Michael P. McGrath v. Department of the Navy ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MICHAEL P. MCGRATH, DOCKET NUMBER
Appellant, DC-0752-14-0001-I-1 1
v.
DEPARTMENT OF THE NAVY, DATE: September 22, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 2
Michael P. McGrath, Chesapeake, Virginia, pro se.
Mary Kate DeMane, Portsmouth, Virginia, 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 furlough appeal as untimely filed. Generally, we grant petitions
such as this one only when: the initial decision contains erroneous findings of
1
Pursuant to 5 C.F.R. § 1201.36, this appeal was part of a consolidation. U.S. Fleet
Forces Command – Galinas I v. Department of the Navy, MSPB Docket No.
DC-0752-15-0658-I-1.
2
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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
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 July 8, 2013, the agency subjected the appellant to a furlough for
6 discontinuous days. Initial Appeal File (IAF), Tab 1 at 5, 8-17. He received
the agency’s decision notice on June 25, 2013. Id. at 3. He filed an appeal with
the Board regarding the furlough on September 30, 2013, and declined a hearing.
IAF, Tab 1.
¶3 On May 7, 2015, the administrative judge issued an order informing the
appellant that his appeal appeared to be untimely because it was filed more than
30 days beyond both his receipt of the agency’s decision notice and the effective
date of the agency’s action. 3 IAF, Tab 4. He ordered the appellant to file
3
The agency’s decision notice stated that a Board appeal must be filed “within 30 days
after the effective date of your first furlough day, or 30 days after the date of your
receipt of this decision, whichever is later.” IAF, Tab 1 at 15 (emphasis added). To the
extent that the administrative judge should have inquired into the first date the appellant
actually served his furlough, rather than relying on the effective date of the agency’s
decision, we discern no harm. See Panter v. Department of the Air Force,
22 M.S.P.R. 281, 282 (1984) (an adjudicatory error that is not prejudicial to a party’s
substantive rights provides no basis for reversal of an initial decision). The appellant’s
initial appeal form indicates that he served his first furlough day during the week of
July 8, 2013. IAF, Tab 1 at 5. The agency contends on review that the appellant served
his first furlough day on July 8, 2013. Petition for Review (PFR) File, Tab 4 at 6.
3
evidence and argument to satisfy his burden of establishing that his appeal was
timely filed or, if it was not, that good cause existed for the filing delay. Id.
¶4 The appellant failed to respond to the administrative judge’s order regarding
timeliness. See IAF, Tab 6, Initial Decision (ID). The administrative judge then
issued an initial decision dismissing the appeal, finding that it was untimely filed
without good cause. ID.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. He contends that he did not timely receive the administrative judge’s
order regarding timeliness due to problems with the Board’s e-Appeal system,
and that he was unable to timely file his appeal because he first pursued his claim
through the agency’s equal employment opportunity (EEO) process. Id. The
agency filed a response, to which the appellant did not reply. PFR File, Tab 4.
¶6 As to his failure to respond to the administrative judge’s order regarding
timeliness, the appellant claims that: (1) he believed email notifications he
received from the e-Appeal system were “merely status updates, not official
documents,” because they did not contain PDF attachments as was indicated when
he registered as an e-filer; (2) when he attempted to login into the e-Appeal
system, he repeatedly had “login problems” that resulted in him being locked out
of the system; (3) he was again locked out of the system on May 8, 2015, when he
made an error in entering the docket number while trying to view the document;
and (4) he was notified on May 11, 2015, “that the document had been unlocked,”
but he could not access the document until May 17 or 18, after the initial decision
was issued, because he had traveled out of town for a funeral due to “a death in
the family.” PFR File, Tab 1 at 4-5.
¶7 We are not convinced, based on the foregoing, that the appellant exercised
due diligence in pursuing his appeal. 4 Regardless, for the reasons set forth below,
4
We discern no basis for the appellant’s conclusion that e-Appeal notifications not
containing PDF attachments related to “status updates” rather than “official documents”
and, apparently, that he was not required to view so-called “status updates” in a timely
4
even if we were to consider the evidence and argument the appellant presents on
review regarding timeliness, it would not warrant a different outcome in this
appeal.
¶8 The appellant states that he was unable to timely file his Board appeal
because he first filed an EEO complaint, at which time the EEO counselor
informed him that his “complaint did not qualify as an EEO complaint” and
directed him to pursue a Board appeal. PFR File, Tab 1 at 4. He states that he
promptly filed his Board appeal upon receiving this information. Id.
¶9 In support of this argument, the appellant submits a letter from the agency’s
EEO counselor, indicating that the appellant sought EEO counseling on
August 29, 2013, and received counseling on September 27, 2013, after several
scheduling conflicts. Id. at 6. During EEO counseling, “it was determined that
[the appellant’s] furlough issue was not EEO related,” so the appellant decided to
pursue a Board appeal and withdrew his EEO contact. Id. The agency thus
closed the EEO matter and no further action was taken under EEO procedures.
Id.
¶10 The appellant’s evidence concerning his EEO contact does not establish
good cause for his filing delay. The appellant was required to file his Board
appeal no later than August 7, 2013, 30 days after the agency effected its furlough
action. 5 See 5 C.F.R. § 1201.22(b)(1). He did not contact the EEO counselor
manner. In fact, the Board’s regulations specify that e-filers must monitor activity in
the e-Appeal Repository to ensure receipt of all documents. 5 C.F.R. § 1201.14(j)(3).
Moreover, the appellant has not explained why the funeral he attended on May 11,
2015, prevented him from retrieving the document on that date, or why he did not
attempt to retrieve it for a week thereafter, particularly given that he had been aware of
and attempting to retrieve it for days prior. There also is no evidence that the appellant
took any steps to notify the administrative judge or the agency that he was having
difficulty viewing documents in the Repository, although he was clearly aware that such
documents existed.
5
As previously stated, it appears that the appellant served his first furlough day on
Monday, July 8, 2013, but, in any event, there is no dispute that it occurred no later
5
until August 29, 2013, 6 after the deadline to file a Board appeal had passed.
Thus, his contact with the EEO counselor cannot have affected his ability to
timely file a Board appeal under 5 C.F.R. § 1201.22. 7 He has proffered no other
explanation for waiting until September 30, 2013, to file his appeal. We therefore
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 United
States 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
than Friday, July 12, 2013. In the latter case, his deadline would have been Monday,
August 12, 2013. See 5 C.F.R. § 1201.23.
6
As the agency points out, an employee generally has 45 days from the effective date of
an action to initiate EEO contact, see 29 C.F.R. § 1614.105(a), and the appellant
appears to have first contacted the EEO counselor beyond this deadline. However, we
are not in a position to make a ruling as to the timeliness of the appellant’s EEO
contact. See Moore v. U.S. Postal Service, 91 M.S.P.R. 277, ¶ 6 (2002).
7
The mixed case time limits set forth at 5 C.F.R. § 1201.154 are inapplicable here
because the appellant withdrew his informal EEO complaint and never filed a formal
complaint of discrimination with the agency. See Cranston v. U.S. Postal Service,
106 M.S.P.R. 290, ¶ 8 n.1 (2007). To the extent that the appellant withdrew his EEO
complaint based on the incorrect representation by the EEO counselor that he could
pursue the matter with the Board, notwithstanding the fact that the deadline to file a
Board appeal had already passed, he may wish to raise that issue with the agency’s EEO
office. See Checketts v. Department of the Treasury, 91 M.S.P.R. 89, ¶ 9 n.2 (2002)
(where the appellant appeared to allege that she withdrew her EEO complaint before
exhausting the agency’s mixed-case procedure based on incorrect advice from the
agency, the Board advised her that she could petition the Board to reopen its final
decision in her appeal if the Equal Employment Opportunity Commission ordered the
agency to resume processing her EEO complaint and she exhausted the agency’s
mixed-case EEO procedure), aff’d, 50 F. App’x 979 (Fed. Cir. 2002).
6
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.
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
United States 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
7
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.