id. That much, of course, is true. But Sloan did not suggest

that “complete divorcement” from an appealable claim was

the actual test for determining which claims could go to the

MSPB, such that discrimination claims that were factually

related to appealable claims were thereby within the MSPB’s

jurisdiction. Sloan does not imply that rule. Indeed, Sloan

does not speak to these issues at all. 5

In its discussion of the CSRA mixed case scheme, Sloan

twice cited the Eighth Circuit’s decision in McAdams v.

5

We note as well that the core holding of Sloan is no longer good law.

Sloan held that when the MSPB in a mixed case concludes that it lacks

jurisdiction, the matter is reviewable in the Federal Circuit, not the

district courts. 140 F.3d at 1262 (holding that “appeals of MSPB

jurisdictional decisions involving mixed claims are properly venued in

the Federal Circuit Court of Appeals”). For this, Sloan relied on, among

other authorities, Ballentine v. MSPB, 738 F.2d 1244, 1247 (Fed. Cir.

1984). See Sloan, 140 F.3d at 1261 & n.18. But in Perry, the Supreme

Court rejected this position, holding that just as the MSPB’s dismissals

of mixed cases on procedural grounds are reviewed in district courts and

not the Federal Circuit, see Kloeckner, 568 U.S. at 50, that “review route

remains the same when the MSPB types its dismissal of a mixed case as

‘jurisdictional.’” Perry, 582 U.S. at 423. Perry thus explicitly

“disapprove[d] Ballentine’s holding with respect to jurisdictional

dismissals.” Id. at 434 n.8. We have cited Sloan at several points in our

decision here because it contains a helpful overview of the general

statutory and regulatory scheme governing mixed cases. All the points

for which we have cited Sloan remain good law. But Sloan’s actual rule

of decision does not.

CROWE V. WORMUTH 25

Reno, 64 F.3d 1137 (8th Cir. 1995), including on the

“completely divorced” point. See Sloan, 140 F.3d at 1259–

60. McAdams, like many cases in this area, involved a

complex procedural history. But as relevant here, McAdams

held that a federal employee had failed to exhaust a Title VII

hostile work environment claim because she did not raise it

before the MSPB. 64 F.3d at 1142–43. The plaintiff had

brought before the MSPB claims relating to her demotion

and removal, which were within the MSPB’s jurisdiction.

Id. at 1143. The Eighth Circuit held that the plaintiff should

also have brought her hostile work environment claim before

the MSPB because it was “related to, and nearly dependent

on, two appealable actions,” i.e., the demotion and removal.

Id.; see also id. (noting that the plaintiff’s “EEO complaints

and the Title VII claims in this case raised similar issues

arising out of overlapping facts”).

The situation would be different, the Eighth Circuit

allowed, “[i]f a harassment or hostile work environment

claim is not related to an appealable action,” in which case

“separate EEO and MSPB actions would be appropriate.”

Id. at 1144. But because the plaintiff’s hostile work

environment claim was factually intertwined with the

removal and demotion claims over which the MSPB had

jurisdiction, McAdams held that the plaintiff was also

required to raise her hostile work environment claim before

the MSPB.

Although we do not lightly disagree with another circuit,

McAdams is not persuasive, and we respectfully decline to

follow it. McAdams did not even attempt to locate its

“factual relatedness” test in the text of the CSRA. Nor did it

cite any authority supporting its expansive view of the

MSPB’s jurisdiction. McAdams was also decided in 1995,

well before the EEOC and MSPB issued decisions (which

26 CROWE V. WORMUTH

we discuss below) that adopted the same general approach

we adopt here. McAdams thus lacked the benefit of these

agency decisions, which we find persuasive. Our decision

in Sloan did, as we have noted, cite McAdams. See Sloan,

140 F.3d at 1259–60. But Sloan did not embrace

McAdams’s “relatedness” test, nor could it have done so,

since the case did not involve these exhaustion issues. 6

D

Our reading of the CSRA also aligns with the guidance

and precedents of both the MSPB and EEOC—the agencies

that most frequently deal with these issues. After some

initial uncertainty, the agencies have generally coalesced

around the position we adopt here.

Initially, the EEOC provided guidance more consistent

with the Eighth Circuit’s approach. In a 1999 Management

Directive 110 sent to government agencies, the EEOC

explained that:

Where a complainant has pending a non-

mixed case complaint or a series of non-

mixed case complaints and the claims raised

in those complaints are inextricably

intertwined with an appeal on a claim that

is appealable to the MSPB

6

In Chappell v. Chao, 388 F.3d 1373, 1377–79 (11th Cir. 2004), the

Eleventh Circuit favorably cited McAdams’s “factual relatedness”

approach. But Chappell concerned the different issue of whether a

plaintiff waived the right to proceed with discrimination claims in federal

district court when he appealed the non-discrimination aspect of his

mixed case to the Federal Circuit. Id. at 1378–79. That scenario is not

presented here. Chappell also pre-dated most of the MSPB and EEOC

decisions and guidance that we discuss next.

CROWE V. WORMUTH 27

The agency should file with the MSPB a

motion to consolidate the non-mixed case

claim with the mixed case appeal. . . . This

provision is specifically meant to address

those situations where a series of events,

connected in time or type, culminate in an

appealable action against a person with

standing to appeal to the MSPB. For

example: minor discipline, warnings or other

claims may form the basis for a non-mixed

case, but ultimately lead to suspension in

excess of 14 days or termination; similarly,

an allegedly discriminatory performance

evaluation and subsequent placement on a

performance improvement plan are non-

mixed claims that may culminate in denial of

a within-grade promotion, or even in

removal, both of which are appealable to the

MSPB.

EEOC, Equal Employment Opportunity Management

Directive for 29 C.F.R. Part 1614, at ch. 4, pt. II.B.4.d & n.4

(1999) (“1999 EEO-MD-110”).

In 2003, however, the EEOC changed course. In a

Management Bulletin, the EEOC explained that it “ha[d]

been notified by the MSPB” that the directive in its 1999

EEO-MD-110—to consolidate in the MSPB non-mixed case

complaints with factually related mixed case appeals—was

“improper procedurally, in that it constitutes a request for an

MSPB Judge to hear matters which may not be within the

jurisdiction of the MSPB.” See EEOC, Management

Bulletin 100-1 (Oct. 24, 2003) (“MB 100-1”). As a result of

the MSPB’s notification, the EEOC issued Management

28 CROWE V. WORMUTH

Bulletin 100-1 (MB 100-1), which specifically instructed

agencies to “immediately delete” the implicated language

from their existing copies of the 1999 EEO-MD-110. Id.

The EEOC provided a further update to its guidance in

the 2015 revisions to Management Directive 110. EEOC,

Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614, (rev. 2015) (“2015 EEO-MD-110”).

This new version provides that, for the mixed case

regulations to apply, “the claim that forms the basis of the

discrimination complaint must be appealable to the MSPB.”

Id. at ch. 4, pt. II.B. This Directive makes clear that the

MSPB’s jurisdiction over appealable matters does not

extend to related non-appealable matters. Id. (citing EEOC

precedent that “essentially overturned the doctrine of

inextricably intertwined”).

Meanwhile, in 2005, the MSPB formally rejected the

“inextricably intertwined” doctrine that the Army would

have us adopt. In Lethridge v. United States Postal Service,

99 M.S.P.R. 675 (M.S.P.B. 2005), the federal employee

appealed to the MSPB following his removal from the Postal

Service, alleging disability discrimination. Id. at 676. The

employee had also filed three related EEO complaints

alleging discrimination in connection with (1) the denial of

a reasonable accommodation and placement in a non-pay

status, (2) the ending of his detail assignment, his supervisor

calling him a “bastard,” and his being informed of his

impending termination, and (3) a notice of proposed

removal. Id. at 676–77. The EEOC consolidated the EEO

complaints and ruled that they “cannot sensibly be

disassociated from the termination claim” pending before

the MSPB, “and that the entire matter must be referred to the

MSPB.” Id. at 677–78. The employee then submitted the

claims to the MSPB.

CROWE V. WORMUTH 29

In a precedential opinion, an MSPB appellate panel held

that the MSPB lacked jurisdiction over all three claims. Id.

at 678–81. Just as we reasoned above, the MSPB found

“nothing in the plain language of sections [5 U.S.C. §§]

7512, 7513(d), and 7702(a)(1), that suggests that the Board

has jurisdiction over otherwise non-appealable actions, such

as those at issue here, when those actions are allegedly

‘inextricably intertwined,’ or ‘cannot sensibly be

bifurcated,’ with otherwise appealable actions.” Id. at 679.

Or, put another way, “section 7702(a)(1) provides that the

Board shall decide the issue of discrimination ‘and the

appealable action,’ not issues of discrimination in

connection with non-appealable actions.” Id.

Lethridge also located its rule in other sources beyond

the statutory text. It relied on the CSRA’s legislative history,

which indicated that “‘[i]n the case of discrimination

complaints involving personnel actions not otherwise

appealable to the Board, the Commission [EEOC] will have

full responsibility for deciding the matter,’ and that ‘[t]he

jurisdiction of the Board is determined entirely by the nature

of the personnel action taken, not by the kind of legal or

factual arguments raised or the procedures used to raise the

discrimination issue.’” Id. at 679–80 (alterations in original)

(quoting S. Rep. No. 95–969, at 53, 56 (1978), as reprinted

in 1978 U.S.C.C.A.N. 2775, 2778). Lethridge further relied

on the fact that, as we discussed above, the EEOC in 2003

had changed its own guidance, withdrawing its prior

directive that claims relating to otherwise non-appealable

matters be consolidated in the MSPB with factually related

appealable claims. Id. at 680.

Lethridge recognized that there may be “valid policy

reasons for the [MSPB] to consider non-appealable actions

with appealable actions, such as the avoidance of allegedly

30 CROWE V. WORMUTH

inconsistent results.” Id. But this did not change matters

because “the Board cannot expand its limited jurisdiction to

address those policy concerns.” Id. Lethridge did go on to

state that “[i]n any event, we find that there are distinct

actions at issue in the appellant’s EEO complaints and his

[MSPB] appeal that, if adjudicated, would not necessarily

produce inconsistent results.” Id. But this aside does not

take away from Lethridge’s clear holding that the MSPB

lacked pendent jurisdiction over otherwise non-appealable

matters, even if factually related to an appealable claim.

Later decisions from the MSPB follow this rule from

Lethridge. See, e.g., Desjardin v. U.S. Postal Serv., 2023

WL 2170811, at ¶ 25 (M.S.P.B. Feb. 22, 2023);

McDermott v. U.S. Postal Serv., 2015 WL 5943662, at

¶¶ 26–28 (M.S.P.B. Oct. 13, 2015); Webster v. Dep’t of

Energy, 2015 WL 4069357, at ¶¶ 44–45 (M.S.P.B. July 6,

2015); Wilson v. Dep’t of Veterans Affs., 2006 WL 1375031,

at ¶¶ 8, 13 (M.S.P.B. May 11, 2006). Of course, to the extent

there is any imprecision within the MSPB’s decisions post-

Lethridge, our decision today may provide occasion for the

MSPB to consider whether to issue clearer guidance to those

whom it serves.

In its briefing, the Army identified a few EEOC

decisions in which the EEOC referenced the “inextricably

intertwined” doctrine, notwithstanding its contrary 2003

Management Bulletin and 2015 Management Directive.

See, e.g., Venetta S., Complainant, EEOC DOC

2020000414, 2020 WL 5994724 (Sept. 9, 2020); Belkis D.,

Complainant, EEOC DOC 2021000093, 2021 WL 1072293

(Mar. 2, 2021); Maximo S., Complainant, EEOC DOC

2020003877, 2020 WL 6165645 (Oct. 7, 2020).

CROWE V. WORMUTH 31

But, in addition to the formal directives we discussed

above, other recent EEOC decisions explicitly reject the

doctrine. See, e.g., Melani F., Complainant, EEOC DOC

2022002288, 2022 WL 3153835 (July 19, 2022) (“[T]he

doctrine of ‘inextricably intertwined’ is no longer applicable

in most circumstances because the MSPB generally does not

have jurisdiction over non-appealable matters, even if they

are related to appealable matters.”); Willia M., Complainant,

EEOC DOC 0120181909, 2019 WL 1397652 (Mar. 15,

2019) (“[T]he doctrine of ‘inextricably intertwined’ was

overturned because the MSPB generally does not have

jurisdiction over non-appealable matters, even if they are

related to appealable matters.”).

In sum, it appears that both the MSPB and the EEOC

have now for some time (if not with perfect consistency)

taken the position that the MSPB does not have jurisdiction

over otherwise non-appealable employment actions that may

be factually related to an appealable one. We do not give

these agency decisions any deference, nor do we defer to the

MSPB’s amicus brief in this case. Because we find the

general positions of the MSPB and EEOC persuasive, we

have no occasion to decide whether any deference might be

warranted. The MSPB’s interpretation of the text of the

CSRA in Lethridge mirrors our own. And the general

approach that both agencies have now long followed is the

approach we adopt here.

E

That the MSPB and EEOC share our view of the

statutory scheme leads to some important practical benefits.

Although we could not endorse agency practice if it were

contrary to the text of the statute, a welcome consequence of

our decision today is that it does not upend what is now at

32 CROWE V. WORMUTH

least two decades of MSPB and EEOC guidance and rulings

on the question of whether factually related discrimination

claims may be swept in to the MSPB’s mixed case

jurisdiction.

This also means that if a federal employee files in the

MSPB a mixed case appeal along with other claims over

which the MSPB lacks jurisdiction, the MSPB can be

expected to direct the employee to re-file the non-appealable

claims in the EEO process. See 29 C.F.R. § 1614.302(b).

As we noted in Sloan, “[o]rdinarily, if the MSPB finds it

lacks jurisdiction over either the entire case, or over one of

the claims, it will dismiss the complaint and/or claims” and

“advise the employee to seek appropriate review of any

extra-jurisdictional non-discrimination claims through other

channels,” including EEO administrative procedures. 140

F.3d at 1260–61.

We understand that there are some potential practical

downsides to our interpretation of the statute, most notably

that factually related claims may need to be brought before

both the EEO offices and the MSPB, to the extent employees

wish to pursue mixed case appeals before the MPSB. Even

though the MSPB’s jurisdiction is limited to adjudicating

appealable actions, it appears the MSPB will consider other

agency actions as evidence in deciding whether the

appealable action was discriminatory. See, e.g., Desjardin,

2023 WL 2170811, at *7. The MSPB acknowledged the

same point at oral argument. Stays of administrative

proceedings may ameliorate some of the difficulties

associated with raising factually related claims before both

an EEO office and the MSPB, and we understand that such

stays are sometimes entered when an employee has factually

related claims pending in multiple administrative fora. But

even so, one could reasonably argue that if the employee

CROWE V. WORMUTH 33

with a mixed case is going to proceed before the MSPB, it

would be more efficient if all the claims—appealable claims

and factually related claims—could all be administratively

exhausted before that entity.

There is, however, a simple answer to this: our role is not

to devise a “better” administrative scheme than the one

Congress enacted. “[P]ractical difficulties . . . do not justify

departure from the [statute’s] plain text.” E.P.A. v. EME

Homer City Generation, L.P., 572 U.S. 489, 509 (2014).

Congress clearly envisioned a division of responsibility

between the MSPB and EEO offices, such that federal

employees would need to raise some types of claims before

one or the other. All we have done is give effect to

Congress’s twin choices to limit the MSPB’s jurisdiction to

certain “particularly serious” adverse employment actions, 5

U.S.C. § 7512; Kloeckner, 568 U.S. at 44, and to tie the

MSPB’s authority over claims of discrimination to those

specific types of employment actions over which the MSPB

has jurisdiction, 5 U.S.C. § 7702(a)(1).

We cannot speculate why Congress may have set things

up this way. To the extent the “mixed case” regime was

intended to avoid “protract[ed] proceedings” and

“increas[ed] costs,” Perry, 582 U.S. at 423, one can

reasonably question whether the complex legal architecture

in this area is serving those objectives. But we note that in

this instance, there is possible logic behind Congress’s setup:

it is at least a clear rule. If an employee wants to bring a

mixed case appeal before the MSPB, it must concern one of

the five “particularly serious” adverse employment actions

in 5 U.S.C. § 7512, full stop. Discrimination claims

concerning other lesser employment actions must go through

the EEO process. The regime may seem arbitrary, but if two

administrative bodies are to be involved, it is at least

34 CROWE V. WORMUTH

apparent which claims may be taken to which forum. To this

point, we note that after some initial confusion before he

obtained counsel, Crowe properly navigated this

administrative regime.

There is, meanwhile, a significant downside of a

McAdams-style “factually related” or “inextricably

intertwined” test: it may often be unclear when such a test is

met. Employees who suffer one of the five “particularly

serious” adverse actions within the MSPB’s jurisdiction may

view those employment decisions as arising from a series of

perceived indignities, demerits, and workplace issues that

occur over time. In each case, this would present the

question of just how related these other actions must be to

the more serious action that enabled the MSPB’s

jurisdiction. That uncertain inquiry could well lead to

confusion over where claims should be exhausted.

Especially considering that many CSRA claimants are

unrepresented in the administrative process, see Perry, 582

U.S. at 423 n.1, a regime that turns on a “factually related”

standard could fail to provide “clear guidance about the

proper forum for the employee’s claims at the outset of the

case.” Elgin, 567 U.S. at 15. But in any event, whether the

statute reflects sound policy or not, we must interpret it

according to its terms. That is what we have done here.

F

We now apply our interpretation of the CSRA and

implementing regulations to Crowe’s claims of pre-

termination discrimination. These adverse personnel actions

again consist of the following: the Army’s investigation into

Crowe; his temporary reassignment to administrative duties

and related removal of his police powers (including

deprivation of overtime); and his proposed termination.

CROWE V. WORMUTH 35

None of these adverse actions is among the five “particularly

serious” actions over which the MSPB has jurisdiction in

mixed cases. 5 U.S.C. §§ 7512; 7702(a)(1); Kloeckner, 568

U.S. at 44.

We therefore hold that Crowe did not fail to exhaust

these claims before the MSPB because the MSPB lacked

jurisdiction to consider them. Under the statute, Crowe is

properly understood not as having impermissibly pursued a

“mixed case complaint” and a “mixed case appeal” “on the

same matter,” 29 C.F.R. § 1614.302(b), but as having

permissibly pursued a “mixed case appeal” and several non-

mixed EEO complaints. Crowe accomplished this result

once he withdrew his termination claim from the EEO

process and re-filed it before the MSPB as a mixed case

appeal.

In the case of Crowe’s proposed termination, we note

that there is some authority from the EEOC suggesting that,

notwithstanding the EEOC’s rejection of the “inextricably

intertwined” doctrine, a proposed termination is nonetheless

part of the mixed case and within the MSPB’s jurisdiction.

See, e.g., Robert L. Wilson, Complainant, EEOC DOC

0120122103, 2012 WL 4320987 at *2 (Sept. 10, 2012) (“The

doctrine of inextricably intertwined was effectively

overturned . . . . We note, however, that a proposed action

merges with the decision on an appealable action, i.e., a

proposed removal merges into a decision to remove.”); see

also EEO MD-110 at Ch. 4 § II.B.4.d (2015).

The MSPB takes a different view. In Lethridge, the

MSPB held that it lacked jurisdiction to hear the employee’s

claim that his proposed removal was based on

discrimination. 99 M.S.P.R. at 681. The MSPB disagreed

that it could consider the employee’s proposed removal on

36 CROWE V. WORMUTH

the theory that it “was intertwined with the agency’s ultimate

removal action over which the Board has jurisdiction,”

because “the applicable statutes limit the Board’s

jurisdiction to removals, not proposed removals.” Id. The

MSPB also cited authority from the Federal Circuit holding

the same. See Cruz, 934 F.2d at 1243 (“Because mere

proposals to remove are not listed in § 7512, they are not

appealable adverse actions in themselves and the Board has

no jurisdiction to consider them.”).

The MSPB’s position is the correct one: under the

CSRA, the MSPB lacks jurisdiction to adjudicate claims of

discrimination for proposed removals, and so Crowe was not

required to exhaust this claim before the MSPB. The same

is true of Crowe’s other pre-termination claims.

III

We have thus far limited our discussion of exhaustion to

Crowe’s pre-termination discrimination claims, but there is

another exhaustion issue we must also resolve. In

challenging his termination before the MSPB, the only form

of discrimination Crowe alleged as an affirmative defense

was sexual orientation discrimination. In the district court,

it appears that Crowe tried to broaden his allegations,

claiming that the Army also terminated him because of his

race, sex, and in retaliation for complaining about Officer

Oda’s use of a homophobic slur. To the extent Crowe is now

trying to argue that he was terminated for discriminatory

reasons other than his sexual orientation, we hold that Crowe

failed to exhaust these theories before the MSPB.

Having chosen to challenge his termination in a mixed

case appeal before the MSPB, Crowe was required to raise

before that body all theories of discrimination that he

believed applied to that appealable personnel decision. This

CROWE V. WORMUTH 37

obligation, known as “issue exhaustion,” is “commonly

require[d]” in administrative review schemes. Carr v. Saul,

141 S. Ct. 1352, 1358 (2021). Courts will sometimes require

issue exhaustion even “[w]here statutes and regulations are

silent.” Id. But “it is common for an agency’s regulations

to require issue exhaustion in administrative appeals,” and

“when regulations do so, courts reviewing agency action

regularly ensure against the bypassing of that requirement by

refusing to consider unexhausted issues.” Sims v. Apfel, 530

U.S. 103, 108 (2000); see also Sears, Roebuck & Co. v. FTC,

676 F.2d 385, 398 (9th Cir. 1982) (“Exhaustion rules insure

an adequate record, prevent surprise, and avoid the

application of judicial resources to matters which might be

resolvable at the agency level. . . . [A]bsent exceptional

circumstances, a reviewing court will refuse to consider

contentions not presented before the administrative

proceeding at the appropriate time.” (quotation omitted)).

Here, the MSPB has promulgated regulations requiring

issue exhaustion. See 5 C.F.R. § 1201.59(c). 7 Under those

regulations, the MSPB “generally does not accept arguments

raised after the close of the record before the administrative

judge.” McClenning v. Dep’t of the Army, 2022 WL 985905

at *3 (M.S.P.B. Mar. 31, 2022) (citing 5 C.F.R.

§ 1201.59(c)). Based on these regulations, the MSPB

requires a claimant to exhaust an issue before an AJ before

the full Board’s review panel will consider it. Id. at *3–6.

Additionally, the Federal Circuit requires issue exhaustion

7

That regulation provides that “[o]nce the record closes, additional

evidence or argument will ordinarily not be accepted unless: (1) The

party submitting it shows that the evidence or argument was not readily

available before the record closed; or (2) It is in rebuttal to new evidence

or argument submitted by the other party just before the record closed.”

5 C.F.R. § 1201.59(c).

38 CROWE V. WORMUTH

in appeals from the MSPB. See, e.g., Bosley v. MSPB, 162

F.3d 665, 668 (Fed. Cir. 1998) (“[I]f the party fails to raise

an issue in the administrative proceeding or raises an issue

for the first time in a petition for review by the full Board,

this court will not consider the issue.”). For the same

reasons, we conclude that an employee who pursues his

mixed case in the MSPB and who seeks judicial review in

the district court must first exhaust any theories of

discrimination as to adverse employment actions over which

the MSPB would have had jurisdiction.

To hold otherwise would compromise the statutory

scheme. The entire structure of the “comprehensive system”

that the CSRA creates, Elgin, 567 U.S. at 5—with its several

layers of administrative and judicial review—presupposes

that each step in the administrative (and judicial) process

will build on the last. If an employee could bolster his mixed

case in the district court with new theories never presented

to the MSPB, the CSRA’s extensive framework of

administrative review would be rendered irrelevant as soon

as the employee moved on to federal court. Congress surely

did not construct this administrative labyrinth just for fun.

Having determined that issue exhaustion is required in

MSPB proceedings, we conclude that Crowe failed to

comply with this requirement for his theories that his

termination was based on sex and race discrimination and in

retaliation for protected activity. Even if Crowe raised these

claims in the EEO process when he amended his EEO

complaint to encompass his termination, Crowe voluntarily

moved to dismiss his termination-based claims from his

EEO complaint shortly thereafter so that he could raise them

before the MSPB as a mixed case appeal. Crowe thus did

not exhaust those claims through the EEO process (and

could not have done so once he elected to pursue his mixed

CROWE V. WORMUTH 39

case before the MSPB, see 29 C.F.R. § 1614.302(b)). Nor

did Crowe exhaust these claims in his MSPB appeal. The

only discrimination claim Crowe asserted there was a claim

of sexual orientation discrimination. 8 We thus hold that any

other theories of discrimination that Crowe may wish to raise

as to his termination are unexhausted.

IV

We now switch gears and turn to the one Title VII claim

that the district court found exhausted and addressed on the

merits: Crowe’s claim that he was terminated based on his

sexual orientation. We review the district court’s grant of

summary judgment to the Army de novo. Silverado

Hospice, Inc. v. Becerra, 42 F.4th 1112, 1118 (9th Cir.

2022). We construe the facts in the light most favorable to

Crowe as the nonmoving party and determine if there is any

genuine dispute of material fact. Fed. R. Civ. P. 56(a);

O’Doan v. Sanford, 991 F.3d 1027, 1035 (9th Cir. 2021).

“Where the record taken as a whole could not lead a rational

trier of fact to find for the non-moving party, there is no

‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First

8

Based on selective quotations from the MSPB AJ’s initial decision and

isolated statements Crowe’s counsel made during the MSPB hearing,

Crowe argues that he raised his termination-based retaliation claim

before the MSPB. We reject this argument. Although the AJ

occasionally used the term “retaliation” in her decision, including when

discussing general legal standards, the AJ never addressed whether the

Army retaliated against Crowe for reporting Officer Oda, further

supporting that Crowe did not present such a theory to the MSPB. That

Crowe’s counsel fleetingly mentioned retaliation a few times during a

three-day hearing was also not sufficient to raise the issue before the

MSPB.

40 CROWE V. WORMUTH

Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289

(1968)).

To make out a prima facie case of discrimination under

Title VII, the plaintiff may invoke the burden-shifting

framework of McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973), and demonstrate that “(1) he belongs to a

protected class; (2) he was qualified for the position; (3) he

was subject to an adverse employment action; and (4)

similarly situated persons outside his protected class were

treated more favorably.” Chuang v. Univ. of Cal. Davis, Bd.

of Trs., 225 F.3d 1115, 1123 (9th Cir. 2000). The plaintiff

may “alternatively offer direct or circumstantial evidence of

discriminatory motive to establish her prima facie case.”

Opara v. Yellen, 57 F.4th 709, 722 (9th Cir. 2023). Once the

plaintiff makes out a prima facie case, the burden shifts to

the employer to articulate a legitimate, nondiscriminatory

reason for the adverse employment action. McDonnell

Douglas, 411 U.S. at 802. Assuming the employer does so,

the burden then shifts back to the plaintiff to show that the

employer’s asserted nondiscriminatory reason is pretextual.

Id. at 804.

The Supreme Court has now held that sexual orientation

discrimination is actionable under Title VII. See Bostock v.

Clayton Cnty., Ga., 140 S. Ct. 1731, 1737 (2020). But we

agree with the district court that the Army is entitled to

summary judgment on this claim. Although the district court

concluded that Crowe’s showing was so insufficient that he

had not even made out a prima facie case, we will assume

without deciding that he has. See, e.g., Hawn v. Exec. Jet.

Mgmt., Inc., 615 F.3d 1151, 1158 (9th Cir. 2010) (“[A]

plaintiff’s burden is much less at the prima facie stage than

at the pretext stage.”).

CROWE V. WORMUTH 41

Even so, the Army has clearly articulated sufficient, non-

discriminatory reasons for removing Crowe based on his

inappropriate workplace conduct. This principally included:

regularly having sex with Garcia in a room at the TAMC

during work hours; spending long periods of time gossiping

with other employees while on duty; having inappropriate

discussions with other employees about his romantic

relationships; and confronting James Sewell about an

alleged relationship with Garcia. It goes without saying that

instances of workplace misconduct such as these quite

plainly satisfy the Army’s burden to produce evidence of

valid, non-discriminatory reasons for terminating an

employee.

The burden thus shifts back to Crowe to show pretext.

He may do so “(1) directly, by showing that unlawful

discrimination more likely than not motivated the

employer,” and/or “(2) indirectly, by showing that the

employer’s proffered explanation is unworthy of credence

because it is internally inconsistent or otherwise not

believable.” Opara, 57 F.4th at 723 (quoting Chuang, 225

F.3d at 1127) (alterations and quotations omitted). Crowe

concentrates his pretext argument on Officer Oda’s

inappropriate comments and Oda’s later role in interviewing

employees for the investigation into Crowe’s workplace

behavior. But we agree with the district court that there is

no genuine issue of material fact as to whether the Army’s

decision to terminate Crowe was pretextual.

Although Officer Oda conducted the interviews, he acted

at the direction of Supervisory Officer Ballesteros. It was

Ballesteros who decided to issue the notice of proposed

removal to Crowe. And it was Deputy Provost Marshal

Ingebredtsen who, after consulting with a subject-matter

expert from the Civilian Personnel Office, made the

42 CROWE V. WORMUTH

independent decision to terminate Crowe’s federal

employment. There is no evidence that either Ballesteros or

Ingebredtsen harbored animus toward Crowe based on his

sexual orientation. Indeed, there is no evidence that either

man knew at the relevant times that Crowe was bisexual. See

Steckl v. Motorola, Inc., 703 F.2d 392, 393 (9th Cir. 1983)

(“mere assertions” of “discriminatory motivation and intent”

are “inadequate, without substantial factual evidence, to

raise an issue precluding summary judgment”). Regardless,

it is undisputed that when Crowe early on complained about

Oda’s homophobic language, Ballesteros took immediate

action, counseling Oda that this was inappropriate and

requiring Oda to apologize to Crowe.

To the extent Crowe argues that derogatory remarks

always create a dispute of material fact as to unlawful

discrimination regardless of the rest of the circumstances,

our cases show that is not correct. See, e.g., Kortan v. Cal.

Youth Auth., 217 F.3d 1104, 1110–11, (9th Cir. 2000)

(holding that a supervisor’s usage of highly inappropriate

sexist comments was not “frequent, severe or abusive

enough to interfere unreasonably with [the plaintiff’s]

employment”); Vasquez v. County of Los Angeles, 349 F.3d

634, 642–44 (9th Cir. 2003), as amended (Jan. 2, 2004)

(holding that racist comments were “not severe or pervasive

enough” to create a dispute of fact).

In short, there is no genuine dispute of material fact that

Crowe was terminated because of his misconduct at the

workplace, as opposed to his sexual orientation.

V

We turn lastly to Crowe’s challenge to the MSPB’s

decision rejecting Crowe’s claim under the CSRA and

upholding his termination as supported by sufficient

CROWE V. WORMUTH 43

evidence. Because Crowe’s case before the MSPB was a

mixed case, and because Crowe continued to challenge the

discrimination component of that decision, Crowe properly

sought review of the MSPB’s resolution of his CSRA claim

in the district court. Perry, 582 U.S. at 426 & n.3;

Washington, 10 F.3d at 1428.

Our review of the MSPB’s decision on Crowe’s CSRA

claim is deferential. We will not set it aside unless it is “(1)

arbitrary, capricious, an abuse of discretion, or otherwise not

in accordance with law; (2) obtained without procedures

required by law, rule, or regulation having been followed; or

(3) unsupported by substantial evidence.” Sloan, 140 F.3d

at 1260 & n.16 (quoting 5 U.S.C. § 7703(c)); see also

Washington, 10 F.3d at 1428.

Crowe has not demonstrated infirmity in the MSPB’s

resolution of his CSRA claim. Crowe’s only argument is

that the MSPB failed adequately to account for the fact that

Garcia—who testified that she regularly had sex with Crowe

while he was on duty—recanted her testimony and then

ultimately recanted her recantation after the Army proposed

firing her for making false statements. But the MSPB

Administrative Judge (AJ) considered Garcia’s

recantation(s) and found that her testimony about her sexual

encounters with Crowe at TAMC was “unequivocal,

detailed, internally consistent, [and] consistent with the

record.” Further, while Garcia was “sincere and forthright,”

Crowe’s “self-serving testimony” was not believable.

The AJ gave specific reasons for crediting Garcia’s

original statement over her recantation, including that the

original statement was “likely made before Garcia fully

understood the impact that her statement would have on both

[Crowe] and herself,” whereas her recantation “appear[ed]

44 CROWE V. WORMUTH

more calculated and motivated by the exigencies of the

circumstances in which she found herself at that time.” The

AJ also found that Garcia’s testimony was supported by the

statements of Tabangeura and Sam.

“Special deference” is given to the AJ’s “credibility

judgments.” Curran v. Dep’t of the Treasury, 714 F.2d 913,

915 (9th Cir. 1983). We conclude that substantial evidence

supports the MSPB’s finding that Crowe regularly had sex

at TAMC during work hours. Crowe’s CSRA claim thus

fails.

* * *

To summarize our holdings: (1) we vacate the district

court’s decision that Crowe failed to exhaust administrative

remedies before the MSPB with respect to his claims of pre-

termination adverse employment actions, and we remand

these claims for further proceedings; (2) we affirm the

district court’s determination that Crowe failed to exhaust

before the MSPB any other discriminatory grounds for his

termination besides sexual orientation discrimination; (3) we

affirm the district court’s grant of summary judgment to the

Army on Crowe’s Title VII claim alleging he was terminated

because of his sexual orientation; and (4) we affirm the

district court’s grant of summary judgment to the Army on

Crowe’s CSRA claim. The parties shall bear their own costs

on appeal.

AFFIRMED in part, VACATED in part, and

REMANDED.

CROWE V. WORMUTH 45

SCHROEDER, Circuit Judge, concurring:

I agree with the majority’s outcomes, including its

conclusion to remand the pre-termination claims to the

district court. Given the Merit Systems Protection Board’s

(“MSPB”) position that it will not decide any of plaintiff’s

claims other than the termination claim, no matter how

closely related, we should not penalize the plaintiff for

seeking to litigate them elsewhere. At the same time, I fully

understand why the district court followed the only circuit

decision on point. See McAdams v. Reno, 64 F.3d 1137 (8th

Cir. 1995). The court had little choice. As the majority

points out, the MSPB had fully articulated its position in

Lethridge v. United States Postal Service, 99 M.S.P.R. 675

(M.S.P.B. 2005). That decision was not before the district

court, even though the plaintiff’s position was consistent

with it. Indeed we did not have the benefit of that decision

until after oral argument in this appeal, when the MSPB

appeared as an amicus and we ordered re-argument. And,

importantly, because the conflict was not apparent until after

oral argument, the Department of Justice never had an

opportunity to review the situation to guard against

intergovernmental conflicts.

The unfortunate situation we face now is that two

government entities are taking opposing positions with

respect to the district court’s jurisdiction to hear the pre-

termination claims. Aware of the MSPB’s position, the

plaintiff has made a reasonable decision to seek a district

court forum to litigate those claims. They include claims for

damages that are independent of the damages sought in the

termination claim, although all claims arise out of the same

factual nexus.

46 CROWE V. WORMUTH

Whether the MSPB’s position on its jurisdiction is

correct as a matter of law, I am uncertain. The majority notes

there are downsides, and that is an understatement.

Litigating related claims, stemming from the same facts, in

two different forums, is expensive, time consuming, and can

yield inconsistent results. Our civil litigation rules require

such claims to be tried together. See Fed. R. Civ. 13(a). We

are creating a circuit split that exacerbates this uncertainty,

but, viewed most optimistically, may permit the Department

of Justice to review this legal disarray and live up to its

mission that the government “speaks with one voice in its

view of the law.” See About the Division, U.S. Dep’t of

Justice, Civ. Div. (2023), https://www.justice.gov/civil.

This case illustrates why that is a worthy goal.