Jerold Fenner v. Department of Health and Human Services ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JEROLD E. FENNER, DOCKET NUMBER
Appellant, SF-0752-17-0214-I-1
v.
DEPARTMENT OF HEALTH AND DATE: December 16, 2022
HUMAN SERVICES,
Agency.
THIS ORDER IS NONPRECEDENTIAL 1
Jerold E. Fenner, Danville, California, pro se.
Jacob Richards, Esquire, San Francisco, California, for the agency.
BEFORE
Cathy A. Harris, Vice Chairman
Raymond A. Limon, Member
Tristan L. Leavitt, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial de cision, which
dismissed his mixed-case removal appeal as premature. For the reasons discussed
below, we VACATE the initial decision and REMAND the case to the regional
office for further adjudication in accordance with this Remand Order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 judg es 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
BACKGROUND
¶2 Effective December 19, 2016, the agency removed the appellant from his
Public Health Advisor position for medical inability to perform the essential
duties of his position. Initial Appeal File (IAF), Tab 1 at 8-10. On January 3,
2017, the appellant filed a formal complaint of discrimination with the agency. 2
IAF, Tab 8 at 15-19. On January 17, 2017, he appealed his removal to the Board.
IAF, Tab 1. The agency moved to dismiss the appeal, asserting that the
appellant’s formal equal employment opportunity (EEO) complaint included a
claim that his removal constituted disability discrimination and, thus, the
appellant had made a binding election to pursue his removal through the EEO
process. IAF, Tab 9. In response to the agency’s motion to dismiss, the appellant
maintained that his EEO complaint only included his proposed removal, not the
removal decision. IAF, Tab 10. On March 13, 2017, four days after the agency
filed its motion to dismiss, the appellant contacted the agency’s EEO office to
clarify that he intended for his EEO complaint to include only his proposed
removal, not his removal. IAF, Tab 10 at 6; Petition for Review (PFR) File,
Tab 3 at 11. On March 28, 2017, the agency’s EEO office issued a notice of
accepted claims, which did not include his removal. PFR File, Tab 3 at 14-15.
¶3 The administrative judge issued an initial decision, finding that the
language in the EEO complaint reflected that it encompassed the appellant’s
removal, not just his proposed removal. IAF, Tab 16, Initial Decision (ID) at 2.
Consequently, he dismissed the appeal as premature because the agency had not
yet issued a final decision and 120 days had not yet elapsed from the date the
appellant filed his formal complaint of discrimination. ID at 3.
¶4 The appellant has filed a petition for review in which he reiterates his
argument below that his EEO complaint did not encompass his December 19,
2016 removal. PFR File, Tab 1 at 2. The agency has opposed the appellant’s
2
The appellant’s formal complaint is not signed or dated but is date stamped as
received by the agency on January 3, 2017. IAF, Tab 8 at 15-19.
3
petition and argues that he elected to pursue his removal through the EEO process
and the Board lacks jurisdiction because the appellant withdrew his removal
claim prior to exhausting the EEO process. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 An individual who has been subjected to an action appe alable to the Board
and believes that action was based on discrimination may either file a timely
formal discrimination complaint with the agency regarding the action or file an
appeal with the Board within 30 days of the appealable action, but not both. Lott
v. Department of the Army, 82 M.S.P.R. 666, ¶ 6 (1999); 5 C.F.R. § 1201.154(a).
Under 5 C.F.R. § 1201.154(b)(1) and (2), if the employee first files a formal
complaint with the agency, he then must file a Board appeal within 30 days after
he receives the agency resolution or final decision on the discrimination issue, or,
if the agency has not resolved the matter or issued a final decision on the formal
complaint within 120 days, he may appeal the matter directly to the Board at any
time after the expiration of 120 days. Lott, 82 M.S.P.R. 666, ¶ 6. An appellant
cannot file both an EEO complaint with the agency and an appeal with the Board
based on the same subject matter, and whichever is filed first is considered an
election to proceed in that forum. 29 C.F.R. § 1614.302(b); see Wolfe v.
Department of the Army, 77 M.S.P.R. 175, 179 n.1 (1998); Peartree v. U.S.
Postal Service, 66 M.S.P.R. 332, 341 (1995).
¶6 In analyzing what agency actions are encompassed in an appellant’s EEO
complaint, the Board looks to the complaint, the agency’s treatment of and
processing of the claim, and the surrounding circumstances. Gray v. U.S. Postal
Service, 93 M.S.P.R. 161, ¶ 11 (2002). Here, the appellant appears to have filed
an EEO complaint on January 3, 2017, in which he used the words “removal” and
“terminated” in reference to the agency’s alleged discriminatory acts as well as
noted that the date of the most recent act of alleged discrimination was
4
December 19, 2016, the effective date of his removal. IAF, Tab 8 at 15 -17.
However, this complaint was neither signed by the appellant nor dated. Id. at 18.
¶7 Regarding the agency’s treatment and processing of the complaint, t he
record does not include any agency correspondence related to the appellant’s
accepted claims before he filed his Board appeal or before March 13, 2017, when
he contacted the agency to clarify that his EEO complaint did not include his
removal. Rather, it appears that as of March 9, 2017, the agency had not taken
any action to accept the appellant’s complaint, but rather was in the process of
reviewing the complaint to determine whether the agency would conduct an
investigation. Id. at 21. It was not until March 28, 2017, after the appellant had
filed his Board appeal, that the agency issued a notice accepting his claims. PFR
File, Tab 3 at 11-18. This notice did not include the appellant’s removal as an
accepted claim, and the agency processed his complaint as a nonmixed complaint.
Id. at 14-15. Nor does the notice reference that the appellant withdrew any prior
removal claim.
¶8 Under the particular facts of this case, we find that the appellant’s EEO
complaint did not encompass his removal and thus, he did not make an informed
election to challenge his removal under the agency’s EEO process. 3 Cf. Moore v.
Department of Justice, 112 M.S.P.R. 382, ¶¶ 14-17 (2009) (finding that the
appellant elected to challenge her removal via the agency’s EEO process whe n
she filed her EEO complaint, amended it to include her removal, and the agency
accepted her complaint, all before she filed her Board appeal). Consequently, we
find that the appellant timely filed a Board appeal within 30 days of the effective
date of his removal on December 19, 2016. See 5 C.F.R. § 1201.154(a).
3
In light of our determination that the appellant did not elect to challenge his removal
through the agency’s EEO process, we need not address the agency’s argument that the
Board lacks jurisdiction because he withdrew his removal as a claim via his March 13,
2017 communications with the agency’s EEO office. PFR File, Tab 3 at 8-9.
5
ORDER
¶9 For the reasons discussed above, we remand this case to the regional office
for further adjudication in accordance with this Remand Order. 4
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.
4
The remand initial decision will incorporate the findings from this Order and include a
notice of appeal rights for all claims raised by the appellant.