Opinion

Christa Nyamekye v. Department of Commerce

Court: Merit Systems Protection Board
Filed: Apr 19, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 15.8%

setting forth the standard for establishing a prima facie case of discrimination based on disparate impact

How later courts described this case

setting forth the standard for establishing a prima facie case of discrimination based on disparate impact

Written by the judges who cited it.

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

CHRISTA NYAMEKYE, DOCKET NUMBER

Appellant, DC-0752-20-0388-I-2

DEPARTMENT OF COMMERCE, DATE: April 19, 2024

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

James A. Hill , Esquire, and Michael L. Spekter , Esquire, Silver Spring,

Maryland, for the appellant.

Chieko M. Clarke and Michael Gridley , Alexandria, Virginia, for the

agency.

BEFORE

Cathy A. Harris, Chairman

Raymond A. Limon, Vice Chairman

FINAL ORDER

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

affirmed her removal for absence without leave (AWOL). Generally, we grant

petitions such as this one only in the following circumstances: the initial decision

contains erroneous findings of material fact; the initial decision is based on an

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 interpretation of statute or regulation or the erroneous application of

the law to the facts of the case; the administrative judge’s rulings during either

the course of the appeal or the initial decision were not consistent with required

procedures or involved an abuse of discretion, and the resulting error affected the

outcome of the case; or new and material evidence or legal argument is available

that, despite the petitioner’s due diligence, was not available when the record

closed. Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.

§ 1201.115). After fully considering the filings in this appeal, we conclude that

the appellant 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 to address the appellant’s due process argument, we

AFFIRM the initial decision.

BACKGROUND

The appellant was a GS-12 Accountant for the agency’s Patent and

Trademark Office. Nyamekye v. Department of Commerce, MSPB Docket

No. DC-0752-20-0388-I-1, Initial Appeal File (IAF), Tab 8 at 30. On

November 26, 2019, the agency proposed her removal based on 44 hours of

AWOL between July 22 and August 30, 2019. Id. at 70-76. Specifically, the

agency alleged that, on 18 different days, the appellant was absent from work,

without authorization, for various periods of time totaling 44 hours. 2 Id. at 70-71.

The agency further alleged that the appellant had not requested leave for her

absences, had claimed these hours as time worked, and had been paid

accordingly. Id. at 70. The appellant responded to the proposed removal, and on

January 15, 2020, the deciding official issued a decision sustaining the charge and

removing the appellant effective January 24, 2020. Id. at 36-41, 43-68.

The 18 specifications of AWOL are misnumbered in the notice of proposed removal.

IAF, Tab 8 at 70-71. However, there is no indication that this misnumbering caused the

appellant any confusion such that she was unable to understand the precise nature of the

agency’s allegations.

The appellant filed a Board appeal, contesting the merits of the agency’s

action and raising affirmative defenses of race and sex discrimination. 3 IAF,

Tab 1 at 4-6; Nyamekye v. Department of Commerce, MSPB Docket No.

DC-0752-20-0388-I-2, Appeal File (I-2 AF), Tab 5, Tab 14 at 8-13, Tab 17 at 5-6.

After a hearing, the administrative judge issued an initial decision affirming the

appellant’s removal. I-2 AF, Tab 25, Initial Decision (ID). She found that the

agency proved its charge and that the appellant failed to prove her affirmative

defenses. ID at 3-37. The administrative judge also found that the penalty was

within the tolerable limits of reasonableness. ID at 37-42.

The appellant has filed a petition for review, arguing that the agency

violated her right to due process, that the administrative judge erred in analyzing

her discrimination claims, and that the removal penalty is inconsistent with the

penalties imposed on other employees for similar offenses. Petition for Review

(PFR) File, Tab 3. The agency has filed a response. PFR File, Tab 5.

ANALYSIS

The agency proved its AWOL charge.

To prove an absence without leave charge, an agency must show that the

employee was absent from duty, and either that her absence was unauthorized or

that her request for leave was properly denied. Boscoe v. Department of

Agriculture, 54 M.S.P.R. 315, 325 (1992). In this case, the administrative judge

considered each of the 18 specifications of AWOL and found that the appellant

was absent from duty during various periods of time during which she was

supposed to have been at work, for a total of 44 hours as the agency alleged. ID

at 15-28. Accordingly, the administrative judge sustained each of the

The appellant initially alleged discrimination based on age, but we find that she has

abandoned that claim. IAF, Tab 1 at 6; see Thurman v. U.S. Postal Service, 2022 MSPB

21, ¶¶ 17-28. The appellant’s only allegation of age discrimination was a pro forma

assertion in her initial filing, she was represented by an attorney throughout these

proceedings, and she did not object when age discrimination was not included as an

issue in the administrative judge’s prehearing conference summary. IAF, Tab 1 at 6;

I-2 AF, Tab 17. Nor has the appellant raised the issue on petition for review.

18 specifications and the charge as a whole. Id. The administrative judge’s

findings are well-reasoned and supported by the record, and the appellant does

not contest them on review. See 5 C.F.R. § 1201.115 (“The Board normally will

consider only issues raised in a timely filed petition or cross petition for

review.”).

The appellant has not shown that the agency denied her due process.

On petition for review, the appellant argues that the agency denied her right

to due process because the deciding official based his penalty determination

partly on information that was not contained in the notice of proposed removal.

PFR File, Tab 3 at 9-15. Specifically, in her response to the notice of proposed

removal, the appellant stated that she sometimes worked more hours than she

actually reported. IAF, Tab 8 at 47-49. Far from allaying his concerns about the

appellant’s behavior, the deciding official believed that her failure to record work

time represented further disregard for the agency’s time and attendance policies,

and he considered this evidence in arriving at his decision. Hearing Transcript,

Day 1 (Tr. 1) at 212-15, 235-37 (testimony of the deciding official).

As a threshold matter, we acknowledge that the appellant did not raise this

affirmative defense in time for it to be included as an issue in the administrative

judge’s prehearing conference summary. Nevertheless, during the course of the

hearing, the deciding official gave information which had not been adduced in

discovery and which the appellant’s representative interpreted as evidence of a

due process violation. PFR File, Tab 3 at 5-6; Hearing Transcript, Day 2 (Tr. 2)

at 126 (appellant’s closing argument). The appellant’s representative raised the

issue before the close of the record below, during his closing argument. Tr. 2

at 126-27 (appellant’s closing argument). This argument, however, was not

addressed by the administrative judge in her initial decision. Cf. Spithaler v.

Office of Personnel Management, 1 M.S.P.R. 587, 589 (1980) (stating that an

initial decision must identify all material issues of fact and law, summarize the

evidence, resolve issues of credibility, and include the administrative judge’s

conclusions of law and legal reasoning, as well as the authorities on which that

reasoning rests). We find that the appellant acted with due diligence in raising

her due process argument under the circumstances, and we will address it on

review.

An agency’s failure to provide a tenured public employee with an

opportunity to present a response, either in person or in writing, to an appealable

agency action that deprives her of her property right in her employment

constitutes an abridgement of her constitutional right to minimum due process of

law, i.e., prior notice and an opportunity to respond. Cleveland Board of

Education v. Loudermill, 470 U.S. 532, 546 (1985). Procedural due process

guarantees are not met if the employee has notice of only certain charges or

portions of the evidence and the deciding official considers new and material

information. Therefore, an employee must be given advance notice of any

aggravating factors supporting an enhanced penalty as well as a meaningful

opportunity to address whether the level of penalty to be imposed is appropriate.

Ward v. U.S. Postal Service, 634 F.3d 1274, 1280 (Fed. Cir. 2011); Stone v.

Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999).

As an initial matter, we agree with the appellant that she was charged with

AWOL and not with any other violation of the agency’s time and attendance

rules. PFR File, Tab 3 at 8-10, 14. However, there is no indication in the record

that the deciding official relied on the appellant’s failure to record work time as a

basis to sustain the AWOL charge. Nor is there any blanket prohibition on

considering uncharged misconduct for purposes of penalty, as long as the

employee is on notice of the matter. Thomas v. U.S. Postal Service, 96 M.S.P.R.

179, ¶ 9 (2004). The appellant clearly expected that the deciding official would

consider her failure to record work time in reaching his decision because she

herself raised the issue in response to the notice of proposed removal. IAF, Tab 8

at 47-49. Therefore, contrary to the appellant’s arguments, there was no ex parte

communication. PFR File, Tab 3 at 11-12. Although the appellant may not have

predicted that the deciding official would view the information that she provided

in a negative light, due process does not require that an employee know in

advance what the deciding official’s assessment of the evidence will be. Wilson

v. Department of Homeland Security, 120 M.S.P.R. 686, ¶ 12 (2014), aff’d, 595 F.

App’x 995 (Fed. Cir. 2015). Nor do the principles of due process guarantee that

an employee’s response will not be seen to undermine her own case. See, e.g.,

Talavera v. Agency for International Development, 104 M.S.P.R. 445, ¶ 10

(2007). For these reasons, we find that the appellant has not shown that the

agency violated her right to due process. 4

The administrative judge properly determined that the appellant did not prove her

claims of race and sex discrimination.

To establish a claim of race or sex discrimination, an appellant must show

that the prohibited consideration was at least a motivating factor in the personnel

action at issue. Pridgen v. Office of Management and Budget , 2022 MSPB 31,

¶¶ 21-22. In this case, the appellant cited various pieces of evidence in support of

her claims, including evidence of the events that instigated the agency’s

investigation, evidence of the agency’s allegedly more favorable treatment of

male and Caucasian employees, changes in her performance rating after she was

assigned a new first-level supervisor, and a chart describing the agency’s actions

toward other employees who had committed AWOL offenses. I-2 AF, Tab 5

at 6-10, Tab 14 at 18-21. The administrative judge discussed all of this evidence

in detail but found that none of it gave rise to an inference of discrimination. ID

at 19-37.

When the Board determines that an agency has not violated an appellant’s due process

rights, it must consider whether the agency committed harmful procedural error. Ward,

634 F.3d at 1281-82. The burden is on the appellant to prove harmful error. 5 C.F.R.

§ 1201.4(r). A harmful error is an error by the agency in the application of its

procedures that is likely to have caused the agency to reach a conclusion different from

the one it would have reached in the absence or cure of the error. 5 C.F.R.

§§ 1201.4(r), 1201.56(c)(3). Here, because the appellant has not alleged that the agency

committed any error in applying its procedures, we discern no basis for a finding of

harmful error.

On petition for review, the appellant again points out that the only time in

her career with the agency that she received a performance rating of less than

“Commendable” was in fiscal year 2019, after she was assigned the new

first-level supervisor who later launched the investigation into her AWOL. PFR

File, Tab 3 at 23-24; IAF, Tab 10 at 10-21. The appellant also renews her

argument that the agency’s treatment of 50 different employees charged with

100 hours of AWOL or less between January 1, 2017, and March 11, 2019, shows

that the agency treated African American employees more harshly than Caucasian

employees. PFR File, Tab 3 at 23.

We have reevaluated the evidence that the appellant cites, but we come to

the same conclusion as the administrative judge. As the administrative judge

accurately observed, “[I]t is not uncommon that supervisors rate employees

differently or that a new supervisor may provide increased oversight to her

subordinate employees.” ID at 32. Moreover, even if the appellant’s fiscal year

2019 rating was overly critical from an objective standpoint, it would not follow

that the reason for this was discrimination. See Lewin v. Department of Justice,

74 M.S.P.R. 294, 298-99 (1997).

Regarding the 50 employees disciplined for 100 hours of AWOL or less,

the appellant accurately points out that more than half of these individuals (26 out

of 50) were African American. PFR File, Tab 3 at 23; I-2 AF, Tab 14 at 18-21.

However, to the extent that the appellant is attempting to proffer unidentified

individuals as comparators for purposes of her status-based discrimination claim,

she has not shown that any such similarly situated comparator exists. See Ly v.

Department of the Treasury, 118 M.S.P.R. 481, ¶ 10 (2012). In other words, the

information in this chart is insufficient to show that any similarly situated

non-African American employees committed similar AWOL offenses and were

not disciplined. The administrative judge carefully analyzed the information in

this chart, and we agree with her that it does not demonstrate any sort of

institutional bias or pattern of treating female or African American employees

more harshly than others. 5 ID at 30-31. For the reasons explained in the initial

decision, we agree with the administrative judge that the appellant has not shown

that either race or sex was a motivating factor in her removal. 6 ID at 29-37.

The removal penalty was reasonable.

Because the agency’s only charge is sustained, the Board’s authority to

review the penalty is limited. Cantu v. Department of the Treasury, 88 M.S.P.R.

253, ¶ 4 (2001). Specifically, the Board reviews an agency-imposed penalty only

to determine if the agency considered all the relevant factors and exercised

management discretion within tolerable limits of reasonableness. Douglas v.

Veterans Administration, 5 M.S.P.R. 280, 306 (1981). In reviewing an

agency-imposed penalty, the Board must give due weight to the agency’s primary

discretion in maintaining employee discipline and efficiency; the Board’s

function is not to displace management’s responsibility, but to ensure that

managerial judgment has been properly exercised within tolerable limits of

reasonableness. Id. at 302. The Board has identified a non-exhaustive list of

factors that are normally relevant in arriving at a penalty determination. Id.

at 305-06.

The administrative judge found that the agency properly considered the

relevant Douglas factors. ID at 38-42. She agreed with the deciding official that

the appellant’s good work history and 11 years of discipline-free service were

To the extent that the appellant is attempting to raise a disparate impact claim, we

decline to consider this argument because she has raised it for the first time on petition

for review without showing that it is based on new and material evidence. See Clay v.

Department of the Army, 123 M.S.P.R. 245, ¶ 6 (2016). In any event, the evidence that

the appellant has offered is insufficient to establish the existence of any statistical

disparity, as is required to support a prima facie case of disparate impact discrimination.

See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 991-94 (1988) (setting forth the

standard for establishing a prima facie case of discrimination based on disparate

impact).

Because we find no error with the administrative judge’s motivating factor analysis or

conclusion regarding the appellant’s discrimination claims, we do not reach the

question of whether the appellant’s race or sex was a but-for cause of the removal

action. See Johnson v. Department of Veterans Affairs, 2023 MSPB 9, ¶ 5 n.2

mitigating factors. ID at 39-40; IAF, Tab 8 at 37. However, she found that the

deciding official did not abuse his discretion in concluding that these did not

outweigh the aggravating factors, particularly the appellant’s lack of

rehabilitative potential and the nature and duties of her position, which included

ensuring time and attendance compliance for other employees. ID at 38-42; IAF,

Tab 8 at 37-38. The administrative judge acknowledged that other employees

with similar amounts of AWOL were given lesser penalties, but she agreed with

the deciding official that the disparity was justified because of the nature of the

appellant’s duties, position, and responsibilities. ID at 40; IAF, Tab 8 at 38;

I-2 AF, Tab 19 at 48.

On petition for review, the appellant focuses on the issue of whether the

penalty in her case was consistent with penalties previously levied against other

employees for similar offenses. PFR File, Tab 3 at 15-22. The evidence on this

issue consists mainly of a chart that the agency created for the deciding official’s

consideration. This chart lists 12 employees who were previously disciplined for

AWOL, and in the cases of 3 of those employees, improperly claimed overtime,

compensatory time, and credit time as well. I-2 AF, Tab 19 at 48. The chart

denotes the amount of AWOL and total amount of time abuse (AWOL plus

improperly claimed time) charged to each employee, the period of time over

which the infractions occurred, whether there was prior discipline involved, and

the penalty meted out in each case. Id. Recognizing that the appellant’s

infractions occurred over a 6-week period, the agency also calculated for each

employee 6-week equivalents of their actual AWOL and other time abuse as a

function of the hours charged and the time period covered versus the 6-week time

period at issue in this appeal. 7 Id. Out of the 12 proffered comparators, three

For instance, one employee was charged with 52 hours of AWOL and 66 hours of

improperly claimed time over an 8-month period. I-2 AF, Tab 19 at 48. The agency

determined that this equated to 10 hours of AWOL and 12 hours of improperly claimed

time (for a total of 22 hours of time abuse) over a 6-week period. Id. The agency’s

calculations themselves are not in the record. However, it would appear that the agency

reached this result by determining that a period of 8 months contains approximately

were removed, two of whom had prior discipline, and the remainder received

suspensions ranging from 2 to 30 days. Id.

On petition for review, the appellant criticizes the utility of the chart,

particularly the agency’s use of 6-week equivalents. She argues that the majority

of these employees’ cases are not comparable to hers because they were AWOL

well in excess of the 44 hours with which she was charged, and the agency cannot

make these dissimilar cases similar by engaging in the fiction that the other

employees’ offenses were somehow compressed into a 6-week period. PFR File,

Tab 3 at 17-20. The appellant also argues that, although the relation between her

job duties and the charged misconduct was a primary driver of the agency’s

penalty assessment, the chart does not disclose the positions held by the proffered

comparators, and the deciding official was unaware of whether any of those other

individuals might have had time and attendance-related duties as well. Id.

at 21-22.

The appellant’s concern about the 6-week equivalents is well-taken.

Although this appears to have been a good faith effort by the agency to expand its

data set, we are skeptical that employees who were charged with as much as 6.5

times the total AWOL as the appellant are comparable in committing similar

offenses, regardless of how long it took them to accrue that AWOL. Based on the

data in the chart, it appears to us that the three most similarly situated employees

incurred 36.75 hours of AWOL over 2.5 months, 30.5 hours of AWOL over

1.5 months, and 46 hours of AWOL over 2 months. I -2 AF, Tab 19 at 48. These

employees, none of whom had prior discipline, received suspensions of 10 days,

2 days, and 5 days, respectively. Id. The removal penalty that the appellant

received was significantly harsher.

240 days, or 34.29 weeks. Dividing 34.29 by 6 results in 5.71. The total of 52 hours of

total AWOL, divided by 5.71, is 9.1 hours, which the agency rounded up to 10 to reach

a 6-week equivalency. Dividing the 66 hours of improperly claimed time by the same

5.71 figure equates to 11.58 hours, which the agency rounded up to 12. Similar

calculations can be made for the other cases.

Nevertheless, the consistency of the penalty with those imposed upon other

employees for the same or similar offenses is simply one of a nonexhaustive list

of 12 factors that are relevant for consideration in determining the

appropriateness of a penalty. Singh v. U.S. Postal Service, 2022 MSPB 15, ¶ 18;

Douglas, 5 M.S.P.R. at 305-06. Therefore, while the fact that one employee

receives a more severe penalty than that imposed on a comparator who has

committed the same or similar misconduct should be considered in favor of

mitigating the penalty in a given case, mitigation is by no means required in all

such cases. Singh, 2022 MSPB 15, ¶ 18. The proper inquiry is whether the

agency knowingly treated employees differently in a way not justified by the

facts, and intentionally for reasons other than the efficiency of the service. Facer

v. Department of the Air Force, 836 F.2d 535, 539 (Fed. Cir. 1988). Although the

deciding official may not have been aware of whether any of the proffered

comparators were also responsible for ensuring time and attendance compliance,

he did not render his decision knowing that such similarities existed, thereby

knowingly treating the appellant more harshly than other similarly situated

individuals. Cf. Singh, 2022 MSPB 15, ¶ 13 (stating that the universe of potential

comparators “should be limited to those employees whose misconduct and/or

other circumstances closely resemble those of the appellant”). In fact,

information provided to the appellant during discovery shows that none of the

three individuals who committed similar AWOL infractions were Accountants;

one of them was a Paralegal and the other two were Patent Examiners. I-2 AF,

Tab 14 at 19-20, Tab 19 at 48. There is no reason to suppose that the duties of

any of these three individuals involved administering the agency’s time and

attendance system.

The nature and seriousness of the offense, and its relation to the

employee’s duties, position, and responsibility, remains the most important factor

in assessing the reasonableness of a penalty. Singh, 2022 MSPB 15, ¶ 18.

Therefore, notwithstanding the agency’s decision to levy a harsher penalty in the

appellant’s case, we agree with the administrative judge that its decision was

within the tolerable limits of reasonableness, especially in light of the appellant’s

time and attendance-related duties. ID at 42.

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 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

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).

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.

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 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).

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