Opinion

Ashley Cody v. Department of Labor

Court: Merit Systems Protection Board
Filed: Jul 19, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.3%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ASHLEY CODY, DOCKET NUMBER

Appellant, AT-315H-23-0036-I-1

DEPARTMENT OF LABOR, DATE: July 19, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Ashley Cody , Austell, Georgia, pro se.

Kathryn C. Hagerman and Monica Moukalif , Atlanta, Georgia,

for the agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

Henry J. Kerner, Member*

*Member Kerner did not participate in the adjudication of this appeal.

FINAL ORDER

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

dismissed her appeal of her probationary termination for lack of jurisdiction. For

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

the reasons set forth below, the appellant’s petition for review is DISMISSED as

untimely filed without good cause shown. 5 C.F.R. § 1201.114(e), (g).

BACKGROUND

¶2 The agency appointed the appellant to a career-conditional competitive

service position as a Safety and Occupational Health Specialist effective

March 27, 2022, subject to a 1-year probationary period. Initial Appeal File

(IAF), Tab 1 at 6. The agency subsequently notified the appellant during her

probationary period that she would be terminated, effective October 4, 2022, for

performance problems, time and attendance issues, and misuse of her

Government-issued credit card. Id. at 7-9.

¶3 The appellant filed a timely Board appeal alleging that the agency should

have given her “the option to resolve the matter through an alternative dispute

resolution before termination.” Id. at 3. The administrative judge ordered the

appellant to file evidence and argument demonstrating that the Board had

jurisdiction over her appeal, but the appellant did not respond. IAF, Tab 3. In an

initial decision dated November 28, 2022, the administrative judge dismissed the

appeal for lack of jurisdiction, finding that the appellant failed to raise a

nonfrivolous allegation of marital status discrimination, or that her termination

was based on partisan political reasons or pre-employment misconduct. IAF,

Tab 9, Initial Decision (ID) at 4. The initial decision informed the appellant that

it would become the Board’s final decision on January 2, 2023, unless she filed a

petition for review by that date. ID at 4.

¶4 The appellant filed a petition for review on January 17, 2023, asserting that

the Board should reconsider her appeal “due to [her] status of being a protected

veteran.” Petition for Review (PFR) File, Tab 1 at 2. In a January 18, 2023

acknowledgement letter from the Office of the Clerk of the Board, the Acting

Clerk informed the appellant that the Board may dismiss her petition for review

as untimely filed unless she submitted a motion showing that her petition for

review was timely filed or that good cause existed for the filing delay. PFR File,

Tab 2. The Clerk’s Office enclosed a “Motion to Accept Filing as Timely and/or

to Ask the Board to Waive or Set Aside the Time Limit” and informed the

appellant that she had until February 2, 2023, to file such motion. Id. The

appellant did not respond. The agency filed a response to the appellant’s petition

for review. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 A petition for review generally must be filed within 35 days after the date of

issuance of the initial decision or, if the party filing the petition shows that the

initial decision was received more than 5 days after it was issued, within 30 days

after the party received the initial decision. 5 C.F.R. § 1201.114(e). The

appellant does not claim that she received the initial decision more than 5 days

after it was issued. PFR File, Tab 1. Further, because the appellant elected to be

an e-filer, she is deemed to have received the initial decision on the date of

electronic submission, November 28, 2022. IAF, Tab 1 at 2, Tab 10; see Palermo

v. Department of the Navy, 120 M.S.P.R. 694, ¶ 3 (2014); 5 C.F.R.

§ 1201.14(m)(2) (2023). Therefore, her petition for review was due by January 2,

2023, and it is thus over 2 weeks late.

¶6 The Board will waive its filing deadline only upon a showing of good cause

for the delay. Gaetos v. Department of Veterans Affairs, 121 M.S.P.R. 201, ¶ 5

(2014); 5 C.F.R. § 1201.114(g). To establish good cause for the untimely filing

of an appeal, a party must show that she exercised due diligence or ordinary

prudence under the particular circumstances of the case. Alonzo v. Department of

the Air Force, 4 M.S.P.R. 180, 184 (1980). To determine whether an appellant

has shown good cause, the Board will consider the length of the delay, the

reasonableness of her excuse and her showing of due diligence, whether she is

proceeding pro se, and whether she has presented evidence of the existence of

circumstances beyond her control that affected her ability to comply with the time

limits or of unavoidable casualty or misfortune that similarly shows a causal

relationship to her inability to timely file her petition for review. Gaetos,

121 M.S.P.R. 201, ¶ 5; Moorman v. Department of the Army, 68 M.S.P.R. 60,

62-63 (1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).

¶7 Here, we find that the appellant has failed to show good cause for a waiver

of the filing deadline. The appellant did not submit a motion showing that her

petition for review was timely filed or that good cause existed for the filing delay

or otherwise respond to the Clerk’s acknowledgement order informing her that

her petition for review was untimely filed. See 5 C.F.R. § 1201.114(g). She has

not submitted any evidence or argument on the timeliness of her petition for

review. Further, her 2-week filing delay is not insignificant. See, e.g., Crozier v.

Department of Transportation, 93 M.S.P.R. 438, 441 (2003) (finding a 13-day

delay not minimal); Winfrey v. National Archives and Records Administration ,

88 M.S.P.R. 403, ¶ 6 (2001) (finding that a 48-day delay was not minimal).

Although the appellant’s pro se status is a factor weighing in her favor, it is

insufficient to excuse her untimeliness. See Allen v. Office of Personnel

Management, 97 M.S.P.R. 665, ¶¶ 8, 10 (2004) (declining to excuse a pro se

appellant’s 14-day, unexplained delay in filing a petition for review).

¶8 As noted above, the appellant stated in her petition for review that the

Board should reconsider her appeal “due to [her] status of being a protected

veteran.” PFR, Tab 1 at 2. She submits a 1-page letter from the Department of

Veterans Affairs indicating that she has a service-connected disability rating of

100%, effective May 2020, but she does not provide any other information or

explanation. Id. at 3. It is unclear whether the appellant is attempting to raise a

claim of discrimination based on military service under the Uniformed Services

Employment and Reemployment Rights Act of 1994 (codified as amended at

38 U.S.C. §§ 4301-4335) (USERRA). Under USERRA, a person who has

performed “service in a uniformed service shall not be denied initial employment,

reemployment, retention in employment, promotion, or any benefit of

employment . . . on the basis of that . . . performance of service.” 38 U.S.C.

§ 4311(a); Searcy v. Department of Agriculture, 115 M.S.P.R. 260, ¶ 6 (2010).

To establish Board jurisdiction over a USERRA discrimination appeal, an

appellant must allege the following: (1) she performed duty or has an obligation

to perform duty in a uniformed service of the United States; (2) the agency denied

her initial employment, reemployment, retention, promotion, or any benefit of

employment; and (3) the denial was due to the performance of duty or obligation

to perform duty in the uniformed service. 2 Searcy, 115 M.S.P.R. 260, ¶ 7. Here,

the appellant did not indicate on her initial appeal form that she was pursuing a

USERRA claim, and she has not made even vague allegations that would

establish Board jurisdiction over a USERRA discrimination appeal in either her

initial appeal or on review. See IAF, Tab 1; PFR File, Tab 1; see also Wilson v.

Department of the Army, 111 M.S.P.R. 54, ¶ 9 (2009) (stating that a claim of

discrimination under USERRA should be broadly and liberally construed in

determining whether it is nonfrivolous, particularly when the appellant is pro se).

However, there is no time limit to filing a USERRA appeal. 5 C.F.R. § 1208.12.

If the appellant believes she has been the victim of a violation of section 4311(a),

she may file an appeal with the Board. 3 38 U.S.C. § 4324(b); Searcy,

115 M.S.P.R. 260, ¶ 6. 4

The Board has jurisdiction over USERRA appeals, even when an employee was

serving a probationary period at the time of the alleged violation. Wright v. Department

of Veterans Affairs, 73 M.S.P.R. 453, 454 (1997).

An individual may choose to file a USERRA complaint with the Secretary of Labor

and have the Secretary investigate her complaint. 38 U.S.C. § 4322(a). If the

individual files such a complaint with the Secretary of Labor, she may thereafter file an

appeal with the Board regarding her USERRA claim pursuant to 38 U.S.C. § 4324(b)

(2). If the individual does not elect to apply to the Secretary for assistance under

section 4322(a), she may file directly with the Board. 38 U.S.C. § 4324(b)(1).

To the extent the appellant may wish to pursue other veterans’ preference claims,

under the Veterans Employment Opportunities Act of 1998 (VEOA), a “preference

eligible who alleges that an agency has violated such individual’s rights under any

statute or regulation relating to veterans preference may file a complaint with the

Secretary of Labor” and, after that complaint process is exhausted, may then file an

appeal with the Board. 5 U.S.C. § 3330a. A VEOA complaint must be filed with DOL

¶9 Accordingly, we dismiss the petition for review as untimely filed. This is

the final decision of the Merit Systems Protection Board regarding the timeliness

of the petition for review. The initial decision remains the final decision of the

Board regarding its lack of jurisdiction over the appellant’s probationary

termination appeal.

NOTICE OF APPEAL RIGHTS 5

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.

within 60 days after the date of the alleged violation. 5 U.S.C. § 3330a(a)(2). The

exhaustion requirement is satisfied if the appellant filed a complaint with DOL and

DOL either: (1) sent the appellant written notification that it was unable to resolve the

complaint; or (2) did not resolve the complaint within 60 days and the appellant notified

DOL of her intention to appeal to the Board. Burroughs v. Department of Defense, 114

M.S.P.R. 647, ¶ 7 (2010), aff’d, 426 F. App’x 897 (Fed. Cir. 2011).

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.

(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).

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. 6 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).

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,

132 Stat. 1510.

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 following