Opinion

Sharon Seymour v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Jun 26, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 29.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SHARON A. SEYMOUR, DOCKET NUMBER

Appellant, CH-0752-20-0425-I-1

DEPARTMENT OF VETERANS DATE: June 26, 2024

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Sharon A. Seymour , Chicago, Illinois, pro se.

Jason Rudie , Minneapolis, Minnesota, for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member

FINAL ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed her mixed-case appeal as untimely filed. Generally, we grant petitions

such as this one only in the following circumstances: the initial decision contains

erroneous findings of material fact; the initial decision is based on an erroneous

A nonprecedential order is one that the Board has determined does not add

significantly to the body of MSPB case law. Parties may cite nonprecedential orders,

but such orders have no precedential value; the Board and administrative judges are not

required to follow or distinguish them in any future decisions. In contrast, a

precedential decision issued as an Opinion and Order has been identified by the Board

as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).

interpretation of statute or regulation or the erroneous application of the law to

the facts of the case; the administrative judge’s rulings during either the course of

the appeal or the initial decision were not consistent with required procedures or

involved an abuse of discretion, and the resulting error affected the outcome of

the case; or new and material evidence or legal argument is available that, despite

the petitioner’s due diligence, was not available when the record closed. Title 5

of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).

After fully considering the filings in this appeal, we conclude that the petitioner

has not established any basis under section 1201.115 for granting the petition for

review. Therefore, we DENY the petition for review. Except as expressly

MODIFIED to clarify the length of the filing delay, we AFFIRM the initial

decision.

BACKGROUND

Effective October 4, 2018, the appellant resigned from the position of

Accounts Receivable Technician. Initial Appeal File (IAF), Tab 10 at 25.

Thereafter, she filed a formal equal employment opportunity (EEO) complaint,

alleging that she had been subjected to a hostile work environment based on race

(Black) and retaliation for prior EEO activity, and that she had been forced to

resign due to the discrimination and reprisal. Id. at 13-24. The agency issued a

final agency decision (FAD) dated February 26, 2020, finding that the appellant

had not shown that she was subjected to the alleged harassment, retaliation, or

constructive discharge. Id. at 18-20. The FAD clearly notified the appellant of

her right to appeal her mixed-case constructive discharge complaint to the Board

within 30 days of her receipt of the decision. Id. at 21. The certificate of service

indicated that the agency transmitted the FAD via first class mail to the appellant

at the address she later provided to the Board in her initial appeal form. IAF,

Tab 1 at 3, Tab 10 at 24.

On June 12, 2020, the appellant filed the present appeal alleging that she

had been subjected to a constructive discharge. IAF, Tab 1 at 4. She

acknowledged that her appeal “should have been submitted prior to April 1,

2020,” but she “ask[ed] that [her] late request be considered because all the

resources [she] needed to submit the documents were closed due to the pandemic

of COVID-19.” Id. at 1. The appellant submitted a copy of the FAD and stated

that she had received it on February 26, 2020. Id. at 4, 10-21. She requested

“legal assistance” from the Board “due to the unavailability of legal

representation and [her] inability to complete this case alone.” Id. at 2. The

appellant maintained that she lacked legal counsel regarding her EEO complaint

and “as a result dates were incorrectly entered” and she was unaware that she

needed to submit proof of her claims until she received the FAD. Id. at 4.

The administrative judge issued an order on timeliness, notifying the

appellant that her mixed-case appeal appeared to be untimely filed by 66 days and

ordering her to submit evidence and argument showing that the appeal was timely

filed or that good cause existed for the delay. IAF, Tab 3 at 1-4. In her response,

the appellant maintained that she had “no idea” that the Board was operating

during the pandemic. IAF, Tab 6 at 4. She also claimed that she “had no way of

obtaining needed information and printing that info without the use of libraries

and other office service facilities that were also closed due to Covid.” Id. The

appellant asserted that she has been “declared disabled” by the Social Security

Administration in November 2018 for certain mental and physical conditions. Id.

She also set forth circumstances related to the pandemic from March to April

2020, including quarantining and obtaining testing for COVID-19, but maintained

that she had been given no medical evidence for her virtual medical appointment

and drive-up testing. Id. The appellant submitted various documents concerning

her purported disability status, related to Medicare, unemployment insurance, and

student loan forgiveness. IAF, Tab 6 at 6-16, Tab 9 at 4-6. She also submitted

documents related to her EEO complaint and evidence in support of her

allegations. IAF, Tab 7 at 1-6; Tab 11 at 4-14; Tab 12 at 4-12; Tab 13 at 4-5.

The agency’s narrative response did not address the issue of timeliness. IAF,

Tab 10 at 4-5.

Without holding the requested hearing, the administrative judge dismissed

the appeal as untimely filed. IAF, Tab 15, Initial Decision (ID) at 1, 6. She

found that, applying the Board’s presumption that documents placed in the U.S.

mail are received within 5 days, the appellant received the FAD on March 2,

2020. ID at 4. Therefore, the June 10, 2020 initial appeal was filed more than

3 months after the 30-day deadline. Id. The administrative judge found that the

appellant failed to establish good cause for her untimely filing. ID at 4-6. She

found that the appellant’s lack of legal counsel did not excuse her untimeliness

and that the appellant presented no basis for her claims that she was unaware that

the Board was operational during the pandemic. ID at 5. Finally, the

administrative judge found that the appellant did not demonstrate how her

unspecified disability impaired her ability to timely file an appeal, particularly as

the appellant had filed her appeal “promptly” after finding out that the Board was

operational. Id.

The appellant has filed a petition for review, arguing that the administrative

judge did not take into consideration the unique circumstances surrounding her

appeal, specifically her high-risk medical condition during the pandemic.

Petition for Review (PFR) File, Tab 1 at 5-6. She also maintains that the agency

should not have sent out the FAD during the pandemic. Id. at 6. The appellant

requests that the Board waive the timeliness issue due to her high-risk medical

condition during the pandemic and submits for the first time on review a letter

from her medical provider. Id. at 8, 10. The agency has not filed a response to

the petition for review.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant bears the burden of proving by preponderant evidence 2 that

she timely filed her appeal. 5 C.F.R. § 1201.56(b)(2)(i)(B). When, as here, an

employee timely files a mixed-case formal complaint of discrimination with her

employing agency regarding a matter that is within the Board’s jurisdiction, she

may file an appeal with the Board after receiving the FAD. See Miranne v.

Department of the Navy, 121 M.S.P.R. 235, ¶ 9 (2014). For an appeal to be

considered timely, it must be filed within 30 days after the employee receives the

agency’s resolution or final decision on the discrimination issue. 5 C.F.R.

§ 1201.154(b)(1). If any appellant fails to timely file her appeal, it will be

dismissed as untimely filed absent a showing of good cause for the filing delay.

5 C.F.R. § 1201.22(c). To establish good cause, a party must show that she

exercised due diligence or ordinary prudence under the particular circumstances

of the case. Marcantel v. Department of Energy, 121 M.S.P.R. 330, ¶ 10 (2014).

Here, the certificate of service on the FAD states that the agency served the

document on the appellant via first class mail on February 26, 2020. IAF, Tab 6

at 24. The agency served the appellant at the same address that she provided as

her address of record in the present appeal. IAF, Tab 1 at 3, Tab 6 at 24. The

administrative judge correctly found that the appellant received the FAD on

March 2, 2020, for purposes of the filing deadline. ID at 4; see Butler v.

Department of Veterans Affairs, 119 M.S.P.R. 112, ¶ 5 (2013) (stating that the

Board has recognized a presumption that documents placed in the mail are

received within 5 days when there is direct evidence, such as a certificate of

service, establishing when a document was deposited in the mail). Therefore, the

deadline for filing her initial appeal was April 1, 2020. See 5 C.F.R.

§ 1201.154(b)(1). The appellant acknowledged this filing deadline and her

receipt of the FAD in her initial appeal. IAF, Tab 1 at 1, 4. Because the

A preponderance of the evidence is that degree of relevant evidence that a reasonable

person, considering the record as a whole, would accept as sufficient to find that a

contested fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

appellant did not file her appeal until June 10, 2020, her appeal was untimely

filed by 70 days. However, the administrative judge erroneously found that the

appellant filed her appeal “more than three months late” and “more than 90 days

after the deadline.” ID at 4. Regardless of the specific length of the filing delay,

the initial appeal was untimely filed by at least 2 months. Thus, we discern no

basis to disturb the administrative judge’s determination that the appeal was

untimely filed, and the appellant has not contested this finding on review. PFR

File, Tab 1 at 5-8.

On petition for review, the appellant challenges the administrative judge’s

finding that there was not good cause for her filing delay, and she argues that the

administrative judge did not appropriately consider her high-risk medical

condition during the COVID-19 pandemic. PFR File, Tab 1 at 5-8. Although the

appellant generally raised her purported disabling conditions in response to the

timeliness order, during the pendency of her appeal she attributed her filing delay

to her inability to access needed resources due to the pandemic and claimed that

she had “no idea” that the Board was operating at the time. IAF, Tab 1 at 1,

Tab 6 at 4. She also submits for the first time on review a letter from a physician

dated August 12, 2020, three days prior to the issuance of the initial decision. Id.

at 10. The letter states that, due to unspecified “chronic medical conditions,” the

appellant is considered high-risk in relation to the COVID-19 and that from “the

period of February 15th through April 15th, it would’ve been unadvisable for her

to patronize any public facilities unless absolutely necessary or alternative

options unavailable.” Id.

Under 5 C.F.R. § 1201.115, the Board generally will not consider evidence

submitted for the first time with a petition for review absent a showing that it was

unavailable before the close of the record below despite the party’s due diligence.

See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980); see also Clay v.

Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016) (stating that the Board

generally will not consider a new argument raised for the first time on review

absent a showing that it is based on new and material evidence). The medical

letter submitted by the appellant for the first time on review was written after the

close of the record and shortly before the issuance of the initial decision. PFR

File, Tab 1 at 10; IAF, Tab 3 at 3-5. Regarding the new evidence, the appellant

also states that she was only given 10 days by the administrative judge to obtain

evidence from her medical provider, who had cancelled her appointment in early

March 2020. PFR File, Tab 1 at 6. Although we do not find that the appellant

has adequately explained why it took her approximately 2 months to obtain the

letter from her physician, we have considered it, as it was unavailable before the

close of the record below.

Even considering the medical opinion, we find that the appellant has not

provided good cause for her filing delay. The appellant’s own statements and

evidence in response to the timeliness order below contradict her claim on review

that she was unable to timely file her appeal due to disabling medical conditions.

Despite the physician’s statement that it was “unadvisable for her to patronize

any public facilities” for the 2-month period beginning February 15, 2020, PFR

File, Tab 1 at 10, the unemployment insurance letter stated that the appellant’s

last day worked was March 1, 2020, and identified the reason she was

unemployed as “Laid-Off (Lack of Work),” IAF, Tab 9 at 6. Moreover, as noted

by the administrative judge, the appellant maintained that she submitted her

appeal “[a]s soon as [she] learned things were in operation.” ID at 5; IAF, Tab 6

at 4. Finally, the appellant provides no explanation why her medical conditions

prevented her from timely filing her appeal but allowed her to do so at a later date

during the continuing pandemic. Therefore, we agree with the administrative

judge that the appellant failed to show good cause for her filing delay. ID at 4-6;

see Marcantel, 121 M.S.P.R. 330, ¶ 10.

Accordingly, we deny the petition for review and affirm as modified the

initial decision.

NOTICE OF APPEAL RIGHTS 3

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation and

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general . As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. Court of Appeals for the Federal

Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular

relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is

contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. Court of Appeals for the Federal Circuit, you may visit our website at

http://www.mspb.gov/probono for information regarding pro bono representation

for Merit Systems Protection Board appellants before the Federal Circuit. The

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination . This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims —by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the district court no later than 30 calendar days after your representative

receives this decision. If the action involves a claim of discrimination based on

race, color, religion, sex, national origin, or a disabling condition, you may be

entitled to representation by a court-appointed lawyer and to waiver of any

requirement of prepayment of fees, costs, or other security. See 42 U.S.C.

§ 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC by regular U.S. mail, the

address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit a request for review to the EEOC via commercial delivery or

by a method requiring a signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012 . This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in

section 2302(b) other than practices described in section 2302(b)(8), or

2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial

review either with the U.S. Court of Appeals for the Federal Circuit or any court

of appeals of competent jurisdiction. 4 The court of appeals must receive your

petition for review within 60 days of the date of issuance of this decision.

5 U.S.C. § 7703(b)(1)(B).

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the