Opinion

Tony King v. Department of Agriculture

Court: Merit Systems Protection Board
Filed: Oct 20, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

TONY KING, DOCKET NUMBER

Appellant, AT-0752-18-0079-I-1

DEPARTMENT OF AGRICULTURE, DATE: October 20, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Andrew Kim, Esquire, Atlanta, Georgia, for the appellant.

Jose Calvo, Washington, D.C., for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

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

reversed the appellant’s removal. For the reasons discussed below, we GRANT

the agency’s petition for review and REVERSE the administrative judge’s finding

on the appellant’s affirmative defense, instead finding that the appellant failed to

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

prove that retaliation for filing equal employment opportunity (EEO) complaints

was a motivating factor in the agency’s removal action. We AFFIRM the

administrative judge’s reversal of the appellant’s removal

BACKGROUND

¶2 The agency removed the appellant from his GS-12 Enforcement

Investigative and Analysis Officer (EIAO) position with the Food Safety and

Inspection Service based on the charges of (1) unprofessional conduct and

(2) failure to follow instructions. Initial Appeal File (IAF), Tab 5 at 15-19,

153-59. Regarding the charge of unprofessional conduct, the agency alleged that

during a December 6, 2016 Routine Listeria Monocytogenes ·(RLM) sampling at

Wayne Farms in Decatur, Alabama, the appellant, who was aided by a Consumer

Safety Inspector (CSI), got within inches of the CSI’s face and stated, “Do you

know who I am?” Id. at 153. The agency alleged that the appellant’s behavior

and tone were intimidating and his conduct unprofessional. Id. Regarding the

charge of failure to follow instructions, the agency alleged that on three occasions

the appellant failed to timely respond to email instructions. Id. at 154.

¶3 The appellant filed a Board appeal of the agency’s action, alleging

retaliation for filing EEO complaints and requesting a hearing. IAF, Tabs 1, 19.

¶4 After the hearing, the administrative judge issued an initial decision

reversing the removal. IAF, Tab 25, Initial Decision (ID) at 1, 20. She found

that those present at the Wayne Farms RLM sampling included, in addition to the

appellant and the CSI, another EIAO and an employee of Wayne Farms. ID

at 7-8. She credited the testimony of the Wayne Farms employee that the

appellant did not raise his voice, speak in a threatening manner or get close to the

CSI’s face, and was not combative. ID at 11. Thus, she found that the agency

did not prove charge (1). Id. She also found that the agency failed to show that

the appellant did not timely respond to three emails and thus failed to prove

charge (2). ID at 11-15. Additionally, she found that the appellant established

that the removal action constituted retaliation for his EEO activity. ID at 16-20.

¶5 In its petition for review, the agency alleges that the administrative judge

erred in finding that it did not prove charge (1). 2 Petition for Review (PFR) File,

Tab 1 at 4-5, 8-14. 3 In addition, the agency contends that the administrative

judge erred in making findings on the appellant’s affirmative defense of reprisal

for filing EEO complaints because the affirmative defense became moot when the

appellant failed to seek consequential damages. Id. at 4-5, 14-15. Also, the

agency asserts that the administrative judge erred in finding retaliation. Id.

The agency does not argue that the administrative judge erred in finding that the

agency failed to prove charge (2). We therefore find no basis to disturb the

administrative judge’s determinations regarding charge (2). See 5 C.F.R. § 1201.115

(noting that the Board normally will consider only issues raised in a timely filed

petition or cross petition for review).

In the initial decision, the administrative judge ordered interim relief. ID at 21 -22.

Accompanying the agency’s petition for review is evidence that it has complied with

the interim relief order. PFR File, Tab 1 at 21-36. In a January 12, 2020 filing titled

“Petition for Enforcement,” the appellant argues that the agency is not in compliance

with the interim relief order because it subsequently effected a second removal action

against him for unrelated misconduct. PFR File, Tab 8 at 4 -8. The agency has filed a

response opposing the appellant’s request. PFR File, Tab 9. It is well settled that an

interim relief order does not insulate an appellant from a subsequent adverse action so

long as that action is not inconsistent with the initial decision. Rothwell v. U.S. Postal

Service, 68 M.S.P.R. 466, 468 (1995). Here, nothing in the initial decision precluded

the agency from initiating a second action. Moreover, when an agency effects a second

removal action during a period of interim relief ordered in an initial decision in a prior

removal action, and the appellant files an appeal of the second action, the Board

considers the second removal action on its merits. See generally Wilson v. Department

of Justice, 66 M.S.P.R. 287, 291, 296-97 (1995). The appellant filed a separate appeal

of the agency’s second removal action, an initial decision on the merits was issued in

that case, and the Board denied the appellant’s petition for review of that initial

decision. See King v. Department of Agriculture, MSPB Docket No. AT‑0752-19-

0350-I-1, Initial Decision (July 1, 2019); King v. Department of Agriculture, MSPB

Docket No. AT‑0752-19-0350-I-1, Final Order (Oct. 18, 2022). Thus, we find it

unnecessary to issue an order requiring the agency to submit evidence of compliance

with the interim relief order, and we deny the appellant’s request. See Elder v.

Department of the Air Force, 124 M.S.P.R. 12, ¶ 20 (2016).

at 15-19. 4 The appellant has responded in opposition to the petition. PFR File,

Tab 6. The agency has replied to the appellant’s response. PFR File, Tab 7.

ANALYSIS

The administrative judge properly found that the agency failed to prove

charge (1).

¶6 The agency has the burden to prove charged misconduct by preponderant

evidence, 5 C.F.R. § 1201.56(b)(1)(ii), and it contends that it met that burden.

The agency argues that, because the words that the administrative judge found

were spoken by the appellant to the CSI during the Wayne Farms RLM sampling,

“You don’t know who I am,” are so similar to the phrase, “Do you know who I

am?” recited in the charge, the agency proved the essence of the charge. PFR

File, Tab 1 at 7-11. The agency also contends that the appellant’s testimony that

the CSI provoked his statement is contradicted by the Wayne Farms employee,

whom the administrative judge found credible. Id. at 11-14. Thus, the agency

contends that, by showing that the words spoken by the appellant were in essence

no different from those charged and that those words were not provoked by

something the CSI said or did, it proved that the appellant’s statement was

“unprofessional” and proved charge (1).

¶7 The administrative judge considered whether, during the RLM sampling, the

appellant stated, “Do you know who I am?” or “You don’t know who I am.” ID

at 9-10. She found it illogical that the appellant would have said, “Do you know

The agency argues for the Board to draw an adverse inference because the appellant

did not call one of the witnesses whom he alleged witnessed the exchange underpinning

charge (1). PFR File, Tab 1 at 14. The Board has held that an adverse inf erence of

misconduct can be inferred from the failure of the appellant to testify or to call a

witness only in limited circumstances. Shustyk v. U.S. Postal Service, 32 M.S.P.R. 611,

613-15, aff’d, 831 F.2d 305 (Fed. Cir. 1987) (Table). The Board has not permitted a

negative inference to be made against a party who, as here, s imply fails to call his own

nonhostile witnesses at the hearing. See Logan v. Department of the Navy, 29 M.S.P.R.

573, 577–78 (finding that the administrative judge erred when he imposed sanctions by

drawing negative inferences against the agency for its failure to produce two witnesses

at the hearing), aff’d, 809 F.2d 789 (Fed. Cir. 1986) (Table).

who I am?” with its implication that he should not be crossed due to his position

because, while it is true that the appellant held a higher grade than the CSI, the

appellant was not the CSI’s supervisor or anywhere in his chain of command, and

the record does not reflect that he had any power over the CSI. ID at 9-10. She

found that, given that the Wayne Farms employee’s and the other EIAO’s

testimony were consistent with one another that the appellant stated, “You don’t

know who I am,” it was more likely than not that the appellant said to the CSI,

“You don’t know who I am,” and that he said it in the context of the CSI making

unflattering comments about the appellant’s character and conduct. ID at 10.

She found that the evidence leads to a conclusion that, more likely than not, the

appellant was saying, in effect, “you don’t know me.” Id.

¶8 The administrative judge’s careful analysis shows a clear difference

between the meaning of the statement “Do you know who I am?” and the

statement “You don’t know who I am” under the circumstances of the exchange

between the appellant and the CSI during the Wayne Farms RLM sampling.

While the former phrase could be viewed as threatening, the latter phrase is a

proper response to personal accusations by another person. Thus, the agency’s

assertion is unavailing that the phrase that the administrative judge found that the

appellant uttered and the phrase recited in charge (1) are so similar that the

agency proved that he uttered words that might be viewed as unprofessional.

¶9 The agency’s contention that the Wayne Farms employee testified that the

appellant’s words were not provoked by something the CSI said or did is equally

unavailing. The administrative judge credited the Wayne Farms employee’s

testimony that the CSI said something to the appellant that the Wayne Farms

employee found surprising, and in response, the appellant did not raise his voice,

speak in a threatening manner or get close to the CSI’s face, and was not

combative. ID at 11. The Board must give deference to an administrative judge ’s

credibility determinations when they are based, explicitly or implicitly, on the

observation of the demeanor of witnesses testifying at a hearing; the Board may

overturn such determinations only when it has “sufficiently sound” reasons for

doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) .

Here, the administrative judge found the Wayne Farms employee credible based,

in part, on that individual’s carriage, behavior, manner of testifying, and

appearance. ID at 8. The agency has not given sufficiently sound reasons to

overturn the administrative judge’s finding that the Wayne Farms employee

credibly testified that the appellant gave a measured response to the CSI ’s

surprising statement. Thus, the administrative judge properly found that the

agency failed to prove that the appellant’s behavior and tone were intimidating

and his conduct was unprofessional. She therefore properly found that the agency

failed to prove charge (1).

The administrative judge was not precluded from adjudicating the appellant ’s

allegation of retaliation for filing EEO complaints.

¶10 If an appellant prevails in an appeal before the Board based o n a finding of

discrimination, he may recover compensatory damages from the agency pursuant

to the Civil Rights Act of 1991. Hess v. U.S. Postal Service, 124 M.S.P.R. 40,

¶ 19 (2016). Thus, reversal of an agency action when an appellant has raised the

affirmative defense of discrimination or retaliation for filing a complaint of

discrimination does not afford the appellant all possible relief available to him,

and the administrative judge must adjudicate the affirmative defense . See Morey

v. Department of the Navy, 38 M.S.P.R. 14, 17 (1988).

¶11 However, the Board’s regulations require that a claim for compensatory

damages be raised before the close of the prehearing conference and must be set

forth in writing, specifying the amount sought and the reasons why the appellant

believes that he is entitled to an award of compensatory damages. 5 C.F.R.

§ 1201.204(a)-(b). The agency contends that, even though the appellant alleged

retaliation for filing EEO complaints, because he did not raise a claim for

compensatory damages as provided by section 1201.204, he is precluded from

establishing entitlement to such damages, and the administrative judge should not

have adjudicated his affirmative defense of retaliation. PFR File, Tab 1 at 14-15.

¶12 Here, we need not reach the issue of whether a failure to raise a claim for

compensatory damages pursuant to section 1201.204 could allow an

administrative judge, after reversing an agency action, to dismiss the affirmative

defense of discrimination or retaliation without adjudicating it. Although the

appellant did not clearly raise a claim for compensatory dama ges below, there is

no indication in the record that he received the appropriate information with

respect to how to raise any such damages claim. Board regulations do not require

administrative judges or the Board to provide notice of th e right to request

compensatory damages. Hawkes v. Department of Agriculture, 103 M.S.P.R. 345,

¶ 9 (2006), aff’d, 253 F. App’x 939 (Fed. Cir. 2007). However, the Board has

found it appropriate to waive the appellant’s failure to comply with the

requirements of 5 C.F.R. § 1201.204(a)-(b) when the appellant was never

apprised of the requirements. See Harris v. Department of the Air Force,

96 M.S.P.R. 193, ¶ 11 (2004). Thus, we find no error in the administrative

judge’s adjudication of the appellant’s allegation of retaliation for filing EEO

complaints.

The administrative judge erred in finding that the appellant established retaliation

for filing EEO complaints.

¶13 When an appellant asserts an affirmative defense of discrimination or

retaliation under 42 U.S.C. § 2000e-16, the Board first will inquire whether,

considering the evidence as a whole, the appellant has shown by preponderant

evidence that the prohibited consideration was a motivating factor in the

contested personnel action. Gardner v. Department of Veterans Affairs,

123 M.S.P.R. 647, ¶ 28 (2016), clarified by Pridgen v. Office of Management &

Budget, 2022 MSPB 31, ¶¶ 23-24; Savage v. Department of the Army,

122 M.S.P.R. 612, ¶ 41 (2015), overruled in part by Pridgen, 2022 MSPB 31,

¶¶ 23-25. Such a showing is sufficient to establish that the agency violated

42 U.S.C. § 2000e-16, thereby committing a prohibited personnel practice under

5 U.S.C. § 2302(b)(1). Savage, 122 M.S.P.R. 612, ¶ 51.

¶14 In finding that the appellant proved his affirmative defense, the

administrative judge considered that the appellant had filed eight EEO

complaints, about one per year over the past 8 years, and that the proposing and

deciding officials were aware of those complaints. ID at 16. She considered that

the Deputy District Manager, who had initiated the disciplinary process but who

was not the proposing or deciding official, was aware of those complaints as well,

had suggested that the appellant be disciplined for contacting management

officials about a pending EEO complaint while he was on leave for the death of a

family member, and had stated that he was looking to build a case and “throw

darts” against the appellant. 5 ID at 16-17. The administrative judge also relied

upon her finding that the Deputy District Manager “and perhaps others” had a

motive to retaliate, that the process was tainted by procedural irregularities

because the agency did not appear to follow its own procedures that the alleged

misconduct be investigated by the Internal Control Office (ICO) and did not get a

statement from the appellant regarding the events underlying the unprofessional

conduct charge, and that the evidence fell far short of supporting a removal. ID

at 17-20.

¶15 We agree with the administrative judge that the record shows that the

Deputy District Manager’s motivation to have the appellant disciplined was

significant; however, we disagree with her finding that his motivation was based

on retaliation for EEO activity and that he influenced the decision making

process. The administrative judge found that there was no evidence that the

Deputy District Manager was implicated in or punished as a result of the

The administrative judge mistakenly attributed the District Manager’s testimony to the

Deputy District Manager. ID at 17. The record shows that it was the District Manager

who testified to building a disciplinary case and looking for darts to throw at the

appellant. PFR File, Tab 3, Hearing Transcript at 130, 151 -52.

appellant’s EEO complaints. ID at 17. The administrative judge also did not

describe in any detail the nature of the EEO complaints or otherwise find that the

acting officials were implicated in or punished as a result of those complaints.

Moreover, the Deputy District Manager did not initiate the disciplinary process

that resulted in the appellant’s proposed removal. Rather, he initiated the request

for discipline because of the complaints filed by the CSI and EIAO who were

present at the Wayne Farms RLM sampling. IAF, Tab 5 at 30‑31. Further, there

is no evidence that he influenced the charges in the notice of proposed removal as

those charges are significantly different from the request for discipline. That

request describes the appellant’s behavior at the Wayne Farms RLM sampling as

bullying, a word not used in the notice of proposed removal. IAF, Tab 5 at 31,

153. Further, the request alleges that the appellant failed in his technical ability

to properly don sterile gloves for the sampling, a charge not made in the notice.

Id. at 31. Additionally, the request identifies other alleged misconduct by the

appellant, including an attempt to deceptively request compensatory time , failure

to follow District Office Instructions to notify the District Office fol lowing the

completion of an RLM sampling, and dishonest and unprofessional behavior in

requesting leave for the death of a family member and then using this time to

contact the agency about his EEO case. Id. at 30-31. None of these allegations

resulted in misconduct charges against the appellant.

¶16 Further, the administrative judge’s finding that the process was tainted by

procedural irregularities because the agency failed to follow a prescribed

investigative process and obtain a statement from the appellant before taking the

action is not supported by the record. Contrary to the administrative judge’s

finding that the proposing official testified that investigations are always

delegated to the ICO, her testimony on cross-examination was that investigations

are “usually” done by the ICO. PFR File, Tab 3, Hearing Transcript at 223.

Further, requests for discipline are submitted via a form that affords the

requesting official the option of checking either an “Investigation” or

“Disciplinary Action” box, and in this case the request was checked “Disciplina ry

Action.” IAF, Tab 5 at 30. Despite the administrative judge’s finding that the

agency did not seek a statement from the appellant before deciding to discipline

him, the record includes evidence that, in response to an inquiry about the events

underlying the unprofessional conduct charge, the appellant indicated that the CSI

was lying. Id. at 31. Importantly, there is no evidence that the Deputy District

Manager influenced the deciding official such that he did not afford the appellant

his opportunity to respond to the charges. Although the administrative judge

found that the credible evidence in support of the action was not strong, we find

that any lack of strength in such evidence, when considered along with the other

relevant evidence on this issue, is not sufficient to establish that retaliation for

EEO activity was a motivating factor in the appellant’s removal. See Gardner,

123 M.S.P.R. 647, ¶¶ 29-31 (requiring a consideration of the evidence as a whole

in determining whether an appellant has proven her affirmative defenses).

¶17 Accordingly, we find that the appellant has failed to show by preponderant

evidence 6 that a prohibited consideration was a motivating factor in the contes ted

personnel action. 7 See Gardner, 123 M.S.P.R. 647, ¶ 31; Savage, 122 M.S.P.R.

612, ¶ 41.

ORDER

¶18 We ORDER the agency to cancel the appellant’s removal and to restore the

appellant effective October 10, 2017. See Kerr v. National Endowment for the

The Board’s regulations define “[p]reponderance of the evidence” as “[t]he degree of

relevant evidence that a reasonable person, considering the record as a whole, would

accept as sufficient to find that a contested fact is more likely to be true than untrue.”

5 C.F.R. § 1201.4(q).

Because we find that the appellant failed to show that any prohibited consideration

was a motivating factor in the agency’s action, we need not resolve the issue of whether

the appellant proved retaliation was a but-for cause of the agency’s decision. See

Pridgen, 2022 MSPB 31, ¶¶ 20-22, 29-33.

Arts, 726 F.2d 730 (Fed. Cir. 1984). The agency must complete this action no

later than 20 days after the date of this decision.

¶19 We also ORDER the agency to pay the appellant the correct amount of back

pay, interest on back pay, and other benefits under the Office of Personnel

Management’s regulations, no later than 60 calendar days after the date of this

decision. We ORDER the appellant to cooperate in good faith in the agency’s

efforts to calculate the amount of back pay, interest, and benefits due, and to

provide all necessary information the agency requests to help it carry out the

Board’s Order. If there is a dispute about the amount of back pay, in terest due,

and/or other benefits, we ORDER the agency to pay the appellant the undisputed

amount no later than 60 calendar days after the date of this decision.

¶20 We further ORDER the agency to tell the appellant promptly in writing

when it believes it has fully carried out the Board’s Order and of the actions it has

taken to carry out the Board’s Order. The appellant, if not notified, should ask

the agency about its progress. See 5 C.F.R. § 1201.181(b).

¶21 No later than 30 days after the agency tells the appellant that it has fully

carried out the Board’s Order, the appellant may file a petition for enforcement

with the office that issued the initial decision on this appeal if the appel lant

believes that the agency did not fully carry out the Board’s Order. The petition

should contain specific reasons why the appellant believes that the agency has not

fully carried out the Board’s Order, and should include the dates and results of

any communications with the agency. 5 C.F.R. § 1201.182(a).

¶22 For agencies whose payroll is administered by either the National Finance

Center of the Department of Agriculture (NFC) or the Def ense Finance and

Accounting Service (DFAS), two lists of the information and documentation

necessary to process payments and adjustments resulting from a Board decision

are attached. The agency is ORDERED to timely provide DFAS or NFC with all

documentation necessary to process payments and adjustments resulting from the

Board’s decision in accordance with the attached lists so that payment can be

made within the 60‑day period set forth above.

NOTICE TO THE APPELLANT REGARDING

YOUR RIGHT TO REQUEST

ATTORNEY FEES AND COSTS

You may be entitled to be paid by the agency for your reasonable attorney

fees and costs. To be paid, you must meet the requirements set forth at title 5 of

the United States Code (5 U.S.C.), sections 7701(g), 1221(g), or 1214(g). The

regulations may be found at 5 C.F.R. §§ 1201.201, 1201.202, and 1201.203. If

you believe you meet these requirements, you must file a motion for attorney fees

and costs WITHIN 60 CALENDAR DAYS OF THE DATE OF THIS DECISION.

You must file your motion for attorney fees and costs with the office that issued

the initial decision on your appeal.

NOTICE OF APPEAL RIGHTS 8

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain

review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of

your claims determines the time limit for seeking such review and the appropriate

forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following

summary of available appeal rights, the Merit Systems Protection Board does not

provide legal advice on which option is most appropriate for your situation an d

the rights described below do not represent a statement of how courts will rule

regarding which cases fall within their jurisdiction. If you wish to seek review of

this final decision, you should immediately review the law applicable to your

claims and carefully follow all filing time limits and requirements. Failure to file

Since the issuance of the initial decision in this matter, the Board may have updated

the notice of review rights included in final decisions. As indicated in the notice, the

Board cannot advise which option is most appropriate in any matter.

within the applicable time limit may result in the dismissal of your case by your

chosen forum.

Please read carefully each of the three main possible choices of review

below to decide which one applies to your particular case. If you have questions

about whether a particular forum is the appropriate one to review your case, you

should contact that forum for more information.

(1) Judicial review in general. As a general rule, an appellant seeking

judicial review of a final Board order must file a petition for review with the U.S.

Court of Appeals for the Federal Circuit, which must be received by the court

within 60 calendar days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(A).

If you submit a petition for review to the U.S. Court of Appeals for the

Federal Circuit, you must submit your petition to the court at the

following address:

U.S. Court of Appeals

for the Federal Circuit

717 Madison Place, N.W.

Washington, D.C. 20439

Additional information about the U.S. 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, 10, and 11.

If you are interested in securing pro bono representation for an appeal to

the U.S. 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

Board neither endorses the services provided by any attorney nor warrants that

any attorney will accept representation in a given case.

(2) Judicial or EEOC review of cases involving a claim of

discrimination. This option applies to you only if you have claimed that you

were affected by an action that is appealable to the Board and that such action

was based, in whole or in part, on unlawful discrimination. If so, you may obtain

judicial review of this decision—including a disposition of your discrimination

claims—by filing a civil action with an appropriate U.S. district court ( not the

U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you

receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems

Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a

representative in this case, and your representative receives this decision before

you do, then you must file with the district court no later than 30 calendar days

after your representative receives this decision. 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. § 2000e-5(f) and 29 U.S.C. § 794a.

Contact information for U.S. district courts can be found at their respective

websites, which can be accessed through the link below:

http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.

Alternatively, you may request review by the Equal Employment

Opportunity Commission (EEOC) of your discrimination claims only, excluding

all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the

EEOC’s Office of Federal Operations within 30 calendar days after you receive

this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,

and your representative receives this decision before you do, then you must file

with the EEOC no later than 30 calendar days after your representative receives

this decision.

If you submit a request for review to the EEOC 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 a request for review to the EEOC 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, N.E.

Suite 5SW12G

Washington, D.C. 20507

(3) Judicial review pursuant to the Whistleblower Protection

Enhancement Act of 2012. This option applies to you only if you have raised

claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or

other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).

If so, and your judicial petition for review “raises no challenge to the Board’s

disposition of allegations of a prohibited personnel practice described in section

2302(b) other than practices described in section 2302(b)(8), or 2302(b)(9)(A)(i),

(B), (C), or (D),” then you may file a petition for judicial review either with the

U.S. Court of Appeals for the Federal Circuit or any court of appeals of

competent jurisdiction. 9 The court of appeals must receive your petition for

review within 60 days of the date of issuance of this decision. 5 U.S.C.

§ 7703(b)(1)(B).

The original statutory provision that provided for judicial review of certain

whistleblower claims by any court of appeals of competent jurisdiction expired on

December 27, 2017. The All Circuit Review Act, signed into law by the President on

July 7, 2018, permanently allows appellants to file petitions for judicial review of

MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals

for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.

The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,

132 Stat. 1510.

If you submit a petition for judicial review to the U.S. Court of Appeals for

the Federal Circuit, you must submit your petition to the court at the