The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
CORNELIA WHITE, DOCKET NUMBER
Appellant, AT-0752-16-0029-I-1
v.
DEPARTMENT OF HEALTH AND DATE: August 5, 2016
HUMAN SERVICES,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Darryl A. Hines, Esquire, Duluth, Georgia, for the appellant.
Marie T. Ransley, Esquire, Atlanta, Georgia, 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 as untimely filed without a showing of good cause
for the delay. Generally, we grant petitions such as this one only when: the
initial decision contains erroneous findings of material fact; the initial decision is
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
based on an erroneous interpretation of statute 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
¶2 The following facts are undisputed. On September 10, 2008, the agency
issued a letter proposing the appellant’s removal from her GS-13 Behavioral
Scientist position based on a charge of physical/medical inability to perform the
duties of her position. Initial Appeal File (IAF), Tab 4 at 39. The appellant
received the letter at her home address and thereafter refused to receive or read
any further correspondence from the agency. IAF, Tab 9 at 5. On October 14,
2008, the agency issued a decision letter, addressed to the same home address,
indicating that the appellant would be removed effective October 17, 2008. IAF,
Tab 4 at 47–48.
¶3 The agency’s removal notice informed the appellant of her right to appeal
her removal to the Board within 30 days. Id. It also informed her that if she
believed her removal was discriminatory she could file an equal employment
opportunity (EEO) complaint within 45 days of the effective date of her removal
and that she could file a Board appeal within 30 days of a final agency decision
(FAD) on her discrimination complaint. Id. at 48.
3
¶4 On October 3, 2015, the appellant appealed her removal to the Board. IAF,
Tab 1. She indicated that she received the removal decision letter on October 14,
2008, the date of issuance, but that her untimely filing should be waived because
the removal notice lacked information regarding her right to file a mixed-case
appeal. Id. at 4, 6. The agency filed a motion to dismiss the appeal as untimely.
IAF, Tab 4. The administrative judge issued an order in which he informed the
appellant that she had the burden of establishing the timeliness of her appeal by a
preponderance of the evidence. IAF, Tab 7 at 2. The administrative judge further
indicated that it appeared that her appeal was untimely because it was filed almost
7 years after the October 17, 2008 effective date of her removal, and directed her
to submit evidence and argument showing that her appeal was timely or that there
was good cause for the delay. Id. at 2-3; IAF, Tab 4 at 47.
¶5 The appellant filed a response in which she asserted that her appeal was
timely pursuant to 5 C.F.R. § 1201.154(b) because it was filed within 30 days of
the issuance of the September 30, 2015 FAD in her EEO complaint No. 410-2011-
00232X. IAF, Tab 8 at 9; see IAF, Tab 5 at 70. Alternatively, she contended that
the filing deadline should be waived based on the following arguments: (1) the
agency failed to serve the removal letter on the attorney representing her in her
EEO complaint; (2) the removal letter failed to advise her of her right to file a
mixed-case appeal; and (3) she was mentally incapacitated until 2012 or 2013.
IAF, Tab 8 at 13, 15, 17–19, 721. The agency replied in opposition to the
appellant’s response. IAF, Tab 10.
¶6 Without holding the requested hearing, the administrative judge dismissed
the appeal as untimely filed without good cause shown for the filing delay. IAF,
Tab 11, Initial Decision (ID) at 1. The appellant has filed a petition for review.
Petition for Review (PFR) File, Tab 1. The agency has filed a response in
opposition, to which the appellant has replied. PFR File, Tabs 3–4.
4
DISCUSSION OF ARGUMENTS ON REVIEW
¶7 Generally, an appeal must be filed with the Board no later than 30 days
after the effective date of the action being challenged or 30 days after receipt of
the agency’s decision, whichever is later. 5 C.F.R. § 1201.22(b). However, an
appellant who was subject to an action that is appealable to the Board and filed a
timely formal discrimination complaint with the agency may appeal either
(1) within 30 days after receipt of the agency resolution or final decision on the
complaint, or (2) at any time after the expiration of 120 calendar days if the
agency has not resolved the matter or issued a final decision within the 120–day
period. 5 C.F.R. § 1201.154(b). The appellant bears the burden of proving the
timeliness of her appeal. 5 C.F.R § 1201.56(b)(2)(i)(B).
¶8 Here, the administrative judge correctly rejected the appellant’s argument
that her appeal was timely based on the September 30, 2015 FAD in her EEO
complaint. ID at 4. The administrative judge found that the appellant failed to
establish that her EEO complaint was a mixed–case complaint or that her removal
was an accepted issue in her complaint. ID at 4–6. This finding is supported by
the EEO documents in evidence, including the appellant’s April 2008 formal
complaint, a November 2011 remand order issued by the Equal Employment
Opportunity Commission (EEOC) Office of Federal Operations (OFO), and the
September 30, 2015 FAD, none of which list removal as an accepted issue. IAF,
Tab 4 at 36, Tab 5 at 4, 70–71. Furthermore, by order dated March 3, 2014, the
presiding EEOC administrative judge expressly rejected the appellant’s motion to
amend her complaint to include the issue of removal. 2 IAF, Tab 5 at 26–27.
Accordingly, we agree with the administrative judge that the time limits of
5 C.F.R. § 1201.154 do not apply. ID at 4.
¶9 We further agree with the administrative judge that the appellant failed to
prove she filed her appeal within 30 days of the effective date of her removal or
2
According to the agency, the appellant’s appeal of the agency’s September 30, 2015
FAD is pending before OFO. PFR File, Tab 3 at 10 n.6.
5
her receipt of the removal decision. ID at 6–7. In the timeliness order, the
administrative judge advised the appellant that it appeared that the 30–day period
for filing her appeal began on October 17, 2008. IAF, Tab 7 at 2. He further
indicated that, to the extent that she was arguing that the apparent untimeliness of
her filing was the result of late receipt of the removal notice, she must provide
evidence and argument as to the date she received the notice. Id. at 3. In her
response, the appellant did not allege that she failed to receive the notice or that
she received the notice after October 17, 2008. IAF, Tab 8 at 17. Instead, in a
statement attached to her response, she admitted that, after receiving the
September 7, 2008 proposed removal from the agency, she intentionally refused
to receive or read any further correspondence from the agency, and she does not
recall reading or receiving the removal notice. IAF, Tab 9 at 5. Under these
circumstances, we agree with the administrative judge that the appellant failed to
establish that her appeal was timely filed. ID at 6–7.
¶10 On review, the appellant reasserts her argument that the agency was
required to serve the removal decision on her attorney, and she contends that the
time limits did not start until he was served. PFR File, Tab 1 at 16. The
appellant refers to a January 2008 email she sent to an EEO counselor regarding
her pending EEO complaint in which she requested that further correspondence
be directed to the attorney representing her in the EEO matter. 3 IAF, Tab 8
at 721, Tab 9 at 5. As noted by the agency, the appellant has provided no
evidence indicating that she made this request outside the context of her EEO
case, and she has not explained why neither she nor her attorney informed the
3
The appellant referred to this request as a “resolution” to her EEO complaint. IAF,
Tab 8 at 721. As part of the requested resolution, she also indicated that she did not
want to receive direct correspondence from certain agency officials. Id. The officials
who signed her proposed removal and removal decision were not included in that
list. Id.
6
agency of this preference after she received the September 7, 2008 proposed
removal, which was not copied on her attorney. 4 PFR File, Tab 3 at 16.
¶11 Moreover, the administrative judge correctly found that the appellant and
her attorney received a copy of the removal notice as part of the 2009 Report of
Investigation (ROI) in her EEO case. ID at 7. On review, the appellant argues
that the February 2009 date on the ROI does not indicate the date the ROI was
mailed or the date it was received by her or her attorney. PFR File, Tab 1 at 9.
As noted by the agency, however, the evidence supports a finding that the ROI
was received prior to the appellant’s request for a hearing and before the
March 2010 decision of the presiding EEOC administrative judge. PFR File,
Tab 3 at 13–14; IAF, Tab 5 at 5. Furthermore, the appellant’s assertion, through
her attorney, that she and her attorney first read the removal decision in
March 2014 is contradicted by the evidence of record. IAF, Tab 8 at 17. The
November 2010 OFO decision noted that the appellant was removed effective
October 14, 2008. IAF, Tab 5 at 8. Moreover, the appellant’s attorney
specifically pointed out the location of the removal decision within the ROI as
part of the appellant’s February 4, 2014 motion to amend her EEO complaint. Id.
at 11. Accordingly, we find no reason to disturb the administrative judge’s
finding that the appellant’s October 3, 2015 appeal was not timely filed. ID at 7.
¶12 We further agree with the administrative judge’s finding that the appellant
failed to establish good cause for her filing delay. ID at 11. To establish good
cause for the untimely filing of an appeal, a party must show that she exercised
due diligence or ordinary prudence under the particular circumstances of the case.
Alonzo v. Department of the Air Force, 4 M.S.P.R. 180, 184 (1980). To
determine if an appellant has shown good cause, the Board will consider the
4
The appellant’s attorney sent a response to the proposed removal, but it was mailed
outside the 15 – day time period provided in the proposal notice, and it appears that it
was not received by the agency prior to the issuance of the removal decision. IAF,
Tab 4 at 40, 42, 47. The letter did not indicate that the appellant was unable to receive
correspondence at her address. Id. at 42.
7
length of the delay, the reasonableness of her excuse and her showing of due
diligence, whether she is proceeding pro se, and whether she has presented
evidence of the existence of circumstances beyond her control that affected her
ability to comply with the time limits or of unavoidable casualty or misfortune
that similarly shows a causal relationship to her inability to timely file her
petition. Moorman v. Department of the Army, 68 M.S.P.R. 60, 62–63 (1995),
aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶13 On review, the appellant reasserts her argument that the agency’s removal
letter contained confusing appeal rights and that this provides good cause for her
untimely filing. PFR File, Tab 1 at 23. The removal letter, however, notified the
appellant that she had 30 days from the effective date of the decision to file a
Board appeal and 45 days from the effective date to file an EEO complaint. IAF,
Tab 4 at 47–48. We agree with the administrative judge that the appellant failed
to show how this information caused her to wait 7 years to file her Board appeal.
ID at 9.
¶14 We also agree with the administrative judge that the appellant failed to
establish that she had a mental illness that prevented her from filing a timely
appeal or requesting an extension. ID at 10. The administrative judge provided
the appellant with proper notice of the requirements for establishing good cause
based on illness. IAF, Tab 7 at 4; see Lacy v. Department of the Navy,
78 M.S.P.R. 434, 437 (1998). In her response to the order, the appellant did not
submit any medical documents establishing the severity of her condition but she
alleged that, until late 2012, she took medications that “at times” made her
lethargic, disoriented, and unable to focus. IAF, Tab 9 at 5. As noted by the
administrative judge, however, the appellant’s ability to pursue her EEO claim, in
combination with evidence indicating that she was able to continue with her
part-time work teaching college–level classes during the period at issue,
supported a finding that her mental illness was not sufficiently severe to prevent
her from filing her appeal or requesting an extension. ID at 10; see, e.g., Sing v.
8
Department of the Navy, 51 M.S.P.R. 251, 253–54 (1991) (finding that the
appellant’s medical condition that was “complex and involve[d] not only physical
but also emotional and interpersonal issues” was not of sufficient severity or
duration to prevent him from timely filing).
¶15 Here, the appellant is represented by counsel and her almost 7–year delay in
filing is significant. We agree with the administrative judge that the failure of the
appellant or her attorney to read the removal notice upon receipt does not show
the due diligence necessary to constitute good cause for a delay in filing. ID at 7;
see Williams v. Office of Personnel Management, 59 M.S.P.R. 399, 401 (1993).
Considering the record as a whole, we agree with the administrative judge that the
appellant did not establish good cause for her untimely filing. Accordingly, we
find that the administrative judge properly dismissed the appeal as untimely filed
without good cause shown for the delay.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). 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:
9
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,
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
10
prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f);
29 U.S.C. § 794a.
FOR THE BOARD: _____________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.