Opinion

Felicia Jackson-Fisher v. United States Postal Service

Court: Merit Systems Protection Board
Filed: Sep 13, 2022
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 22.6%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

FELICIA L. JACKSON-FISHER, DOCKET NUMBER

Appellant, CH-0752-15-0492-I-1

UNITED STATES POSTAL SERVICE, DATE: September 13, 2022

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Glenn L. Smith, Esquire, Grand Rapids, Michigan, for the appellant.

Deborah W. Carlson, Chicago, Illinois, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

Tristan L. Leavitt, Member

FINAL ORDER

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

sustained her demotion. Generally, we grant petitions such as this one only

when: the initial decision contains erroneous findings of material fact; t he initial

decision is based on an erroneous interpretation of statute or regulation or the

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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, and based on the following points and authorities, 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. Except as

expressly MODIFIED by this Final Order to clarify the basis for weighing the

testimony and hearsay evidence, we AFFIRM the initial decision.

BACKGROUND

¶2 The agency proposed the appellant’s removal based upon one charge of

improper conduct. Initial Appeal File (IAF), Tab 5, Part 1 at 30-34. The charge

included four specifications, best summarized as follows: (1) behaving in a

threatening manner towards L.D. (Senior Sales Executive, Shipping); (2) coercing

a subordinate employee into taking an online biology class; (3) engaging in

unethical conduct when asking a subordinate to assist in getting the appellant’s

husband a job with the coworker’s husband’s company; and (4) selling Mary Kay

products to subordinate employees in the workplace. Id. at 30-33. The deciding

official sustained the charge, but he mitigated the penalty to a demotion from a

Manager of Sales, EAS-25, to a Field Account Representative, EAS-18. Id.

at 23-27.

¶3 The appellant filed the instant appeal challenging her demotion and

requesting a hearing. IAF, Tab 1. After holding the hearing, the administrative

judge issued an initial decision that affirmed the agency’s action. 2 IAF, Tab 56,

Initial Decision (ID). In sustaining the charge, the administrative judge sustained

only specifications 1 and 4. ID at 2-4. The appellant has filed a petition for

review, the agency has responded, and the appellant has replied. Petition for

Review (PFR) File, Tabs 5, 7-8.

DISCUSSION OF ARGUMENTS ON REVIEW

We affirm the administrative judge’s initial decision to sustain specification 1,

but we modify the decision to clarify the basis for weighing testimony and

hearsay evidence.

¶4 The appellant argues that the administrative judge should not have sustained

specification 1 because the agency has not proven that she behaved in a

threatening manner under the test for establishing a threat set forth by the U.S.

Court of Appeals for the Federal Circuit in Metz v. Department of the Treasury,

780 F.2d 1001, 1002-03 (Fed. Cir. 1986). PFR File, Tab 5 at 10-12; ID at 2 n.2.

To the contrary, we find that, because the specification contains a detailed

narrative description of the misconduct that gave rise to the charge, the agency

was entitled to charge the appellant with the broad label of “improper conduct”

rather than a more specific label. Otero v. U.S. Postal Service, 73 M.S.P.R. 198,

202-03 (1997).

¶5 Here, specification 1 charged the appellant with behaving in a threatening

manner towards L.D. IAF, Tab 5, Part 1 at 30. The proposal notice includes a

narrative that further describes the appellant’s actions. Id. at 30-31. In short, the

proposing official stated that L.D. informed her that the appellant argued with

The appellant has not challenged, and we see no reason to disturb , the administrative

judge’s finding that there was no due process violation or harmful procedural error

regarding the agency’s decision to communicate only with her representative or

concerning the deciding official’s Douglas factors analysis. ID at 14-19; see Broughton

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

appellant also does not challenge the administrative judge’s finding of nexus , and we

see no reason to disturb this finding. Broughton, 33 M.S.P.R. at 359; ID at 19-20; PFR

File, Tab 5.

her, and demeaned and humiliated her by “[getting] in her face” and yelling at her

in a customer meeting. Id. at 30. The proposing official also stated that one

customer at the meeting told her that the appellant told L.D. to “shut up” and

jumped out of her seat, raising her hand at L.D. Id. Further, the proposing

official recounted that the appellant called her the day of the incident, stated that

she needed a “coaching moment,” and reported that she got up from her seat,

went over to L.D., put her hand up, and loudly told L.D. to stop talking. Id. at 31.

The proposing official concluded that the appellant’s actions violated the

agency’s “Zero Tolerance” policy regarding threatening and/or intimidating

behavior, tarnished the image of the agency, and were contrary to the appellant’s

responsibility for setting the parameters for appropriate behavior in the unit. Id.

¶6 The administrative judge found that the agency was not required to prove

that the appellant intentionally threatened L.D. under the Metz test, and instead

she sustained the specification because the agency proved the facts outlined in its

proposal. ID at 2-5 (citing Brough v. Department of Commerce, 119 M.S.P.R.

118, ¶ 12 n.2 (2013)). We find no error in this respect. See Otero, 73 M.S.P.R.

at 202-03.

¶7 Furthermore, even if we did apply the Metz analysis, we still would sustain

this specification. In Metz, 780 F.2d at 1002-03, the Federal Circuit enumerated

the following factors for deciding whether an employee threatened her

coworkers: the listener’s reactions; the listener’s apprehension of harm; the

speaker’s intent; any conditional nature of the statements; and attendant

circumstances. First, the record reflects that L.D. felt threatened and that she

experienced apprehension of harm. The administrative judge gave greater weight

to L.D.’s statements that she perceived the appell ant’s behavior as threatening

because the appellant approached L.D., raised her hand, and made L.D. feel that

the situation would get physical. ID at 5; IAF, Tab 5, Part 2 at 32-33, Part 5

at 5-6. Second, the two customers’ reactions, as recorded in their statements and

reported to the business alliance manager and the appellant’s direct supervisor,

also support the administrative judge’s finding that the appellant’s conduct was

threatening. ID at 5-6; IAF, Tab 53, Hearing Compact Disc (Sept. 29, 2015)

(HCD 1) (testimony of the business alliance manager and the appellant’s direct

supervisor); IAF, Tab 5, Part 2 at 38-41. Specifically, the fact that the customers

reported the appellant’s conduct as aggressive and were concerned about how

L.D. was doing after the incident supports a finding that L.D. acted in a scared or

upset way and appeared to fear harm and that the appellant’s statements did not

appear to be conditional. IAF, Tab 5, Part 2 at 38-41.

¶8 Next, the record demonstrates the threatening nature of the appellant’s

comments and actions regarding L.D. Particularly when the statement at issue is

made intentionally and maliciously and conveys a threatening action, the Board

will find that the intent element is proven. Rose v. U.S. Postal Service,

109 M.S.P.R. 31, ¶ 24 (2007). The evidence supports such a finding here because

the administrative judge found, and we agree, that the appellant jumped out of her

seat, acted aggressively toward L.D., yelled at her, and told her to “shut up” and

to stop talking. ID at 2-5.

¶9 Moreover, the evidence does not show that the appellant intended her

statements and actions to be conditional or that attendant circumstances weigh

against a finding that she threatened L.D. Accordingly, we find that, even if the

agency was required to prove a threat charge under the Metz criteria, we still

would sustain the specification. See Rose, 109 M.S.P.R. 31, ¶¶ 11-29.

¶10 The appellant next asserts that the administrative judge erred in finding not

credible her testimony regarding this specification and incorrectly gave greater

weight to hearsay in the form of written statements by two customers who

witnessed the interaction, L.D.’s out-of-court statement, and third parties’

testimony regarding L.D.’s description of the incident. PFR File, Tab 5 at 7-17.

For the reasons discussed below, we modify the initial decision to properly weigh

the testimony and hearsay evidence in the context of the factors set forth in

Borninkhof v. Department of Justice, 5 M.S.P.R. 77, 87 (1981).

¶11 In general, to resolve credibility issues, an administrative judge must

identify the factual questions in dispute, summarize the evidence on e ach disputed

question, state which version she believes, and explain in detail why she found

the chosen version more credible. Hillen v. Department of the Army, 35 M.S.P.R.

453, 458 (1987). 3 However, in weighing hearsay evidence, the administrative

judge must consider the following factors: (1) the availability of persons with

firsthand knowledge to testify at the hearing; (2) whether the statements of the

out-of-court declarants were signed or in affidavit form, and whether anyone

witnessed the signing; (3) the agency’s explanation for failing to obtain signed or

sworn statements; (4) whether declarants were disinterested witnesses to the

events, and whether the statements were routinely made; (5) consistency of

declarants’ accounts with other information in the case, internal consistency, and

their consistency with each other; (6) whether corroboration for statements can

otherwise be found in the agency record; (7) the absence of contradictory

evidence; and (8) the credibility of the declarant when he made the statement

attributed to him. Borninkhof, 5 M.S.P.R. at 87. Generally, the Board favors live

testimony over hearsay. Bledsoe v. Department of Justice, 91 M.S.P.R. 93, ¶ 7

n.4 (2002). However, the Federal Circuit has stated that “hearsay may be

accepted as preponderant evidence even without corroboration if, to a reasonable

mind, the circumstances are such as to lend it credence. ” Kewley v. Department

of Health & Human Services, 153 F.3d 1357, 1364 (Fed. Cir. 1998) (citing Hayes

v. Department of the Navy, 727 F.2d 1535, 1538 (Fed. Cir. 1984)). To determine

whether hearsay evidence alone is sufficient to sustain the specification depends

In weighing witness credibility, the administrative judge considers the following

factors: (1) the witness’s opportunity and capacity to observe the event or act in

question; (2) the witness’s character; (3) any prior inconsistent statement by the

witness; (4) a witness’s bias, or lack of bias; (5) the contradiction of the witness’s

version of events by other evidence or its consistency with other evidence; (6) the

inherent improbability of the witness’s version of events; and (7) the witness’s

demeanor. Hillen, 35 M.S.P.R. at 458.

on its reliability and trustworthiness. Social Security Administration v. Long,

113 M.S.P.R. 190, ¶ 7 (2010), aff’d, 635 F.3d 526 (Fed. Cir. 2011).

¶12 Here, the administrative judge found that the appellant’s testimony was not

credible because it was in her self-interest to characterize her interaction as not

aggressive or threatening, her testimony was contradicted by the statements of the

two customers who had witnessed the interaction, and he found that the witnesses

who testified about L.D.’s conflicting statements were credible. ID at 5-6; IAF,

Tab 54, Hearing Compact Disc (Sept. 30, 2015) (testimony of the appellant); IAF,

Tab 5, Part 1 at 41-43, Part 2 at 42-46. Conversely, the administrative judge

found that L.D.’s characterization that she perceived the appellant as aggressive

and threatening, as recounted by the testimony of others at the hearing, was more

credible than that of the appellant. ID at 6. Specifically, she found that the

testimonies of the appellant’s direct supervisor, the human resources liaison, and

the business alliance manager supported L.D.’s version of events and were

credible because they testified in a straightforward manner and they did not have

any reason to be less than truthful or biased against the appellant. ID at 4 -6.

¶13 The administrative judge also found that the information from the two

customers who witnessed the incident was even more important in supporting

L.D.’s version of events. ID at 5. Specifically, the administrative judge

considered the appellant’s direct supervisor’s testimony that she called one of the

customers the day after the meeting, couching the call as a c ustomer feedback

request, and the customer reported that the appellant approached L.D., raised her

hand, and told her to shut up. Id. The administrative judge also considered the

business alliance manager’s testimony that on the day after the incident, the first

customer asked how L.D. was doing, that the second customer said that the

appellant had threatened “fisticuffs” and wished he had recorded the interaction

on his iPhone, and that, when discussing the incident with agency investigators,

both customers described the appellant’s conduct as aggressive. Id.; HCD 1

(testimony of the business alliance manager); IAF, Tab 5, Part 2 at 28-29, 58-59.

¶14 Considering these findings in the context of the Borninkhof factors, we

agree with the administrative judge that L.D.’s version of events has significant

probative value. Specifically, the agency’s statement that L.D. was unable to

testify at the hearing weighs in favor of crediting her written statement, the

memorandum of interview, and the testimony of others about her statements to

them. PFR File, Tab 7 at 8. Additionally, the fact that L.D.’s written statement is

a sworn affidavit and that the memorandum of interview was obtained during the

Office of Inspector General (OIG) investigation into the matters at issue in this

appeal supports a finding of reliability of the hearsay evidence. IAF, Tab 5,

Part 2 at 32-33, Part 5 at 4-6; see Gardner v. U.S. Postal Service, 44 M.S.P.R.

565, 569 (1990) (finding that the administrative judge properly considered signed

grievance appeal forms in considering evidence of a threat), aff’d, 983 F.2d 1087

(Fed. Cir. 1992) (Table).

¶15 Although the two customers declined to give written sworn statements, their

interviews were conducted in the context of the formal OIG investigation. IAF,

Tab 5, Part 2 at 38-41. Additionally, as the administrative judge found, these

individuals were disinterested parties. ID at 5. Thus, we find that their interview

statements further support favoring L.D.’s account of the interaction with the

appellant.

¶16 In giving great weight to the statements of the two customers, the

administrative judge also considered the fact that one of the customers asked how

L.D. was doing and the other wished that he had recorded the interaction with his

iPhone. ID at 5. We agree that the customers’ negative reactions to the

appellant’s actions further support the weight given to the hearsay evidence of

L.D.’s version of events. 4 Id.; HCD 1 (testimony of the business alliance

manager and the appellant’s direct supervisor); IAF, Tab 5, Part 2 at 38-41.

The appellant’s direct supervisor’s and the business alliance manager’s respective

testimony indicates their impressions of the customers’ negative reactions to the

appellant’s actions, as opposed to the truth of their statements. HCD 1 (testimony of

¶17 We have considered the possibility that L.D. may have been biased against

the appellant because she was her subordinate and had filed an equal employment

opportunity complaint against her. IAF, Tab 5, Part 5 at 4 -59. We also have

considered the appellant’s arguments on review that the customers were biased

against her because they were under investigation for allegedly defrauding the

agency and that they believed L.D. “was on their side” during the meeting. PFR

File, Tab 5 at 6-7. However, based upon our discussion above, our review of the

remaining Borninkhof factors, and our review of the record as a whole, we agree

with the administrative judge’s determination that L.D.’s account of the meeting

is more credible than that of the appellant. Accordingly, we find that the

administrative judge properly weighed the evidence in support of sustaining this

specification. See Seeley v. Department of Transportation, 17 M.S.P.R. 139,

142-43 (1983) (finding that hearsay evidence comprised sufficient evidence to

sustain the agency’s adverse action based on the record taken as a whole), aff’d,

795 F.2d 1010 (Fed. Cir. 1986) (Table).

The appellant has not shown error in the administrative judge ’s decision to

sustain specification 4.

¶18 On review, the appellant challenges the administrative judge’s decision to

sustain specification 4, which charged her with selling Mary Kay products to

subordinates in the workplace. PFR File, Tab 5 at 17-24. The administrative

judge found that the appellant admitted she was a Mary Kay consultant but denied

making sales at work. ID at 12. Instead, the appellant asserted that she was on

her cousin’s sales team, her coworkers (including subordinates) asked that she

obtain specific products for them, and she collected payments that she forwarded

to her cousin. Id.

the business alliance manager and the appellant’s direct supervisor). Thus, the

testimony is not hearsay, and it was proper for the administrative judge to give it great

weight. Taylor v. U.S. Postal Service, 75 M.S.P.R. 322, 325 (1997) (citing Fed. R.

Evid. 801(c)).

¶19 The appellant asserts that the administrative judge improperly sustained this

specification under 5 C.F.R. § 7001.102(a)(2), which prohibits sales activity,

because she was not actually selling the Mary Kay products. She also challenges

the application of 5 C.F.R. § 2635.702, which prohibits the use of her public

office for private gain. PFR File, Tab 5 at 20-24; ID at 12-13. First, we agree

with the administrative judge that 5 C.F.R. § 7001.102(a)(2) forbids sales both for

oneself and for any other person and thus, regardless of whether the appellant was

selling the products on behalf of her cousin, she still violated the regulation . ID

at 13. Second, pursuant to 5 C.F.R. § 2635.702, an employee may not “use his

public office for his own private gain, for the endorsement of any product, service

or enterprise, or for the private gain of . . . relatives,” among others. We agree

with the administrative judge that this regulation prohibits the appellant’s

activities on behalf of her cousin and that, as part of her cousin’s sales team, she

improperly derived personal gain from the sales of the Mary Kay products. ID

at 13-14.

¶20 The appellant challenges the application of the agency’s ethics regulations

because she asserts that she was unaware of her ethical obligations. PFR File,

Tab 5 at 23-24. However, she violated the regulations when she sold the

products, regardless of whether she knew of her ethical responsibilities or

intended to violate them. See Perdue v. V.A. Medical Center, 20 M.S.P.R. 86, 88

(1984). Further, we agree with the administrative judge’s finding that the

appellant actually knew the regulations and that it defies common sense and

prudence to engage in the charged business conduct with her subordinates. ID

at 13; HCD 1 (testimony of the deciding official); IAF, Tab 5, Part 4 at 6-11.

Accordingly, we find that the appellant breached her ethical obligation s when she

sold the Mary Kay products to her subordinates and thus, we agree with the

administrative judge’s decision to sustain this specification. See Vargas v. U.S.

Postal Service, 83 M.S.P.R. 695, 697-99 (1999).

¶21 The appellant’s remaining arguments constitute mere disagreement with the

administrative judge’s factual findings, which are supported by the record

evidence, and thus do not provide a basis for disturbing the initial decision .

Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997). Accordingly, we

agree with the administrative judge that specification 4 is sustained.

We affirm the administrative judge’s decision to defer to the agency’s penalty

determination.

¶22 The appellant asserts that the imposed penalty exceeds the tol erable bounds

of reasonableness, whether or not the Board sustains specification 1,

specification 4, or both, and that the penalty should be mitigated to, at most, a

demotion to an EAS-23 position. PFR File, Tab 5 at 24-29. For the reasons

discussed below, we disagree.

¶23 We agree that the appellant’s over 20 years of service free of previous

discipline constitutes a significant mitigating factor. See Raco v. Social Security

Administration, 117 M.S.P.R. 1, ¶ 15 (2011); Hanna v. Department of Labor,

80 M.S.P.R. 294, ¶ 16 (1998), aff’d, 18 F. App’x 787 (Fed. Cir. 2001). However,

her potential for rehabilitation is diminished as a mitigating factor by her failure

to admit that her conduct was improper. See Singletary v. Department of the Air

Force, 94 M.S.P.R. 553, ¶ 15 (2003), aff’d, 104 F. App’x 155 (Fed. Cir. 2004).

Additionally, the appellant was on notice that her conduct was improper , but she

still continued to engage in the conduct regarding the Mary Kay products.

¶24 On review, the appellant asserts that the administrative judge erred in

finding that her proffered comparators were not similarly situated to her because

they were not charged with the same misconduct. ID at 22-23; PFR File, Tab 5

at 25-29. The administrative judge relied on the standard set forth in Lewis v.

Department of Veterans Affairs, 113 M.S.P.R. 657, ¶ 6 (2010), in finding that the

appellant did not meet her burden of identifying a similarly situated employee.

ID at 22. Since the initial decision was issued, the Board has overruled Lewis to

clarify that, when analyzing a disparate penalty claim, broad similarity between

employees is insufficient to establish that they are appropriate comparators, and

the relevant inquiry is whether the agency knowingly and unjustifiably treated

employees who engaged in the same or similar offenses differently. Singh v. U.S.

Postal Service, 2022 MSPB 15, ¶¶ 11-14. The administrative judge distinguished

the appellant from the proffered comparators because, although the agency

charged each comparator with behavior deemed threatening or harassing by their

subordinates, the appellant was charged with additional misconduct. ID at 22.

The administrative judge erred in so finding because one of the proffered

comparators was similarly charged with behavior deemed threatening or harassing

by a subordinate and additional misconduct. IAF, Tab 37 at 4-9. The

administrative judge’s finding was not prejudicial to the appellant, however,

because this comparator was not charged with additional misconduct that was the

same or similar to that of the appellant. See Singh, 2022 MSPB 15, ¶ 17 (opining

that the Board should not attempt to weigh the relative seriousness of various

offenses in order to determine whether two employees who committed different

acts of misconduct were treated disparately); Reid v. Department of the Navy,

118 M.S.P.R. 396, ¶¶ 22-23 (2012) (finding that the appellant did not establish

that employees engaged in conduct similar to his when their conduct was only

similar with respect to one charge). The appellant thus has not established that

the proffered comparators engaged in the same or similar offenses as those at

issue here. In any event, it appears that the penalty imposed on the comparator

who was charged with additional misconduct resulted from a settlement

agreement. IAF, Tab 37 at 4-12. The Board has held that, “if another employee

receives a lesser penalty, despite apparent similarities in circumstances, as the

result of a settlement agreement, the agency is not required to explain the

difference in treatment.” Davis v. U.S. Postal Service, 120 M.S.P.R. 457, ¶ 10

(2013). Here, therefore, even assuming a similarity in circumstances, the

appellant did not show a disparity in penalties.

¶25 Moreover, the deciding official properly considered that he did not want the

appellant to supervise her previous team, in particular because her misconduct

involved her threatening a subordinate and thus went to the heart of her duties

and responsibilities as a supervisor. HCD 1 (testimony of the deciding official);

see Hanna, 80 M.S.P.R. 294, ¶ 17. We also considered that he did not want the

appellant to interact with customers because two customers witnessed the

appellant’s threatening behavior. HCD 1 (testimony of the deciding official); see

Hutson v. Department of the Interior, 67 M.S.P.R. 432, 447 (1995). The deciding

official testified that he wanted to impose a penalty that would allow the

appellant to work at the same location in a position where by she could maintain

her benefits and retirement. HCD 1 (testimony of the deciding official). He

further testified that, although other managers had been demoted fewer steps than

had the appellant, part of the difference in treatment was attributable to the

availability of positions. ID at 21-22; HCD 1 (testimony of the deciding official).

We find these to be reasonable and appropriate considerations under the

circumstances.

¶26 For the first time at the hearing, the appellant testified that she would have

been willing to relocate nationwide for reassignment to a nonsupervisory position

of Small Business Sales Specialist at her former EAS-25 level. ID at 21-22;

HCD 1 (testimony of the appellant). She asserts that a demotion to an EAS-23

level is the most severe reasonable penalty. PFR File, Tab 5 at 29. We agree

with the administrative judge that the appellant’s alleged willingness to relocate

did not provide a reason for disturbing the penalty, especially as there was no

evidence that the position she identified was available. ID at 23; HCD 1

(testimony of the appellant). On review, the appellant has not identified an y

available position, particularly not a nonsupervisory position that does not

involve interacting with the public. The agency was in the best position to

determine whether placement in an available position would address the deciding

official’s concerns about the appellant’s duties. Based upon the above and our

considering the record as a whole, we find that the administrative judge properly

sustained the demotion, and we affirm the initial decision. See Little v.

Department of Transportation, 112 M.S.P.R. 224, ¶ 32 (2009) (finding that, given

the multiplicity of charges, the serious nature of each of the charges, the

appellant’s status as a supervisor, his admissions regarding his misconduct, and

the deciding official’s proper consideration of the relevant Douglas factors, the

administrative judge properly affirmed the demotion penalty).

¶27 Accordingly, we affirm the initial decision.

NOTICE OF APPEAL RIGHTS 5

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 and

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 you r

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

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 revie w

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

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.

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 respe ctive

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 Employme nt

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, th e

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. 6 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).

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

following address:

U.S. Court of Appeals

for the Federal Circuit

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.