Opinion

Osvaldo R Burgos v. Department of Homeland Security

Court: Merit Systems Protection Board
Filed: Jul 25, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 30.3%

finding nexus on the basis of off-duty misconduct that adversely affected the agency’s mission

How later courts described this case

finding nexus on the basis of off-duty misconduct that adversely affected the agency’s mission

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

OSVALDO RAMON BURGOS, DOCKET NUMBER

Appellant, DC-0752-20-0067-I-1

DEPARTMENT OF HOMELAND DATE: July 25, 2024

SECURITY,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Osvaldo Ramon Burgos , Arlington, Virginia, pro se.

Teresa A. Gonsalves , Esquire, Camp Springs, Maryland, 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

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

affirmed his removal. 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 interpretation of statute

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 and AFFIRM the initial decision,

which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

The appellant was employed as a GS-09 Management and Program Analyst

in the Office of Performance Quality (OPQ) of the U.S. Citizenship and

Immigration Services (USCIS) in Washington, D.C. Initial Appeal File (IAF),

Tab 4 at 42. The agency proposed the appellant’s removal based on the charge of

improper conduct. Id. at 62-66. Under its sole specification, the agency stated

that the appellant telephoned the Federal Bureau of Investigation (FBI) National

Threat Operations Center, and made the following statements concerning the OPQ

Chief: (1) “If I wanna knock [him] out, I should be able to get away with it,”

(2) “I’m gonna cripple his white old ass is what I’m gonna do,” and

(3) “Somebody needs to do something or else I’m gonna take action myself. And

I feel like I have to hurt this guy.” Id. at 62. The agency noted that, in addition

to making “statements of workplace violence in reference to [the OPQ Chief],”

the appellant accused the OPQ Chief, his former supervisor, and his

then-supervisor of preventing his career advancement. Id. at 62-63. After

considering the appellant’s oral and written replies, the agency removed him from

his position, effective May 29, 2019. Id. at 43-48.

Thereafter, the appellant filed an appeal with the Board, alleging that the

agency wrongfully terminated him based on “[disparate] treatment and race.”

IAF, Tab 1 at 5. He also alleged that the agency retaliated against him for filing

16 complaints and withheld his promotion, gave him performance appraisals with

false information, bullied and sabotaged him, and subjected him to a toxic work

environment. Id. The administrative judge ordered the appellant to identify the

affirmative defenses he was raising in this appeal. IAF, Tab 6. The appellant

responded that he was pursuing claims of misuse of official position,

whistleblower retaliation, harmful error, and prohibited personnel practices

(which he described as race discrimination, disparate treatment, favoritism, and

harassment). IAF, Tab 8 at 4-6. Under a category that he labeled as fraud, the

appellant indicated that he made complaints to the Office of Special Counsel,

Inspector General, Office of Equal Employment Opportunity, Office of Special

Investigations, a Congressman, and the FBI, but none of his complaints were

“approved.” Id. at 5.

The parties proceeded to engage in a lengthy discovery dispute. Without

providing any detail or explanation, the appellant objected to the agency’s

discovery requests, which included requests for admissions, interrogatories, and

documents regarding the charged conduct, his allegations relating to the appeal,

the witnesses he intended to call and their expected testimony, any

communications relating to the appeal, and his claims for relief. IAF, Tab 9

at 27-33. The agency filed a motion to compel, stating that the information it

sought was clearly relevant to the appeal and discoverable under the Board’s

regulations, that it had made “diligent and concerted good faith efforts to obtain

discovery responses from the [a]ppellant,” and that the appellant’s response were

“wholly inadequate because of the vague nature of [the] responses and [the

appellant’s] failure to provide any information or documents.” Id. at 5-6. In the

same motion, the agency moved for imposition of sanctions. Id. at 6-7. The

appellant responded with a second set of objections, asserting that he had already

provided some of the requested information as part of the agency investigation,

that some of the information the agency sought was privileged or protected by

privacy concerns, and that he did not possess some of the information or did not

know the witnesses he was going to call. IAF, Tab 12 at 4-10. The agency filed

a supplement to its motion to compel, stating that, although the appellant

responded to some of its discovery requests, he did not respond to the vast

majority of its requests, including its requests for documents and admissions, and

that the appellant’s deposition testimony contravened his assertion that he did not

have any relevant documents. IAF, Tab 13 at 4-5. The administrative judge

granted the agency’s motion to compel discovery, ordered the appellant to

provide substantive responses to the agency’s discovery requests, and warned the

appellant that failure to substantially comply with the order would result in the

imposition of sanctions pursuant to 5 C.F.R. § 1201.43, to include the dismissal

of his affirmative defenses. IAF, Tab 14 at 2.

Thereafter, the appellant filed a motion for the administrative judge to

reconsider her order granting the agency’s motion to compel. 2 IAF Tab 16 at 4.

The appellant also asserted that he had previously provided sufficient responses

to the agency’s discovery requests and he provided what were apparently his most

recent responses to the agency’s requests. Id. at 4-10. The agency responded that

the appellant’s motion to reconsider should be denied, that the appellant’s most

recent responses failed to “cure the many deficiencies identified in the [a]gency’s

Motion to Compel and supporting submissions,” and that the administrative judge

should impose sanctions because of the appellant’s “repeated and knowing refusal

to comply with his discovery obligations.” IAF, Tab 19 at 4. Specifically, the

agency argued that the appellant failed to provide, among other things, most of

the documents he identified in his deposition and his other submissions, including

The appellant also filed a motion to compel, asserting that the agency had not

answered his interrogatories. IAF, Tab 15 at 4. The administrative judge denied this

motion. IAF, Tab 20. The appellant has not challenged the administrative judge’s

ruling, and we discern no reason to disturb it.

evidence purportedly showing that he was treated unfairly by the agency, a text

message allegedly showing that his call to the FBI was not a threat, and copies of

the numerous complaints he had filed with various entities. Id. at 5. The agency

also argued that the appellant failed to identify, by name, the individuals with

knowledge of his affirmative defenses and continued to represent that he did not

know the witnesses he would call, despite prehearing submissions being

imminently due. Id. at 6, 9, 11-12. The agency concluded that, just prior to the

hearing, because of the appellant’s failure to properly engage in discovery, it had

“little to no knowledge of the nature of [a]ppellant’s affirmative defenses, how

they relate to the removal appeal, and what evidence or witness testimony, if any,

[the] [a]ppellant has to support them.” Id. at 6.

After reviewing the record, the administrative judge found that the

appellant had “failed to substantially comply” with the agency’s discovery

requests as she had previously ordered and she granted the agency’s motion for

sanctions. IAF, Tab 21. The administrative judge struck the appellant’s

affirmative defenses and stated that she would not “adjudicate any of the

appellant’s claimed affirmative defenses in this matter.” Id.

Following a hearing, the administrative judge issued an initial decision that

affirmed the appellant’s removal. IAF, Tab 49, Initial Decision (ID), Hearing

Transcript (HT). In analyzing the charge, the administrative judge credited the

testimony of an investigator who testified that during an interview the appellant

admitted making the statements to the FBI call center attributed to him and that

he believed that the appellant could carry out his threats, especially considering

that he had access to the OPQ Chief and it was his second time contacting the FBI

hotline. ID at 6-8; HT at 53-54, 57. The administrative judge observed that an

appellant’s admission can suffice to establish the charge without additional proof

from the agency and that the appellant elected not to testify on his own behalf.

ID at 8. Based on these findings and the other evidence in the record, the

administrative judge sustained the charge of improper conduct. Id. The

administrative judge stated that she had not accepted any evidence or adjudicated

the appellant’s affirmative defenses because she had granted the agency’s motion

to sanction the appellant by striking such claims. ID at 9. Finally, the

administrative judge found that the agency proved nexus and the reasonableness

of the penalty. ID at 9-15.

The appellant has filed a petition for review of the initial decision. Petition

for Review (PFR) File, Tab 1. The agency has filed a response, PFR File, Tab 3,

to which the appellant has untimely replied, 3 PFR File, Tab 4.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge correctly found that the agency proved the charged

misconduct, the presence of a nexus, and that the penalty of removal was

reasonable .

A charge of “improper conduct” has no specific elements of proof; rather, it

is established by showing that the employee committed the acts alleged in support

of the label used by the agency in the charge. Alvarado v. Department of the Air

Force, 103 M.S.P.R. 1, ¶ 22 (2006), aff’d, 626 F. Supp. 2d 1140 (D.N.M. 2009),

aff’d, 490 F. App’x 932 (10th Cir. 2012). Based on the testimony of the agency

witnesses, the documentary evidence, and the appellant’s admission, the

administrative judge sustained the charge of improper conduct. ID at 4-8; IAF,

Tab 4 at 74-75, 104, 106, 114-116, 119. The appellant does not challenge this

finding on review and we discern no reason to disturb it. See Crosby v. U.S.

Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb the

administrative judge’s findings when she considered the evidence as a whole,

drew appropriate inferences, and made reasoned conclusions on issues of

The Clerk of the Board informed the appellant that he could file a reply to the

agency’s response to the petition for review within 10 days after the date of service of

the response. PFR File, Tab 2. The appellant’s reply to the agency’s response was

untimely filed by over 2 weeks and the appellant has offered no explanation for the

filing delay. PFR File, Tab 4. Nonetheless, we consider his reply, which appears to

largely reiterate the allegations in his petition for review.

credibility); Broughton v. Department of Health & Human Services , 33 M.S.P.R.

357, 359 (1987) (same).

In addition to proving its charge by preponderant evidence, the agency

must establish the existence of a nexus between the charged misconduct and the

efficiency of the service. See 5 U.S.C. § 7513(a); Campbell v. Department of the

Army, 123 M.S.P.R. 674, ¶ 24 (2016). The administrative judge determined that

there was a direct relationship between the charged misconduct and the efficiency

of the service. ID at 9; see Brown v. Department of the Navy, 229 F.3d 1356,

1360-61 (Fed. Cir. 2000) (finding nexus on the basis of off-duty misconduct that

adversely affected the agency’s mission); Beasley v. Department of Defense,

52 M.S.P.R. 272, 273, 275 (1992) (finding nexus on the basis of off -duty

misconduct that caused apprehension among agency management for the safety of

other agency employees). Therefore, the administrative judge found, and we

agree, that the agency satisfied the nexus requirement. ID at 9.

Finally, the agency must demonstrate that the penalty imposed was within

the bounds of reasonableness and that it considered the relevant factors.

Campbell, 123 M.S.P.R. 674, ¶ 25; Douglas v. Veterans Administration,

5 M.S.P.R. 280, 305-07 (1981). In making this determination, the Board must

give due weight to the agency’s primary role in maintaining employee discipline

and efficiency and must not displace management’s responsibility, but must

ensure that managerial judgment has been properly exercised. Campbell,

123 M.S.P.R. 674, ¶ 25. Here, the administrative judge found that the deciding

official properly considered the relevant Douglas factors, such as the seriousness

and the notoriety of the appellant’s offense, his prior discipline, the consistency

of the penalty with those imposed upon other employees for the same or similar

offenses and with the agency’s table of penalties, management’s lack of

confidence in his ability to perform the duties of his position, and the mitigating

circumstances in this case. ID at 10-15; IAF, Tab 4 at 43-45. The deciding

official also stated he believed that an alternate sanction was not appropriate

under the circumstances here. IAF, Tab 4 at 45. We discern no reason to disturb

the administrative judge’s finding that removal was a reasonable penalty.

ID at 15.

The administrative judge did not abuse her discretion in striking the appellant’s

affirmative defenses.

In his petition for review, the appellant asserts that the administrative judge

was unfair, extremely biased, and favored the agency. PFR File, Tab 1 at 5.

Among other things, he asserts that, even though he was diligently trying to

comply with the agency’s discovery requests, the administrative judge struck his

affirmative defenses. 4 Id.

Administrative judges have broad discretion to regulate the proceedings

before them, including the authority to rule on discovery motions and to impose

sanctions as necessary to serve the ends of justice. Defense Intelligence Agency

v. Department of Defense, 122 M.S.P.R. 444, ¶ 16 (2015); Roth v. Department of

Transportation, 54 M.S.P.R. 172, 175-76 (1992); see 5 C.F.R. § 1201.43

(discussing the circumstances under which an administrative judge may impose

sanctions, including failure to comply with an order). Imposition of sanctions is a

matter within the administrative judge’s sound discretion and, absent a showing

that such discretion has been abused, the Board will not find that the decision

constitutes reversible error. Smets v. Department of the Navy, 117 M.S.P.R. 164,

¶ 11 (2011), aff’d, 498 F. App’x 1 (Fed. Cir. 2012).

Here, the administrative judge struck the appellant’s affirmative defenses

because she found that the appellant’s responses to the agency’s discovery

requests did not substantially comply with her order. IAF, Tab 21. The record

On review, the appellant reiterates his assertions that he was bullied and harassed and

treated unfairly by agency management. PFR File, Tab 1 at 4. He specifies that his

supervisors falsified his performance appraisals, placed him on a performance

improvement plan, and denied him promotions in reprisal for the equal employment

opportunity complaints and grievances that he filed. Id. We find it unnecessary to

address the merits of his claims, which were also raised below, because we discern no

abuse of discretion in the administrative judge’s imposition of a sanction and his vague

allegations, without any evidentiary support, are insufficient to satisfy his burden.

reflects that the appellant provided inadequate responses to the agency’s

discovery requests on multiple occasions, despite a warning from the

administrative judge that his noncompliance could result in the striking of his

affirmative defenses. IAF, Tab 9 at 27-33, Tab 12 at 4-10, Tab 14 at 2, Tab 19

at 4-20. Thus, it was within the administrative judge’s discretion to impose this

sanction under the circumstances. 5

The appellant’s remaining arguments are unavailing.

On review, the appellant asserts, for the first time, that there were eight

unidentified employees who were suspended, not removed, for misconduct similar

to his, including making statements that they were going to kill their supervisors

or others, causing altercations, stealing, and using Facebook to intimidate private

citizens. PFR File, Tab 1 at 4-5. The Board generally will not consider an

argument raised for the first time in a petition for review absent a showing that it

is based on new and material evidence not previously available despite the party’s

due diligence. Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271

(1980). Even if we were to consider this claim, the appellant does not provide

any evidence as to the circumstances surrounding those purported incidents,

including the sustained charges, the employees’ positions, or other specific

We recognize that the Board has generally discouraged the striking of affirmative

defenses as a sanction for failure to comply with an order when the same result might

be achieved by prohibiting the appellant from presenting evidence supporting those

defenses. Simon v. Department of Commerce, 111 M.S.P.R. 381, ¶ 14 (2009).

However, even if the administrative judge abused her discretion in striking the

appellant’s affirmative defenses, and should have instead prohibited the appellant from

putting on evidence in support of any affirmative defense to which he had not provided

discovery responses, 5 C.F.R. § 1201.43(a)(2), the imposition of the lesser sanction

would not have compelled a different result. Here, the appellant did not present any

factual allegations which, if taken as true, support his affirmative defenses; thus, he

would have failed to meet his burden of proof regarding those affirmative defenses if,

instead of striking the defenses, the administrative judge had precluded the presentation

of hearing testimony regarding the affirmative defenses. The appellant has not shown

that any abuse of discretion prejudiced his substantive rights. See Panter v. Department

of the Air Force, 22 M.S.P.R. 281, 282 (1984).

circumstances. 6 Moreover, the deciding official testified that she considered the

consistency of the penalty with those imposed upon other employees for the same

or similar offenses but concluded that removal was the appropriate penalty. HT

at 80; IAF, Tab 4 at 45. Thus, even if we were to consider it, we find that the

appellant has not shown that the eight unidentified employees are valid

comparators for the purposes of the appellant’s disparate penalty claim. See Voss

v. U.S. Postal Service, 119 M.S.P.R. 324, ¶ 6 (2013) (finding that to establish

disparate penalties, the appellant must show that the charges and the

circumstances surrounding the charged behavior in his case are substantially

similar to those in the comparator’s case).

The appellant contends that the administrative judge was biased because

she ruled against him at each step of his case. PFR File, Tab 1 at 5. In making a

claim of bias or prejudice against an administrative judge, a party must overcome

the presumption of honesty and integrity that accompanies administrative

adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R. 382, 386

(1980). An administrative judge’s conduct during the course of a Board

proceeding warrants a new adjudication only if her comments or actions evidence

“a deep-seated favoritism or antagonism that would make fair judgment

impossible.” Bieber v. Department of the Army, 287 F.3d 1358, 1362-63

(Fed. Cir. 2002). The appellant has not identified any conduct by the

administrative judge that would reflect antagonism or favoritism, nor has he

raised any allegations that would support a finding of bias. That an

administrative judge ruled against the appellant is insufficient evidence to show

bias. Coufal v. Department of Justice, 98 M.S.P.R. 31, ¶ 11 (2004). Thus, we

find that the appellant has not overcome the presumption of honesty and integrity

that accompanies an administrative judge.

There is no indication in the record that during the discovery process the appellant

requested that the agency provide the decision letters for other employees.

The appellant argues that, as opposed to her treatment of the agency, the

administrative judge did not allow him to call any witnesses. PFR File, Tab 1

at 5. On the contrary, the administrative judge approved the appellant and two of

his witnesses as joint witnesses. IAF, Tab 39 at 3. At the hearing, the appellant

did not testify in support of his appeal and engaged in limited cross-examination

of the parties’ joint witnesses. HT at 35-38, 58.

Below, the appellant objected to the administrative judge’s decision not to

approve the other witnesses he had requested. IAF, Tab 39 at 3 & n.3, Tab 42

at 4; HT at 102. In a motion objecting to her rulings in the prehearing

conference, the appellant asserted that the testimony of the American Federation

of Government Employees (union) vice president and an Immigration and

Customs Enforcement (ICE) agent was critical for his case. IAF, Tab 42 at 4. He

noted that the union vice president sat in every grievance meeting held with his

former managers at the agency and that he could testify regarding “the misuse of

official position by [a]gency officials, including [the USCIS Deputy] and [the

OPQ Chief].” Id. In addition, he noted that the ICE agent contacted him the day

after his phone call to the FBI National Threat Operations Center and that he

“took an assessment to find a threat was not made by [him].” Id. The agency

filed a motion in opposition, stating that the identified witnesses were not

mentioned in any of the appellant’s responses to the agency’s discovery requests

and his deposition testimony. IAF, Tab 43 at 4-6. The agency opined that any

relevant knowledge that the union vice president had was already reflected in the

appellant’s reply to the proposed removal and that the ICE agent did not have any

relevant knowledge because he was neither involved in the removal action nor the

subject of the appellant’s statements of workplace violence. Id. at 5-6. After

reviewing the parties’ motions, the administrative judge issued an order in which

she noted the appellant’s objections and comments for the record but denied and

overruled them. IAF, Tab 44. She did not provide her reasons for doing so. Id.

She also declined to reconsider her prior rulings. Id.

The appellant has not persuaded us that the administrative judge abused her

discretion in disallowing the testimony of the ICE agent and the union vice

president. In the Order and Summary of Telephonic Prehearing Conference, the

administrative judge identified the issues to be adjudicated as whether the agency

proved its charge of improper conduct, nexus, and the reasonableness of the

penalty. IAF, Tab 39. Although the ICE agent would purportedly testify as to

whether the appellant made a threat, the administrative judge specifically

observed that intent is not an element of the charge and that it is irrelevant to

whether he engaged in the charged misconduct. Id. at 2-3. As for the union

representative, he would purportedly have testified to issues beyond the scope of

those identified in the Order and Summary of Telephonic Prehearing Conference.

Thus, we discern no basis for concluding that the administrative judge’s decision

amounted to an abuse of discretion. See Vaughn v. Department of the Treasury,

119 M.S.P.R. 605, ¶ 12 (2013) (explaining that an administrative judge has wide

discretion to control the proceedings, including the authority to exclude testimony

he believes would be irrelevant, immaterial, or unduly repetitious); 5 C.F.R.

§ 1201.41(b)(8), (10).

Accordingly, we affirm the initial decision.

NOTICE OF APPEAL RIGHTS 7

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).

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:

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.

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. 8 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