Steven W. Crowe v. CHRISTINE WORMUTH, Secretary of the Army

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN W. CROWE,
Plaintiff-Appellant,
v.
CHRISTINE WORMUTH, Secretary
of the Army,
Defendant-Appellee,
RYAN D. MCCARTHY,
Defendant-Appellee,
and
MARK T. ESPER, Secretary of the
Army, sued in his official capacity,
Defendant.
No. 21-15802
D.C. No.
1:18-cv-00288-
ACK-RT
OPINION
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Submission Withdrawn January 5, 2023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

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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.

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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

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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.

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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

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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

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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

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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

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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.

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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.

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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.

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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

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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

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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.

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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

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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.

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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.

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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.

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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

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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).

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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

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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”

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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,

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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.

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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

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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.

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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

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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.

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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

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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).

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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

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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

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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

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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.

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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

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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

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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).

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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

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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.

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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.”).

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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

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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

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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]

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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.

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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.

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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.

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