The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CELESTINE GREEN THOMPSON, DOCKET NUMBER
Appellant, AT-0752-15-0303-I-1
v.
DEPARTMENT OF HOMELAND DATE: July 22, 2015
SECURITY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Celestine Green Thompson, Pompano Beach, Florida, pro se.
Kaleb M. Kasperson, Miami, Florida, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her removal appeal without prejudice as prematurely filed. Generally,
we grant petitions such as this one only when: the initial decision contains
erroneous findings of material fact; the initial decision is based on an erroneous
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the 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. See Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115). For
the reasons discussed below, we DENY the petition for review, AFFIRM the
initial decision as MODIFIED by this Order, finding that the appellant’s appeal is
now ripe for adjudication, and FORWARD the case to the regional office for
docketing and adjudication as a refiled appeal.
BACKGROUND
¶2 Effective January 24, 2015, the agency removed the appellant from her
position of Mission Support Assistant based on the following charges: (1) willful
refusal to comply with an instruction of a supervisor; and (2) conduct unbecoming
a federal employee. Initial Appeal File (IAF), Tab 8 at 50-56. In its decision
letter, the agency informed the appellant of her Board appeal rights and the
procedures for filing a formal complaint of discrimination regarding the action
with the agency. Id. at 52-54. The appellant filed a formal equal employment
opportunity (EEO) complaint of discrimination with the agency on January 27,
2015. Id. at 17-20. The next day, she sent the agency an email amending her
EEO complaint to include her removal. Id. at 47-48. The agency accepted the
appellant’s complaint for investigation. IAF, Tab 11 at 6-9.
¶3 On February 3, 2015, the appellant appealed her removal to the Board,
raising claims of harmful error and retaliation for EEO activity and
whistleblowing. IAF, Tab 1. Without holding a hearing, the administrative judge
issued an initial decision dismissing the appeal without prejudice as prematurely
filed. IAF, Tab 12, Initial Decision (ID) at 1, 7-8. He found that the appellant
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made an informed election to challenge her removal first via the agency’s EEO
complaint process by amending her pending formal EEO complaint on
January 28, 2015, prior to filing her Board appeal on February 3, 2015. ID at 5.
Accordingly, the administrative judge held that her right to appeal her removal to
the Board had not vested and found it prudent to dismiss the appeal without
prejudice under 5 C.F.R. § 1201.154(c). ID at 5.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response in opposition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 Where an appellant has filed a timely formal complaint of discrimination
with the agency prior to appealing to the Board, the right to appeal does not vest
until either the agency issues a final decision on the discrimination complaint or
120 days elapse from the date the discrimination complaint is filed with the
agency. Price v. Department of Veterans Affairs, 105 M.S.P.R. 126, ¶ 9 (2007);
5 C.F.R. § 1201.154(b). In her petition for review, the appellant contests the
administrative judge’s finding that the email she sent on January 28, 2015,
amended her EEO complaint to include her removal. PFR File, Tab 1 at 4.
However, she does not adequately explain why the challenged factual
determination is incorrect or identify specific evidence in the record that
demonstrates the error. See 5 C.F.R. § 1201.115(a). We agree with the
administrative judge that the appellant made an informed election to challenge
her removal through the EEO complaint process by sending the email before she
filed her Board appeal, and that such election was binding. See ID at 4-7; see
also Carey v. Department of the Interior, 103 M.S.P.R. 534, ¶ 11 (2006).
Therefore, we find that the administrative judge properly dismissed her appeal
without prejudice as prematurely filed under 5 C.F.R. § 1201.154(c).
¶6 The appellant further argues that the administrative judge erred by not
providing her requested hearing. PFR File, Tab 1 at 3. An appellant’s right to a
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hearing generally is contingent on the appellant filing a timely appeal within the
Board’s jurisdiction. See 5 C.F.R. § 1201.24(d). We find that the appellant had
no entitlement to a hearing because her appeal was premature, and thus the Board
lacked jurisdiction to adjudicate it. See 5 C.F.R. § 1201.154. Additionally, she
has not explained how any procedural error or abuse of discretion affected the
outcome of the case. See 5 C.F.R. § 1201.115(c). The appellant also argues that
the administrative judge was biased. PFR File, Tab 1 at 3. We find her broad
allegation of bias insufficient to overcome the presumption of honesty and
integrity that accompanies administrative adjudicators. See Oliver v. Department
of Transportation, 1 M.S.P.R. 382, 386 (1980). Finally, we decline to discuss the
appellant’s arguments on review addressing the merits of her appeal because they
do not address the relevant jurisdictional issue. PFR File, Tab 1 at 4-5.
¶7 Although we agree with the administrative judge’s conclusion that the
appellant’s appeal was premature, we modify the initial decision to find that the
appellant’s appeal is now ripe for adjudication because 120 days have elapsed
since she filed her amended EEO complaint. See Price, 105 M.S.P.R. 126, ¶ 10;
see also 5 C.F.R. § 1201.154(b)(2). Therefore, we find it appropriate to forward
the case to the regional office. See Price, 105 M.S.P.R. 126, ¶ 10.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS 2
You have the right to request further review of this final decision. There
are several options for further review set forth in the paragraphs below. You
may choose only one of these options, and once you elect to pursue one of the
2
The administrative judge did not afford the appellant notice of appeals rights under the
Whistleblower Protection Enhancement Act of 2012 or notice of her mixed-case right to
appeal her discrimination claims to the Equal Employment Opportunity Commission
and/or the United States District Court. We notify the appellant of her proper appeal
rights in this Final Order. See Grimes v. U.S. Postal Service, 39 M.S.P.R. 183, 186-87
(1988).
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avenues of review set forth below, you may be precluded from pursuing any
other avenue of review.
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
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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
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. 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.
Other Claims: Judicial Review
If you want to request review of the Board’s decision concerning your
claims of prohibited personnel practices described in 5 U.S.C. § 2302(b)(8),
(b)(9)(A)(i), (b)(9)(B), (b)(9)(C), or (b)(9)(D), but you do not want to challenge
the Board’s disposition of any other claims of prohibited personnel practices, you
may request the United States Court of Appeals for the Federal Circuit or any
court of appeals of competent jurisdiction to review this final decision. The court
of appeals must receive your petition for review within 60 days after the date of
this order. See 5 U.S.C. § 7703(b)(1)(B) (as rev. eff. Dec. 27, 2012). If you
choose to file, be very careful to file on time.
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode/htm.
Additional information about the United States 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, and 11.
Additional information about other courts of appeals can be found at their
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respective websites, which can be accessed through
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
If you are interested in securing pro bono representation for your appeal to
the 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
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.