Opinion

Jeremy Cable v. Office of Personnel Management

Court: Merit Systems Protection Board
Filed: May 23, 2024
Status: Unpublished
Cited by: 0 cases
Authority: More cited than 16.2%

The opinion

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

JEREMY CABLE, DOCKET NUMBER

Appellant, SF-844E-19-0033-I-1

OFFICE OF PERSONNEL DATE: May 23, 2024

MANAGEMENT,

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 1

Steven E. Brown , Esquire, Westlake Village, California, for the appellant.

Albert Pete Alston, Jr. , Washington, D.C., 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 the reconsideration decision of the Office of Personnel Management

(OPM) that denied his application for disability retirement benefits under the

Federal Employees’ Retirement System (FERS). 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 erroneous

A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 petitioner

has not established any basis under section 1201.115 for granting the petition for

review. Therefore, we DENY the petition for review and AFFIRM the initial

decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

BACKGROUND

The appellant was employed by the National Aeronautics and Space

Administration. Initial Appeal File (IAF), Tab 9 at 64. On March 14, 2017, he

filed an application for disability retirement benefits under FERS, asserting that

he had asthma, chronic sinus infections, sinusitis, allergic rhinitis, and

“[e]rythematons conjuctira.” 2 Id. at 72-74. He alleged that his medical

conditions made it “nearly impossible” to perform his assigned duties and made it

difficult for him to attend work daily. Id. at 73. The appellant resigned, effective

May 12, 2017, due to health reasons. Id. at 4.

OPM issued an initial decision denying the appellant’s application for

disability retirement because he did not have a service deficiency due to his

medical conditions. Id. at 48-52. After the appellant requested reconsideration,

Sinusitis is an inflammation or swelling of the tissue lining the sinuses.

https://www.webmd.com/allergies/sinusitis-and-sinus-infection (last visited May 22,

2024). Rhinitis is when a reaction occurs that causes nasal congestion, runny nose,

sneezing, and itching. https://www.hopkinsmedicine.org/health/conditions-and-

diseases/rhinitis (last visited May 22, 2024). No information could be found regarding

“[e]rythematons conjuctira.” However, OPM noted in its reconsideration decision that

the appellant’s primary care physician documented “erythematous conjunctiva” on

occasion, but it was not supported as a disabling medical condition. IAF, Tab 9 at 8.

OPM issued a September 25, 2018 reconsideration decision, which concluded that

the initial decision was correct. Id. at 5-9.

The appellant filed this appeal with the Board. IAF, Tab 1. The

administrative judge held a telephonic hearing. IAF, Tab 20, Hearing Compact

Disc (HCD). The administrative judge found that the appellant failed to prove

that he became disabled because of his medical conditions; she noted that his

conditions did not result in a deficiency in performance, conduct, or attendance,

nor were they incompatible with useful and efficient service or retention in his

former position. IAF, Tab 21, Initial Decision (ID) at 7-14. Specifically, she

found that the only deficiencies he identified occurred in his attendance, and she

held that attendance problems alone do not establish entitlement to disability

retirement under FERS without some corroborating evidence showing impaired

performance of duties. ID at 11-12. She further found that his medical

documentation did not show that he was restricted from performing the essential

functions of his position or that his medical conditions were incompatible with

useful and efficient service. ID at 12-13. She therefore affirmed OPM’s

reconsideration decision. ID at 14.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. In it, he argues, among other things, that the administrative judge

misinterpreted evidence, improperly credited the testimony of the Equal

Employment Opportunity (EEO) Specialist on medical issues, did not factor in

the effect of his absences on his performance, ignored the agency’s failure to

replace the “old, moldy/mildewed” carpet, and ignored the significance of his

environmental limitations. Id. at 7-9. He also asserts that most of his evidence

focused on inability to render useful and efficient service. Id. at 8. The appellant

further argues that the administrative judge wrongly concluded that his ability to

perform some of his duties disqualified him from disability retirement, and his

environmental work limitations can constitute a disability. Id. at 9-12. OPM has

not filed a response.

DISCUSSION OF ARGUMENTS ON REVIEW

In an appeal from an OPM decision denying a voluntary disability

retirement application, the appellant bears the burden of proof by preponderant

evidence. 3 Christopherson v. Office of Personnel Management, 119 M.S.P.R.

635, ¶ 6 (2013). To be eligible for a disability retirement annuity under FERS, an

employee must show the following: (1) he completed at least 18 months of

creditable civilian service; (2) while employed in a position subject to FERS, he

became disabled because of a medical condition, resulting in a deficiency in

performance, conduct, or attendance, or, if there is no such deficiency, the

disabling medical condition is incompatible with either useful and efficient

service or retention in the position; (3) the disabling medical condition is

expected to continue for at least 1 year from the date that the application for

disability retirement benefits was filed; (4) accommodation of the disabling

medical condition in the position held must be unreasonable; and (5) he did

not decline a reasonable offer of reassignment to a vacant position. Id.;

see 5 U.S.C. § 8451(a).

The administrative judge properly found that criteria (1) and (5) were

satisfied. ID at 6; IAF, Tab 9 at 62-64, 67. The administrative judge also

correctly found that the appellant’s medical conditions were expected to continue

for at least 1 year from the date that the disability retirement application was

filed. ID at 6. The appellant filed his disability retirement application on

March 14, 2017. IAF, Tab 9 at 78. The appellant’s medical records show that, on

April 9, 2018, he continued to see his physician about, among other things, “an

ongoing cough” and “shortness of breath.” IAF, Tab 10 at 10. In a May 4, 2018

letter, the appellant’s doctor stated that he saw the appellant regularly for “mixed

obstructive and restrictive ventilatory defect, asthmatic bronchitis and persistent

Preponderant evidence is the degree of relevant evidence that a reasonable person,

considering the record as a whole, would accept as sufficient to find that a contested

fact is more likely to be true than untrue. 5 C.F.R. § 1201.4(q).

ethmoid sinusitis.” 4 Id. at 9. During his testimony, given on February 20, 2019,

the appellant stated that he still had some of the same symptoms, but they were

not as severe. HCD, Track 1 at 1:07:15 (testimony of the appellant). We affirm

the administrative judge’s finding that the appellant proved criterion (3).

The administrative judge noted that this appeal hinged on whether the

appellant satisfied the second criterion for establishing a right to disability

retirement benefits. ID at 7. Although the administrative judge should have

addressed the fourth criterion – whether accommodation of the disabling medical

condition in the appellant’s position was unreasonable – her adjudicatory error is

not prejudicial to the appellant’s substantive rights and provides no basis for

reversal of the initial decision. Panter v. Department of the Air Force,

22 M.S.P.R. 281, 282 (1984). For the following reasons, we affirm the initial

decision.

The appellant failed to prove criterion (2).

An appellant may meet the statutory requirement that he “be unable,

because of disease or injury, to render useful and efficient service” in his position

by (a) showing that the medical condition caused a deficiency in performance,

attendance, or conduct, as evidenced by the effect of his medical condition on his

ability to perform specific work requirements, or his medical condition prevented

him from being regular in attendance, or caused him to act inappropriately, or

(b) showing that the medical condition is incompatible with useful and efficient

service or retention in the position by demonstrating that his medical condition is

inconsistent with working in general, in a particular line of work, or in a

particular type of work setting. Christopherson, 119 M.S.P.R. 635, ¶ 6. The

People with obstructive lung disease have shortness of breath due to difficulty

exhaling all the air from the lungs, while people with restrictive lung disease cannot

fully fill their lungs with air. https://www.webmd.com/lung/obstructive-and-restrictive-

lung-disease (last visited May 22, 2024). Ethmoid sinuses refer to the sinuses located

between the nose and eyes. https://www.healthline.com/human-body-maps/ethmoid-

sinus#1 (last visited May 22, 2024).

Board considers all pertinent evidence including objective clinical findings,

diagnoses and medical opinions, subjective evidence of pain and disability, and

all evidence showing the effect of his condition on his ability to perform the

duties of his position. Smith v. Office of Personnel Management, 100 M.S.P.R.

500, ¶ 5 (2005).

On review, the appellant suggests that he had attendance and performance

deficiencies and, in the alternative, that he was unable to render useful and

efficient service in his position. As previously stated, the record reflects that the

appellant asserted in his disability retirement application that he had numerous

medical conditions during the relevant time frame. IAF, Tab 9 at 72-73. OPM

also considered in its reconsideration decision additional conditions such as

dyspnea, reactive airway disease, 5 mixed obstructive and restrictive ventilatory

defect, asthmatic bronchitis, and persistent ethmoid sinusitis, among other

conditions. Id. at 5-9.

The appellant stated that shortly after he began working in the Range

Control Office (RCO), 6 he developed such problems as difficulty breathing,

issues with his sinuses, watery eyes, and headaches. Id. at 30, 42; HCD, Track 1

at 0:04:30 (testimony of the appellant). The appellant’s wife stated that she

observed the appellant on a daily basis with sinus problems, bloodshot eyes, and a

raspy and scratchy voice, and his symptoms worsened as the work week

progressed. IAF, Tab 9 at 45; HCD, Track 2 at 0:37:15 (testimony of the

appellant’s wife). The appellant’s supervisor testified that he observed the

appellant with watery eyes. HCD, Track 2 at 1:22:30 (testimony of the

supervisor). One of the appellant’s coworkers confirmed that he observed the

Reactive airway disease is a term that healthcare providers use to describe breathing

symptoms that are similar to asthma, but they’re not sure of the exact cause.

https://my.clevelandclinic.org/health/diseases/24661-reactive-airway-disease (last

visited May 22, 2024).

The administrative judge found that the appellant was assigned the position of Range

Control Specialist on December 13, 2015. ID at 2. The appellant does not challenge

this finding on review. PFR File, Tab 1 at 5.

appellant with increased nasal-related allergies. IAF, Tab 9 at 47; HCD, Track 2

at 0:09:00, 0:13:00 (testimony of the coworker).

The record included numerous reports from the appellant’s medical

providers regarding the appellant’s visits between April 2016 and July 2018.

E.g., IAF, Tab 10 at 5-61. These reports generally indicate that the appellant

complained about breathing and sinus problems, although the handwriting in

several of these reports is illegible.

According to the appellant’s position description, as a GS-12 Range

Control Specialist, some of his duties included analyzing organizational

priorities, developing and implementing administrative policies and procedures,

attending informative meetings to remain current on systems capabilities and

configurations, and insuring efficient and timely support of flight research

projects. IAF, Tab 9 at 91-92. Among other things, the appellant’s position

required knowledge and skill in applying analytical and evaluative methods and

techniques to issues or studies concerning the efficiency and effectiveness of

program operations, and interpersonal skills in presenting staffing

recommendations and negotiating solutions to disputed recommendations. Id.

at 93. The appellant and OPM stipulated that his position required memory and

concentration. IAF, Tab 13 at 6, Tab 14 at 5.

The appellant testified that his symptoms interfered with his ability to do

his job because his job required concentration, his headaches made it difficult to

think, he was short of breath, and he was always so focused on his symptoms that

it was difficult to accomplish his duties. HCD, Track 1 at 0:50:00 (testimony of

the appellant). In an unsworn statement, the appellant wrote that he suffered from

“memory and concentration” problems as a result of his medical conditions, and

“frequently made mistakes” in the scheduling system, resulting in a reprimand

from his lead and trainer. IAF, Tab 9 at 21. More specifically, he stated that he

had “a difficult time memorizing and recalling” what steps he needed to take to

schedule a mission. Id. The appellant added that he had difficulty overseeing a

mission in the control room because the mission required high concentration. Id.

He further stated that he had to use allergy eye drops in order to see what he was

doing in the control room because his eyes would become watery and itchy. Id.

The appellant also stated that he was “late to work or meetings on a regular basis,

due to being so tired and lethargic from the allergic reactions.” Id. at 22.

The appellant’s statements about deficiencies in his performance are

largely contradicted by the record. For the rating period of May 1, 2015, to April

30, 2016, the appellant’s overall performance was rated as “Level

4”/“Accomplished,” which was the second highest performance rating. Id. at 95.

The appellant was rated Level 5, Substantially Exceeds Expectations—the highest

performance rating—in the critical elements of teamwork and communication.

Id. at 100-03. In the supporting narrative for the rating, the appellant’s

supervisor mentioned no deficiencies at all in the appellant’s performance, and

instead only had positive things to say about him. Id. at 104-05. The supervisor

testified that up until the appellant’s separation, the appellant’s performance was

acceptable and he had no issues with it. HCD, Track 2 at 1:22:00 (testimony of

the supervisor).

Moreover, the appellant’s coworker—who was the appellant’s witness—

testified that he never observed a deficiency in the appellant’s work performance

due to his symptoms. HCD, Track 2 at 0:17:15 (testimony of the coworker).

Although the appellant refers to the coworker’s September 2016 letter for

support, PFR File, Tab 1 at 7 (citing IAF, Tab 9 at 24), the only support that that

unsworn statement provides is that the appellant’s reaction to the work

environment “is impacting his overall health and hindering his full potential.” To

the extent the coworker’s statements are inconsistent, live testimony is generally

entitled to more weight than unsworn statements. Dubiel v. U.S. Postal Service,

54 M.S.P.R. 428, 432 (1992); Jefferson v. Defense Logistics Agency, 22 M.S.P.R.

10, 13 (1984).

The appellant also argues on review that his absences due to illness prove

his disability. PFR File, Tab 1 at 10-11 (citing Arnone v. Office of Personnel

Management, 7 M.S.P.R. 212 (1981)). In Arnone, 7 M.S.P.R. at 214-15, the

Board found that the evidence established that the appellant suffered from

chemical poisoning through her laboratory work, her numerous absences were due

to illness, she was prevented her from performing the duties of her job, she was

totally disabled for useful and efficient service in her position, and she was

entitled to a disability retirement annuity. There, the appellant presented

persuasive evidence from a doctor who specializes in the toxic effect of chemicals

on the body and wrote multiple letters of support to show residual neurological

damage without any treatment for this poisoning. Id. This case is distinguishable

from Arnone because there is no medical evidence that the work environment

caused the appellant’s medical conditions, and by extension, his absences.

The appellant submitted a chart purporting to show his leave usage from

April 19, 2015, through May 27, 2017. IAF, Tab 13 at 13-23. By the appellant’s

calculations, he used 1012 hours of leave during this time due to his respiratory

symptoms. Id. at 6. The appellant testified that he missed work because of his

symptoms, to recover from his symptoms, and for medical appointments. HCD,

Track 1 at 1:14:45 (testimony of the appellant). However, absence from work

alone does not establish entitlement to disability retirement without

some corroborating evidence establishing impaired performance of duties.

Harris v. Office of Personnel Management, 110 M.S.P.R. 249, ¶ 17 (2008). The

agency acknowledged in the Supervisor’s Statement that the appellant’s

attendance became unacceptable on May 1, 2017, IAF, Tab 9 at 69, a mere

11 days before his resignation. The agency also stated that his absences required

his coworkers to “take up the work” that he was unable to do, which “put[] a

strain on the office.” Id. The agency’s single sentence, written about the 11 days

between when his absences became unacceptable and the date of his resignation,

does not warrant a finding that his performance was impaired. To the contrary,

the agency indicated in the Supervisor’s Statement that the appellant’s

performance was not less than fully successful in any critical element. Id. at 68.

An employee’s subjective evidence of disability is entitled to consideration

and weight in a disability retirement case when it is supported by competent

medical evidence. Christopherson, 119 M.S.P.R. 635, ¶ 13. There appears to be

no dispute that the appellant suffered from numerous medical conditions during

the relevant time frame. However, medical evidence does not show – let alone

prove by preponderant evidence – that any of his conditions were disabling.

Therefore, the appellant’s subjective evidence of disability is only entitled to

limited weight.

Finally, we recognize that the Board has held that an employee can satisfy

his burden to show that he was unable to render useful and efficient service by

showing that the medical condition(s) is/are inconsistent with working in general,

in a particular line of work, or in a particular type of work setting. Id., ¶ 6.

However, the appellant has not made such a showing.

We have considered the appellant’s remaining arguments on review, but

none warrant a different outcome. Regarding the appellant’s argument that the

administrative judge ignored his environmental limitations and the fact that his

doctors imposed permanent work restrictions against him working in moldy or

damp environments, PFR File, Tab 1 at 7, we are not persuaded that a different

outcome is warranted. The May 4, 2018 letter from his doctor to which he cites

on review did not mention any work restrictions being placed on him, but merely

identified some of the medical conditions for which he was seen and stated that

“[h]e has been noted to have increased symptoms when exposed to molds and [a]

moist damp environment.” IAF, Tab 10 at 9. Accordingly, the cited evidence

does not support the appellant’s assertion.

The appellant similarly asserts that medical records confirmed that his

symptoms got worse the more he worked at the RCO and were both

“uncontrollable” and due to the “moldy carpet.” PFR File, Tab 1 at 7 (citing IAF,

Tab 10 at 34, 55, 59, 61). What we could read of this documentation appears to

be what the appellant reported to his doctors, not the diagnoses or remedies

recommended by his doctors. Additionally, the appellant does not challenge the

administrative judge’s finding that an allergen report, dated September 22, 2016,

indicated absent/undetectable levels of allergen reaction including mold grouping.

ID at 13 (citing IAF, Tab 10 at 44-45). Indeed, when asked about the fact that

this allergen report came back normal, he simply acknowledged that the report

was dated during the same time that he was experiencing symptoms in the office.

HCD, Track 1 at 1:06:00 (testimony of the appellant). Nor did the appellant

dispute, as his supervisor testified, that the agency conducted an environmental

test of his work environment on April 29, 2016, that also found nothing of

significance. HCD, Track 2 at 1:39:00 (testimony of the supervisor).

Based on our review of the record and the appellant’s arguments on review,

we conclude that there was no performance or attendance deficiency or that he

was precluded from providing useful and efficient service. See Boss v. Office of

Personnel Management, 23 M.S.P.R. 234, 238 (1984) (finding that the appellant

suffered from headaches as a result of work-related stress, but that there was

insufficient evidence that he was unable to perform useful and efficient service

because of his headaches); cf. Cole v. Office of Personnel Management ,

88 M.S.P.R. 54, ¶¶ 4-9 (2001) (finding that the appellant proved through her own

testimony and competent medical evidence that her migraine headaches were

precipitated and aggravated by her work environment, prevented her from

performing useful and efficient service in her position, and caused her deficiency

in attendance). Accordingly, we affirm the administrative judge’s finding that the

appellant did not prove criterion (2), and we affirm OPM’s reconsideration

decision that denied his application for disability retirement.

In light of our finding that the appellant did not prove criterion (2), we

need not address the administrative judge’s failure to address criterion (4) or any

arguments made by the appellant on review that may relate to criterion (4).

We discern no error with the administrative judge’s decision to permit the EEO

Specialist to testify.

Below, the appellant objected to the administrative judge’s decision to

permit the EEO Specialist to testify about “whether there were any medical

restrictions which kept the appellant from performing critical duties or from

attending work altogether” on the following grounds: (1) relevance; (2) calling

for speculation; (3) expert testimony being adduced from an unqualified lay

witness; (4) beyond the competence of the witness to testify on medical issues;

(5) contrary to a stipulation of record; and (6) unduly prejudicial to the appellant.

IAF, Tab 14 at 5, Tab 18 at 3, Tab 19 at 4-5. He continues to object to her

testimony on review, adding that her testimony that no reasonable

accommodation was necessary is a mixed question of law and medicine about

which she was not qualified to testify. PFR File, Tab 1 at 8.

It is well established that administrative judges have broad discretion to

regulate the proceedings before them. Oulianova v. Pension Benefit Guaranty

Corporation, 120 M.S.P.R. 22, ¶ 12 (2013). At the hearing, the EEO Specialist

did not attempt to diagnose the appellant or otherwise testify improperly about his

medical conditions. HCD, Track 2 (testimony of the EEO Specialist). She

instead only testified about her knowledge of the medical restrictions placed on

the appellant, his requests for accommodations, and her conversations with him.

Id. Accordingly, we find that her testimony was relevant, did not call for

speculation, was not beyond her knowledge, and she was qualified to give such

testimony. We further find that her testimony was not contrary to any of the

stipulations. IAF, Tab 13 at 6-7, Tab 14 at 4-5. The appellant has not explained

why the EEO Specialist’s testimony was unduly prejudicial to him, and we find

that his assertion is without merit. Accordingly, we find that the appellant has

not shown that the administrative judge erred in allowing the EEO Specialist to

testify.

NOTICE OF APPEAL RIGHTS 7

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).

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:

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

the notice of review rights included in final decisions to provide a comprehensive

summary of all available review options. As indicated in the notice, the Board cannot

advise which option is most appropriate in any matter.

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

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

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(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. 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