The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JACQUELINE L. DUMPSON, DOCKET NUMBER
Appellant, PH-0752-13-5957-I-1
v.
SOCIAL SECURITY DATE: November 10, 2014
ADMINISTRATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Jacqueline L. Dumpson, Philadelphia, Pennsylvania, pro se.
Rafael Melendez, Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed her 30-day suspension. For the reasons set forth below, the appellant’s
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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petition for review is DISMISSED as untimely filed without good cause
shown. 5 C.F.R. § 1201.114(e), (g).
¶2 In September 2013, the appellant appealed her 30-day suspension for
conduct unbecoming a federal employee. Initial Appeal File (IAF), Tab 1. After
holding a hearing, the administrative judge affirmed the suspension in an
April 30, 2014 initial decision. IAF, Tab 38, Initial Decision (ID). On June 2,
2014, the appellant submitted a pleading that included a single sheet of paper
with a compact disc. Petition for Review (PFR) File, Tab 1. The Board rejected
the pleading as incorrectly formatted and informed the appellant that she could
file a perfected petition for review on or before June 20, 2014. Id. The appellant
submitted her perfected petition for review on August 21, 2014. PFR File, Tab 2.
The agency responded in opposition. PFR File, Tab 4. Subsequently, the
appellant filed a motion to waive the time limit for filing her petition for review.
PFR File, Tab 5.
¶3 Absent good cause for delay, a petition for review must be filed within 35
days after the issuance of the initial decision or within 30 days after the date the
appellant received the initial decision if the appellant shows that the initial
decision was received more than 5 days after the date of issuance. 5 C.F.R.
§ 1201.114(e). The Board will waive its filing deadline only upon a showing of
good cause for the delay in filing. Minor v. Department of the Air
Force, 109 M.S.P.R. 692, ¶ 4 (2008). To establish good cause for an untimely
filing, a party must show that she exercised due diligence or ordinary prudence
under the particular circumstances of the case. Id.
¶4 First, we find that the appellant’s June 2, 2014 pleading was properly
rejected. On June 2, 2014, the appellant submitted a pleading that included a
compact disc. PFR File, Tab 1. The regulations provide that pleadings and
attachments must be filed on 8½ by 11-inch paper, except for good cause
shown. 5 C.F.R. § 1201.26(c). The regulations further provide that the Clerk of
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the Board may reject materials submitted for filing that do not substantially
conform to procedural requirements by issuing a rejection letter advising the
parties of the nature of the nonconformity and the requirements and deadline for
resubmission. 5 C.F.R. § 1201.114(l). The appellant was notified of the proper
format for Board pleadings in the administrative judge’s acknowledgment order.
IAF, Tab 2 at 4. She was later notified in the initial decision of the specific
format requirements for filing a petition for review. ID at 15-17. The appellant
has not submitted evidence or argument regarding her justification for the
improper format of her pleading other than to state that she was unfamiliar with
Board procedures. PFR File, Tab 2 at 2. We find that the appellant was notified
of the format requirements and that her argument concerning lack of knowledge
of Board procedures is thus not persuasive.
¶5 Next, because we find that the June 2, 2014 pleading was properly rejected,
we consider the appellant’s August 21, 2014 pleading as an untimely filed
petition for review. The deadline for submitting a timely petition for review was
June 4, 2014, because this is 35 days after the issuance of the initial decision on
April 30, 2014. 5 C.F.R. § 1201.114(e). However, the Board gave the appellant
an extension until June 20, 2014, to file a perfected petition for review. PFR File,
Tab 1. The appellant did not file her petition until August 21, 2014. PFR File,
Tab 2. The petition is therefore untimely filed by more than 2 months.
¶6 Lastly, we find that the appellant has not shown good cause for her
untimely filing. The lengthy nature of the delay in filing weighs against a finding
of good cause in this case. See Alvarado v. Defense Commissary
Agency, 88 M.S.P.R. 46, ¶¶ 4-5 (2001) (finding the appellant had not shown good
cause for “significant” filing delay of almost 2 months). Additionally, although
the appellant asserts that she is unfamiliar with Board procedures, PFR File, Tab
5 at 2, this asserted lack of knowledge, without more, is not sufficient to establish
good cause for the untimely filing, Franklin v. Department of Health & Human
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Services, 48 M.S.P.R. 133, 135 (1991) (the appellant did not establish good cause
for an untimely petition for review based on an assertion that she lacked
knowledge of Board procedures, in the absence of an allegation that she contacted
or attempted to contact the Board for further information, and where notice stated
that she had 15 days in which to refile a corrected petition for review).
¶7 An appellant may, however, establish good cause for a delay in filing based
upon illness. Braxton v. Department of the Treasury, 119 M.S.P.R. 157, ¶ 7
(2013). Here, the appellant argues generally that she experienced stress and
health issues. PFR File, Tab 5 at 2. She also submits supporting medical records.
Id. at 6-28. To establish good cause based upon illness, the party must identify
the time period during which she suffered from the illness, support her allegation
with corroborating medical or other evidence, and explain how the illness
prevented her from timely filing her petition or requesting an extension of time.
Sanders v. Department of the Treasury, 88 M.S.P.R. 370, ¶ 7 (2001). Although
the appellant has submitted evidence and argument concerning her medical
condition, they do not demonstrate how her medical condition prevented her from
timely filing a petition for review. In particular, we note that the appellant has
failed to explain why she was able to submit the June 2, 2014 pleading but was
unable to comply with the subsequent June 20, 2014 deadline. We therefore find
that she has failed to establish good cause based upon illness.
¶8 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 the 30-day suspension.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
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Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request 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 your request 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, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after your
receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
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file on time. 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. § 2000e5(f)
and 29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.