Sandi Sweetland v. Department of the Army ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SANDI SWEETLAND, DOCKET NUMBER
Appellant, CH-0752-15-0485-I-1
v.
DEPARTMENT OF THE ARMY, DATE: November 6, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Sandi Sweetland, Davenport, Iowa, pro se.
Shannon McCurdy, Esquire, Rock Island, Illinois, 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 her appeal as untimely filed without good cause shown for the delay.
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 application of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
¶2 The appellant held the position of Administrative Support Assistant in Rock
Island, Illinois. Initial Appeal File (IAF), Tab 6, Subtab 4i. In January 2013, the
agency removed her based upon charges of refusing to obey a direct order,
absence without leave, and failure to follow leave request procedures. Id.,Subtabs 4i, 4j, 4k, 4m.
¶3 Following her removal from service, the appellant filed a formal complaint
of discrimination with the agency alleging, inter alia, that she was subjected to a
hostile work environment and discrimination based on reprisal for prior equal
employment opportunity activity when she was terminated. Id., Subtabs 4f, 4g.
The agency issued a final agency decision (FAD), dated February 6, 2015, finding
no merit to the appellant’s claims. Id., Subtab 4f. That decision included a
notice concerning the appellant’s Board appeal rights, including timeliness
requirements. Id. at 22-23.
¶4 The appellant filed a Board appeal on May 20, 2015. IAF, Tab 1.
Subsequently, the administrative judge issued an order advising that the
appellant’s appeal appeared untimely. IAF, Tab 3 at 1-2. The order instructed
the appellant to meet her burden of proving that her appeal was timely filed or
that good cause existed for its untimeliness. Id. at 2-4. It also instructed the
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agency to submit any evidence it had pertaining to the appellant’s timeliness. Id.
at 4. The agency responded, IAF, Tab 6, but the appellant did not.
¶5 The administrative judge dismissed the appellant’s appeal as untimely filed
without good cause shown for the delay. IAF, Tab 7, Initial Decision (ID). The
appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. 2
The agency has filed a response. PFR File, Tab 3.
¶6 An appellant bears the burden of proof regarding the timeliness of her
appeal. 5 C.F.R. § 1201.56(b)(2)(i)(B). An appeal of an agency action generally
must be filed no later than 30 days after the effective date of the action being
appealed, or 30 days after the date of the receipt of the agency’s decision,
whichever is later. Miranne v. Department of the Navy, 121 M.S.P.R. 235, ¶ 8
(2014); 5 C.F.R. § 1201.22(b). The procedures and filing deadlines for mixed
cases, however, are somewhat different. Miranne, 121 M.S.P.R. 235, ¶ 8.
¶7 A mixed case arises when an appellant has been subject to an action that is
appealable to the Board, and she alleges that the action was effected, in whole or
in part, because of discrimination. Id. An appellant has two options when filing
a mixed case: she may initially file a mixed-case complaint with the agency,
followed by an appeal to the Board, or she may file a mixed-case appeal with the
Board and raise her discrimination claim in connection with her appeal.
Id.; 29 C.F.R. § 1614.302(b), (d); 5 C.F.R. § 1201.154(a). When an employee
files a timely mixed-case complaint with the agency, her Board appeal must be
filed with the Board within 30 days of her receipt of the agency’s resolution or
final decision on the discrimination issue. Miranne, 121 M.S.P.R. 235, ¶ 9; 29
C.F.R. § 1614.302(d)(3); 5 C.F.R. § 1201.154(b)(1); see 5 C.F.R. §
1201.154(b)(2) (alternatively, an employee may file her Board appeal if the
agency has not resolved the employee’s discrimination claim or issued its FAD on
2
Because we find that the administrative judge properly dismissed the appeal as
untimely filed with no good cause for the delay, we have not considered any of the
appellant’s arguments regarding the merits of her removal. See PFR File, Tab 1 at 5-7.
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the discrimination issue within 120 days). If an appellant fails to file a timely
appeal, she may establish good cause for the delay by showing that she exercised
due diligence or ordinary prudence under the particular circumstances of the case.
Alonzo v. Department of the Air Force, 4 M.S.P.R. 180, 184 (1980).
¶8 The FAD in this case is dated February 6, 2015. IAF, Tab 6, Subtab 4f at 1.
The agency’s evidence demonstrates that the appellant eventually received a copy
of the FAD on April 22, 2015. IAF, Tab 6, Subtab 4d. If that date were
controlling, the appellant’s May 20, 2015 Board appeal would be timely. IAF,
Tab 1 at 1; see 5 C.F.R. § 1201.154(b)(1). However, the agency presented
argument and evidence that it had previously mailed the FAD to the appellant’s
address of record, and she failed to claim it, despite multiple notices. IAF, Tab 6,
Subtab 1 at 3-5, Subtab 4e. Therefore, the agency asserted that the prior mailing
should be controlling for purposes of establishing the timeliness of the appellant’s
Board appeal. IAF, Tab 6, Subtab 1 at 3-5; see 5 C.F.R. § 1201.22(b)(3) (“An
appellant may not avoid service of a properly addressed and mailed decision by
intentional or negligent conduct which frustrates actual service.”). The
administrative judge found that the appellant failed to rebut the agency’s
arguments and evidence, ID at 4-5, and we agree.
¶9 As previously mentioned, it was the appellant’s burden to prove the
timeliness of her appeal. 5 C.F.R. § 1201.56(b)(2)(i)(B). Despite the
administrative judge’s order to meet that burden, the appellant failed to respond.
IAF, Tab 3. It is well established that “[a] petitioner who ignores an order of the
[a]dministrative [j]udge does so at his or her peril.” Mendoza v. Merit Systems
Protection Board, 966 F.2d 650, 653 (Fed. Cir. 1992) (en banc); see Hubbard v.
Merit Systems Protection Board, 605 F.3d 1363, 1366 (Fed. Cir. 2010) (finding
that an appellant’s failure to respond to an administrative judge’s timeliness order
justified the conclusion that the appeal should be dismissed as untimely).
¶10 In her petition, the appellant concedes that the agency mailed the
February 6, 2015 FAD to the proper address, but argues that delivery was delayed
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due to a mistake by the U.S. Postal Service. PFR File, Tab 1 at 4. However, we
will not address this argument, as it was raised for the first time on review. See
Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980) (holding that
the Board will not consider an argument raised for the first time in a petition for
review absent a showing that it is based on new and material evidence not
previously available despite the party’s due diligence); see also Goode v.
Department of Health and Human Services, 5 M.S.P.R. 191, 192 (1981) (denying
a petition for review that asserted an appeal was actually timely filed and should
not have been dismissed where the appellant failed to provide any reason for her
failure to reply to a timeliness order below). Accordingly, we affirm the
dismissal of the appellant’s appeal as untimely filed without good cause shown
for the delay.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS 3
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:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
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The administrative judge afforded the appellant review rights to the U.S. Court of
Appeals for the Federal Circuit. ID at 10-11. However, this is a mixed case requiring
mixed-case review rights. Therefore, we have provided the appellant the proper review
rights here. See Kloeckner v. Solis, 133 S. Ct. 596, 603-04 (2012); Caros v. Department
of Homeland Security, 122 M.S.P.R. 231, ¶ 22 (2015).
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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
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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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.