Stephen Durr v. United States Postal Service ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEPHEN DURR, DOCKET NUMBER
Appellant, CH-0752-15-0453-I-1
v.
UNITED STATES POSTAL SERVICE, DATE: January 6, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Stephen Durr, Chicago, Illinois, pro se.
Maryl R. Rosen, Esquire, Chicago, 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 his removal appeal as untimely filed. 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 the law to the facts of the case; the
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 Effective June 26, 1996, the agency removed the preference-eligible
appellant from his Mail Handler position because he had been absent without
leave (AWOL) since January 16, 1996. Initial Appeal File (IAF), Tab 1 at 24,
28-29, 31-32. In its removal notice, the agency informed the appellant of his
right to file a Board appeal within 30 days of the effective date of the action. Id.
at 31. The appellant filed an appeal with the Board regarding his removal on
May 14, 2015. IAF, Tab 1. He requested a hearing. Id. at 1.
¶3 The administrative judge informed the appellant that, generally, an
appellant must file a Board appeal within 30 days of the effective date of the
action being appealed, or within 30 days of receiving the agency’s decision,
whichever is later. IAF, Tab 3 at 1; see 5 C.F.R. § 1201.22(b)(1). The
administrative judge advised the appellant that his appeal appeared to be untimely
filed and would be dismissed unless he established by preponderant evidence that
it was timely filed or, if it was not, that good cause existed for his filing delay.
IAF, Tab 3 at 1-3. The administrative judge explained that, to establish good
cause on the basis of an illness that prevented timely filing, the appellant must:
(1) identify the time period during which he suffered from the illness; (2) submit
medical and other evidence establishing that he suffered from the illness during
the relevant time period; and (3) explain how the illness prevented him from
3
timely filing his appeal or requesting an extension of time to file. Id. at 3-4. He
further stated that, if medical evidence was unavailable, the appellant must
explain why. Id. at 4.
¶4 The appellant responded that he suffers from a “mental disability” and that
his symptoms began to worsen in December 1995. IAF, Tab 6 at 2. He submitted
a letter from a psychologist, dated December 14, 1995, indicating that he then
was experiencing “an exacerbation of symptoms” and should be excused from
work until January 19, 1996, at which time she would reevaluate his condition.
IAF, Tab 1 at 26; see IAF, Tab 7 at 2. He stated that he received the agency’s
decision notice on May 16, 1996, but then was undergoing psychiatric treatment
and was not competent to understand the contents of the notice. IAF, Tab 6 at 3,
Tab 7 at 3-4. He alleged that he had not “become legally inclined to understand
the seriousness” of his removal, and the damage he suffered as a result of the
agency’s erroneous denial of his request for leave under the Family and Medical
Leave Act of 1993 for the time period forming the basis of the AWOL charge,
“until recently.” IAF, Tab 6 at 3, Tab 7 at 4. He conceded that his appeal was
untimely filed, but requested a waiver of the time limit based on the foregoing.
IAF, Tab 6 at 4.
¶5 Based on the written record, the administrative judge dismissed the
appellant’s appeal as untimely filed without good cause shown for the untimely
filing. IAF, Tab 8, Initial Decision (ID). He found that the appellant should have
filed his appeal no later than July 26, 1996, but did not do so until nearly 19 years
after that deadline. ID at 2, 4. As to the appellant’s claim that he was unable to
file his appeal “until recently,” he noted that the appellant did not identify the
specific date he became competent to file his appeal, or what steps he took to file
his appeal once he was able to do so. ID at 7. He further found that the appellant
did not show good cause for his filing delay because: (1) the delay was
substantial; (2) the appellant failed to identify the basis for his alleged
incompetency; (3) the medical documentation the appellant submitted did not
4
support a finding that he was unable to timely file his appeal; and (4) the
appellant failed to explain why he did not submit any medical documentation that
would support his claim. ID at 4-7.
¶6 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. He concedes that his appeal was untimely filed, but again argues that
he is entitled to a waiver of the filing deadline due to his mental illness. 2 Id. The
agency did not file a response.
¶7 As explained by the administrative judge, to establish that an untimely
filing was the result of an illness, an appellant must: (1) identify the time period
during which he suffered from the illness; and (2) submit medical evidence
showing that he suffered from the alleged illness during that time period. IAF,
Tab 3 at 3-4; Lacy v. Department of the Navy, 78 M.S.P.R. 434, 437 (1998). He
also must demonstrate how the illness prevented him from timely filing his appeal
or a request for an extension of time. Lacy, 78 M.S.P.R. at 437 There is no
general incapacitation requirement; rather, the appellant is required to explain
only why his alleged illness impaired his ability to meet the Board’s filing
deadline or seek an extension of time. Id. at 437 n.*. However, a generalized
claim of a medical problem without a specific explanation of how the problem
prevented the appellant from meeting the filing deadline does not constitute good
cause. Gross v. U.S. Postal Service, 103 M.S.P.R. 334, ¶ 11 (2006). Medical
evidence proffered to establish that an untimely filing was the result of an illness
must address the entire period of the delay. Jerusalem v. Department of the Air
Force, 107 M.S.P.R. 660, ¶ 5, aff’d, 280 F. App’x 973 (Fed. Cir. 2008).
2
The appellant requested an extension of time to file medical evidence in support of his
request for a waiver of the filing deadline. PFR File, Tab 1 at 4. He was granted four
extensions over a period of 4 months, PFR File, Tabs 2, 4, 6, 8, after which his requests
for two further extensions were denied, PFR File, Tabs 9-12; see
5 C.F.R. § 1201.114(f). Following the Board’s orders denying his requests for further
extensions, PFR File, Tabs 10, 12, on December 21, 2015, the appellant requested
another extension of time to supplement his petition for review, PFR File, Tab 13. The
Board denies the appellant’s request.
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¶8 We agree with the administrative judge that the appellant failed to establish
good cause for his filing delay. Below, the appellant did not identify the specific
time period during which his mental illness prevented him from filing his appeal.
Rather, he made the vague claim that he only had become competent to file
“recently.” 3 IAF, Tab 6 at 3, Tab 7 at 4. On his initial appeal form, the appellant
appeared to suggest that his mental disability is episodic. IAF, Tab 1 at 9. The
December 1995 note from his psychologist only provides information as to his
condition through January 19, 1996. Id. at 26.
¶9 In addition, the appellant only made a generalized assertion of
incompetence. IAF, Tab 6 at 3, Tab 7 at 4. He did not identify his diagnosis or
his symptoms, and also failed to provide any specific explanation as to how his
illness prevented him from timely filing his appeal or requesting an extension.
See Jerusalem, 107 M.S.P.R. 660, ¶ 6 (finding the appellant’s assertion that he
was not sufficiently competent to pursue his appeal, with no medical evidence as
to how his medical condition impaired him from pursuing his appeal for more
than 19 years, insufficient to establish good cause). We thus find that the
appellant did not establish that his medical condition impaired his ability to file
an appeal between the effective date of his removal in 1996 and the date he
ultimately filed his appeal in 2015. Therefore, we affirm the initial decision.
3
On review, the appellant claims that he regained competency in May 2015. PFR File,
Tab 1 at 3-4. We need not consider this claim because the appellant could have raised
it below, but failed to do so. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214
(1980) (finding that, under 5 C.F.R. § 1201.115, the Board will not consider evidence
submitted for the first time with the petition for review absent a showing that it was
unavailable before the record was closed despite the party’s due diligence). Indeed, the
administrative judge explicitly directed the appellant to identify the time period during
which his alleged illness prevented him from filing his appeal. IAF, Tab 3 at 3. Even if
we were to consider this claim, it would not cause us to reach a different conclusion
because the appellant has presented no evidence, medical or otherwise, establishing that
he was continuously unable to file his appeal between July 1996 and May 2015.
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NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS 4
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
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.
4
The administrative judge failed to inform the appellant of his mixed-case right to
appeal from the initial decision on his discrimination claims to the Equal Employment
Opportunity Commission and/or the U.S. District Court. This was error, but it does not
constitute reversible error, because we notify the appellant of his mixed-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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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
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.