Kenneth Robert Gardy v. Department of Transportation ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
KENNETH ROBERT GARDY, DOCKET NUMBER
Appellant, AT-0752-16-0156-I-1
v.
DEPARTMENT OF DATE: May 26, 2016
TRANSPORTATION,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL *
Kenneth Robert Gardy, West Columbia, South Carolina, pro se.
Taneesha D. Marshall, Esquire, Atlanta, Georgia, 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 termination 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
*
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).
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or regulation or the erroneous 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).
¶2 In this October 29, 2015 appeal, the appellant sought to challenge his
September 4, 2015 termination from his Aviation Safety Technician position
during his probationary period. Initial Appeal File (IAF), Tab 1 at 1-6, 8. With
his appeal, he included a letter requesting an extension of the time allowed to file
it, citing trauma from the termination and his subsequent job search as the reason
for his delay. Id. at 7. In addition to the acknowledgment order setting forth the
appellant’s burden to establish jurisdiction over his appeal, IAF, Tab 2, the
administrative judge issued an order on timeliness in which he 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 1-2. See 5 C.F.R.
§ 1201.22(b)(1).
¶3 The administrative judge advised the appellant that, because he filed his
appeal 25 days after its due date, the 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 2-3. The administrative judge also explained that, to establish good
cause on the basis of an illness that prevented timely filing, the appellant must:
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(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
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. The appellant did not respond. Without holding a hearing, the
administrative judge dismissed the appeal as untimely filed. IAF, Tab 5, Initial
Decision (ID).
¶4 In his petition for review, the appellant claims that he was unable to file his
appeal within the prescribed time limit due to Post Traumatic Stress Disorder
(PTSD) caused by his termination and the alleged hostile work environment he
experienced in the agency’s West Columbia, South Carolina office. Petition for
Review (PFR) File, Tab 1. He asserts that “[a]voidance to responding was [his]
only approach and it was not working” so he “immediately” sought the help of a
professional counselor who ultimately helped him to “respond, discuss and
communicate the termination and the events associated with [his] employment in
the office.” Id. at 1. He also challenges the merits of his termination. Id. at 1-4.
The agency responds in opposition.
¶5 To establish good cause for the untimely filing of an appeal, a party must
show that he 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). In the absence of a response from the appellant to the
administrative judge’s order on timeliness, he correctly dismissed the appeal
based on the appellant’s failure to allege or prove that his October 29, 2015
appeal was timely filed or that he had good cause for the untimely filing. E.g.,
Caldwell v. Department of the Treasury, 85 M.S.P.R. 674, ¶ 5 (2000); Alonzo,
4 M.S.P.R. at 184. In his initial decision, the administrative judge discussed the
appellant’s request for an extension of the filing deadline. ID at 3; IAF, Tab 1
at 7. He noted the appellant’s failure to provide any documentation suggesting
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that he was either “misinformed about the deadline, medically incapacitated, or
otherwise unable to satisfy the filing deadline,” and commented that the agency’s
termination letter “correctly stated the Board’s 30-day filing deadline.” ID at 3.
Acknowledging the undoubtable trauma of receiving the termination decision, the
administrative judge found nothing in the record to suggest that such trauma
rendered the appellant unable to timely file his appeal. Id. On the contrary, the
administrative judge found the appellant’s assertion that he had submitted
numerous job applications in the time between his termination and the untimely
filing of his appeal indicated “that he had both the physical and mental capacity
to also timely file his Board appeal.” ID at 3-4. We agree.
¶6 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; (2) submit medical evidence showing
that he suffered from the alleged illness during that time period; and
(3) demonstrate how the illness prevented him from timely filing his appeal or a
request for an extension of time. IAF, Tab 3 at 3-4; e.g., Lacy v. Department of
the Navy, 78 M.S.P.R. 434, 437 (1998). 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. Lacy, 78 M.S.P.R. 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. E.g., Gross v. U.S. Postal Service, 103 M.S.P.R. 334, ¶ 11 (2006).
¶7 Regarding the appellant’s assertions of PTSD, he did not identify any
symptoms, and he failed to provide any specific explanation as to how his alleged
condition prevented him from timely filing his appeal or requesting an extension
before the filing deadline. See Jerusalem v. Department of the Air Force,
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
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his medical condition impaired him from doing so, was insufficient to establish
good cause), aff’d, 280 F. App’x 973 (Fed. Cir. 2008); cf. Caldwell, 85 M.S.P.R.
674, ¶ 5 (finding that the appellant diligently requested an extension before the
filing deadline). Moreover, the appellant has provided no medical evidence that
would indicate that he suffered from PTSD during the time period between his
probationary termination and the filing deadline for his appeal. Thus, the
appellant failed to show that his medical condition impaired his ability to file an
appeal between the effective date of his termination and the date he filed his
appeal. Therefore, we affirm the initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
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Additional information is available at the court’s website,
www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se
Petitioners and Appellants,” which is contained within the court’s Rules of
Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Merit Systems Protection Board neither endorses the services provided by any
attorney nor warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.