William Eric Baker v. Department of Veterans Affairs ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
WILLIAM ERIC BAKER, DOCKET NUMBER
Appellant, DC-0432-14-0759-I-1
v.
DEPARTMENT OF VETERANS DATE: April 2, 2015
AFFAIRS,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 1
Gerald L. Gilliard, Esquire, Washington, D.C., for the appellant.
Hansel Cordeiro, Esquire, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
dismissed his removal appeal for failure to prosecute. Generally, we grant
petitions such as this one only when: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
1
A nonprecedential order is one that the Board has determined does not add
sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the 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. See Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, and based on the following
points and authorities, we conclude that the petitioner has not established any
basis under section 1201.115 for granting the petition for review. Therefore, we
DENY the petition for review and AFFIRM the initial decision, which is now the
Board’s final decision. 5 C.F.R. § 1201.113(b).
BACKGROUND
¶2 The appellant filed a Board appeal challenging his removal from his
position as a Program Analyst for unacceptable performance. Initial Appeal File
(IAF), Tab 1. The appellant also raised an affirmative defense of reprisal for
prior equal employment opportunity activity. See id. at 7.
¶3 The administrative judge issued an acknowledgement order followed by a
hearing order which set the deadline for the parties’ prehearing submissions as
August 4, 2014, the date for the prehearing conference as August 6, 2014, and the
hearing date as August 27, 2014. IAF, Tabs 2, 7. The agency filed a joint motion
to reschedule these deadlines because the deciding official, who was out on
medical leave, was unavailable to attend the hearing on August 27, 2014. 2 IAF,
Tab 8 at 4. The administrative judge granted the motion and issued an order
2
Based on the record, the appellant’s counsel agreed to reschedule the hearing date and
requested that the parties also file a motion to modify all deadlines including discovery
so as to provide the appellant additional time to submit discovery responses and to
discuss settlement. IAF, Tab 8 at 4, Tab 15 at 3; Petition for Review (PFR) File, Tab 1
at 14-16.
3
rescheduling the deadlines to September 12, 2014, September 16, 2014, and
October 1, 2014, respectively. IAF, Tab 9.
¶4 According to the administrative judge, the appellant thereafter failed to:
submit prehearing submissions; appear for the September 16, 2014 prehearing
conference; and return the administrative judge’s telephone messages on
September 16, 26, or 29, 2014. IAF, Tab 14, Tab 17, Initial Decision (ID) at 2.
On September 30, 2014, the day before the rescheduled hearing, the
administrative judge cancelled the hearing and ordered the appellant to show
cause on or before October 6, 2014, why the appeal should not be dismissed for
failure to prosecute. IAF, Tab 14. On October 7, 2014, the day after the deadline
to respond to the show cause order, the appellant, through his attorney, submitted
a response in which his attorney explained that he was in the process of moving
and finding new housing and that, after moving into a new home on October 3,
2014, he discovered that the property did not have cellular phone reception or
coverage by his existing internet provider. IAF, Tab 15 at 3-4. The
administrative judge declined to consider the appellant’s untimely response to the
show cause order and issued an initial decision dismissing the appeal for failure
to prosecute. ID at 3.
¶5 The appellant has filed a petition for review in which he reiterates the
reasons why he failed to comply with the administrative judge’s orders as well as
argues that he attempted to file a response to the show cause order on October 6,
2014, but was unsuccessful due to technical problems with the Board’s e-appeal
website. PFR File, Tab 1 at 5-8. The appellant further argues that dismissal for
failure to respond to one order is excessive and that the agency similarly failed to
participate in the prehearing conference and submitted its prehearing submissions
past the deadline. Id. at 11-12. The agency has filed a response and an amended
response in opposition to the appellant’s petition. PFR File, Tabs 3-4.
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DISCUSSION OF ARGUMENTS ON REVIEW
¶6 The sanction of dismissal with prejudice may be imposed if a party fails to
prosecute or defend an appeal. Davis v. Department of Commerce, 120 M.S.P.R.
34, ¶ 17 (2013); see 5 C.F.R. § 1201.43(b). Such a sanction should be imposed
only when a party has: (1) failed to exercise basic due diligence in complying
with Board orders; or (2) exhibited negligence or bad faith in its efforts to
comply. Davis, 120 M.S.P.R. 34, ¶ 18 (citing Williams v. U.S. Postal Service,
116 M.S.P.R. 377, ¶ 7 (2011)). Absent an abuse of discretion, the Board will not
reverse an administrative judge’s determination regarding sanctions. Davis,
120 M.S.P.R. 34, ¶ 18. The Board generally will not dismiss an appeal for failure
to prosecute based on a single instance of failure to comply with a Board order.
See, e.g., Burnett v. Department of the Navy, 71 M.S.P.R. 34, 38 (1996).
¶7 We find that the administrative judge did not abuse his discretion in
dismissing the appeal for failure to prosecute. Based on our review of the record
below, the appellant, who was represented by counsel below, failed to exercise
due diligence in prosecuting his appeal when he failed to comply with multiple
Board deadlines, communications, and directives. As stated, the appellant failed
to submit prehearing submissions as ordered, failed to participate in the
prehearing conference, failed to respond to three separate phone messages from
the administrative judge, and failed to timely respond to the order to show cause.
IAF, Tab 14; ID at 2.
¶8 Even assuming that the administrative judge improperly failed to consider
the appellant’s untimely response to the show cause order, any error did not
prejudice the appellant’s rights because considering the appellant’s submission on
review, we find no basis for reversal. See Panter v. Department of the Air Force,
22 M.S.P.R. 281, 282 (1984) (an adjudicatory error that is not prejudicial to a
party’s substantive rights provides no basis for reversal of an initial decision).
¶9 The appellant’s arguments raised in his untimely response to the show cause
order are generally the same as those raised in his petition for review. See IAF,
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Tab 15; see also PFR File, Tab 1. The appellant’s representative cites his “lack
of time and focus” due to personal issues. PFR File, Tab 1 at 8. Specifically, he
asserts that he and his family were moving from Illinois to Massachusetts and
living in temporary housing while trying to find a home because there was a
housing shortage, his time was consumed filing a complaint with the Fair Housing
Center of Greater Boston on behalf of his wife, and after they moved into a home
on October 3, 2014, he discovered that there was no cellular phone reception or
coverage by his existing internet provider. IAF, Tab 15 at 3-4; PFR File, Tab 1
at 8-9.
¶10 We are not persuaded that the appellant exercised due diligence in
prosecuting his appeal. The appellant’s representative, who according to his
response, does extensive work before the Board, acknowledges that he received
two voicemails from the administrative judge, and that, concerning his failure to
file prehearing submissions, he further acknowledges that “perhaps a motion for
extension would have been warranted.” IAF, Tab 15 at 3; PFR File Tab 1 at 6-7.
However, the appellant did not file prehearing submissions, request an extension,
or respond to the administrative judge’s messages. 3 Moreover, we are not
persuaded that the appellant’s representative’s personal matters were so
time-consuming that they prevented him from even requesting an extension of
time to file prehearing submissions on or before September 12, 2014, to
reschedule the prehearing conference on September 16, 2014, or to respond to the
administrative judge’s messages, given that the appellant submitted discovery
3
We acknowledge that the agency’s prehearing submissions were untimely filed on
September 24, 2014, however, the appellant failed to file prehearing submissions at all
or to return any of the administrative judge’s telephone calls. See IAF, Tab 13 at 4, n.1.
In addition, the agency promptly returned the administrative judge’s call on
September 16, 2014, the date of the prehearing conference, and informed the
administrative judge that the agency was available for a prehearing conference at a later
time convenient for everyone and was prepared to move forward with the hearing as
scheduled on October 1, 2014. See id. However, the administrative judge and the
agency tried but were unable to reach the appellant’s representative. PFR File, Tab 1
at 7, n.2.
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responses on September 13, 2014. 4 See IAF, Tab 12. Thus, we find that the
appellant failed to make a good faith effort to comply with the administrative
judge’s orders and exhibited a lack of due diligence.
¶11 Lastly, while the appellant’s representative specifically indicates that his
client is not at fault, the Board has long held that an appellant is responsible for
the errors of his chosen representative. See, e.g., Simon v. Department of
Commerce, 111 M.S.P.R. 381, ¶ 13 (2009). Under these circumstances, we
conclude that the appellant failed to show that the administrative judge erred in
dismissing his appeal for failure to prosecute.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS 5
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request by regular U.S. mail, the address of the EEOC is:
4
In any event, the appellant’s representative’s personal problems are insufficient to
establish good cause for untimely filings. See Harris v. Department of Defense,
101 M.S.P.R. 123, ¶ 7 (2006) (finding that unsupported general claims of seeking
employment and attempting to avoid foreclosure do not establish good cause for
waiving a filing deadline).
5
The administrative judge failed to inform the appellant of h is mixed-case right to
appeal from the initial decision on his retaliation claim to the Equal Employment
Opportunity Commission and/or the United States District Court. This was error, but it
does not constitute reversible error because we notify the appellant of his m ixed-case
appeal rights in this Final Order. See Grimes v. U.S. Postal Service, 39 M.S.P.R. 183,
186-87 (1988).
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Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit your request 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, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. 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
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prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.