Opinion

Sarafina Croft v. Department of Veterans Affairs

Court: Merit Systems Protection Board
Filed: Aug 24, 2023
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 8.5%

finding that the agency established nexus where the conduct occurred in part at work

How later courts described this case

finding that the agency established nexus where the conduct occurred in part at work

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SARAFINA A. CROFT, DOCKET NUMBER

Appellant, AT-0752-17-0703-I-2

DEPARTMENT OF VETERANS DATE: August 24, 2023

AFFAIRS,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Amanda Smith, Esquire, Buffalo, New York, for the appellant.

Luis E. Ortiz-Cruz, Esquire, Orlando, Florida, for the agency.

BEFORE

Cathy A. Harris, Vice Chairman

Raymond A. Limon, Member

FINAL ORDER

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

reversed the agency’s removal action. For the reasons discussed below, we

GRANT the agency’s petition for review, REVERSE the administrative judge’s

finding that the agency failed to prove its charge, AFFIRM the administrative

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

judge’s determination that the appellant failed to establish her affirmative

defenses, and SUSTAIN the removal action.

BACKGROUND

¶2 The appellant was employed as a GS-09 Training Specialist with the

Department of Veterans Affairs Medical Center (VAMC) in Orlando, Florida.

Croft v. Department of Veterans Affairs, MSPB Docket No. AT-0752-17-0703-

I-1, Initial Appeal File (IAF), Tab 1 at 1, Tab 5 at 24, 60. On June 5, 2017, the

agency proposed her removal based on a single charge of disruptive behavior.

IAF, Tab 5 at 60-61. In support of its charge, the agency provided the following

specification:

On May 10, 2017, you were on duty working the 7:30 am – 4 pm

tour of duty in the Education Service. At approximately 3:15 pm,

you called the [Department of Veterans Affairs (VA)] Crisis Line

stating you felt you wanted to kill your supervisor. Upon the arrival

of VA Police officers to your office, you again stated multiple times

that you wanted to kill your supervisor. You said you wanted to kill

your supervisor due to the constant harassment you claim to be

under, or words to that effect.

Id. at 60. Thereafter, the deciding official sustained the proposed removal. Id.

at 30-32. The appellant’s removal was effective August 11, 2017. Id. at 24, 30.

¶3 Subsequently, the appellant filed a Board appeal challenging the removal

action and raising affirmative defenses of sex, race, and disability discrimination,

as well as reprisal for protected equal employment opportunity (EEO) activity.

IAF, Tab 1 at 2, 7-21, Tab 23. Without holding a hearing, the administrative

judge issued an initial decision reversing the agency’s removal action. 2 Croft v.

Department of Veterans Affairs, MSPB Docket No. AT-0752-17-0703-I-2, Appeal

While the appellant initially requested a hearing, IAF, Tab 1 at 1, she subsequently

withdrew her hearing request, Croft v. Department of Veterans Affairs, MSPB Docket

No. AT-0752-17-0703-I-2, Appeal File (I-2 AF), Tab 5. The administrative judge

initially dismissed the appeal without prejudice pursuant to the appellant’s motion, IAF ,

Tab 28, Tab 31, Initial Decision, and the appellant timely refiled her appeal, I-2 AF,

Tab 1.

File (I-2 AF), Tab 12, Initial Decision (ID). Concerning the charge, the

administrative judge found that the appellant did not engage in disruptive conduct

as alleged because she made her statements to a Veterans Crisis Line (VCL)

representative in the context of seeking professional treatment for anxiety and

stress she experienced at work. 3 ID at 7. The administrative judge found that,

accordingly, the agency failed to prove its charge by a preponderance of the

evidence and its removal action must be reversed. Id. The administrative judge

then considered the appellant’s affirmative defenses and determined that she

failed to establish her claims of discrimination and reprisal for protected EEO

activity. ID at 7-12.

¶4 The agency timely filed a petition for review. Petition for Review (PFR)

File, Tab 1. On review, the agency contends that, contrary to the administrative

judge’s finding, it proved its charge. 4 PFR File, Tab 1 at 15, 21-27. The agency

also alleges that the administrative judge erred by precluding rebuttal evidence,

crediting the appellant’s allegations, and overlooking parts of the record. Id.

at 27-32. The appellant has filed a response to the agency’s petition, PFR File,

Tab 7, and the agency has filed a reply to the appellant’s response, PFR File,

Tab 8. 5

The VCL’s purpose is “to provide [v]eterans, [s]ervice [m]embers, and their family

members, who are in crisis or at risk for suicide, with immediate access to suicide

prevention and crisis intervention services.” IAF, Tab 26 at 15. Among other services,

VCL representatives provide “telephone . . . crisis intervention . . . and referrals for

mental health treatment.” Id.

As part of its petition for review, the agency has provided evidence that it complied

with the administrative judge’s order for interim relief. PFR File, Tab 1 at 34, 36, 38,

40. The appellant does not raise the issue of interim relief on review; therefore, we do

not further address it. PFR File, Tab 7.

The appellant has not filed a cross petition for review challenging the administrative

judge’s findings regarding her affirmative defenses. Thus, we do not further address

those findings here.

DISCUSSION OF ARGUMENTS ON REVIEW

The agency proved its charge of disruptive behavior.

¶5 The administrative judge found that, to prove a charge of disruptive

behavior, an agency must establish the following: (1) the appellant engaged in

the conduct described under the charge; and (2) that the conduct caused a

disruption. ID at 2. Neither party disagreed below or on review that the agency

was required to establish these elements to prove its charge , and we agree that a

disruptive behavior charge is comprised of these two elements . 6 Under its charge,

the agency set forth a single specification with a narrative describing the

appellant’s misconduct. IAF, Tab 5 at 60. An agency need not prove every part

of the specification underlying its charge to prove the charge. See Otero v. U.S.

Postal Service, 73 M.S.P.R. 198, 204 (1997) (noting that, to prove its charge, an

agency need not establish every portion of the narrative description underlying

the charge). As previously noted, the agency argues on review that it proved its

charge. PFR File, Tab 1 at 15, 21-27. We agree. 7

¶6 As noted by the administrative judge, the appellant does not dispute having

told the VCL representative that she wanted to kill her supervisor . ID at 3. The

record reflects that the VCL representative subsequently contacted the VA police

and that the police were dispatched to the appellant’s location at the VAMC.

IAF, Tab 5 at 71. The record reflects that the appellant was still on the phone

with the VCL representative when the VA police arrived. Id. While on the phone

In setting forth the elements for a charge of disruptive behavior, the administrative

judge cited to Colon v. Department of the Navy, 58 M.S.P.R. 190, 197-98 (1993). ID

at 2. In Colon, the Board found that, to prove its charge of disorderly conduct, the

agency needed to establish that the employee engaged in the actions described under the

charge and that the conduct was disorderly. Colon, 58 M.S.P.R. at 197-98. By analogy,

we find that, to prove a charge of disruptive behavior, an agency must establish that an

employee engaged in the conduct described under the charge and that the conduct was

disruptive.

In light of this finding, we need not reach the agency’s arguments that the

administrative judge abused his discretion in precluding rebuttal evidence and

overlooked record evidence.

with the VCL representative and in the presence of the police, the appellant stated

multiple times that she wanted to kill her supervisor. Id.

¶7 In addressing whether the statements set forth under the charge caused a

disruption, the administrative judge acknowledged that the appellant’s statements

to the VCL representative were upsetting to the appellant’s supervisor and to a

coworker, but he found that these employees only became aware of the statements

when told by the VA police. ID at 5. Thus, according to the administrative

judge’s reasoning, the disruption was caused by the VA police and not the

appellant. The administrative judge found that the record is devoid of

information concerning when a VCL representative must “break confidentiality.”

Id. Citing the Board’s decisions in Larry v. Department of Justice, 76 M.S.P.R.

348 (1997), and Powell v. Department of Justice, 73 M.S.P.R. 29 (1997), the

administrative judge noted that the Board has been troubled by cases in which

agencies have used statements made in the course of an appellant’s contact with a

counselor as a basis for discipline. ID at 6.

¶8 We find that the administrative judge’s focus on whether the VCL

representative improperly “broke confidentiality” is misplaced. The U.S.

Supreme Court has recognized, in some circumstances, a licensed

psychotherapist-patient privilege in Federal litigation. Jaffee v. Redmond,

518 U.S. 1, 15-16 (1996). Under the circumstances here, however, we need not

determine whether the appellant’s statements to the VCL representative were

covered by a privilege that precludes their use in the agency’s removal action. 8

It appears that, in his adjudication of the agency’s charge, the administrative judge

assumed that the appellant’s statements to the VCL representative were covered by a

privilege. ID at 5-7. However, there is no record evidence indicating that VCL

representatives are licensed psychotherapists. Moreover, as the party asserting the

privilege, it was the appellant’s burden to establish the requirements for invoking the

privilege. See Gubino v. Department of Transportation, 85 M.S.P.R. 518, ¶ 18 (2000)

(stating that a party asserting an evidentiary privilege has the burden of establishing it).

The administrative judge, therefore, should not have assumed the existence of a

privilege in this case.

Nor must we determine whether it was proper for the VCL representative to share

these statements with the police. Assuming arguendo that the appellant’s initial

statements to the VCL representative were privileged, the record reflects that the

appellant repeated these statements several times in the presence of the police, as

set forth under the specification. IAF, Tab 5 at 60, 71. The appellant’s repetition

of these statements in the presence of the police vitiates any privilege. See

Gray v. Government Printing Office, 111 M.S.P.R. 184, ¶ 13 (2009) (finding that

the appellant’s repetition of statements initially made to a nurse in front of the

nurse and non-medical employees defeated any potential privilege).

¶9 Moreover, contrary to the administrative judge’s findings, the Board’s

decisions in Larry and Powell are distinguishable from the instant case. In Larry,

the agency charged the appellant with threatening a supervisor based on

statements that the appellant made to a psychotherapist of the agency’s Empl oyee

Assistance Program (EAP). Larry, 76 M.S.P.R. at 355. The Board found that the

agency failed to prove its charge because the evidence showed that the appellant

made the statements in the course of psychotherapy. Id. at 358-59. Similarly, in

Powell, the agency charged the appellant with threatening to kill five agency

employees based on statements he made in a telephone conversation with an EAP

counselor. Powell, 73 M.S.P.R. at 31-32. The Board found that the appellant in

Powell was requesting counseling and was not made aware that his statements

might not be kept confidential, and, thus, it would be contrary to the policy and

In addition, the administrative judge addressed the appellant’s argument that the VCL’s

representative’s disclosure violated agency policy in the context of the charge. ID at 5.

This argument, however, constitutes a harmful procedural error claim that the

appellant—and not the agency—has the burden of proof on. See 5 C.F.R. § 1201.56(c).

Moreover, even if this argument were relevant to the charge, the administrative judge

did not address the agency’s arguments regarding why the VCL representative was

required to disclose the appellant’s statements to the VA police. PFR Tab 1 at 18-22;

IAF, Tab 25 at 17. We are not, therefore persuaded by the administrative judge’s

reasoning on these issues. However, as explained below, we need not reach these

questions in light of our finding that any privilege was vitiated when the appellant

repeated her statements to the VCL representative in front of the police.

purpose of the EAP to take action against him. Powell, 73 M.S.P.R. at 35-36.

The same concerns regarding confidentiality and privilege at issue in Larry and

Powell are not present here where the appellant repeated her statements in front

of the VA police. Thus, we find that the Board’s decisions in Larry and Powell

are not controlling here.

¶10 Rather, the circumstances in this case are similar to those in Gray,

111 M.S.P.R. 184. While at the agency’s medical unit, the appellant in Gray

stated in front of two nurses that he was going to kill his supervisor. Id., ¶¶ 4-5.

After the agency’s Safety Manager and an Occupational Safety and Health

Specialist, who one of the nurses called, arrived on the scene, the appellant again

stated that he was going to kill his supervisor in the presence of these two

non-medical employees as well as in front of one of the nurses he had initially

made this statement to. Id., ¶ 6. The Board found that, even assuming the

appellant’s initial statements to the nurses were privileged, the appellant’s

repetition of the statements to the non-medical employees defeated that privilege.

Id., ¶ 13. The Board in Gray thus considered the appellant’s statements in

determining whether the agency proved its charge. Id., ¶ 15-16. Similarly, we

find here that it is proper for us to consider the appellant’s statements made in the

presence of the VA police as a basis for the agency’s action.

¶11 Having determined that it is appropriate for us to consider these statements,

we turn to the issue of whether the statements caused a disruption. Following the

appellant’s statements to the VA police, the police informed the appellant’s

supervisor that the appellant had stated that she wanted to kill him. 9 IAF, Tab 5

The administrative judge found that the agency presented no legal reason or

requirement for the police’s disclosure of these statements to the appellant’s supervisor.

ID at 5. However, to the extent the appellant is arguing that the agency failed to follow

its procedures regarding confidentiality, any such allegation is a harmful error claim.

Because the appellant has the burden of proof on any such claim, the administrative

judge improperly placed the burden of proof on this issue on the agency. See 5 C.F.R.

§ 1201.56(c). Further, pursuant to agency policy, the VA police should offer assistance

at 71, 73, 76. The record reflects that, as a result, the appellant’s supervisor

suffered anxiety and fear for his safety and that of his family. I-2 AF, Tab 10

at 11. In an email he sent following the May 10, 2017 incident, the appellant’s

supervisor stated that he found “it incomprehensible that an employee can say she

wants to kill her supervisor, but then can return to work the next day as if not hing

has happened.” IAF, Tab 5 at 95. He expressed a deep concern for the safety of

agency employees, stating that he was concerned that the appellant would return

to the office and engage in similar behavior. Id. He further stated that agency

employees did not feel protected by the agency. Id. Moreover, in an affidavit, he

stated that, as a result of the appellant’s statements, he sought law enforcement

advice on how to protect himself and his family and increased his use of

anti-anxiety medication. I-2 AF, Tab 10 at 11. He said that, absent the

anti-anxiety mediation, his sleep would be affected. Id.

¶12 The police also informed the Administrative Officer for Education Service

(Administrative Officer) that the appellant had stated she wanted to kill her

supervisor. Id. at 12. The Administrative Officer stated in an affidavit that, after

learning about the appellant’s statement, she “was nervous and felt fear for

[herself] and staff.” Id. She stated that she subsequently became very aware of

her surroundings in an attempt to ensure that the appellant wasn’t following her

and that the “fear was paralyzing sometimes and made [her] think about getting

another job or . . . working from home.” Id.

¶13 Based on the foregoing, we find that the appellant’s statements in the

presence of the VA police caused a disruption. Accordingly, we reverse the

administrative judge’s finding that the agency failed to prove its charge of

disruptive behavior, and we sustain the charge.

and respond to calls involving allegations of employee generated disruptive behavior,

and such incidents must be reported to supervisors. IAF, Tab 5 at 126, 130-31.

The agency established nexus and that the penalty of removal is reasonable under

the circumstances.

¶14 Because the administrative judge did not sustain the agency’s charge, he did

not determine whether the agency established nexus and the reaso nableness of the

penalty. Thus, we will now make those determinations. To prove nexus, the

agency must show a clear and direct relationship between the articulated grounds

for the adverse action and either the appellant’s ability to accomplish her duties

satisfactorily or some other legitimate Government interest. Canada v.

Department of Homeland Security, 113 M.S.P.R. 509, ¶ 10 (2010). It is well

settled that there is sufficient nexus between an employee’s conduct and the

efficiency of the service where the conduct occurred at work. See, e.g., Parker v.

U.S. Postal Service, 819 F.2d 1113, 1116 (Fed. Cir. 1987) (finding that the

agency established nexus where the conduct occurred in part at work) . We find

that the agency established nexus here because the misconduct occurred at work

and, by its very nature, was disruptive to the efficiency of the service . See

Miles v. Department of the Navy, 102 M.S.P.R. 316, ¶ 11 (2006) (determining that

the misconduct at issue—assaulting and threatening a coworker, disrespectful

conduct, and unauthorized possessions, use or manufacture of personal tools —is

clearly related to the efficiency of the service); see also Battle v. Department of

Transportation, 63 M.S.P.R. 403, 410 (1994) (finding that threatening a

supervisor affects the agency’s ability to maintain a safe workplace and thus

impinges upon the efficiency of the service).

¶15 Regarding the penalty, where, as here, all of the agency’s charges are

sustained, the Board will review the agency-imposed penalty only to determine if

the agency considered all of the relevant factors and exercised management

discretion within the tolerable limits of reasonableness. Davis v. U.S. Postal

Service, 120 M.S.P.R. 457, ¶ 6 (2013); Douglas v. Veterans Administration,

5 M.S.P.R. 280, 306 (1981). In Douglas, 5 M.S.P.R. at 305-06, the Board

articulated a nonexhaustive list of 12 factors that are relevant in assessing the

appropriate penalty for an act of misconduct. These factors include the nature

and seriousness of the offense, the appellant’s past disciplinary record, her past

work record, her potential for rehabilitation, and mitigating circumstances

surrounding the offense. Id. The agency need not address all 12 factors, merely

those that are relevant. Douglas, 5 M.S.P.R. at 306. The Board will modify or

mitigate an agency-imposed penalty only where it finds that the agency failed to

weigh the relevant factors or the penalty clearly exceeds the bounds of

reasonableness. Davis, 120 M.S.P.R. 100, ¶ 6.

¶16 We find that the deciding official appropriately considered the relevant

factors in deciding to remove the appellant. IAF, Tab 5 at 26-28, 30.

Specifically, the deciding official considered the seriousness of the offense and

determined that the nature of the misconduct was “very serious and negati vely

impacts management’s ability to maintain a safe and therapeutic environment for

patients and staff members.” Id. at 26; see Davis, 120 M.S.P.R. 457, ¶ 7 (noting

that the seriousness of the offense is always one of the most important factors in

assessing the reasonableness of an agency’s penalty determination). He found

that, while the misconduct may not have been intentionally di sruptive, it

nonetheless had a negative effect on the efficiency of the service. IAF, Tab 5

at 26. The deciding official considered the appellant’s potential for

rehabilitation, and he noted that he had “no confidence in [her] ability to return to

work and perform her duties without like incidents occurring or carrying through

with the thoughts she related about wanting to harm her supervi sor.” Id. In

addition, the deciding official considered relevant mitigating factors. For

example, he considered that the appellant had 14 years of prior Federal service

and that she had received a Fully Successful rating for her last performance

appraisal. Id. at 26, 30, 62. The deciding official also properly considered the

medical documentation the appellant provided and found that her medical

condition had an effect on her misconduct and was a mitigating factor. Id. at 28.

He found, however, that there was no evidence that the medical condition had

been remedied. Id. Accordingly, he properly determined that the appellant’s

medical impairment was not a significant mitigating factor . Id.; see Lentine v.

Department of the Treasury, 94 M.S.P.R. 676, ¶ 14 n.3 (2003) (noting that a

medical or mental impairment is not a significant mitigating factor in th e absence

of evidence that the impairment can be remedied or controlled). Furthermore, the

deciding official considered lesser penalties and alternative sanctions but

determined that, in light of the nature of the offense, any such alternatives would

not be appropriate. IAF, Tab 5 at 28.

¶17 In her submissions below, the appellant raised a claim of disparate

penalties. IAF, Tab 1 at 18; I-2 AF, Tab 11 at 20-21. Specifically, she alleged

that another employee at the Orlando VAMC “expressed thoughts of shooting her

supervisors” but was placed on administrative leave and reassigned instead of

being removed. I-2 AF, Tab 11 at 20-21. The appellant alleges that the alleged

comparator was only removed after a second incident of making threats. Id.

at 21. The appellant contends that, accordingly, she was subjected to a disparate

penalty because she was not provided a “‘warning’ or offer of reassignment.” Id.

¶18 The consistency of the penalty with those imposed upon other employees

for the same or similar offenses is one factor to be considered in determining the

reasonableness of the agency-imposed penalty. Douglas, 5 M.S.P.R. at 305. The

Board has recently clarified that, in assessing such a claim, the relevant inquiry is

whether the agency knowingly and unjustifiably treated employees differently.

Singh v. U.S. Postal Service, 2022 MSPB 15, ¶ 14. The universe of potential

comparators will vary from case to case, but it should be limited to those

employees whose misconduct and/or other circumstances closely resemble those

of the appellant. Id., ¶ 13. Here, the appellant does not allege that the alleged

comparator worked in the same unit or under the same supervisor as she did. Id.

(noting that the fact that two employees are from different work units and/or

supervisor chains remains an important factor in determining whether it is

appropriate to compare penalties they are given). Moreover, there is no

indication that the alleged comparator’s misconduct closely resembled that of the

appellant’s; for example, there is no evidence that the alleged comparator’s

conduct involved the police, that the alleged comparator’s “thoughts” of harming

her supervisors closely resembled the appellant’s statements to the police, and

that the same mitigating and aggravating factors that are relevant in assessing the

penalty in this case also applied to the alleged comparator’s case. In addition,

there is no indication that the agency knowingly treated the alleged comparator

differently from the appellant. Based on the foregoing, we find that the appellant

has failed to establish that the agency knowingly and unjustifiably treated

employees differently. Singh, 2022 MSPB 15, ¶ 14.

¶19 In light of the above, we find that the penalty of removal is within the

tolerable limits of reasonableness and that it promotes the efficiency of the

service. The agency’s removal action is therefore sustained.

NOTICE OF APPEAL RIGHTS 10

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 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. 420 (2017). If you have a representative in this case,

and your representative receives this decision bef ore 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 c ondition, 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 you wish to challenge the Board’s rulings on your whistleblower claims

only, excluding all other issues, then you may file a petition for judicial review

either with the U.S. Court of Appeals for the Federal Circu it or any court of

appeals of competent jurisdiction. 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