The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
RENEE T. WILLIAMS, DOCKET NUMBER
Appellant, PH-0752-17-0194-I-1
v.
DEPARTMENT OF VETERANS DATE: February 28, 2023
AFFAIRS,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Renee T. Williams, Douglassville, Pennsylvania, pro se.
Angela Madtes, Esquire, Pittsburgh, Pennsylvania, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed her appeal for lack of jurisdiction. For the reasons discussed below, we
GRANT the appellant’s petition for review, VACATE the initial decision, and
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
REMAND this appeal to the Board’s Northeastern Regional Office for further
adjudication in accordance with this Remand Order.
BACKGROUND
¶2 In June 2014, the agency appointed the appellant to a career -conditional
position as a Program Support Clerk, GS-0303-04, and on November 16, 2014,
the agency converted her to a career-conditional position as a Medical
Reimbursement Technician, GS-0503-06. Initial Appeal File (IAF), Tab 3 at 38,
Tab 7 at 7. The positions the appellant occupied were covered by a collective
bargaining agreement (CBA) between the agency and the American Federation of
Government Employees, Local 1966 (union). IAF, Tab 7 at 10. In August 2015,
the appellant’s supervisor issued her a 90-day performance improvement plan
(PIP). Id. at 51-54. On October 14, 2015, the appellant’s supervisor notified her
that she would not receive a within-grade increase (WIGI) that was to be effective
on November 1, 2015; two days later, the union filed a grievance regarding the
proposed WIGI denial. IAF, Tab 3 at 47-49. On December 11, 2015, the
appellant contacted an agency equal employment opportunity (EEO) counselor,
and on February 1, 2016, the appellant filed a formal complaint of discrimination.
Id. at 12, 18. On February 4, 2016, following the appellant’s unsuccessful
completion of the PIP, the agency proposed her removal for unacceptable
performance. IAF, Tab 7 at 28-30. The appellant provided a written reply to the
proposed removal, and on February 29, 2016, the agency issued a decision
sustaining the proposed removal, effective March 9, 2016. Id. at 14, 16-18,
22-26.
¶3 By letter dated September 29, 2016, the agency notified the appellant of her
rights regarding the issues raised in her February 1, 2016 complaint of
discrimination; in particular, the agency notified her that two of her claims, which
concerned the denial of the WIGI and the removal, were appealable to the Board
3
and provided her rights to appeal these claims to the Board. 2 IAF, Tab 3 at 2-6.
On January 6, 2017, the agency issued a final agency decision (FAD) finding that
the appellant had failed to prove discrimination and providing her rights to appeal
the decision, and on February 2, 2017, the agency issued a corrected FAD, which
corrected the date the FAD was issued. Id. at 8-36.
¶4 On March 1, 2017, the appellant filed a Board appeal challenging the denial
of the WIGI and the removal, and she requested a hearing. IAF, Tab 1. The
agency moved to dismiss the appeal, arguing that the appeal was untimely
because it was not filed within 30 days of her removal, and she had elected to
contest her removal under EEO procedures. IAF, Tab 7 at 7-8. The
administrative judge issued orders requiring the appellant to file evidence and
argument showing that the Board had jurisdiction over the appeal under 5 U.S.C.
§ 7511 and because she had elected to proceed with an EEO complaint. IAF,
Tabs 2, 8. The appellant’s response argued that the agency had notified her in its
September 29, 2016 letter of her right to appeal the WIGI denial and removal to
the Board and that she timely filed her appeal after she received the corrected
FAD. IAF, Tab 10 at 5-11. The administrative judge then issued an initial
decision dismissing the appeal. IAF, Tab 11, Initial Decision (ID). She found
that the appellant was serving under a competitive appointment and had
completed over 1 year of service with the agency, and thus she was eligible to file
a Board appeal. ID at 2-3. However, the administrative judge found that the
appellant’s filing of an EEO complaint following her removal demonstrated that
she elected to proceed with the EEO process, which prevented her from appealing
to the Board. ID at 3-4.
2
The formal complaint of discrimination is not in the record; however, it appears that
the appellant amended her February 1, 2016 discrimination complaint to include a claim
that the agency removed her because of her race and in reprisal for protected EEO
activity. IAF, Tab 3 at 2.
4
¶5 The appellant has filed a petition for review in which she disagrees with the
agency’s motion to dismiss because she timely filed her appeal within 30 days of
the issuance of the corrected FAD, and she argues the merits of her appeal.
Petition for Review (PFR) File, Tab 1. The agency has not filed a respon se. For
the reasons below, we conclude that the administrative judge erred in dismissing
the appeal.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 The administrative judge’s finding that the appellant qualified as an
employee with appeal rights under 5 U.S.C. chapter 75 is not in dispute, and we
discern no reason to disturb this finding. ID at 2-3. The record reflects that, at
the time of her removal, the appellant was serving under an appointment to the
competitive service and had completed 1 year of current, conti nuous service
under an appointment other than a temporary one limited to 1 year or less, and
thus had standing to challenge the WIGI denial and removal. IAF, Tab 3 at 38,
Tab 7 at 7; see 5 U.S.C. § 7511(a)(1)(A); Dodson v. Department of the Navy,
111 M.S.P.R. 504, ¶ 4 (2009).
¶7 However, the administrative judge erred in finding that the appellant’s
election to file an EEO complaint divested the Board of jurisdiction over the
appeal. ID at 3-4. Here, the appellant was covered by a CBA, and she has
alleged that the agency denied her a WIGI because of her race and removed her
because of her race and as reprisal for protected EEO activity. IAF, Tab 7 at 10,
Tab 10 at 5. The Board has jurisdiction over a reconsideration decision
sustaining a negative determination of competence for a General Schedule
employee, resulting in the denial of a WIGI, 5 U.S.C. § 5335(c); 5 C.F.R.
§ 1201.3(a)(8), and a removal for unacceptable performance, 5 U.S.C. § 4303(e);
5 C.F.R. § 1201.3(a)(5). Further, discrimination on the basis of race and reprisal
based on an employee’s participation in EEO activity are prohibited personnel
5
practices under 5 U.S.C. § 2302(b)(1). Goodwin v. Department of
Transportation, 106 M.S.P.R. 520, ¶ 16 n.8 (2007).
¶8 Under 5 U.S.C. § 7121(d), an employee affected by a prohibited personnel
practice under 5 U.S.C. § 2302(b)(1), which also falls under the coverage of the
negotiated grievance procedure of a CBA that covers the employee, may raise the
matter under the negotiated procedure or a statutory procedure, but not both. 3
Galloway v. Social Security Administration, 111 M.S.P.R. 78, ¶ 14 (2009);
Goodwin, 106 M.S.P.R. 520, ¶ 19. The statutory procedures contemplated by
section 7121(d) include an appeal to the Board or the filing of an EEO complaint.
Goodwin, 106 M.S.P.R. 520, ¶ 19; Weslowski v. Department of the Army,
80 M.S.P.R. 585, ¶ 9, aff’d, 217 F.3d 854 (Fed. Cir. 1999) (Table). Thus, when
an employee is covered by a CBA and alleges that an otherwise appealable
adverse action was based on prohibited discrimination, the employee’s choice of
forum under section 7121(d) is between the negotiated grievance procedure, a
Board appeal, and a formal EEO complaint. Galloway, 111 M.S.P.R. 78, ¶ 14.
An employee is deemed to have elected a forum under section 7121(d) at such
time as the employee timely files a grievance in writing, in accordance with the
provisions of the parties’ negotiated procedure, or timely initiates an action under
the applicable statutory procedure, whichever occurs first. Id., ¶ 15.
¶9 Even if the appellant initially elects to file a formal EEO complaint
regarding an action otherwise appealable to the Board, she may file a Board
appeal upon exhaustion of the agency EEO process. 5 U.S.C. § 7702(a)(1)-(2);
Goodwin, 106 M.S.P.R. 520, ¶¶ 19-21; see Checketts v. Department of the
3
Although the CBA is not in the record, the union cited portions of the CBA in grieving
the proposed WIGI denial and in response to the appellant’s proposed removal,
suggesting that the adverse actions at issue are covered by the negotiated procedure set
forth in the CBA. IAF, Tab 3 at 48, Tab 7 at 22-23. Even if the actions at issue are not
covered by the negotiated procedure, the procedures regarding mixed-case complaints,
as set forth at 5 C.F.R. § 1201.154(b) and 29 C.F.R. § 1614.302, and discussed below,
would nevertheless apply to this appeal.
6
Treasury, 91 M.S.P.R. 89, ¶ 5 (stating that, once the appellant made an informed
election to proceed through the agency’s EEO process, she was bound to exhaust
that process prior to filing a Board appeal), aff’d, 50 F. App’x 979 (Fed. Cir.
2002). Under 5 C.F.R. § 1201.154(b), if an appellant has filed a timely formal
complaint of discrimination with her agency relating to or stemming from an
action that can be appealed to the Board, also known as a mixed-case complaint,
an appeal to the Board must be filed within 30 days after the appellant receives
the agency resolution or final decision on the discrimination issue. McCoy v. U.S.
Postal Service, 108 M.S.P.R. 160, ¶¶ 10, 12 (2008); see 29 C.F.R.
§ 1614.302(b), (d). Further, if the agency has not resolved the matter or issued a
final decision on the formal complaint within 120 days, the appellant may appeal
the matter directly to the Board at any time after the expiration of 120 calendar
days. McCoy, 108 M.S.P.R. 160, ¶ 10; 5 C.F.R. § 1201.154(b)(2); see 29 C.F.R.
§ 1614.302(d).
¶10 Here, although the appellant initially elected to file a formal EEO complaint
regarding the denial of the WIGI and her removal, after receiving the agency’s
final decision on the discrimination issues she raised, the appellant was entitled to
appeal the matter to the Board within the time period specified in 5 C.F.R.
§ 1201.154(b). Accordingly, we find that the administrative judge erred in
dismissing the appeal as precluded by election of the EEO process, and we
remand this matter for further proceedings, as set forth below.
¶11 Upon remand, the administrative judge shall determine whether the appeal
of the FAD was timely filed. As set forth above, when an appellant has timely
filed a mixed-case complaint with her agency prior to filing a Board appeal, the
timeliness of the Board appeal is analyzed under 5 C.F.R. § 1201.154. Augustine
v. Department of Justice, 100 M.S.P.R. 156, ¶ 7 (2005). The agency issued its
initial FAD on January 6, 2017, and it issued a corrected FAD on February 2,
2017. IAF, Tab 3 at 8-36. Although the errata order issuing the corrected FAD
informed the appellant that the correction did not change the applicable time
7
limits for appealing the decision, she did not appeal the FAD until March 1, 2017.
IAF, Tab 1, Tab 3 at 8. Neither the initial FAD, nor a complete copy of the
corrected FAD, is in the record. IAF, Tab 3 at 8-36. Thus, the administrative
judge shall determine whether the initial January 6, 2017 FAD or the corrected
February 2, 2017 FAD constituted the agency’s final decision on the
discrimination issues. If the January 6, 2017 FAD constituted the agency’s final
decision, the administrative judge shall determine whether the appellant has
shown good cause for the delay in appealing the decision, such that a waiver of
the time limit to appeal is warranted. 5 C.F.R. §§ 1201.12, 1201.22(c),
1201.154(b)(1); see Little v. U.S. Postal Service, 124 M.S.P.R. 183, ¶ 10 (2017)
(stating that 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).
¶12 On remand, the administrative judge also shall determine whether the Board
has jurisdiction over the denial of the WIGI. The record reflects that on
October 14, 2015, the appellant received notice that she would not receive a
WIGI due on November 1, 2015, and it appears that on November 3, 2015, the
appellant’s supervisor notified her that the WIGI was denied. IAF, Tab 3
at 2, 47-49. The record does not indicate whether the appellant sought
reconsideration of the WIGI denial. An employee is ordinarily not entitled to
appeal the denial of a WIGI to the Board unless she first has timely sought and
received a reconsideration decision from the agency. 5 U.S.C. § 5335(c); Goines
v. Merit Systems Protection Board, 258 F.3d 1289, 1292 (Fed. Cir. 2001). The
administrative judge thus shall determine whether the appellant sought
reconsideration of the WIGI, and whether the agency issued a reconsideration
decision. Should the administrative judge find in the negative, the administrative
judge then shall decide whether the Board does or does not have the authority to
review the denial of the WIGI under the circumstances. Should the
administrative judge find in the affirmative, to the extent the record reflects that
8
the appellant may have filed a grievance prior to filing an EEO compl aint
concerning the denial of the WIGI, the administrative judge shall address whether
the appellant made a valid election of a different forum for pursuing this claim.
See 5 U.S.C. § 7121(d); Galloway, 111 M.S.P.R. 78, ¶¶ 14-15.
ORDER
¶13 For the reasons discussed above, we remand this case to the Northeastern
Regional Office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.