Dianna M. Worthey v. Department of Veterans Affairs ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DIANNA M. WORTHEY, DOCKET NUMBER
Appellant, DC-0432-15-0650-I-2
v.
DEPARTMENT OF VETERANS DATE: December 8, 2016
AFFAIRS,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Dianna M. Worthey, Woodbridge, Virginia, pro se.
Christina Knott, 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 the appeal of her performance-based removal as untimely filed without
good cause shown. 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 interpretation of statute or regulation or the erroneous
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
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. 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, 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 Effective February 24, 2012, the agency removed the appellant for
unacceptable performance. Initial Appeal File (IAF), Tab 6 at 40. The removal
decision informed the appellant that she could file a grievance, a mixed-case
equal employment opportunity (EEO) complaint, or a Board appeal and that
whichever she filed first was an election to proceed in that forum. Id. at 45-46.
She timely requested EEO counseling. Id. at 21; Refiled Appeal File (RAF),
Tab 8 at 13-14, 21-22. On April 19, 2012, the agency closed the appellant’s
informal counseling and, according to its records, mailed her a notice of her right
to file a formal complaint (NORF). RAF, Tab 8 at 13-19. The NORF further
clarified her mixed-case appeal rights and informed her that she had 15 days from
receipt to file a formal discrimination complaint. Id. at 13-16.
¶3 The appellant did not contact the agency again regarding her EEO
complaint until January 2015, at which time an EEO investigator informed the
appellant that her case had been closed. RAF, Tab 6 at 30-45. On
April 29, 2015, the agency again notified her, this time in writing, that it had
closed her EEO case because she never filed a formal complaint. RAF, Tab 8
at 20. There is no indication that the appellant responded to the agency’s letter.
3
¶4 The appellant filed her Board appeal on April 25, 2015, over 3 years after
her removal. IAF, Tab 1. The agency filed a mo tion to dismiss the appeal as
untimely filed. IAF, Tab 6 at 9-12, Tab 17. After the appellant requested an
extension of time to respond, the administrative judge issued a timeliness order
and dismissed the appeal without prejudice, subject to refiling by the appellant. 2
IAF, Tab 18 at 4, Tab 20, Initial Decision (ID) at 1-3. She timely refiled, and the
matter was redocketed as the instant appeal. RAF, Tab 1, Tab 7.
¶5 In her refiled appeal, the appellant argued that the agency failed to notify
her of her right to file a formal EEO complaint, which constituted good cause for
the delay in filing her mixed-case Board appeal. RAF, Tab 6 at 3-4. She
contended that she never received the NORF and challenged the sufficiency of the
agency’s evidence of mailing and delivery. 3 Id. She further attributed the delay
to being confused about the mixed-case appeal process, as she was pro se. Id.
at 4. She also argued the merits of her appeal, including that her removal was
discriminatory and in retaliation for whistleblowing. 4 Id. at 2-5.
2
The appellant filed a petition for review of the initial decision dismissing her appeal
without prejudice to the U.S. Court of Appeals for the Federal Circuit. The court
dismissed that petition on August 9, 2016. As a result, we do not address her arguments
concerning the dismissal of her I-1 appeal.
3
The appellant also argues that the “Notice to File” should be issued after the agency
investigates a claim. RAF, Tab 6 at 4; see IAF, Tab 2 at 4. It appears that she confused
the NORF, which is issued at the close of informal counseling, with the final agency
decision (FAD), which is issued after a formal investigation. 29 C.F.R.
§§ 1614.105(b)(1), 1614.108(f), 1614.302(d). To trigger the investigation, an employee
must file a formal mixed-case discrimination complaint. 29 C.F.R. §§ 1614.106(e)(2),
1614.302(d). Upon acceptance of the complaint, the agency must advise a complainant
that she may file a Board appeal within 30 days of a FAD’s issuance, or within 120
days of filing the formal complaint, if no FAD has been issued. 29 C.F.R.
§ 1614.302(d)(1). Because the appellant never filed a formal complaint, the agency was
not required to issue the acceptance notice or to initiate a formal investigation into her
allegations.
4
After the appellant raised allegations of whistleblower reprisal du ring the adjudication
of her refiled appeal, the administrative judge determined that the appellant was
attempting to file an individual right of action (IRA) appeal concerning her removal
action and docketed the IRA appeal separately in MSPB Docket No.
DC-1221-16-0514-W-1.
4
¶6 The administrative judge issued an initial decision without holding the
requested hearing, dismissing the appeal as untimely filed without good cause
shown. RAF, Tab 9, Initial Decision (I-2 ID) at 1, 10-11; IAF, Tab 1 at 1. She
found that the appellant had received the NORF and that the NORF and the
agency’s removal decision properly notified her of her options and the associated
deadlines for pursuing a mixed-case appeal. I-2 ID at 7-9. She further found that
although the appellant was again notified of the closure of her informal complaint
in January 2015, she waited 3 more months to pursue her Board appeal. I-2 ID
at 9-10. She therefore found that the over 3-year filing delay was not attributable
to the agency, but rather to the appellant’s lack of due diligence or ordinary
prudence under the circumstances. I-2 ID at 7-10.
¶7 The appellant has filed a petition for review. Refiled Petition for Review
(RPFR) File, Tab 1. The agency has filed a response in opposition. RPFR File ,
Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶8 On review, the appellant reasserts her contentions and resubmits a chain of
emails, involving her, the EEO investigator, and others, from below concerning
the timeliness of her appeal. RPFR File, Tab 1 at 4-25; RAF, Tab 6 at 30-44. We
discern no error with the administrative judge’s finding that the appeal was
untimely filed without good cause shown.
The appellant’s initial appeal is untimely filed.
¶9 An appellant bears the burden of proving by preponderant evidence that her
appeal has been timely filed. 5 C.F.R. § 1201.56(b)(2)(i)(B). When an appellant
has been subjected to an action appealable to the Board and raises issues of
prohibited discrimination, she may either file a timely formal complaint of
discrimination with the agency, or a timely appeal with the Board, but not both.
5 C.F.R. § 1201.154(a). Whichever she files first is deemed an election to
proceed in that forum. Augustine v. Department of Justice, 100 M.S.P.R. 156, ¶ 7
5
(2005). However, an appellant who has only filed an informal EEO complaint or
pursued informal counseling has not elected either remedy and, thus, is not
precluded from filing a Board appeal. Gonzales v. U.S. Postal Service,
11 M.S.P.R. 574, 575-76 (1982). If the appellant elects to file with the Board in
the first instance, she must do so within 30 days of the effective date of t he action
being appealed or the date of receipt. 5 C.F.R. § 1201.154(a). If she fails to file
within the Board’s time limits, the appeal may be dismissed as untimely filed
unless good cause is shown for the delay. Cranston v. U.S. Postal Service,
106 M.S.P.R. 290, ¶ 8 & n.1 (2007); 5 C.F.R. § 1201.22(c).
¶10 As the administrative judge correctly found, the agency provided
uncontroverted evidence that the appellant only filed an infor mal EEO complaint
of her removal. IAF, Tab 6 at 21; RAF, Tab 8 at 20-22; I-2 ID at 8. Thus, in the
absence of a formal EEO complaint, the deadlines set forth in 5 C.F.R.
§ 1201.154(b) are inapplicable to her appeal. See Cranston, 106 M.S.P.R. 290,
¶ 8 n.1 (observing that the time limit applicable to a mixed -case appeal did not
apply because the appellant did not file a formal EEO complaint) . Because the
appellant did not contest timely receiving the removal decision, she had 30 days
from the effective date of her removal, until March 26, 2012, to appeal directly to
the Board. 5 5 C.F.R. §§ 1201.22(b)(1), 1201.23, 1201.154(a); IAF, Tab 6 at 40.
It is undisputed that she did not file her appeal until April 25, 2015. IAF, Tab 1.
Thus, we agree with the administrative judge that the appeal was untimely by
over 3 years. I-2 ID at 10.
5
As the appellant admittedly received the agency’s removal notice in February 2012,
her claims of insufficient notice concerning the status of her EEO case do not impact
the timeliness determination. Rather, her contentions affect whether there is good cause
to excuse the delay in filing her Board appeal over 3 years late. See Kirkland-Zuck v.
Department of Housing & Urban Development, 85 M.S.P.R. 180, ¶¶ 8-10 (2000)
(analyzing the appellant’s claims of improper notice of his EEO rights to determine
whether there is good cause for his untimely filed Board appeal); Mincey v. U.S. Postal
Service, 79 M.S.P.R. 663, 666-67 (1998) (same).
6
The appellant has not shown good cause for the delay.
¶11 A party must show that she exercised due diligence or ordinary prudence
under the particular circumstances of the case to establish good cause for a
late-filed appeal. Alonzo v. Department of the Air Force, 4 M.S.P.R. 180, 184
(1980). If the agency failed in its obligation to provide a notice of appeal rights,
an appellant must show that she was diligent in filing an appeal after she learned
that she could do so. Gingrich v. U.S. Postal Service, 67 M.S.P.R. 583, 588
(1995). To determine whether the appellant has shown good cause, the Board
will consider the length of the delay; the reasonableness of her excuse and her
showing of due diligence; whether she is proceeding pro se; and whether she has
presented evidence of the existence of circumstances beyond her control that
affected her ability to comply with the time limits or of unavoidable casualty or
misfortune that similarly shows a causal relationship to her inability to timely file
her Board appeal. Moorman v. Department of the Army, 68 M.S.P.R. 60, 62-63
(1995), aff’d, 79 F.3d 1167 (Fed. Cir. 1996) (Table).
¶12 The appellant attributes her delay to her confusion regarding mixed-case
appeal procedures, arguing that she was not represented when she received the
removal decision. RPFR File, Tab 1 at 5. The administrative judge correctly
concluded that the removal decision, which the appellant does not deny timely
receiving, notified her of the avenues and associated deadlines for appealing her
removal, including her right to file a mixed-case Board appeal or a mixed-case
EEO complaint, but not both. See 5 C.F.R. § 1201.21 (listing the notifications
that agencies must provide to appellants when issuing a decision notice on
matters appealable to the Board); see also 29 C.F.R. § 1614.302(b) (requiring
agencies to notify employees who have raised discrimination claims in connection
with a Board appealable action of their mixed-case appeal rights); IAF, Tab 6 at
45-46; I-2 ID at 7-8. We find the removal decision to be clear on its face, and
thus, the appellant’s alleged confusion is not good cause for her untimeliness.
7
¶13 Furthermore, assuming arguendo that the appellant’s contentions of
nonreceipt of the April 21, 2012 NORF are true, such finding would not be
dispositive. As the administrative judge determined, even if the appellant indeed
did not learn of the closure of her informal EEO cou nseling until January 2015,
she afterwards failed to act with adequate promptness to file her appeal. The
May 8, 2012 letter that the appellant admittedly received notified her that she had
initiated informal counseling and of her general EEO rights and responsibilities.
IAF, Tab 6 at 30-34; RAF, Tab 3 at 7. However, she waited until January 2015,
almost 3 years after receiving this letter, to inquire as to the status of her EEO
counseling request. RAF, Tab 6 at 30-45. The agency immediately notified her
that a NORF had been issued. Id. at 30. By this time, the appellant, who was
familiar with the EEO process, was pursuing a separate EEO complaint with the
assistance of counsel. IAF, Tab 6 at 21; RAF, Tab 6 at 4. Rather than
immediately filing her Board appeal, on March 10, 2015, the appellant, through
her attorney, filed a motion to amend that pending EEO complaint to include her
proposed removal and removal. IAF, Tab 6 at 25-29. Thus, to the extent that the
purportedly delayed notice of the closure of her informal counseling affected her
ability to timely elect to file a formal discrimination complaint with the agency or
to pursue a Board appeal, this claim at most explains the delay until
January 2015. The appellant, however, further delayed filing her Board appeal
until 10 days after the Equal Employment Opportunity Commission
administrative judge denied her motion to amend. IAF, Tab 1, Tab 6 at 22 -24.
The fact that she was engaged in other proceedings between January and April
2015 does not constitute good cause for the late filing. See Mauldin v. U.S.
Postal Service, 115 M.S.P.R. 513, ¶ 13 (2011).
¶14 Although the appellant’s pro se status is a factor weighing i n her favor, it is
insufficient to establish good cause considering the length of the delay and that
she was informed of the fora and time limits to file. Crook v. U.S. Postal Service,
108 M.S.P.R. 553, ¶ 6 (finding a 1-month delay significant, notwithstanding the
8
appellant’s pro se status), aff’d per curiam, 301 F. App’x 982 (Fed. Cir. 2008).
Other than the issues regarding notice and her pro se status, the appellant
presented no circumstances or events that affected her ability to file on time. 6
Moreover, she did not identify any efforts undertaken to pursue her Board appeal,
or explain her inaction between January and April 2015. Thus, as properly
determined by the administrative judge, we find that the appellant did not
demonstrate due diligence or ordinary prudence that would make a good cause
finding appropriate.
¶15 Accordingly, we deny the appellant’s petition for review and affirm the
initial decision, which dismissed her appeal as untimely filed without good cause
shown. In light of this disposition, we decline to address the appellant’s
arguments regarding the merits of her appeal. Chavez v. Office of Personnel
Management, 46 M.S.P.R. 390, 392 n.2 (1990) (finding that the administrative
judge properly declined to address the merits of an appeal when the matter was
dismissed as untimely filed); RPFR File, Tab 1 at 5-6.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS 7
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
6
In support of her request below to suspend case processing, the appellant presented
argument and evidence for her claims of unavoidable casualty or misfortune that had
ensued since filing her Board appeal. IAF, Tab 13 at 4-6, Tab 14 at 4. However, she
made no such claims for the period before filing her Board appeal to explain the delay.
7
The administrative judge failed to inform the appellant of her mixed -case right to
appeal from the initial decision on her discrimination claims 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 her mixed -case
appeal rights in this Final Order. See Grimes v. U.S. Postal Service, 39 M.S.P.R. 183,
186-87 (1988).
9
of the U.S. 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:
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 U.S. 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
10
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.
FOR THE BOARD: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.