Byron McDonald v. Department of the Interior

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

BYRON MCDONALD, DOCKET NUMBER

Appellant, DE-0752-15-0358-I-1

v.

DEPARTMENT OF THE INTERIOR, DATE: February 22, 2016

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Byron McDonald, North Las Vegas, Nevada, pro se.

Grant L. Vaughn, Esquire, Salt Lake City, Utah, 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

affirmed the agency action indefinitely suspending him. 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

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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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. See 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).

¶2 Effective May 4, 2015, the agency indefinitely suspended the appellant

from his position as a Supervisory Police Officer, finding reasonable cause to

believe that he committed a crime for which a term of imprisonment may be

imposed. Initial Appeal File (IAF), Tab 13 at 14, 18-21, 39-42. The appellant

was alleged to have put his service weapon to a taxi driver’s head, asked the

driver whether he “wanted to live or die,” and subsequently grabbed the driver by

his shirt and pulled him back into the vehicle when he attempted to run away

from the appellant. Id. at 19, 93.

¶3 The appellant filed an appeal with the Board regarding the indefinite

suspension. IAF, Tab 1. He argued that the indefinite suspension was invalid

because the agency did not have reasonable cause to believe he committed the

crime with which he was charged, there was no nexus between his alleged

misconduct and the efficiency of the service, and the penalty was unreasonable.

Id. at 5; IAF, Tab 15 at 5-6, Tabs 19, 36. He raised affirmative defenses of:

(1) harmful error, in that the agency purportedly effected his indefinite

suspension before informing him of its decision; and (2) discrimination based on

race and national origin. IAF, Tabs 7, 19, Tab 21 at 4. After holding the

requested hearing, the administrative judge issued an initial decision affirming

the agency’s action. IAF, Tab 40, Initial Decision (ID). He found that: (1) the

3

agency had reasonable cause to impose the indefinite suspension; (2) the

indefinite suspension had an ascertainable end; (3) there was a nexus between the

indefinite suspension and the efficiency of the service; (4) the penalty was

reasonable; and (5) the appellant failed to prove his affirmative defenses. ID

at 5-20.

¶4 The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. He argues that: (1) the indefinite suspension was invalid; (2) the

administrative judge erred in finding that he failed to prove his discrimination

claims 2; and (3) the agency violated his due process rights in effecting the

indefinite suspension. 3 Id. The agency filed a response in opposition to the

petition for review, to which the appellant replied. PFR File, Tabs 4-5.

The agency properly sustained the indefinite suspension.

¶5 An indefinite suspension can be sustained if: (1) there is reasonable cause

to believe the employee committed a crime for which a term of imprisonment may

be imposed; (2) the suspension has an ascertainable end; (3) there is a nexus

between the alleged misconduct and the efficiency of the service; and (4) the

penalty is reasonable. Rittgers v. Department of the Army, 117 M.S.P.R. 182,

¶ 12 (2011). The appellant disputes that the agency satisfied the first, third and

fourth requirements.

2

The appellant does not challenge, and we discern no basis to disturb, the

administrative judge’s findings concerning his harmful error claim.

3

The appellant also argues that the administrative judge erred in failing to consider

cases from various Federal district and circuit courts, which he cited to support his

position. PFR File, Tab 1 at 14, 19-20. To the extent that the administrative judge

disregarded these cases, we discern no error because decisions by Federal district courts

and circuits other than the U.S. Court of Appeals for the Federal Circuit are not binding

on the Board. Rassenfoss v. Department of the Treasury, 121 M.S.P.R. 512, ¶ 16 n.4

(2014); Nigg v. U.S. Postal Service, 91 M.S.P.R. 164, ¶ 11 n.3 (2002), aff’d, 321 F.3d

1381 (Fed. Cir. 2003). The appellant also asserts that the administrative judge should

have considered Chambers v. Department of the Interior, 602 F.3d 1370 (Fed. Cir.

2010), decision on remand, 116 M.S.P.R. 17 (2011). PFR File, Tab 1 at 19. He appears

to be referring to the analysis of Chambers’ claim of whistleblower reprisal, which has

no applicability in the instant appeal.

4

Reasonable Cause

¶6 The appellant argues that the agency cannot satisfy the reasonable cause

requirement because it improperly failed to verify whether he engaged in the

criminal misconduct alleged, and also failed to consider evidence proving his

innocence. PFR File, Tab 1 at 10, 12-14, 17-19. However, a substantive defense

to the alleged criminal misconduct on which an indefinite suspension is based

does not defeat an agency’s showing of reasonable cause. Pararas-Carayannis v.

Department of Commerce, 9 F.3d 955, 957-58 (Fed. Cir. 1993). Further, our

reviewing court has held that an agency is not required to conduct an independent

investigation in all circumstances and that a formal judicial determination made

following a preliminary hearing provides more than enough evidence of possible

misconduct to meet the threshold requirement of reasonable cause to suspend.

Dunnington v. Department of Justice, 956 F.2d 1151, 1156-57 (Fed. Cir. 1992).

¶7 In October 2014, a district attorney filed criminal information with a district

court charging that the appellant committed the third-degree felony of aggravated

assault using a dangerous weapon or other means or force likely to produce death

or serious bodily injury. IAF, Tab 13 at 122. A term of imprisonment may be

imposed for this offense. Utah Code Ann. § 76-3-203(3); see IAF, Tab 13 at 19.

On March 5, 2015, following a preliminary hearing, a court found “sufficient

probable cause to bind the case over on all counts.” IAF, Tab 13 at 49. On

March 23, 2015, the appellant was arraigned. Id. at 50. He entered a not guilty

plea and the case was set for a jury trial. Id. These circumstances are sufficient

for the agency to meet its burden of showing that it had reasonable cause to

believe that the appellant committed a crime for which a term of imprisonment

may be imposed. 4 See Dunnington, 956 F.2d at 1157. Further, in light of this

4

The appellant disputes that the deciding official relied upon the aforementioned

circumstances in reaching his decision and states that the agency impermissibly relied

solely on his arrest, his arraignment, and associated newspaper articles to sustain the

indefinite suspension. PFR File, Tab 1 at 11-12. The appellant is incorrect. The

decision notice summarizes the reasons for the agency’s actions including, inter alia,

5

evidence, we discern no error in the agency’s failure to conduct an independent

investigation. 5 See Hernandez v. Department of the Navy, 120 M.S.P.R. 14,

¶¶ 15-16 (2013) (finding that the reasonable cause requirement was satisfied,

notwithstanding that the agency proposed the indefinite suspension based upon

court documents and did not conduct an independent investigation into the

criminal charges, because the district attorney had filed a complaint and the

employee had been ordered to appear for a jury trial).

Nexus

¶8 An agency may show a nexus between off-duty misconduct and the

efficiency of the service by three means: (1) a rebuttable presumption in certain

egregious circumstances; (2) preponderant evidence that the misconduct

adversely affects the appellant’s or coworkers’ job performance or the agency’s

trust and confidence in the appellant’s job performance; or (3) preponderant

evidence that the misconduct interfered with or adversely affected the agency’s

mission. 6 Harding v. Department of Veterans Affairs, 115 M.S.P.R. 284, ¶ 21

(2010), aff’d, 451 F. App’x 947 (Fed. Cir. 2011). The administrative judge found

that the agency established nexus based upon the latter two means because:

(1) the appellant was a police officer and allegedly used his agency-issued service

weapon in the crime with which he was charged; (2) the appellant’s service

that the appellant: (1) was arrested; (2) was charged with aggravated assault by

criminal complaint; (3) appeared before a judge and pled not guilty to that charge; and

(4) was thereafter scheduled for a jury trial. IAF, Tab 13 at 19.

5

The appellant argues that the administrative judge erred in failing to consider

Barresi v. U.S. Postal Service, 65 M.S.P.R. 656, 663 (1994). PFR File, Tab 1 at 18-19.

However, the administrative judge considered Barresi and found it distinguishable from

the instant appeal. ID at 6 n.9. We agree. In Barresi, the agency relied solely on

arrest, arraignment, and unverified news reports. Barresi, 65 M.S.P.R. at 666. In the

instant appeal, the agency relied on those same factors, but additionally relied on a

probable cause finding made after a preliminary hearing. IAF, Tab 13 at 18-19.

6

The appellant asserts that indefinite suspensions cannot be taken based on the

potential for loss of public trust or to protect the agency’s reputation, citing Thomas v.

General Services Administration, 756 F.2d 86 (Fed. Cir. 1985). PFR File, Tab 1 at 22.

The appellant’s argument is incorrect and Thomas does not support his position.

6

weapon was confiscated following the criminal incident and remained in police

custody, which inherently interfered with his ability to perform law enforcement

duties; and (3) the appellant’s criminal matter generated widespread notoriety and

media attention that adversely affected the agency’s mission and public trust. ID

at 8-11.

¶9 The appellant disputes these findings, noting that: (1) his direct supervisor

testified that he had not lost trust and confidence in him; (2) the deciding official

did not testify that his presence in the workplace would undermine employee

morale; (3) while he was on administrative leave prior to his indefinite

suspension, the agency briefly returned him to duty, which indicates that his

criminal matter did not adversely affect his work performance and that his

continued presence in the workplace would not have jeopardized the agency’s

interests; and (4) he could have performed his investigative duties without a

service weapon and, in any event, he is still in possession of three other

agency-issued weapons that he could have used in the performance of his duties. 7

PFR File, Tab 1 at 9, 15-17, 20-21.

¶10 We discern no basis to disturb the administrative judge’s analysis

concerning nexus. 8 When an employee engages in conduct antithetical to the

agency’s mission, the agency is not required to demonstrate a specific impact on

7

The appellant argues that the administrative judge improperly assumed that the fact

that his service weapon was confiscated inherently interfered with his duties. PFR File,

Tab 1 at 20-21. We disagree. The appellant’s position involves 30% police officer

work and requires “[t]horough knowledge of, and certification, of all firearms used in

performing the work of the position” and “[s]kill in the use of firearms . . . and other

specialized devices to perform required functions regarding law enforcement.” IAF,

Tab 4 at 82-84 (emphasis added).

8

The appellant claims that the agency presented no evidence of nexus and that the

administrative judge instead made arguments on the agency’s behalf. PFR File, Tab 1

at 11, 16-17. We disagree and discern no error by the administrative judge. To the

extent that the appellant claims bias or prejudice against the administrative judge, we

find that he has not 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).

7

his job performance or service efficiency to establish nexus. Kruger v.

Department of Justice, 32 M.S.P.R. 71, 75-76 (1987). Thus, the appellant’s work

history, his ability to perform his duties, and his supervisor’s opinion of him,

while relevant, do not outweigh the fact that his misconduct was inconsistent with

the agency’s mission. See id. As the deciding official testified, the appellant was

charged with a crime which, as a law enforcement officer, he is expected to

protect against. August 21, 2015 Hearing Compact Disc (HCD) (testimony of

deciding official). In addition, the appellant allegedly used his agency-issued

service weapon, which presumably should have been reserved for the

performance of his job duties, in the commission of the crime. Id.; see

Pararas-Carayannis, 9 F.3d at 958 (finding that an employee’s use of

Government property and time to carry out illegal acts was sufficient for the

agency to lose trust in him and, therefore, to establish the requisite nexus in an

indefinite suspension appeal). Furthermore, the appellant’s continued presence in

the workplace affected the agency’s reputation because his alleged misconduct

was publicized in news reports that identified him as a Federal police officer for

the agency, including one report which showed a photo of him in his police

uniform. HCD (testimony of deciding official); IAF, Tab 13 at 19, Tab 30

at 20-27; see Jones v. Government Printing Office, 13 M.S.P.R. 365, 369 (1982)

(affirming the administrative judge’s conclusion that nexus was shown because

the appellant’s continued presence in the workplace would affect the agency’s

reputation, given that the pending criminal action against her received widespread

notoriety). 9

9

The administrative judge cited Jones in the initial decision. ID at 9-12, 17-19. The

appellant argues that this was error because Jones was indefinitely suspended based

upon a murder charge, which is not analogous to the crime he allegedly committed, and

his actions did not undermine employee morale like Jones’ did. PFR File, Tab 1 at 17.

We discern no error. The administrative judge cited Jones for the proposition that the

notoriety of an offense can support a finding of nexus and the reasonableness of an

indefinite suspension, which is accurate. ID at 9-12, 17-19.

8

Penalty

¶11 Where, as here, all of the agency’s charges have been sustained, the Board

will review an agency-imposed penalty only to determine if the agency

considered all of the relevant factors and exercised management discretion within

tolerable limits of reasonableness. Archerda v. Department of

Defense, 121 M.S.P.R. 314, ¶ 25 (2014). In determining whether the selected

penalty is reasonable, the Board gives due deference to the agency’s discretion in

exercising its managerial function of maintaining employee discipline and

efficiency. Id. The Board recognizes that its function is not to displace

management’s responsibility or to decide what penalty it would impose, but to

assure that management judgment has been properly exercised and that the

penalty selected by the agency does not exceed the maximum limits of

reasonableness. Id. Thus, the Board will modify a penalty only when it finds that

the agency failed to weigh the relevant factors or that the penalty the agency

imposed clearly exceeded the bounds of reasonableness. Id.

¶12 The administrative judge found that the penalty of indefinite suspension

was reasonable because: (1) the appellant allegedly committed a crime, using his

agency-issued service weapon, which garnered media attention; and (2) law

enforcement officers are held to a higher standard of public trust and confidence.

ID at 11-13. The administrative judge rejected the appellant’s argument that the

agency should have instead assigned him administrative duties. ID at 11-12.

Specifically, the administrative judge found that this penalty would not have

safeguarded the agency’s interests because it would not have addressed the

notoriety of the appellant’s alleged misconduct or the agency’s loss of trust and

confidence in him. Id. The administrative judge found this conclusion

appropriate notwithstanding favorable testimony regarding the appellant’s

character and abilities. ID at 13 n.14.

¶13 On review, the appellant disputes the reasonableness of the agency’s

selected penalty. He states that the decision notice failed to mention the Douglas

9

factors and, therefore, the agency’s penalty is not entitled to deference. PFR File,

Tab 1 at 6-7. He argues that the agency failed to properly weigh the Douglas

factors, noting that: (1) his direct supervisor testified that he had not lost trust

and confidence in him; (2) he has extensive training and experience in law

enforcement, consistently good performance ratings, and “a spotless employee

personnel file”; and (3) the deciding official testified that he did not review the

appellant’s personnel file. Id. at 7-9. He claims that: (1) while he was on

administrative leave prior to his indefinite suspension, the agency briefly returned

him to duty, which indicates that his criminal matter did not adversely affect his

work performance and that his continued presence in the workplace would not

have jeopardized the agency’s interests 10; (2) media reports concerning the

alleged criminal incident were in an area several hundred miles away from his

duty station and the community he serves; and (3) he could have performed his

investigative duties without a service weapon. Id. at 15-16, 19-21. He further

argues that the penalty was unreasonable because testimony from his direct

supervisor established that a lesser penalty would have sufficed. Id. at 23.

¶14 We discern no basis to disturb the administrative judge’s penalty analysis.

The appellant is merely disagreeing with the administrative judge’s weighing of

the evidence, which does not establish a basis for review. See Broughton v.

Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (mere

reargument of issues already raised and properly resolved by the administrative

judge below do not establish a basis for review).

10

The administrative judge considered and rejected this argument. ID at 3 n.5.

10

The appellant failed to prove his discrimination claims. 11

¶15 Below, the appellant relied on seven comparators to support his claims of

discrimination based on race and national origin. IAF, Tabs 19-20. The

administrative judge found that the appellant failed to prove his discrimination

claims because none of these employees were similarly situated to him. 12 ID

at 17-19. The appellant only challenges this finding as to two of the comparators,

G.N. and R.B. PFR File, Tab 1 at 23-27.

¶16 The administrative judge found that G.N. and R.B. were not similarly

situated to the appellant because: (1) they were arrested for driving while

intoxicated, which is categorically different from aggravated assault; (2) there

11

After the initial decision was issued, the Board issued a decision that clarified the

evidentiary standards and burdens of proof under which it analyzes these

claims. Savage v. Department of the Army, 122 M.S.P.R. 612, ¶¶ 42-43, 51 (2015). We

find that applying the analytical framework in Savage would not change the result in

this case. Thus, based on the existing record, and for the reasons contained in the

initial decision, we affirm the administrative judge’s finding that the appellant did not

meet his burden of proving these claims.

12

The administrative judge also considered testimony from an agency Human

Resources (HR) Specialist regarding five employees in District 1 who were indefinitely

suspended based upon criminal charges. ID at 19-20. The appellant argues that the

administrative judge should not have permitted the agency to introduce this evidence

because the appellant was not aware of it prior to the hearing. PFR File, Tab 1 at 27.

He further states that his discovery requests were confined to comparators in District 3,

rather than agency-wide. Id. The appellant’s arguments do not establish error because

the agency is not precluded from introducing evidence simply because he failed to

request it in discovery. Cf. Spates v. U.S. Postal Service, 68 M.S.P.R. 9, 12-13 (1995)

(rejecting the appellant’s argument that the agency’s failure to produce evidence

regarding a comparator precluded him from raising a disparate penalty claim below

because, inter alia, he failed to request such information in discovery).

Notwithstanding, we question whether these individuals were proper comparators for

purposes of the appellant’s claims of discrimination. The HR Specialist did not identify

their races or national origins during her testimony and the administrative judge did not

do so in the initial decision. HCD (testimony of HR Specialist); ID at 19-20. Further,

given that they were all employed in District 1, whereas the appellant was employed in

District 3, it is unclear whether their employment situations were sufficiently identical

to the appellant’s. See Adams v. Department of Labor, 112 M.S.P.R. 288, ¶ 13 (2009).

We find it unnecessary to resolve this issue, however, because the appellant has not

raised this argument and because we agree with the administrative judge’s analysis

regarding the individuals whom the appellant proffered as comparators.

11

was no evidence that their conduct received any media attention, or that they used

Government property to commit their crimes; (3) the appellant failed to show that

G.N. was subject to a probable cause finding; and (4) R.B.’s misconduct occurred

in 2004, when the Office of Justice Services was under a different Director and

agency leadership was considered more lenient. ID at 18-19.

¶17 The appellant argues that, contrary to the administrative judge’s findings,

G.N. was subject to a probable cause finding. PFR File, Tab 1 at 23-24. He

contends that it is not relevant whether G.N. used Government property in the

commission of a crime because G.N.’s alleged misconduct was of comparable

seriousness to the appellant’s alleged misconduct. Id. at 25-27. Further, the

appellant reiterates his belief that he was treated less favorably than R.B. Id.

at 25.

¶18 We discern no basis to disturb the administrative judge’s analysis. As an

initial matter, to be similarly situated, employees must have reported to the same

supervisor and been subject to the same standards governing discipline. See

Adams v. Department of Labor, 112 M.S.P.R. 288, ¶ 13 (2009). The appellant

does not challenge the administrative judge’s finding that R.B.’s misconduct

occurred more than a decade ago under different, more lenient agency leadership.

As such, R.B. is not a proper comparator. Further, comparators must have been

alleged to have engaged in misconduct similar to the appellant’s alleged

misconduct without differentiating or mitigating circumstances. Id. The

appellant does not challenge the administrative judge’s finding that neither G.N.

nor R.B. received any media attention as a result of their alleged misconduct.

The appellant, on the other hand, was the subject of news reports that revealed his

identity and identified him as an agency employee. Even if we were to accept the

appellant’s contention that driving while intoxicated is of comparable seriousness

to aggravated assault using an agency-issued service weapon, this cannot defeat

the aforementioned differences in notoriety. For this same reason, we find that it

is ultimately immaterial whether G.N. was subject to a probable cause finding.

12

The agency did not violate the appellant’s due process rights.

¶19 Before taking an appealable action that deprives a tenured Federal employee

of his property right in his employment, an agency must provide the employee

with notice and a meaningful opportunity to respond, i.e., an opportunity to

present a response, either in person or in writing, why the proposed action should

not be taken. 5 U.S.C. § 7513(b); Cleveland Board of Education v.

Loudermill, 470 U.S. 532, 543-46 (1985).

¶20 The appellant submitted a reply to the agency’s proposal notice, which the

deciding official considered. IAF, Tab 13 at 18-19, 23-37. However, the

appellant alleges that the agency violated his due process rights because it failed

to inform him of several aggravating factors that the deciding official considered

in reaching his decision, including that: (1) the appellant’s off-duty misconduct

affected the efficiency of the service because he allegedly used his service

weapon in the criminal incident; (2) the appellant’s service weapon being in

police custody interfered with his ability to perform his duties; (3) the appellant’s

conduct resulted in a national media incident; and (4) the deciding official

received several telephone calls regarding the criminal incident. PFR File, Tab 1

at 4-6, 17, 20-21.

¶21 The first two issues do not establish a due process violation. The proposal

notice stated that the appellant was accused of putting his service weapon to the

taxi driver’s head. IAF, Tab 13 at 40. Thus, the appellant was clearly on notice

that his alleged use of his service weapon in the commission of a crime was a

factor the agency was considering. Further, the deciding official did not testify

that the fact that the appellant’s service weapon was confiscated constituted an

aggravating factor. Rather, he simply testified that: (1) he believed there was a

nexus between the appellant’s alleged crime and the efficiency of the service

because the appellant allegedly used his service weapon to commit the crime; and

(2) he was aware of this fact because the service weapon remained in police

13

custody as evidence when the agency took its annual firearm inventory. HCD

(testimony of deciding official).

¶22 The latter two arguments also do not establish a due process violation. At

the hearing, in response to a request to describe how the agency suffered

embarrassment as a result of the appellant’s criminal matter, the deciding official

testified that: (1) the appellant’s misconduct “caused a national media incident”;

(2) news of the appellant’s criminal matter reached the agency’s Washington,

D.C. office; (3) he had received telephone calls from the Washington, D.C. office

and his chain of command regarding the appellant’s criminal matter; and

(4) while traveling to the Salt Lake City area, various agency employees have

been asked if they are the individual who committed the criminal acts underlying

the appellant’s criminal matter. Id. This information was not included in the

agency’s proposal notice. Rather, the proposal notice stated only that there were

multiple regional news reports regarding the appellant’s criminal matter. IAF,

Tab 13 at 40. However, the deciding official did not testify that he relied upon

the aforementioned information in reaching his decision, and it is not mentioned

in the decision notice. Id. at 18-20; HCD (testimony of deciding official). Thus,

we find that a due process violation did not occur. See Norris v. Securities &

Exchange Commission, 675 F.3d 1349, 1353-54 (Fed. Cir. 2012) (finding no

evidence that the deciding official improperly considered ex parte information

because, although she was admittedly aware of prior misconduct not cited in the

proposal notice, she testified that it did not influence her decision and that she did

not consider any information not contained in the proposal notice).

¶23 Based on the foregoing, we find that the appellant has not established any

basis for review and we affirm the initial decision.

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request further review of this final decision.

14

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 U.S. 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 U.S. 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 file on

time. If the action involves a claim of discrimination based on race, color,

15

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.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.