Fanny Mak v. Tennessee Valley Authority

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

FANNY MAK, DOCKET NUMBER

Appellant, AT-0351-14-0767-I-1

v.

TENNESSEE VALLEY AUTHORITY, DATE: March 16, 2016

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Floyd Kilpatrick, Chattanooga, Tennessee, for the appellant.

John E. Slater, Knoxville, Tennessee, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

REMAND ORDER

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

affirmed the agency’s action separating her from Federal service by reduction in

force (RIF). For the reasons discussed below, we GRANT the appellant’s

petition for review, VACATE the initial decision, and REMAND the case to the

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

Atlanta Regional Office for further adjudication in accordance with this Remand

Order.

DISCUSSION OF ARGUMENTS ON REVIEW

¶2 The appellant filed an appeal with the Board challenging the agency’s

action separating her from Federal service by RIF, effective June 16, 2014.

Initial Appeal File (IAF), Tab 1, Tab 4 at 28-30. On August 4, 2015, the

administrative judge issued an initial decision based on the written record 2

affirming the agency’s action. IAF, Tab 19, Initial Decision (ID). She found

that: (1) the agency invoked the RIF regulations for a legitimate reason, and

properly applied them as to the appellant’s competitive level and competitive

area; and (2) as an excepted-service employee, the appellant did not have

assignment rights upon her release from her competitive level. ID at 2-7.

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

for Review (PFR) File, Tab 1. She challenges the validity of the RIF action,

arguing that it was motivated by discrimination based on her race and age. Id.

at 3. The agency filed a response in opposition to the petition for review, to

which the appellant did not reply. PFR File, Tab 4. It argues that the appellant’s

petition for review was untimely filed and that she has not shown good cause for

her filing delay. Id. at 5-7. It further argues that the appellant’s discrimination

claims should not be considered because she did not timely raise them below. Id.

at 7-9.

The appellant’s petition for review was untimely filed, but she has established

good cause for her filing delay.

¶4 The administrative judge correctly advised the parties that the initial

decision would become final on September 8, 2015, unless a petition for review

was filed by that date. ID at 7; see 5 C.F.R. § 1201.114(e). The appellant’s

2

The appellant declined a hearing on her initial appeal form. IAF, Tab 1 at 3. She

subsequently expressed her desire for a hearing, but thereafter withdrew that request

during the close-of-record conference. IAF, Tab 7 at 3, Tab 12 at 1.

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petition for review was postmarked September 9, 2015. PFR File, Tab 1 at 12.

Under the Board’s regulations, the date of filing by mail is determined by the

postmark date. 5 C.F.R. § 1201.4(l). Accordingly, it appears that her petition

for review was filed 1 day late.

¶5 The appellant argues that her petition was timely filed. PFR File, Tab 3

at 1. Mr. Kilpatrick, the individual whom the appellant has designated on review

to represent her, has provided a sworn statement that the administrative judge

contacted him by telephone on August 3, 2015, and requested that he submit a

designation of representative form signed by the appellant. PFR File, Tab 1 at 1,

Tab 3 at 1, 3. He states that he had the appellant sign a designation form on the

same day and that he and the appellant “sent that [form] to the Atlanta Regional

Office.” PFR File, Tab 3 at 1. He asserts that, after doing so, he did not hear

from the administrative judge. Id. He claims that he did not receive a copy of

the initial decision until the appellant provided it to him on August 12, 2015. Id.

The appellant contends that her petition for review was timely filed based on the

date Mr. Kilpatrick received the initial decision. Id.

¶6 The appellant’s claim regarding when Mr. Kilpatrick received the initial

decision does not establish that her petition for review was timely filed. The

Board’s regulations plainly state that, if an appellant is represented, the deadline

for filing a petition for review runs from either her or her representative’s receipt

of the initial decision, whichever comes first. 5 C.F.R. § 1201.114(e). The

appellant was registered as an e-filer and therefore is deemed to have received

the initial decision on August 4, 2015, the date it was sent to her by electronic

mail. IAF, Tab 1 at 3, Tab 20; see 5 C.F.R. § 1201.14(m)(2). Thus, the deadline

for filing, which began to run from the appellant’s receipt of the initial decision

on August 4, 2015, was September 8, 2015. See 5 C.F.R. § 1201.114(e).

Therefore, we find that the petition for review was untimely filed.

¶7 Where a petition for review is untimely filed, the Board will waive the time

limit for filing if the appellant shows good cause for her filing delay. Miller v.

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Department of the Army, 112 M.S.P.R. 689, ¶ 13 (2009); 5 C.F.R. § 1201.114(g).

In determining whether an appellant has shown good cause, the Board may

consider several nonexclusive factors, including: the length of the delay;

whether the appellant was notified of the time limit or was otherwise aware of it;

the existence of circumstances beyond the control of the appellant that affected

her ability to comply with the time limits; the degree to which negligence by the

appellant has been shown to be present or absent; circumstances that show that

any neglect involved is excusable neglect; a showing of unavoidable casualty or

misfortune; and the extent and nature of the prejudice to the agency that would

result from waiver of the time limit. Barnes v. Merit Systems Protection

Board, 625 F. App’x 996, 999 (Fed. Cir. 2015) (citing Herring v. Merit Systems

Protection Board, 778 F.3d 1011, 1013-14 (Fed. Cir. 2015) (finding good cause

for a 10-day delay)); Miller, 112 M.S.P.R. 689, ¶ 13. The Board may find good

cause for an appellant’s untimely filing of a petition for review if her properly

designated representative did not timely receive a copy of the initial decision.

See Channell v. U.S. Postal Service, 76 M.S.P.R. 630, 631-33 (1997)

(determining that it was improper to penalize the appellant for failing to respond

to a timeliness order that was not served on his designated representative);

Farrell v. U.S. Postal Service, 70 M.S.P.R. 564, 565-67 (1996) (finding good

cause to excuse a 7-day delay in filing a motion for attorney fees where the

appellant’s attorney filed the fee motion on the same day he learned the initial

decision had been issued).

¶8 There is no evidence in the record to contradict Mr. Kilpatrick’s sworn

statement that the administrative judge instructed him to submit a designation of

representative form and that he promptly complied with that instruction. He then

acted diligently by filing the appellant’s petition for review within 30 days of his

receipt of the initial decision. Although the filing was 1 day beyond the

deadline, this delay was minimal. See Barnes, 625 F. App’x at 999 (finding that

the Board should have excused a 1-day delay in filing a petition for review

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because the delay was minimal and was due to the appellant’s counsel’s attempts

to comply with the Board’s length of pleading limitations). Further, we discern

no prejudice to the agency because it received an opportunity to respond to the

appellant’s petition for review. PFR File, Tab 4. Accordingly, given the unique

circumstances in this case, we find that the appellant has established good cause

for her filing delay.

We remand this appeal for the administrative judge to address the appellant’s

discrimination claims.

¶9 In January 2015, Mr. Kilpatrick raised claims of race and age discrimination

on the appellant’s behalf and requested a hearing regarding those claims. 3 IAF,

Tab 15. Although the administrative judge acknowledged receipt of that

pleading in the initial decision, ID at 5 n.2, she did not adjudicate the appellant’s

discrimination claims. See generally ID. On review, the appellant asserts that

this was error. PFR File, Tab 1 at 3. We agree.

¶10 The administrative judge should have apprised the appellant of the

applicable burdens of proving her discrimination claims, as well as the kind of

evidence she was required to produce to meet her burden. See Wynn v. U.S.

Postal Service, 115 M.S.P.R. 146, ¶ 13 (2010). Because she failed to do so, we

must remand this appeal for her to afford the parties such notice and an

opportunity to submit evidence and argument under the proper standard. See id.;

Abakan v. Department of Transportation, 98 M.S.P.R. 662, ¶¶ 7-9 (2005)

(remanding an appeal of a RIF action because the administrative judge failed to

examine the appellant’s discrimination claims). The administrative judge should

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As the agency points out, the appellant did not raise these claims prior to the end of

the close-of-record conference in September 2014. See 5 C.F.R. § 1201.24(b)

(requiring an appellant to show good cause for raising claims or defenses for the first

time after the conferences defining the issues in the case); IAF, Tab 12; PFR File,

Tab 4 at 8. However, because the administrative judge later reopened the record in May

2015, albeit for a limited purpose, IAF, Tab 16, she should have adjudicated the

appellant’s discrimination claims, which relate directly to the agency’s burden of proof

in this appeal.

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determine whether the appellant wishes to have a hearing regarding her

discrimination claims and, if so, hold the requested hearing. See Savage v.

Department of the Army, 122 M.S.P.R. 612, ¶¶ 45-46 (2015). She thereafter

must address the merits of those claims, as they relate to the agency’s RIF

action, in a new initial decision. See Abakan, 98 M.S.P.R. 662, ¶ 10; Spithaler v.

Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980) (holding that an

initial decision must identify all material issues of fact and law, summarize the

evidence, resolve issues of credibility, and include the administrative judge’s

conclusions of law and his legal reasoning, as well as the authorities on which

that reasoning rests).

ORDER

For the reasons discussed above, we remand this case to the Atlanta

Regional Office for further adjudication in accordance with this Remand Order.

FOR THE BOARD: ______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.